Case Brief: CASE LAW NO.

29/2019/AL REGARDING PROPERTY

APPROPRIATED IN “ROBBERY”
Style of Cause: 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.
Facts:
00:00 PM, Le Xuan Q, Tran Xuan L and H1 brought 02 matchetes to Karaoke bar M. Q
waited outside the bar when Tran Xuan L and H1 picked up the matchetes 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 defendents used violence to attack the
victim to relieve the accoplishes in order not to pay the money that the defendant was
obliged to pay for the victim constitutes the “Robbery”.
Le xuan Q did not directly hold the matchete 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
200,000VND. 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.
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 200,000 VND, but did not declare that Q did not commit that crime and
suspended the trial. The Court re-senteced Q for “Misprison” for not reporting Tran Xuan
L’s act of robbing two tablets.
Issue in the Case:
Would the Appellate Court sentence Q to the crime “ Misprision” lawful or not? If not,
which of the crime should the Appellate Court sentence Le Xuan Q?
Holding:
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 “ Misprison” 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 cassation
decision, there were no guides for the Appellate Court for judging Le Xuan Q for any
crime and the effect of the First-instance Judgement was not mentioned which caused
difficuties for the Court Appellate when re-hearing.
Le Xuan Q was arrested from 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.

Ratio Decidendi:
Therefore, according to Article 382, Clause 3 Article 388, Article 391 of the Criminal
Procedure Code 2015. In this case, the defendant must be prosecuted for criminal
responsibility for the crime of “Robbery” which was 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.
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 anf danger to society caused by Q’s
crime. When re-trying under 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 Judgement No.78/2016/HSPT dated April 20, 2016 to decide the
appropriate penalty for Le Xuan Q.