Criminal appeal judgment no. 466/2020/HS-PT dated September 23, 2020 on the crime of fraudulently appropriating property
PEOPLE'S HIGH COURT IN HANOI
CRIMINAL APPEAL JUDGMENT No. 466/2020/HS-PT DATED SEPTEMBER 23, 2020 ON THE CRIME OF FRAUDULENTLY APPROPRIATING PROPERTY
On September 23, 2020, at the headquarters of the Bac Ninh Provincial People's Court, the People's High Court in Hanoi opened an appellate trial for the criminal case No. 812/2019/TLPT-HS accepted on October 11, 2019, against defendants Phùng Văn T and Hoàng Văn G for the crime of "Fraudulently Appropriating Property" due to the appeal of the victims against the First-Instance Criminal Judgment No. 43/2019/HS-ST dated August 28, 2019, of the Bac Ninh Provincial People's Court.
Defendants under appeal:
Phùng Văn T, born in 1977; Registered permanent residence: Group 4, M residential area, T ward, N district, Hanoi city; Current residence: Room 509, CT4-4 building, M urban area, T ward, N district, Hanoi city; Nationality: Vietnamese; Ethnicity: Kinh; Gender: Male; Religion: None; Education level: 12/12; Occupation: Business; Son of Mr. Phùng Văn H, born in 1945, and Ms. Nguyễn Thị B, born in 1947; Married to Nguyễn Thị Ngọc B, born in 1978, with 02 children, the elder born in 2002, the younger born in 2008; Prior convictions: None; Background: Was a Party member active in the Pharmaceutical Company B's Party Cell, transferred Party activities in July 2011 but did not transfer the records to the new place of activity and voluntarily stopped Party activities from July 2011. The defendant was temporarily detained from August 5, 2016, to December 2, 2016, currently released on bail (present).
Hoàng Văn G, born in 1980; Registered permanent residence and current residence: Hamlet 4, V commune, V district, Bac Giang province; Nationality: Vietnamese; Ethnicity: Kinh; Gender: Male; Religion: None; Education level: 12/12; Occupation: Business; Son of Mr. Hoàng Văn Th, born in 1958, and Ms. Thân Thị Y, born in 1960; Married to Thân Thị Th, born in 1979; with 02 children, the elder born in 2008, the younger born in 2012; Prior convictions: None; Background: On October 25, 2006, was sentenced by the Yen Phong District People's Court, Bac Giang province, to 12 months of imprisonment for the crime of "Fraudulently Appropriating Property," completed the sentence on June 19, 2007; The defendant was temporarily detained from July 23, 2018, currently under temporary detention at the Bac Ninh Provincial Police Detention Center (present).
Defense Counsel for Defendant Phùng Văn T: Mr. Phạm Tiến Quyển – Lawyer, Q Law Company Limited – Bac Ninh Provincial Bar Association (requested absent trial and submitted written arguments).
Defense Counsel for Defendant Hoàng Văn G: Mr. Vũ Văn Ngh – Lawyer, T Law Company Limited – Bac Ninh Provincial Bar Association (present).
Victims with appeals:
Mr. Hoàng Long C, born in 1966; Residing at: Zone C, L town, L district, Lang Son province (present);
Ms. Đào Thị A, born in 1961; Residing at: Zone A, L town, L district, Lang Son province (present);
Ms. Hồ Thị L, born in 1962; Residing at: Tan Lap area, L town, L district, Lang Son province (present);
Ms. Đặng Hồng Ph, born in 1957; Residing at: Hamlet D1, H commune, L district, Lang Son province (present). Legal representatives for Mr. Hoàng Long C, Ms. Đào Thị A, Ms. Hồ Thị L, and Ms. Đặng Hồng Ph are Mr. Ngô Thành Ba and Mr. Trương Quốc Hòe – Lawyers of I Law Office under the Hanoi Bar Association (Mr. Hòe present).
Victim without appeal: Mr. Trần Văn Ph, born in 1949; Residing at: P Village, V commune, L district, Lang Son province (present).
CASE SUMMARY
According to the documents in the case file and the proceedings at the trial, the content of the case is summarized as follows:
A Humanitarian Service and Support Joint Stock Company (abbreviated as Company A), headquartered at: No. 3, Block A, Trung Yên 6 area, Yên Hòa ward, Cầu Giấy district, Hanoi city, was founded by the following founding shareholders: Phùng Văn T – Chairman of the Board of Directors cum Director; Hoàng Văn G; and Phúc Thị Th (Th did not contribute capital, only worked as an accountant and office staff in the Company). The Company's registered tax code is 0107124262, and it was granted a business registration certificate by the Hanoi Department of Planning and Investment on November 19, 2015. Its business lines include: passenger transportation, food and beverage services, real estate, advertising, motorcycle repair and maintenance, automobile trading, and construction.
After its establishment, Company A did not engage in production, business, or service activities and was not granted a license by the competent authority to establish the "A Humanitarian Fund," operating in the charity sector. With the intention of fraudulently appropriating property, T and G colluded to establish the A Humanitarian Support Fund, hired the design of a website address: nhandaoanhminh.com, and developed collaborator management software. This software was fully controlled by T regarding content such as participant names, addresses, phone numbers, ID card numbers, account names, participation codes, participation amounts, support payments, etc. Subsequently, T and G devised the "A Humanitarian Support Fund Development Program" called "Golden Gratitude," operating as a multi-level marketing scheme, in the form of support payments using the algorithm "taking money from later participants to pay earlier participants." This meant that upon joining the program, participants would open an IP account on the Company's website: nhandaoanhminh.com, and they had to contribute a minimum of VND 900,000 per code to participate and receive support from the Company up to a maximum of VND 1,600,000 per code. The support payments were divided into 03 installments with the following conditions:
1st Support: After the first member, for every new member joining, the first member receives the 1st support payment of VND 200,000.
2nd Support: After the first member, for every two new members receiving the 1st support, the first member receives the 2nd support payment of VND 500,000.
3rd Support: After the first member, for every three new members receiving the 2nd support, the first member receives the 3rd support payment of VND 900,000.
To attract more participants, T and G calculated high support payments, aiming to exploit the greed of participants through the following scheme: Participants contribute VND 900,000 per code and can receive a maximum of VND 1,600,000 per code upon fulfilling the above conditions. A high commission of VND 200,000 per code was offered to those who referred others to participate with VND 900,000 per code, while T and G's Company only collected VND 700,000 per code. By devising the "Golden Gratitude" program and such a high commission and support payment algorithm, T and G would benefit from approximately 14% of the total revenue from the first 5,000 codes and then continue to benefit from approximately 11% of the total revenue from subsequent codes. If the program attracted no more participants and the website system stopped, T and G would return approximately 70% of the principal to the participants, resulting in a 30% loss for the participants, which they might still accept, allowing T and G to profit by 30%.
Subsequently, around early December 2015 (the exact date is unknown), T and G organized a seminar at the Suối Hoa Hotel, Suối Hoa ward, Bac Ninh city, to advise, introduce, and lure customers into the "Golden Gratitude" program. Here, T and G presented untrue information to the seminar attendees, such as "Charity organization for schools in remote and mountainous areas, establishment of a Company fund, deposit of VND 5 billion with the State, establishment of the A Humanitarian Support Fund licensed by the Ministry of Home Affairs, construction of an orphanage in Dong Anh, charity work for poor households nationwide..." They also introduced the support fund development program with high commission and support payment methods to exploit greed and attract many participants as T and G had planned. Participants registered accounts on the website nhandaoanhminh.com. After participants paid the corresponding amount for the code, T would use system administration rights to activate the participant's account, allowing T and the participant to jointly track and confirm the participation code, payment amount, and support amount the participant would receive. Later, due to the low number of participants, T and G introduced the "Spring Fortune" program, where participants had to pay VND 300,000 per code and could receive a maximum of VND 600,000 per code. The payments were divided into 03 stages:
Stage 1: After the first participant, for every new participant joining, the first participant receives an exit payment of VND 50,000.
Stage 2: After the first participant, for every two new participants receiving the Stage 1 exit payment, the first participant receives a Stage 2 exit payment of VND 150,000.
Stage 3: After the first participant, for every three new participants receiving the Stage 2 exit payment, the first participant receives a Stage 3 exit payment of VND 400,000.
Due to the inability to pay participants, around early February 2016, T informed participants that the Company would cease operations on the website system and stop all payments to participants. At the end of February 2016, the victims in Bac Ninh province filed a complaint against the actions of T and G with the Bac Ninh Provincial Police Investigation Agency. Based on the electronic data on the website system, the total amount paid by participants, support payments, commissions, and the amount T and G appropriated from the victims in the "Golden Gratitude" and "Spring Fortune" programs in Bac Ninh, Bac Giang, Lang Son, Thai Nguyen, Hanoi, Hung Yen, Hai Duong, Hai Phong, Thai Binh, Vinh Phuc, Phu Tho, and Nghe An provinces were identified as follows:
195 victims directly registered on the website nhandaoanhminh.com suffered a total loss of VND 4,576,600,000 (having contributed a total of VND 12,058,400,000, of which VND 7,481,800,000 was paid out by T and G as exit payments and commissions). Of this amount, T gave G VND 253,000,000, advanced Th VND 50,000,000 as salary, and used the remaining VND 4,273,600,000 for personal expenses.
17 participants benefited from exit payments and referral commissions totaling VND 662,700,000 (having paid T VND 2,889,300,000 and received VND 3,519,000,000 in payments from T and G).
235 people were listed on the website nhandaoanhminh.com but did not participate themselves, lending their ID cards to others or being listed in the Company's system without any requests.
185 participants could not have their specific addresses and the amount of their losses determined during the investigation.
At the Investigation Agency, Phùng Văn T and Hoàng Văn G confessed to their criminal acts. They stated that after its establishment, Company A had no production or business activities and was not licensed by the competent authority to establish the "A Humanitarian Fund" operating in the charity sector. According to legal regulations, the establishment of a joint-stock company requires 03 founding shareholders, so T and G invited Th to become a shareholder, but Th did not contribute capital. T and G only hired Th as an accountant, cashier, and office staff for the Company. The business operations, organization of seminars, consulting, charity work, etc., were all decided and agreed upon by T and G without consulting Th. The VND 50 million was an advance salary payment from T to Th. Regarding customers who purchased multiple codes from the Company, T and G asked these individuals to act as intermediaries, advising others to join and collecting and paying money to customers for support and exit payments, and receiving commissions, which they then used to invest in purchasing more customer codes. However, these intermediaries were unaware that T and G were defrauding to appropriate property. After establishing the Company, T and G rented an office for transactions and purchased 02 computers for Company documents but did not use these computers to enter customer codes. When the Company ceased operations and the rented office was returned, T sold the 02 computers to unknown individuals and could not recover them. All customers who purchased codes either transferred cash to T or transferred money to T's personal account. T directly managed all customer funds and handled all receipts and disbursements.
During the investigation, the Investigation Agency verified:
Document No. 1678/SNV-CTTN & QLH dated July 11, 2016, of the Hanoi Department of Home Affairs concluded: "The charity fund of the A Humanitarian Service and Support Joint Stock Company" is not on the list of social funds or charity funds under the State management of the Hanoi City People's Committee. Currently, the Department of Home Affairs has not received any application for a license to establish and recognize the charter of the charity fund of the A Humanitarian Service and Support Joint Stock Company.
Document No. 342/TMĐT-QLHĐTMĐT dated July 5, 2016, of the E-commerce and Information Technology Agency – Ministry of Industry and Trade concluded: Currently, the website nhandaoanhmanh.com has not notified or registered as an e-commerce website with the Ministry of Industry and Trade as stipulated in Decree No. 52/2013/ND-CP of the Government.
Response Document No. 977/PTTH &TTĐT dated July 22, 2016, of the Radio, Television and Electronic Information Authority – Ministry of Information and Communications concluded: The website nhandaoanhminh.com has not been granted a license by the Radio, Television and Electronic Information Authority to operate as a general electronic information page or a social network.
Document No. 796/QLCT-P5 dated July 13, 2016, of the Vietnam Competition Authority – Ministry of Industry and Trade concluded: As of July 13, 2016, the A Humanitarian Service and Support Joint Stock Company has not been granted a multi-level sales registration certificate by the Vietnam Competition Authority as stipulated in Decree No. 42/2014/ND-CP and Circular No. 24/2014/TT-BCT.
Document No. 10938/CCT-KT2 dated June 16, 2016, of the Cau Giay District Tax Department, Hanoi city, concluded: Since its establishment, the A Humanitarian Service and Support Joint Stock Company has not engaged in any production or business activities and has not incurred any tax obligations.
During the investigation, Ms. Nguyễn Thị Ngọc B, T's wife, compensated 71 victims with VND 1,702,350,000 (including VND 253,000,000 given by Hoàng Văn G to Ms. Bích to jointly mitigate the consequences). Out of these 71 victims, Ms. Bích, through Hoàng Văn H, paid 29 people a total of VND 204,400,000. T and G have not yet compensated the remaining VND 2,874,250,000. In addition, Ms. Bích paid VND 130,000,000 for further consequence mitigation.
Th Thương mại và Dịch vụ du lịch Company Limited (abbreviated as Company Th), headquartered at: House No. 131, N Street, X Ward, Bac Ninh City, was granted a business registration certificate by the Bac Ninh Provincial Department of Planning and Investment on June 27, 2016. Ms. Thân Thị Th (G's wife) is the Director, and Hoàng Văn G is the Deputy Director. Its business lines include: travel agency, tour operation, short-term accommodation services, and it was not granted a multi-level business or financial mobilization license by the Vietnam Competition Authority – Ministry of Industry and Trade.
The establishment of Company Th was at G's request, with Ms. Th acting as the nominal head; Ms. Th was unaware of all Company activities. On October 13, 2017, Ms. Th issued a power of attorney to G, granting him full authority to organize, manage, and direct all business activities of the Company. During the business operation, G presented to everyone that Th Travel Company operated traditional tourism, where participants could travel and also earn profits from organizing those tours. However, Company Th did not operate according to the traditional tourism model proposed by G. Instead, G devised a scheme to sell discounted travel coupons. The sale of
...travel coupons in contracts signed with buyers was merely a formality, not representing actual goods or a specific product, but rather a multi-level marketing scheme, mobilizing capital by taking money from later participants to pay earlier participants and appropriating a portion of the participants' money. To attract participants, G devised a program to sign contracts for the supply of travel coupons with the following commission payments: When a customer purchases 01 travel coupon for VND 350,000, after 03 months, the participant will receive VND 450,000 in cash, of which the Company retains VND 50,000 to be included in a tour package if the participant takes a tour. On the other hand, to encourage participants to buy a large number of coupons, G introduced a program: If a participant buys 1000 or more coupons (equivalent to VND 350,000,000), they will receive a 10% commission on the amount paid by any new participant they refer. If the number of new coupon purchasers decreased while the number of previous purchasers was large and the Company did not have enough money to pay according to the initial advice, G would switch to organizing traditional tours, using the revenue to gradually pay the coupon purchasers. However, since its establishment, Company Th has not engaged in any actual business activities. The money G collected from participants was used to pay commissions to coupon buyers and for personal expenses.
Using the above-mentioned fraudulent methods, around the end of 2017, after being introduced by Ms. Đỗ Thị Phương, Ms. Ngô Thị Nh met with and purchased a total of 7000 coupons from G, totaling VND 2,450,000,000, through 03 contracts and receipts, including:
Contract and receipt dated October 26, 2017, for the purchase of 1000 coupons = VND 350,000,000;
Contract and receipt dated November 14, 2017, for the purchase of 3000 coupons = VND 1,050,000,000;
Contract and receipt dated November 16, 2017, for the purchase of 3000 coupons = VND 1,050,000,000;
Through these 03 contracts and receipts, G wrote specific commitments to Ms. Nh:
Commitment dated November 14, 2017, G received VND 1,350,000,000 for Ms. Nh and would pay as follows: VND 187,500,000 on November 20, 2017; VND 187,500,000 on November 27, 2017; VND 187,500,000 on December 4, 2017; VND 187,500,000 on December 11, 2017; VND 187,500,000 on December 18, 2017; VND 187,500,000 on December 25, 2017; VND 187,500,000 on January 1, 2018; VND 187,500,000 on January 8, 2018.
Commitment dated November 16, 2017, G received VND 1,500,000,000 for Ms. Nh and would pay as follows: VND 187,500,000 on November 20, 2017; VND 187,500,000 on November 27, 2017; VND 187,500,000 on December 4, 2017; VND 187,500,000 on December 11, 2017; VND 187,500,000 on December 17, 2017; VND 187,500,000 on December 24, 2017; VND 187,500,000 on January 1, 2018; VND 187,500,000 on January 8, 2018.
Subsequently, G paid Ms. Nh a total of VND 925,000,000 according to the following payment vouchers: VND 150,000,000 on November 14, 2017; VND 150,000,000 on November 16, 2017; VND 187,500,000 on November 16, 2017; VND 437,500,000 on December 4, 2017.
At the Investigation Agency, Nguyễn Văn G confessed to all his criminal acts. G stated that the establishment of Company Th was at his request, with his wife, Ms. Th, acting as the nominal head. All activities of the Company were controlled by G; he did not give any money to Ms. Th, and Ms. Th was unaware of G's sale of travel coupons. Since the establishment of the company, G sold travel coupons to several people and had fully paid them. Because Ms. Nh was the last participant, the money she paid was used by G to pay previous participants and for personal expenses, leaving no money to repay Ms. Nh. Of the VND 2,450,000,000 received, G paid Ms. Nh VND 925,000,000 through 3 payment vouchers and VND 300,000,000 in one transaction without a voucher. The remaining unpaid amount to Ms. Nh is VND 1,225,000,000.
In the First-Instance Criminal Judgment No. 43/2019/HSST dated August 28, 2019, of the Bac Ninh Provincial People's Court, it was decided:
Declared defendants Phùng Văn T and Hoàng Văn G guilty of the crime of "Fraudulently Appropriating Property."
Applied Point a, Clause 4, Article 174; Points b, s, Clause 1, Clause 2, Article 51; Point a, Clause 1, Article 52; Clause 1, Article 54; Article 38 of the 2015 Penal Code; Sentenced defendant Phùng Văn T to 10 (Ten) years of imprisonment for the crime of "Fraudulently Appropriating Property"; the term of imprisonment to be calculated from the date of enforcement, deducting the period of temporary detention from August 5, 2016, to December 2, 2016.
Applied Point a, Clause 4, Article 174; Point s, Clause 1, Clause 2, Article 51; Points a, g, Clause 1, Article 52; Article 38 of the 2015 Penal Code; Article 329 of the Criminal Procedure Code; Sentenced Hoàng Văn G to 14 (Fourteen) years of imprisonment for the crime of "Fraudulently Appropriating Property," the term of imprisonment to be calculated from the date of temporary detention, July 23, 2018.
Applied Articles 47, 48 of the 2015 Penal Code; Article 106 of the Criminal Procedure Code; Article 288 of the Civil Code:
Forced Phùng Văn T and Hoàng Văn G to jointly compensate the victims a total amount of VND 4,676,600,000, of which T must compensate VND 3,000,000,000 and G must compensate VND 1,676,600,000. T had compensated VND 1,449,350,000 during the investigation phase, and Ms. Nguyễn Thị Ngọc B had paid VND 130,000,000, so Phùng Văn T still has to compensate an additional VND 1,420,650,000. G had compensated VND 253,000,000, so G still has to compensate an additional VND 1,423,600,000. Specifically, the two defendants must compensate the victims, including Mr. Hoàng Long C VND 9,100,000, Ms. Đào Thị A VND 35,000,000, and Ms. Đặng Hồng Ph VND 280,000,000.
Acknowledged that Ms. Nguyễn Thị K did not request the two defendants T and G to compensate VND 31,300,000.
Forced Hoàng Văn G to compensate Ms. Ngô Thị Nh the amount of VND 1,225,000,000. The total amount G has to compensate is VND 2,648,600,000.
In addition, the First-Instance Court also made decisions regarding compensation for other victims, handling of material evidence, court fees, regulations on payment obligations, and notification of the right to appeal according to the law.
After the first-instance trial:
On September 12, 2019, the victim Ms. Hồ Thị L appealed for the review of the criminal liability of Hoàng Văn H and the civil liability, requesting the appellate court to compel defendants Phùng Văn T and Hoàng Văn G to jointly compensate her VND 36,900,000;
On September 12, 2019, the victim Ms. Đặng Hồng Ph appealed, stating that the first-instance court's order for the defendants to compensate her VND 280,000,000 was incorrect and that the defendants should be compelled to compensate her VND 429,000,000. She requested a review of the criminal liability of Hoàng Văn H and Nguyễn Thị Nh, who have related rights and obligations in the case, because Mr. Huân received VND 88,000,000 and Ms. N received VND 4,000,000 as exit bonuses from her to purchase new codes but did not do so (she herself had not received a single penny since investing in Company A, where Phùng Văn T was the director).
On September 17, 2019, the victim Mr. Hoàng Long C appealed for an increase in the sentences of defendants T and G, a review of civil compensation for him, and a review of the criminal liability of Hoàng Văn H and Nguyễn Thị Nh.
On September 17, 2019, the victim Ms. Đào Thị A appealed for an increase in the sentences of the defendants, a review of civil compensation for her, and a review of the criminal liability of Hoàng Văn H.
At the appellate trial, the victims and the defendants all acknowledged the presentations as stated in the first-instance judgment.
Ms. Hồ Thị L presented her appeal: Requested the Trial Panel to consider compelling defendants Phùng Văn T and Hoàng Văn G to jointly compensate her for the total amount of her loss, which is VND 36,900,000.
Ms. Đặng Hồng Ph presented her appeal: Requested the Trial Panel to consider compelling defendants Phùng Văn T and Hoàng Văn G to jointly compensate her for the total amount of her loss, which is VND 429,000,000.
Mr. Hoàng Long C presented his appeal: Requested the Trial Panel to consider compelling defendants Phùng Văn T and Hoàng Văn G to jointly compensate him for the total amount of his loss, which is VND 42,800,000.
Ms. Đào Thị A presented her appeal: Requested the Trial Panel to consider compelling defendants Phùng Văn T and Hoàng Văn G to jointly compensate her for the total amount of her loss, which is VND 59,000,000.
In addition, the victim Mr. Trần Văn Ph was summoned by the Court to the trial and requested the Trial Panel to consider compelling defendants Phùng Văn T and Hoàng Văn G to jointly compensate him for the total amount of his loss, which is VND 18,000,000.
Defendants Phùng Văn T and Hoàng Văn G agreed to jointly compensate the appealing victims as requested by the aforementioned victims and agreed to compensate Mr. Pho as requested by him.
The representative of the People's High Procuracy in Hanoi expressed their opinion on the resolution of the case:
Regarding procedure: The appeals of Ms. Đặng Hồng Ph, Ms. Hồ Thị L, Ms. Đào Thị A, and Mr. Hoàng Long C were filed within the statutory time limit and should be considered.
At the trial, Mr. Coóng and Ms. An changed their appeals and only requested consideration of the civil aspect. Therefore, it is proposed that the Trial Panel suspend the appellate trial regarding the appeal against the sentences of defendants T and G.
Regarding the merits: The defendants all admitted their actions as determined by the first-instance judgment. The defendants did not appeal, and the victims who appealed against the sentences changed their appeals at the appellate trial, no longer appealing against the sentences but only requesting resolution of the civil aspect.
At the appellate trial, the defendants and the victims reached an agreement on the amount of civil compensation. This is a voluntary agreement between the parties, which does not violate the law or social ethics, so it is proposed that the Trial Panel record the agreement between the parties.
Other parts without appeal or protest will not be considered.
In addition, during the resolution and trial under appellate procedure, Mr. Trần Văn Ph submitted a document titled "Appeal Petition." However, Mr. Pho was present at the first-instance trial (according to the trial record at BL4122), and by the time he submitted the petition, the appellate court had already opened the trial. Mr. Pho was present at the appellate trial and presented his request, which was accepted by the defendants. Therefore, it is proposed that the Trial Panel record the agreement between the defendants and Mr. Pho that the defendants will compensate Mr. Pho a total amount of VND 18,000,000.
Therefore, based on Article 348 of the Criminal Procedure Code, it is proposed to suspend the appellate trial regarding the appeal for increased sentences for the two defendants by the two victims, Mr. Coóng and Ms. An; based on Point b, Clause 1, Article 355, Point b, Clause 2, Article 357 of the Criminal Procedure Code, to accept the appeals of the 04 victims, amend the criminal judgment regarding a part of the civil aspect, and record the agreement between the victims and the defendants.
The legal representative for the victims presented: At the trial, the victims who appealed against the sentences of the 02 defendants withdrew this part of their appeal. Therefore, it is proposed that the Trial Panel consider suspending the appellate trial regarding this part of the victims' appeals. The victims only request consideration of the civil aspect, and at the trial, the victims requested that the defendants be compelled to jointly compensate the specific amounts that the victims had participated in under the names "Golden Gratitude" and "Spring Fortune," and the defendants all agreed. Therefore, it is proposed that the Trial Panel record this voluntary agreement between the defendants and the 04 victims.
The defense arguments for defendant Phùng Văn T included:
Regarding procedure: There were many errors during the proceedings, the entire objective truth was not clarified, and there were serious procedural violations, specifically: The role of Nguyễn Thị Hải in Yên Lã, Tân Hồng ward, Từ Sơn town, was not clarified; the amount of illegal profit Ms. Hải received from the victims in the area where she acted as a coordinator was unclear; the role of Hoàng Văn H in Bắc Giang was unclear; it is necessary to consider whether Huân was an active accomplice and the amount Huân appropriated in the case, thereby comparing it with T's criminal liability; the roles of Nhâm and Loan in Bắc Giang were unclear; the current accusations of fraudulent appropriation against T mainly focus on the Bắc Giang and Lạng Sơn coordinators, although the first-instance court returned the case file for further investigation, these issues were not clarified and remain unresolved, making the attribution of this amount to T for compensation inconsistent with the regulations in a case showing signs of complicity.
It is requested that the Trial Panel consider, based on Point c, Clause 1, Article 355 of the Criminal Procedure Code, to annul the first-instance judgment and transfer the case file for re-investigation or retrial.
The defense lawyer for defendant Hoàng Văn G presented: At the trial, the victims who appealed against the sentence of the defendant changed their appeal and withdrew the appeal against the sentence. Therefore, it is requested that the Trial Panel consider suspending the appellate trial regarding the victims' appeal against the sentence.
Regarding the civil aspect: At the trial, defendants T and G agreed and voluntarily compensated the appealing victims and compensated Mr. Pho. This is a voluntary act of the defendants. Therefore, it is requested that the Trial Panel accept and record this agreement.
Defendant T and defendant G requested the Panel to consider the requests of the victims and the voluntary agreement of the defendants with the victims regarding the civil aspect.
FINDINGS OF THE COURT
Based on the content of the case and the documents in the case file that have been debated at the trial, the Trial Panel finds as follows:
[1] Regarding procedure: The appeals of Ms. Hồ Thị L, Ms. Đặng Hồng Ph, Mr. Hoàng Long C, and Ms. Đào Thị A were filed within the statutory time limit and should be considered for resolution.
[2] Regarding the merits:
At the appellate trial, defendants Phùng Văn T and Hoàng Văn G consistently testified with their statements during the investigation and at the first-instance trial. The defendants' confessions are consistent with the documents in the case file, providing sufficient grounds to conclude that: Phùng Văn T and Hoàng Văn G established the A Humanitarian Service and Support Joint Stock Company and the A Humanitarian Support Fund but did not engage in production or business activities and were not granted a license by the competent authority to establish the A Humanitarian Support Fund. With
...the intention of fraudulently appropriating property, around early December 2015, T and G organized seminars to advise, introduce, and lure customers, devising the "A Humanitarian Support Fund Development Program" under the names "Golden Gratitude" and "Spring Fortune" at the Suối Hoa Hotel, Suối Hoa ward, Bac Ninh city, operating as a multi-level marketing scheme. During the period from late November 2015 to early February 2016, T and G collected money from the victims and promised to pay support funds, exit bonuses, and high commissions but subsequently failed to make payments as initially committed and appropriated VND 4,576,600,000 from 195 victims in the provinces of Bac Ninh, Bac Giang, Lang Son, Thai Nguyen, Hanoi, Hung Yen, Hai Duong, Hai Phong, Thai Binh, Vinh Phuc, Phu Tho, and Nghe An for personal expenses.
Regarding the calculation: The amount of loss suffered by the victims = The amount paid by the victims – (The amount of exit bonuses + commissions paid by T and G). This calculation resulted in the amount of VND 4,576,600,000.
In addition to the above actions, Hoàng Văn G also established Th Thương mại và Dịch vụ du lịch Company Limited to carry out fraudulent appropriation of property. Specifically, from October 26, 2017, to November 16, 2017, Hoàng Văn G advised, introduced, and lured customers to participate in the buying and selling of travel coupons, operating under a multi-level marketing scheme. In reality, G's company had no commercial or tourism activities. With fraudulent methods and intentions from the beginning, G appropriated VND 1,225,000,000 from Ms. Ngô Thị Nh for personal expenses. Thus, Hoàng Văn G is jointly responsible for both criminal acts with the total appropriated amount being VND 5,801,600,000.
Defendants T and G committed the criminal acts before January 1, 2018, but there is no difference between Point a, Clause 4, Article 139 of the 1999 Penal Code and Point a, Clause 4, Article 174 of the 2015 Penal Code. Therefore, trying the defendants under Point a, Clause 4, Article 174 of the 2015 Penal Code for the crime of "Fraudulently Appropriating Property" as determined by the First-Instance Court is well-founded.
The First-Instance Court considered the criminal and civil liabilities as well as the recommendation to review the criminal liability of certain individuals, which is justified.
[3] After the first-instance trial, the defendants did not appeal; the victims Ms. Hồ Thị L, Ms. Đặng Hồng Ph, Mr. Hoàng Long C, and Ms. Đào Thị A appealed for a review of the civil liability as well as the criminal liability of Hoàng Văn H and Nguyễn Thị Nh. Additionally, Mr. Coóng and Ms. An appealed, including a request for a review to increase the sentences of defendants Phùng Văn T and Hoàng Văn G.
[4] However, at the appellate trial, Mr. Hoàng Long C and Ms. Đào Thị A changed their appeals and withdrew their appeals for increased sentences against defendants T and G. Therefore, the Trial Panel considers suspending the appellate trial regarding this part of the victims' appeals.
Ms. Hồ Thị L, Ms. Đặng Hồng Ph, Mr. Hoàng Long C, and Ms. Đào Thị A only requested the appellate Trial Panel to review the civil aspect concerning them, and they had no further comments on other issues that were considered in the first-instance judgment.
Ms. Hồ Thị L requested the Trial Panel to consider compelling defendants Phùng Văn T and Hoàng Văn G to jointly compensate her for the total amount of her loss, which is VND 36,900,000 (the first-instance judgment did not compel the two defendants to compensate Ms. Loan).
Ms. Đặng Hồng Ph requested the Trial Panel to consider compelling defendants Phùng Văn T and Hoàng Văn G to jointly compensate her for the amount of her loss, which is VND 429,000,000 (the first-instance judgment ordered VND 280,000,000, requesting an additional compensation of VND 149,000,000).
Mr. Hoàng Long C requested the Trial Panel to consider compelling defendants Phùng Văn T and Hoàng Văn G to jointly compensate him for the total amount of his loss, which is VND 42,800,000 (the first-instance judgment ordered VND 9,100,000, requesting an additional compensation of VND 33,700,000).
Ms. Đào Thị A requested the Trial Panel to consider compelling defendants Phùng Văn T and Hoàng Văn G to jointly compensate her for the total amount of her loss, which is VND 59,000,000 (the first-instance judgment ordered VND 35,000,000, requesting an additional compensation of VND 24,000,000).
Defendant Phùng Văn T and defendant Hoàng Văn G agreed to jointly compensate the victims the amounts requested by the aforementioned victims. Furthermore, at the appellate trial, at the request of Mr. Trần Văn Ph, both defendant Phùng Văn T and defendant Hoàng Văn G agreed to jointly compensate Trần Văn Ph the total amount of VND 18,000,000.
Based on the aforementioned analysis and the agreement reached between the appealing victims and the defendants regarding the compensation amounts, the appellate court finds it appropriate to amend the civil liability portion of the first-instance judgment to reflect this agreement.
Regarding the procedural issues raised by the defense counsel for Phùng Văn T, the appellate court notes that these matters were within the scope of the first-instance trial and the additional investigation requested by the first-instance court. The appellate court finds no sufficient grounds to annul the first-instance judgment for re-investigation or retrial based on the presented arguments.
The appellate court acknowledges the withdrawal of the appeal regarding the increased sentences for the defendants by Mr. Hoàng Long C and Ms. Đào Thị A.
Therefore, based on the provisions of the Criminal Procedure Code and the findings of the appellate trial:
IT IS HEREBY DECIDED:
To suspend the appellate trial regarding the appeal for increased sentences against defendants Phùng Văn T and Hoàng Văn G by the victims Mr. Hoàng Long C and Ms. Đào Thị A.
To accept the appeals of the victims Ms. Hồ Thị L, Ms. Đặng Hồng Ph, Mr. Hoàng Long C, and Ms. Đào Thị A regarding the civil liability.
To amend part of the civil liability in the First-Instance Criminal Judgment No. 43/2019/HS-ST dated August 28, 2019, of the Bac Ninh Provincial People's Court as follows:
- Compel Phùng Văn T and Hoàng Văn G to jointly compensate Ms. Hồ Thị L the amount of VND 36,900,000 (thirty-six million nine hundred thousand Vietnamese Dong).
- Compel Phùng Văn T and Hoàng Văn G to jointly compensate Ms. Đặng Hồng Ph the amount of VND 429,000,000 (four hundred twenty-nine million Vietnamese Dong).
- Compel Phùng Văn T and Hoàng Văn G to jointly compensate Mr. Hoàng Long C the amount of VND 42,800,000 (forty-two million eight hundred thousand Vietnamese Dong).
- Compel Phùng Văn T and Hoàng Văn G to jointly compensate Ms. Đào Thị A the amount of VND 59,000,000 (fifty-nine million Vietnamese Dong).
- Record the agreement between Phùng Văn T and Hoàng Văn G to jointly compensate Mr. Trần Văn Ph the amount of VND 18,000,000 (eighteen million Vietnamese Dong).
The remaining parts of the First-Instance Criminal Judgment No. 43/2019/HS-ST dated August 28, 2019, of the Bac Ninh Provincial People's Court that are not appealed or protested against shall remain in effect.
This appellate judgment is final and takes effect from the date of pronouncement.