Source of the case: The Appellate Court’s Judgment No. 331/2018/HS-PT dated May 28, 2018 of the Supreme People’s Court in Hanoi on the “Murder” case with defendant: Mr. Phan Thanh H (with other name: D); born in 1995, residing at C Commune, D District, Binh Dinh Province; the current address: B Hamlet, C Commune, D District, Binh Dinh Province. The case’s victim: Mr. Nguyen Anh D.

Overview of the case: The defendant was requested by the traffic police to stop the vehicle for handling a violation but failed to follow such order and drove the vehicle straight through the traffic police officers. When the traffic police officer clung to the rearview mirror of the vehicle, the defendant continued to drive a vehicle with high speed, then unexpectedly steered close to the median strip to knock the traffic police officer down. The traffic police officer fell out of the vehicle and hit the median strip suffering serious injuries.

The Determination of a criminal act. The Court convicted defendant Phan Thanh H for the crime of “Murder” and the crime of “Forging documents of agencies”; the defendant Tu Cong T for the crime of “Forging documents of agencies”. With the crime of “Murder”, Phan Thanh H failed to comply with such order for handling administrative violations and unexpectedly drove the vehicle straight through the on-duty officer Le Ho Viet A and Nguyen Anh D standing in front of the vehicle to escape. At this time, Nguyen Anh D had to cling to the rearview mirror of the vehicle, Phan Thanh H still continued to drive the vehicle and unexpectedly swerved to the left to knock Nguyen Anh D down to the road. Due to the Report of Forensic Medical Examination (Report No. 87 issued in September 18, 2017), Nguyen Anh Duc concluded that his injury level caused by this accident was 40%. Although the behavior of Phan Thanh H also showed the guilty sign of the crime “Resisting persons in the performance of their official duties”, however the behavior of the defendant was particularly dangerous and it proved that Phan Thanh H consciously allowed such consequences to deprive of Nguyen Anh Duc’s life (steering the vehicle to knock Nguyen Anh Duc down). The Court decided that the behavior of Phan Thanh H was “Murder” with a circumstance aggravating the penal liability “Murder of persons being on public duties” under Article 93 Clause 1 of the Penal Code 1999, amended and supplemented in 2009 (“BLHS 1999”).

The Penalty Decision. In the first-instance Criminal Judgment No. 39/2017/HSST dated December 26, 2017, the People’s Court of Ha Tinh province convicted that the defendant Phan Thanh H of “Murder” and “Forging documents of agencies”. With the crime of “Murder”, Phan Thanh H was sentenced to 8 years’ imprisonment. In the Appellate Judgment No. 331/2018/HS-PT dated May 28, 2018, the Superior People’s Court of Ha Noi decided to reduce the penalty for Phan Thanh H (from 8 years’ imprisonment to 7 years’ imprisonment) for “Murder”. Although the victim of this crime (Nguyen Anh Duc) did not die (the injury level was 40%), but the trial panel of a first-instance court and the trial panel of an appellate Court recognized that the defendant Phan Thanh H was aware that his act was dangerous to society, foresaw the consequence (Nguyen Anh Duc could die because of being knocked down). Therefore, this was a case of intentional commission of crime prescribed in Article 9 Clause 2 of BLHS 1999:

“The intentional commission of a crime is commission of crime in the following circumstances:

  1. The offenders are aware that their acts are dangerous to society, foresee the consequences of such acts and wish such consequences to occur;
  2. The offenders are aware that their acts are dangerous to society, foresee the consequences that such acts may entail and do not wish, but consciously allow, such consequences to occur.”

For the above reasons, the trial panel decided to sentence the defendant Phan Thanh H of the crime of “Murder” with an “Incomplete commission of crime”. Under Article 93 Clause 1 of BLHS 1999, “Murder” had a penalty between twelve to twenty years of imprisonment, life imprisonment or capital punishment. However, the defendant had a variety circumstances extenuating penal liability for consideration: (i) Made honest declarations and report and showed his repentance; (ii) volunteered to compensate (Article 46 Clause 1 Point b, p of BLHS 1999) and others such as: the defendant was facing hardship, poor household in the locality; had a grandfather who had contributed to the revolution (Article 46 Clause 2 of BLHS 1999). The trial Panel applied Article 47 of BLHS 1999: “Where there exist at least two extenuating circumstances as provided in Clause 1, Article 46 of this Code, the courts may decide a penalty under the lowest level of the penalty bracket stipulated by the law, which, however, must lie within the adjacent lighter penalty bracket of the law; where the law contains only one penalty bracket or such penalty bracket is the highest penalty bracket of the law, the courts may decide a penalty below the lowest level of the bracket or move to another penalty of lighter category. The reasons for such reduction must be clearly inscribed in the judgement.” and clause 3 Article 52: “For cases of incomplete offense, if the applicable law provision stipulates the highest penalty being the life imprisonment or death sentence, these penalties can only apply to particularly serious cases; if it is termed imprisonment, the penalty level shall not exceed three quarters of the imprisonment term prescribed by the law provision.” in order to decide the penalty for Phan Thanh H. The Appellate trial Panel decided to change the penalty level from Article 93 Clause 1 to Clause 2 of BLHS 1999. Finally, Phan Thanh H was sentenced to 7 years’ imprisonment.


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