On January 17th, 2017, the Court of Appeals of the big case of Pham Cong Danh continued with the repartees and debates between lawyers and Representative of the Procuracy. The recovery or not recovery of the amount of VND 5.600 billion from Mr. Tran Quy Thanh and Ms. Tran Ngoc Bich was the issue debated quite stressfully at the Court of First Instance and the Court of Appeals.
At the court, Lawyer Kieu Vu Thuy Uyen, who protects the rights of Mr. Tran Qui Thanh and Ms. Tran Ngoc Bich, said that there was no basis for the Procuracy to conclude that Mr. Thanh and Ms. Bich were accomplices and evaded taxes.
Lawyer Uyen also stated that the proceedings-conducting agency had not resolutely recovered remedial money, indirectly affecting the rights of Mr. Thanh and Ms. Bich. Apart from Pham Cong Danh, the other defendants do not have to pay compensation.
Sums of money that Pham Cong Danh paid Mr. Tran Qui Thanh and Ms. Tran Ngoc Bich were considered evidence, thus were recovered. However, other sums of money paid to other banks and to Hai Tien Company were not considered evidence, thus were not recovered.
Lawyer Kieu Vu Thuy Uyen gathered 20 cases which are similar to the big case of Pham Cong Danh. Nevertheless, there was no case in which evidence was recovered and handled like the big case of Pham Cong Danh.
In the verdict of the Court of First Instance, more than VND 5,600 billion was recovered from Tran Qui Thanh and Tran Ngoc Bich because it was determined to be evidence of willful misconduct and violations of regulations on lending by Pham Cong Danh and accomplices. According to the verdict, this amount was drawn by Pham Cong Danh from Vietnam Construction Bank (VNCB) to pay Tran Qui Thanh and Tran Ngoc Bich for other transactions. The recovery or not recovery of the amount of VND 5.600 billion from Mr. Tran Quy Thanh and Ms. Tran Ngoc Bich was the issue debated quite stressfully at the Court of First Instance and the Court of Appeals.
Related to this issue, Lawyer Hoang Don Hung, Ho Chi Minh City Bar Association, an experienced lawyer in cases related to banking sector, gave notable comments and analyses.
Exhibit handling doesn’t mean punishment
According to Lawyer Hoang Don Hung, the Penal Code of Vietnam defines judicial measures as recovering assets from criminal acts. This is a coercive measure, punitive in nature, applies to offenders who committed smuggling, gambling, etc. With charges of non-commercial purpose such as deliberately misconducting, violating regulations on lending, there is no concept of ‘assets from criminal acts’. Therefore, as for the case of Pham Cong Danh, the verdict of the Court of First Instance did not determine the amount of more than VND 5,600 billion to be ‘assets from criminal acts’. The verdict of the Court of First Instance determined that the amount of more than VND 5,600 billion was evidence and thus was returned to VNCB. At the Court of Appeals, the issue being debated is whether this amount of money is evidence or not. If this amount of money is evidence, will it be recovered and returned to VNCB or not?
According to the Criminal Procedure Code of Vietnam, evidence is real things, which can prove a crime and if a person is a offender or not. It is collected by competent authority in due course in the process of case handling. Exhibits are one of sources of evidence which are are gathered by proceedings-conducting agency to prove the crime. When the case is finished, the proceedings-conducting agency has to decide how to handle exhibits collected earlier. The law stipulates that exhibit handling measures include: confiscating prohibited items (guns, ammunition, etc.); returning to the owners the assets seized or illegally used by offenders. The nature of exhibit handling is not to punish.
According to the verdict by the Court of First Instance, Pham Cong Danh illegally withdrew VND 5,190 billion from VNCB without dossier. This amount of money was transferred to Mr. Tran Qui Thanh to pay for other individual transactions. Mr. Tran Qui Thanh transferred this sum of money to other people, who in turn paid to VNCB. As for violations on lending, Pham Cong Danh withdrew loans of VNCB through his companies. Then, the borrower at VNCB transferred to other individuals and companies before transferring to Tran Qui Thanh (VND 500 billion) and Tran Ngoc Bich (VND 119 billion). Mr. Thanh and Ms. Bich continued to use the money for other personal purposes.
Lawyer Hung said: “The Court of First Instance defined that those sums of money were exhibits. Therefore, they were recovered from Mr. Tran Qui Thanh and Ms. Tran Ngoc Bich to return to VNCB. The recovery does not stem from any violations of Tran Qui Thanh and Tran Ngoc Bich. The decision to recover this amount of money does not mean that Mr. Tran Qui Thanh and Ms. Tran Ngoc Bich will be liable for behaviors of Pham Cong Danh. However, the consequence of this behavior is that Mr. Tran Qui Thanh and Ms. Tran Ngoc Bich lose money when they didn’t make mistake. According to the law, the entire amount of money is not exhibit because: this sum of money no longer existed at the time of the Court of First Instance. When the Court of First Instance decided to recover the sum of money, Mr. Tran Qui Thanh and Ms. Tran Ngoc Bich no longer managed it. The amount of VND 5,190 billion was transferred to VNCB, and is currently managed by VNCB. The Court of First Instance couldn’t identify who was managing the other sums of money, so the Court couldn’t recover. All this money has not been collected and managed according to the Criminal Procedure Code of Vietnam.”
Bona fide transactions are protected by law
According to lawyer Hung, in nature, the Court of First Instance recovered “the value of the sum of money” from Mr. Thanh and Ms. Bich in order to surmount consequences for VNCB, not recovering the “exhibit”. We can not base on the law on handling exhibit in order to recover a non-exist property or recover “the value of the sum of money” as the Court of First Instance decided. Besides, that Mr Thanh and Ms. Bich received these sums of money stems from bona fide transactions, legally protected by the Civil Code. As a result, the Court can’t force Mr. Thanh and Ms. Bich to repay this sum of money.
Lawyer Hung analyzed: To understand easily, we can take an example. Instead of repaying for Tran Qui Thanh, Pham Cong Danh used the money withdraw from VNCB to eat pho. When judging the criminal behaviors of Pham Cong Danh, the Court can’t apply the law on handling exhibits to force the pho seller to return the money of the pho bowl. Because pho trading transaction is a bona fide one, the pho seller can’t and does not have an obligation to know Pham Cong Danh uses the money withdrawn from VNCB to buy pho. Meanwhile, Pham Cong Danh’s money to pay for the pho bowl is used by the pho seller to pay for electricity, water, ingredients, labor and taxes. It is impossible to identify where the money that Pham Cong Danh withdrew from VNCB is.
Practically, there has never been any case identifying and recovering exhibits like the verdict of Court of First Instance of the case of Pham Cong Danh, even major cases particularly interested by the public: Duong Chi Dung at Vinalines, Pham Thanh Binh at Vinashin, Huynh Thi Huyen Nhu at Vietinbank, etc.
According to Văn Hải/ antt.vn