CASE LAW NO.

29/2019/AL REGARDING PROPERTY APPROPRIATED IN

“ROBBERY”

CASE LAW SITUATION:

The defendant used violence to attack the victim, causing the victim to become
defenseless in order not to pay the money that the defendant was obliged to pay for
the victim.

LEGAL SOLUTION:
In this case, the defendant must be prosecuted for criminal responsibility for the crime
of
“Robbery”.

Approved by the Council of Judges of the Supreme People's Court on August 22, 2019
and published under Decision No. 293/QD-CA of the Chief Justice of the Supreme
People's Court on September 9, 2019.

SOURCE OF THE CASE LAW:

Cassation Decision No. 20/2018/HS-GĐT of the Council of Judges of the Supreme
People's Court on October 15, 2018 on the case of “Robbery” to the accused Le Xuan
Q, born in 1993.
Case law content position: Section 1 of “People Court’s Judgment”.
Overview of the content of the case law:
- Overview of the case law:
The defendant used violence to attack the victim, causing the victim to become
defenseless
in order not to pay the money that the defendant was obliged to pay for the victim.
- Legal solution:
In this case, the defendant must be prosecuted for criminal responsibility for the crime
of “Robbery”.
The law provisions related to the case law:
Article 133 of Criminal Code 1999 (corresponding to Article 168 Criminal Code
2015).
- Keywords of the case law:
“Robbery”; “property appropriated”; “the money that the defendant was obliged to
pay”

CONTENT OF THE CASE:

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On January 19, 2015, around 10:00 PM, Le Xuan Q, Tran Xuan L, Nguyen Van L,
Truong Sy T, Ha Thi Thu H and H1, Bin (unknown identity) went to Room 203,
karaoke bar M in ward H, district L, Da Nang City, owned by Mr. Nguyen Thanh H.
At about 11:30 PM, Q and Nguyen Van L stayed to pay for the service, the others
went home. Mr. Vo Minh T, who was assigned to manage the karaoke bar, checked the
room and gave them the payment slip of 408.000 VND. Le Xuan Q paid him 208.000
VND and a cell phone and said that he would return to pay the entire amount of
200.000 VND and take back the cell phone, but Ms. Vo Minh T did not agree. At that
time, Truong Sy T rode the motorbike to pick Q and Nguyen Van L, Q said
that he would go home to take money, and Nguyen Van L and Truong Si L would wait
for him at the bar. Q rode the motorbike to meet Tran Xuan L and H1, told Tran Xuan
L to bring his cell phone to the bar to mortgage, but Tran Xuan L did not agree. Q told
Tran Xuan L and H1 to go back to the karaoke bar to beat the staff in the shop to let
Nguyen Van L and Truong Sy T flee and repudiate the amount of 200,000 VND. Tran
Xuan L and H1 agreed. After that, Le Xuan Q took Tran Xuan L and H1 to the bush
near Apartment Building I in Ward H,District L, Da Nang City and asked H1 and Tran
Xuan L to pick up two 60 cm long machetes previously stored by Q. Tran Xuan L and
H1 each took a machete and got back to Karaoke bar M. On January 20, 2015, around
00:00 PM, Le Xuan Q rode the motorbike to karaoke bar M. While he was sitting on
the motorbike, H1 and Tran Xuan L took a machete and rushed into the karaoke bar.
Seeing that, Nguyen Van L and Truong Sy T fled. Tran Xuan L and H1 picked up a
machete and chased the bar staff. Mr. Dinh Duc T and Mr. Vo Minh T ran to the
restroom. Mr. Nguyen Thanh H ran to the second floor and closed the door. Mr. Phan
Thanh T, who was the guard of the bar, ran out to escape. Tran Xuan L stopped at the
counter and saw two black Hanet tablets in the drawer. Tran Xuan L withheld two
tablets and went out. At that time, H1 went out. Both of them got in the motorbike
ridden by Le Xuan Q and escaped. On the way to escape, H1 and Tran Xuan L threw
2 machetes along Nguyen Sinh S street (the exhibit cannot be recovered). When
coming to Apartment Building F, Tran Xuan L gave out two tablets and told the others
that he took them at Karaoke bar M. Then,asked the others to return the tablets to
Karaoke bar M. Tran Xuan L said that the police would arrest them if they returned
the tablets. Le Xuan Q said "I'm not involved" and went home to sleep. The next day,
Le Xuan Q returned the motorbike to Tran Xuan L and escaped. Tran Xuan L sold the
tablets to an unidentified man for VND 1,100,000 and spent it all. The two tablets are
not recovered.
At Conclusion No. 33/KL-HĐĐG dated May 28, 2015 of the Asset Valuation Council,
the remaining value of 02 used Hanet 10S tablets was VND 12,000,000.
During the investigation, Ms. Phan Thi C (Tran Xuan L's mother) compensated Mr.
Nguyen Minh T for the amount of VND 7,000,000. Mr. Nguyen Minh T received the
compensation and did not claim anything else.

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In the First-instance Criminal Judgment No. 77/2015/HSST dated December 19, 2015,
the
People's Court of Lien Chieu District, Da Nang City applied Point d, Clause 2, Article
133;
Points b and p, Clause 1 and Clause 2, Article 46; Points g and n, Clause 1, Article 48
of the
Criminal Code 1999, made Le Xuan Q carry a penalty of 07 (seven) years of
imprisonment for "Robbery".
In addition, the First Instance Court also made Tran Xuan L carry a penalty of 07
(seven)
years of imprisonment for "Robbery", decided on the court fees and declared the right
to appeal according to law provisions.
On December 21, 2015, Le Xuan Q appealed on not accepting the charge of
"Robbery". Tran Xuan L appealed for a penalty reduction.
In the Criminal Appellate Judgment No. 78/2016/HSPT dated April 20, 2016, the
People's Court of Da Nang City, based on Point b, Clause 2, Article 248; Point C,
Clause 1, Article 249 of the Criminal Procedure Code 2003, decided to amend the
First-instance Court
Judgment: To apply Clause 1, Article 314; Point p, Clause 1, Article 46; Point g,
Clause 1,
Article 48 of the Penal Code, made Le Xuan Q carry 03 (three) years of imprisonment
for
"Misprision" (In addition, the Court of Appeal reduced the penalty for Tran Xuan L
from 6
years to 05. years of imprisonment for "Robbery").
At Decision No. 26/2017/KN-HS-VC2 dated April 11, 2017, the Head of the Collegial
People's Procuracy in Da Nang protested against the Criminal Appellate Judgment
No. 78/2016/HSPT through the cassation procedure and requested the Collegial
People's Court in Da Nang to cancel the punishment against Le Xuan Q in the
Appellate Judgment and First-instance Judgment for re-investigation.
At Decision No.61/2017/QD-VC2 dated July 27, 2017, the Head of the Collegial
People's Procuracy in Da Nang amended the Decision No. 26/2017/KN-HS- VC2
dated April 11, 2017 to aim at requesting the Collegial People's Court in Da Nang
cancel the crime and the punishment against Le Xuan Q for re-appellate trial.

At the Cassation Decision No. 38/2017/HS-GDT dated September 18, 2017, the
Council of
Judges of the Collegial People's Court in Da Nang decided to cancel the Appellate
Criminal
Judgment on the crime and the punishment against Le Xuan Q for re-appellate trial.

3
At Decision No. 16/2018/KN-HS dated May 22, 2018, the Chief Justice of the
Supreme People's Court protested against the Cassation Decision No.
38/2017/HS-GDT dated
September 18, 2017 of the Committee of Judgesof the Collegial People's Court in Da
Nang and requested the Council of Judges of the Supreme People's Court to conduct a
cassation procedure to cancel the aforementioned Cassation Decision and adjust the
Criminal Appellate Judgment No.78/2016/HSPT dated April 20, 2016 of the People's
Court of Da Nang city on the section of Le Xuan Q’s criminal responsibilities.
At the cassation trial, the representative of the Supreme People's Procuracy agreed
with the
Decision to institute the cassation procedure of the Chief Justice of the Supreme
People's Court and requested the Council of Judges of the Supreme People's Court to
cancel the Cassation Decision of the Judicial Committee of theCollegial People's
Court in Da Nang for theretrial under the cassation procedure.

ASSESSMENT OF THE COURT:

[1] The testimonies of Le Xuan Q matched with ones of Tran Xuan L, Mr. Vo Minh T,
Mr. Nguyen Thanh H (staff and owner of Karaoke bar M) about the details of the case.
There is a basis to specify that after discussing and mutually agreeing, on January 20,
2015, around
00:00 PM, Le Xuan Q, Tran Xuan L and H1 brought 02 machetes to Karaoke bar M.
Q waited outside the bar when Tran Xuan L and H1 picked up the machetes and
chased the staff of the bar to relieve Nguyen Van L and Truong Sy T in order not to
pay 200,000 VND owed for the Karaoke service. Thus, that the defendants used
violence to attack the victim to relieve the accomplices in order not to pay the money
that the defendant was obliged to pay for the victim constitutes the “Robbery”.
[2] Le Xuan Q did not directly hold the machete to chase the staff of Karaoke bar M
but he discussed, prepared the weapons, took Tran Xuan L and H1 to Karaoke M to
perform
criminal acts, so Q was an accomplice in the acts of robbery with the amount of VND
200,000. That the First-instance Courts applied Point d (using a dangerous weapon,
device or other dangerous methods), Clause 2, Article 133 of Criminal Code 1999 to
sentence Le Xuan Q for “Robbery” was lawful.
[3] After the First-instance trial, Le Xuan Q appealed that he did not commit the
"Robbery". The Appellate Court determined that Q and Tran Xuan L did not commit
"Robbery" for the
amount of VND 200,000, but did not declare that Q did not commit that crime and
suspended the trial. The Court re-sentenced Q for "Misprision" for not reporting Tran
Xuan L’s act of robbing two tablets. Thus, the Appellate Court violated the provisions
of Article 196

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Criminal Procedure Code 2003 regarding the limits of trial when sentencing Q for the
acts not investigated and not prosecuted.
[4] The Cassation Decision of the Committee of Judges of the Collegial People's
Court in Da Nang determined that Le Xuan Q did not commit a crime "Misprision"
and the Appellate Court sentenced Q to this crime was unfounded. It was necessary to
cancel the crime
and the penalty for the retrial under the appellate procedure. However, in the assation
decision, there were no guides for the Appellate Court for judging Le Xuan Q for any
crime and the effect of the First-instance Judgment was not mentioned which caused
difficulties for the Court Appellate when re-hearing.
[5] Le Xuan Q was arrested on September 30, 2015. Until May 31, 2016, he served his
sentence at Binh Dien Prison. During the execution of the sentence, Binh Dien Prison
and
Le Xuan Q did not receive a Decision to institute the cassation procedure of the Head
of
Collegial People's Procuracy in Da Nang and Cassation Decision of the Committee of
Justices of the Collegial People's Court in Da Nang. It was not shown in the
"Recipient" section of these Decisions that they would be sent to the Prison and Q. As
a result, Binh Dien Prison reduced the term of serving the sentence for Q. On
February 10, 2018, Q completed the penalty of 03 years in prison. Thus, the
Committee of Justices of the Collegial People's Court in Da Nang did not comply with
Article 288 of the Criminal Procedure Code 2003 to hand over the cassation decision.
[6] Regarding the penalty for Le Xuan Q: It was lawful when the First-instance Court
sentenced Le Xuan Q to the "Robbery", but the term of 07 years imprisonment for this
crime was more severe when compared to the nature and danger to society caused by
Q’s crime.
When re-trying under the appellate procedure, the People's Court of Da Nang City
should consider, comprehensively and objectively assess the criminal acts of Q, and at
the same time consider that Q has completely served the 3-year imprisonment
according to the Appellate Judgment No. 78/2016/HSPT dated April 20,2016 to
decide the appropriate penalty for Le Xuan Q.
Therefore,

DECISION:

According to Article 382, Clause 3 Article 388, Article 391 of the Criminal Procedure
Code
2015:
1. Canceling the Cassation Decision No. 38/2017/HS-GĐT dated September 18, 2017
of the Committee of Judges of the Collegial People's Court in Da Nang and Criminal

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Appellate Judgment No. 78/2016/HSPT dated April 20, 2016 of the People's Court of
Da Nang City on Le Xuan Q’s criminal responsibility.
2. Handing the case over to the People's Court of Da Nang City for re-trying under the
appellate procedure according to the law provisions.

CONTENT OF THE CASELAW

“[1] ... that the defendants used violence to attack the victim to relieve the
accomplices in order not to pay the money that the defendant was obliged to pay for
the victim constitutes the “Robbery”.