Precedent No. 01/2016/AL on the Homicide Case in Vietnam

Precedent No. 01/2016/AL, adopted by the Judicial Council of the Supreme People’s Court on April 6, 2016, and promulgated pursuant to Decision No. 220/QD-CA dated April 6, 2016, issued by the Chief Justice of the Supreme People’s Court.

1. Definition of a Precedent

A precedent refers to the legal reasoning and rulings contained in a legally effective judgment or decision of a court regarding a specific case, selected by the Judicial Council of the Supreme People’s Court and promulgated by the Chief Justice of the Supreme People’s Court as a precedent for courts to study and apply in adjudication. (Article 1, Resolution No. 04/2019/NQ-HDTP)

A precedent must meet the following criteria:

• It clarifies legal provisions subject to differing interpretations, provides analysis and explanation of legal issues and events, and indicates principles, guidelines for adjudication, or applicable legal norms in a specific case, or reflects fairness in matters not specifically regulated by law;
• It is normative;
• It provides guidance for the uniform application of law in adjudication.

2. Precedent No. 01/2016/AL on the Homicide Case

2.1. Source of the Precedent

Cassation Decision No. 04/2014/HS-GDT dated April 16, 2014, issued by the Judicial Council of the Supreme People’s Court regarding the “Homicide” case involving the defendant: 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; occupation: construction worker; son of Mr. Dong Xuan Chi and Mrs. Duong Thi Thong; arrested on June 22, 2007.

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

2.2. Summary of Precedent No. 01/2016/AL on the Homicide Case

In a case involving accomplices, if it is proven that the subjective intent of the mastermind was solely to hire another person to inflict bodily harm on the victim without any intention to deprive the victim of life (the mastermind only requested harm to the victim’s limbs, such as legs or arms, and did not request attacks on vital parts of the body likely to cause death); and the perpetrator carried out the act in accordance with the mastermind’s request; the death of the victim, being beyond the subjective intent of the mastermind, results in the mastermind being held criminally liable for the offense of “Intentional Infliction of Bodily Harm” with the aggravating circumstance of “causing bodily harm resulting in death.”

Relevant legal provisions:

• Points m, n, Clause 1, Article 93 of the Criminal Code of Vietnam 1999;
• Clause 3, Article 104 of the Criminal Code of Vietnam 1999.

Keywords of the precedent:

“Homicide”; “Intentional Infliction of Bodily Harm”; “Causing Harm to Another’s Health”; “Offenses Against Life and Health”; “Hiring Another to Cause Bodily Harm.”

CASE DETAILS

At approximately 15:00 on June 21, 2007, the Long Bien District Police, Hanoi City, received a report of a crime in which the victim was killed at the concrete beam casting area for the Thanh Tri Bridge construction site, located in Quarter 12, Thach Ban Ward, Long Bien District. The victim was Mr. Nguyen Van Soi (a construction engineer employed by Construction Joint Stock Company 204, under the Bach Dang Construction Corporation). Following investigation and verification, the Long Bien District Police urgently arrested Dong Xuan Phuong.

The investigation established that Mr. Nguyen Van Soi and Dong Xuan Phuong were colleagues at Construction Joint Stock Company 204, under the Bach Dang Construction Corporation, tasked with the construction of the Thanh Tri Bridge. In February 2007, Phuong, while intoxicated during working hours, was photographed by Soi using a mobile phone and reported to the company leadership, prompting Phuong to harbor a grudge and plan to retaliate against Soi.

On June 14, 2007, Dong Xuan Phuong contacted his friend, Doan Duc Lan, born in 1975 (residing at No. 11 C98 Trai Chuoi, Hong Bang District, Hai Phong City), to discuss the aforementioned conflict and hired Lan to assault Soi as an act of revenge. Lan stated he would arrange for someone else to carry out the act. On the evening of June 17, 2007, Phuong traveled from Hanoi to Hai Phong to meet Lan and Lan’s friend, Hoang Ngoc Manh, born in 1982 (also known as Thang; residing in So Dau Ward, Hong Bang District, Hai Phong City). Phuong recounted the conflict and hired Lan and Manh to assault Soi by stabbing him in the legs or arms to cause bodily harm. When Phuong asked about the cost, Manh and Lan stated it was discretionary, and Phuong paid Manh 1,500,000 VND. Lan and Manh agreed to the arrangement.

At approximately 20:00 on June 20, 2007, Hoang Ngoc Manh, accompanied by Nam (Manh’s friend, whose address could not be identified), traveled to Hanoi to meet Dong Xuan Phuong and agreed to assault Soi on June 21, 2007. Phuong provided an additional 500,000 VND for Manh to cover lodging expenses. At around 09:00 on June 21, 2007, Phuong led Manh and Nam to the route Soi would take to attend a meeting that afternoon, then returned to the company. At approximately 11:00, Hoang Ngoc Manh visited a refreshment stall at the intersection of National Highways 5 and 1B (operated by Ms. Pham Thi Mien), where he borrowed Ms. Mien’s mobile phone to contact Dong Xuan Phuong, requesting a description of Soi’s appearance and Soi’s mobile phone number. Phuong complied with the request. At around 13:00, Manh again borrowed Ms. Mien’s phone to inform Phuong that he had identified Soi and would act alone, as Nam had left without notice. Phuong agreed.

At approximately 14:16 on the same day, Manh used Ms. Mien’s mobile phone to call and arrange to meet Soi at the concrete beam casting area. When Soi arrived, Manh used a sharp knife he had prepared to stab Soi twice in the back of his right thigh, resulting in Soi’s death.

According to Forensic Examination Report No. 146/PC21-PY dated July 17, 2007, issued by the Criminal Technical Department of Hanoi City Police, the victim sustained two wounds to the back of his right thigh. The upper wound penetrated 3 cm into the thigh muscle. The lower wound severed the femoral artery and vein, causing severe blood loss. Cause of death: irreversible acute hypovolemic shock due to arterial injury.

Additionally, during the investigation, Dong Xuan Phuong claimed that, aside from the personal conflict with Soi, his decision to hire someone to stab Soi was also instigated by Mr. Ngo Van Toan (Deputy Head of the Thanh Tri Bridge Project Management Unit), who allegedly had a prior conflict with Soi. The investigation authorities questioned Toan, but he denied the allegation. The investigation found no basis to conclude Toan’s involvement in the case.

Doan Duc Lan and Hoang Ngoc Manh fled, prompting the investigative authorities to issue a wanted notice and a decision to temporarily suspend the investigation against Lan and Manh, to be resumed upon their apprehension.

During the investigation, employees and Construction Joint Stock Company 204 voluntarily contributed and provided financial support to the victim’s family, totaling 123,000,000 VND, including 63,000,000 VND for funeral expenses and three savings accounts for Soi’s family, totaling 60,000,000 VND.

At First-Instance Criminal Judgment No. 164/2008/HSST dated November 17, 2008, the Hanoi City People’s Court applied Point n, Clause 1, Article 93, and Point p, Clause 1, Article 46 of the Criminal Code of Vietnam 1999, sentencing Dong Xuan Phuong to 17 years’ imprisonment for the offense of “Homicide.”

Dong Xuan Phuong was ordered to compensate the victim’s family 32,400,000 VND for emotional distress and to provide monthly maintenance for the victim’s two children and mother.

Following the first-instance trial, Dong Xuan Phuong appealed, requesting a review of the case.

The victim’s legal representative, Ms. Nguyen Thi Thanh, appealed, requesting an increase in the penalty and compensation.

At Appellate Criminal Judgment No. 262/2009/HSPT dated May 5, 2009, the Appellate Court of the Supreme People’s Court in Hanoi, pursuant to Clause 1, Article 250 of the Criminal Procedure Code of Vietnam 2003, annulled the aforementioned first-instance judgment and ordered a reinvestigation in accordance with general procedures.

At First-Instance Criminal Judgment No. 167/2010/HSST dated March 31, 2010, the Hanoi City People’s Court applied Point n, Clause 1, Article 93, and Point p, Clause 1, Article 46 of the Criminal Code of Vietnam 1999, sentencing Dong Xuan Phuong to 17 years’ imprisonment for the offense of “Homicide.”

Dong Xuan Phuong was ordered to compensate for funeral expenses amounting to 34,583,000 VND, emotional distress for the victim’s wife and children totaling 39,000,000 VND, and to provide monthly maintenance for the victim’s mother and children.

Following the first-instance trial, on April 2, 2010, Dong Xuan Phuong appealed for a reduced penalty and requested a case review, citing the lack of apprehension of Manh, which he claimed left insufficient evidence to confirm Manh’s act of stabbing and killing Soi.

On April 13, 2010, the victim’s wife, Ms. Nguyen Thi Thanh, appealed, requesting an increase in the penalty and compensation.

At Appellate Criminal Judgment No. 475/2010/HSPT dated September 15, 2010, the Appellate Court of the Supreme People’s Court in Hanoi applied Points m, n, Clause 1, Article 93, and Point p, Clause 1, Article 46 of the Criminal Code of Vietnam 1999, sentencing Dong Xuan Phuong to life imprisonment for the offense of “Homicide.” Phuong was ordered to compensate 43,800,000 VND for emotional distress, with other compensation decisions upheld.

In Protest No. 13/KN-HS dated July 22, 2013, the Chief Justice of the Supreme People’s Court proposed that the Judicial Council of the Supreme People’s Court conduct a cassation review to annul the aforementioned appellate judgment regarding the offense, penalty, and appellate criminal court fees for Dong Xuan Phuong, and to transfer the case file to the Appellate Court of the Supreme People’s Court in Hanoi for re-adjudication in accordance with the law.

At the cassation hearing, the representative of the Supreme People’s Procuracy agreed with the Chief Justice’s protest.

The Judicial Council of the Supreme People’s Court determined:

Based on Dong Xuan Phuong’s confessions during the investigation, first-instance trials, and appellate trial; the statements and identification results of witnesses regarding individuals involved in the case; the crime scene examination record; the forensic examination report; and other documents and evidence in the case, there are sufficient grounds to conclude that, due to a personal conflict, Dong Xuan Phuong hired Hoang Ngoc Manh and Doan Duc Lan to stab Mr. Nguyen Van Soi with a knife to cause bodily harm as an act of revenge. Based on the case file, there is evidence to establish that, subjectively, Phuong only intended to cause bodily harm to Soi, without any intention to deprive him of life or to hire Manh to stab recklessly, leaving the consequences to chance. Therefore, the defendant only requested attacks on the victim’s legs or arms, avoiding vital parts of the body that, if attacked, would likely endanger life. When committing the offense, Manh stabbed the victim twice in the thigh, as per Phuong’s request. The criminal act by Hoang Ngoc Manh made it difficult to foresee the fatal outcome. The victim’s death due to irreversible acute hypovolemic shock was beyond the intent of Dong Xuan Phuong and his accomplices. Dong Xuan Phuong’s conduct constitutes the offense of intentional infliction of bodily harm resulting in death, as stipulated in Clause 3, Article 104 of the Criminal Code of Vietnam 1999. The first-instance and appellate courts’ convictions of Dong Xuan Phuong for “Homicide” were incorrect under the law.

For the foregoing reasons, pursuant to Clause 3, Article 285 and Article 287 of the Criminal Procedure Code of Vietnam 2003,

DECISION

1. Annul Appellate Criminal Judgment No. 475/2010/HSPT dated September 15, 2010, of the Appellate Court of the Supreme People’s Court in Hanoi regarding the offense, penalty, and appellate criminal court fees for Dong Xuan Phuong; transfer the case file to the Appellate Court of the Supreme People’s Court in Hanoi for re-adjudication in accordance with the law.

2. Continue the detention of Dong Xuan Phuong until the Appellate Court of the Supreme People’s Court in Hanoi takes over the case.

3. Other decisions in the aforementioned appellate criminal judgment have taken legal effect.

CONTENT OF THE PRECEDENT

Based on the case file, there is evidence to establish that, subjectively, Phuong only intended to cause bodily harm to Soi, without any intention to deprive him of life or to hire Manh to stab recklessly, leaving the consequences to chance. Therefore, the defendant only requested attacks on the victim’s legs or arms, avoiding vital parts of the body that, if attacked, would likely endanger life. When committing the offense, Manh stabbed the victim twice in the thigh, as per Phuong’s request. The criminal act by Hoang Ngoc Manh made it difficult to foresee the fatal outcome. The victim’s death due to irreversible acute hypovolemic shock was beyond the intent of Dong Xuan Phuong and his accomplices. Dong Xuan Phuong’s conduct constitutes the offense of intentional infliction of bodily harm resulting in death, as stipulated in Clause 3, Article 104 of the Criminal Code of Vietnam 1999. The first-instance and appellate courts’ convictions of Dong Xuan Phuong for “Homicide” were incorrect under the law.