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Case law No. 01/2016/AL (full English version)

Case law No. 01/2016/AL: This case law was passed by the Council of Judges of the Supreme People’s Court on 6 April 2016 and issued under the Decision No. 220/QD-CA dated 6 April 2016 by the Chief Justice of the Supreme People’s Court.

Source of the Case law: http://caselaw.vn/ban-an/pq04MgHegI

Cassation decision No. 04/2014/HS-GDT dated 16 April 2014 of the Council of Judges of the Supreme People’s Court on “Murder” case against the offender: Dong Xuan Phuong, born in 1975; residing at No 11/73, Dinh Tien Hoang Street, Hoang Van Thu Ward, Hong Bang District, Hai Phong City; a construction worker; son of Mr. Dong Xuan Chi and Mrs. Duong Thi Thong; taken into custody on 22 June 2007.

Victim: Nguyen Van Soi, born in 1971 (dead).

Background of the case law:

For the case with accomplices, if it can be proven that the subjective consciousness of the instigator is to hire other person(s) to hurt the victim without any intention to deprive the victim’s life (the instigator only wishes to injure the victim’s legs and arms without attacking the vulnerable parts of the body which might put him to death); the accomplices acted as requested by the instigator; the death of the victim is unexpected to the instigator, then the instigator shall be liable for the crime of “Intentionally inflicting injury” with detail framing the sentence is “causing injury leading to human death”.

Relevant laws of the case law:

-  Article 93.1(m) and (n) of the Criminal Code 1999;

-  Article 104.3 of the Criminal Code 1999.

Key words of the case law:

“Murder”, “Intentionally inflicting injury ”, “Causing harm to the health of other persons”, “crimes of infringing upon human life and health”, “hiring other persons to inflict injuries”.

CONTENT OF THE CASE

At around 15.00 on 21 June 2007, the Police of Long Bien District received a report of a homicide just happened, the victim’s dead body was found at the concrete beams in the construction areas of Thanh Tri Bridge within the area of Team 12, Thach Ban Ward, Long Bien District. The victim was Mr. Nguyen Van Soi (a construction engineer of Construction Joint-stock Company 204 of Bach Dang Construction Corporation. After investigation and verification, the Police of Long Bien District immediately arrested Dong Xuan Phuong.

According to the result of the investigation, both Nguyen Van Soi and Dong Xuan Phuong worked for Construction Joint-stock Company 204 of Bach Dang Construction Corporation (they were assigned to executive for the construction of Thanh Tri Bridge). Around February 2007, Phuong was taken photograph and reported to the Company’s leader by Soi when he was drinking alcohol during the working. For this reason, Phuong had intention to revenge Soi.

On 14 June 2007, Dong Xuan Phuong made a phone call to his friend, Doan Duc Lan, born in 1975 (residing at No. 11 C98 Trai Chuoi, Hong Bang District, Hai Phong City) telling Lan about the conflict and hired him to beat Lan for revenge. Lan informed Phuong that he would recommend another person to do so. In the evening of 17 June 2007, Phuong, from Hanoi, went to Hai Phong to meet Lan and Lan’s friends, Hoang Ngoc Manh, born in 1982 (another name of Manh is Thang, residing at So Dau Ward, Hong Bang District, Hai Phong City). Phuong retold the conflict between him and Soi and hired Lan and Manh to beat Soi by using knives to injure Soi’s legs and arms. Dong Xuan Phuong asked for the hiring price and eventually, gave Lan and Manh VND 1,500,000 after they did not request for a specific price.

At around 20.00 on 20 June 2007, Hoang Ngoc Manh with his friend, Nam (unknown address) went to Hanoi to meet Dong Xuan Phuong. They agreed that they would beat Soi on 21 June 2007. After that, Phuong gave Manh VND 500,000 to hire an accommodation. Ataround 9.00 on 21 June 2007, after Phuong took Manh and Nam to the path where Soi would go through to the meeting in that afternoon, he went back to the Company. At around 11.00, Hoang Ngoc Manh came to a street stall at the crossroads of Highway 5 – 1B (Pham Thi Mien’s stall) to hire Mien’s cell phone and called Dong Xuan Phuong to ask for identification of Soi and Soi’s phone number as well. Phuong did as requested. At around 13.00, Manh hired Mien’s cell phone again to contact Phuong, informing him that he had identified Soi and he would do the plan on his own as Nam had left without any notice. Dong Xuan Phuong agreed with that.

At around 14.16 on the same day, Manh used Mien’s cell phone to call Soi and asked for meeting at the concrete beams area. When Soi showed up, Manh used the knife to stab twice into the back of Soi’s right thighcausing Soi’s death.

At the Report on Forensic Test No. 146/PC21-PY dated 17 July 2007, Criminal Technical Department – Hanoi Police concluded: the victim had two wounds on the back of his right thigh, the higher wound penetrated 3 centimeters into the thigh muscle, the lower wound cut the femoral artery and vein which caused bleeding too much. Cause of the death: uncontrolled hemorrhagic shock due to serious injury of femoral artery.

Besides, during the investigation, Dong Xuan Phuong stated: Beside the personal conflict between him and the victim, his action of hiring people to hurt Soi was also from Mr. Ngo Van Toan’s provocation because Toan and Soi also had conflict. The investigation body took Toan’s statement where Toan denied the alleged involvement. As a result, the investigation body had no basis to conclude that Toan was related to the case.

Doan Duc Lan and Hoang Ngoc Manh ran away, the investigation body issued a wanted warrant and decided to suspend the investigation over Doan Duc Lan and Hoang Ngoc Manh. They would be dealt later after being arrested.

During the investigation, Construction Joint-stock Company 204 and its staffs voluntarily donated to support the victim’s family with the total amount of VND 123,000,000 of which the funeral expense is VND 63,000,000 and 3 saving books for Soi’s family with the total deposits of VND 60,000,000.

At the first-instance Criminal Judgment No. 164/2008/HSST dated 17 November 2008, the People’s Court of Hanoi applied Article 93.1(n) and Article 46.1(p) of the Criminal Code to sentence Dong Xuan Phuong seventeen (17) years of imprisonment for “Murder” crime.

To force Dong Xuan Phuong to compensate for mental loss of the victim’s family the amount of VND 32,400,000 and provide financial support to the victim’s two (2) children and mother.

After the first-instance judgment, the accused, Dong Xuan Phuong, lodged an appeal to the higher court.

The victim’s legal representative, Ms. Nguyen Thi Thanh, lodged an appeal to propose a more severe punishment and higher compensation.

At the appellate Criminal Judgment No. 262/2009/HSPT dated 5 May 2009, the Appellate Court of the Supreme People’s Court in Hanoi applied Article 250.1 of the Criminal Procedure Code to cancel the first-instance judgment for reinvestigation under applicable procedures.

At the first-instance Criminal Judgment No. 167/2010/HSST dated 31 March 2010, the People’s Court of Hanoi applied Article 93.1 and Article 46.1(p) of the Criminal Code to sentence Dong Xuan Phuong seventeen (17) years of imprisonment about “Murder” crime.

To compel Dong Xuan Phuong to pay the victim’s family the following compensations: VND 34,583,000 for the funeral expenses, VND 39,000,000 for mental loss of the victim’s wife and children and monthly financial support to the victim’s family.

After the first-instance judgment, Dong Xuan Phuong appealed the judgment to ask for reducing the level of punishment and reconsidering the case because Manh had not been arrested and thus, there was no sufficient ground to assert that Soi was killed by Manh.

On 13 April 2010, the victim’s wife, Mrs. Nguyen Thi Thanh, appealed the judgment to propose a more severe punishment on the accused and higher compensation from him.

At the appellate Criminal Judgment No. 475/2010/HSPT dated 15 September 2010, the Appellate Court of the Supreme People’s Court in Hanoi applied Article 93.1(m), (n) and Article 46.1(p) of the Criminal Code to sentence Dong Xuan Phuong life imprisonment for “Murder” crime, compelled Dong Xuan Phuong to pay compensation for mental loss with the amount of VND 43,800,000 and remained other relevant rulingson compensation.

At the Protest No. 13/KN-HS dated 22 July 2013, the Chief Justice of the Supreme People’s Court requested the Trial Panel of the Supreme People’s Court to handle the case according to the cassation procedures, cancel the above Appellate Criminal Judgment on the following parts: crime, punishment and legal costs for appellate criminal procedure upon Dong Xuan Phuong; refer the case to the Appellate Court of the Supreme People’s Court in Hanoi to conduct the appellate procedure in accordance with the prevailing laws.

At the trial, the representative of the Supreme People’s Procuracy agreed with the Protest of the Chief Justice of the Supreme People’s Court.

The Council of Judges of the Supreme People’s Court considers:

On the basis of the following evidences: accused’s statement during the investigation and at the first-instance and appellate trials, statements and identification results of witnesses and persons related to the case, report on crime scene examination, record on forensic examination and other relevant documents, it has come to the conclusion as follows: Due to conflicts arising from relation, Dong Xuan Phuong hired Hoang Ngoc Manh and Doan Duc Lan to stab Nguyen Van Soi by using a knife to cause him injury. According to the case record, there has ground to assert that Phuong only wanted to injure Soi but not to take his life, also Phuong did not want Manh to randomly stab into Soi regardless any consequence. That was the reason why the accused only requested Manh to attack the victim’s legs and arms but no other important parts of the body which might lead to the death of the victim. When committing crime, Manh followed Phuong’s instruction to stab only twice into the victim’s thigh. It is hard to foresee the death of the victim due to Manh’s offense. The fact that the victim died due to uncontrolled hemorrhagic shock was beyond the expectation of Dong Xuan Phuong and his accomplice. Dong Xuan Phuong’s offense is regulated in Article 104.3 of the Criminal Code which is the case of intentionally inflicting injury leading to human death. Therefore, the judgment of the courts at levels of first-instance and appellate that Dong Xuan Phuong committed “Murder” crime was not in compliance with the law.

On the basis of the foregoing and pursuant to Article 285.3 and Article 287 of the Criminal Procedure Code,

DECIDES

1.  To cancel the Appellate Criminal Judgment No. 475/2010/HSPT dated 15 September 2010 of the Appellate Panel of the Supreme People’s Court in Hanoi on the following parts: crime, punishment and legal cost for appellate criminal procedure upon Dong Xuan Phuong; to refer the case  to the Supreme People’s Court in Hanoi to handle it under the appellate procedure in accordance with the prevailing laws.

2.  To continue keeping Dong Xuan Phuong in custody until the Appellate Court of the Supreme People’s Court in Hanoi agrees to re-handle the case.

3.  Other rulings of the Appellate Criminal Judgment have been effective.

CONTENT OF THE CASE LAW

“According to the case record: there has ground to assert that Phuong only wanted to injure Soi but not to take his life, also Phuong did not want Manh to randomly stab into Soi regardless any consequence. That was the reason why the accused only requested Manh to attack the victim’s legs and arms but no other important parts of the body which might lead to the death of the victim. When committing crime, Manh followed Phuong’s instruction to stab only twice into the victim’s thigh. It is hard to foresee the death of the victim due to Manh’s offense. The fact that the victim died due to uncontrolled hemorrhagic shock was beyond the expectation of Dong Xuan Phuong and his accomplice. Dong Xuan Phuong’s offense is regulated in Article 104.3 of the Criminal Code which is the case of intentionally inflicting injury leading to human death. Therefore, the judgment of the courts at levels of first-instance and appellate that Dong Xuan Phuong committed “Murder” crime was not in compliance with the law.”

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