Appeal trial of "boss" Kien: The Procuracy responds to the debate

At the end of the working session this morning (December 10), the representative of the Procuracy responded to the debate after listening to the opinions of the lawyers and the defendants defending themselves.

First of all, the Procuracy agrees with the views of some lawyers on the approach to the case, which is to take the first instance judgment as the focus for the appeal. Therefore, the Procuracy takes all opinions and testimonies into consideration in the conclusion of the case. Regarding the comments of some lawyers that the Procuracy does not update the developments of the case, it is incorrect.

Defendant Nguyen Duc Kien defended himself in court.

Regarding the crime of illegal business, defendant Kien continued to present concepts in the Enterprise Law, Investment Law, Decision 165, to affirm that the act of contributing capital to buy stocks and shares does not require business registration.

The Procuracy agrees with the defendant on Official Dispatch No. 6388 of the Ministry of Planning and Investment on the concept of business. Accordingly, business is the continuous implementation of some or all stages of the investment process, which must meet three criteria: being carried out continuously; for the purpose of making a profit; investment activities through transactions for the purpose of making a profit are business activities.

Specifically: The fact that the 5 companies of defendant Nguyen Duc Kien contributed capital to buy shares was a continuous activity for the purpose of making a profit, so there is a basis to affirm that this is a business act.

In Official Dispatch 935 of the General Statistics Office on the 2007 Vietnamese economic sector system, the activity of purchasing shares and stocks is classified under code 64990. Meanwhile, the 5 companies that the defendant conducts business in have industry code 64990 but are not registered for business, which is a violation of the law.

For Thien Nam Company, this enterprise was registered in 1995, changed for the 7th time in 2000. According to the law, in case of changing the legal representative, a new business registration must be changed, the old business registration certificate must be returned to the business licensing authority.

Regarding the trading activities in contract 017 which were considered illegal business: The defendant still believes that trading in gold status is a purchase and sale of goods that is not against the law. The Procuracy asked: Is Thien Nam's gold trading activity on foreign accounts on Thien Nam's certificate? This is a trading activity, in Article 2 of the contract it is stated: Party A and Party B agree to buy and sell gold status, but Article 5 of this contract mentions transaction fees. Transaction fees only exist when ACB is the intermediary for the transaction, further confirming that Thien Nam has traded gold on foreign accounts.

In the contract, there is content about buying and selling gold that can be converted into physical gold or raw materials, so it cannot be considered a derivative activity.

Therefore, Thien Nam's operations are subject to the regulation of Decision No. 03 of the State Bank. The gold trading activity is classified under code 46624, so Thien Nam has been operating without a business registration.

Defendant Kien was the one who placed the order over the phone and made the transaction. The Procuracy affirmed that the accusation of Defendant Kien doing illegal business in Thien Nam was well-founded.

Defendant Kien said that some other businesses also operated in the same way without being prosecuted. The People's Procuracy found that this was not within the scope of the case.

"With the above analysis, the first instance judgment convicting the defendant of illegal business is well-founded" - the representative of the Procuracy emphasized.

Regarding the crime of Tax Evasion, according to the Procuracy, there are 3 contracts: Contract No. 01 dated December 25 signed by Ms. Lan with ACB, Contract No. 010109 between Ms. Nguyen Thuy Huong and B&B Company; Contract appendix signed between 3 parties including Ms. Nguyen Thuy Huong, Nguyen Duc Kien and B&B Company.

Regarding this content, the Procuracy debated 3 issues: First, the Procuracy questioned whether the 2 contracts and 1 contract appendix above were signed back in time, and whether they were in accordance with legal regulations? Although the contract appendix was signed between 3 parties, there is no basis to confirm that it was signed back in time.

However, according to the representative of the Procuracy, the violations of the law in these contracts are shown as follows: In the appendix of the contract, defendant Kien, the legal representative of B&B, received the authorization from Ms. Huong, violating Article 144, Clause 5 on the scope of authorized representation. Thus, establishing the authorized representation of Ms. Huong for defendant Kien is a violation of the law. On the other hand, during the authorization process at BB, Ms. Huong stated: “I (ie Huong) was only in charge of the document work and seal management. Nguyen Duc Kien was the one who planned and decided to implement. According to the contract, I did not have to deposit, and Mr. Kien placed the order directly.”

Ms. Dang Ngoc Lan (Kien's wife) stated, "She is not the legal representative of B&B. Because Kien was on a business trip, he signed the power of attorney. I don't know much about the gold business entrustment, I only signed the documents. When I saw the large losses, I asked, and Kien said he and Huong would handle the business."

Ms. Nguyen Thuy Huong and Dang Ngoc Lan continued to confirm the above statements at the first instance and appeal trials. At the investigation agency, Nguyen Duc Kien stated: My wife and Huong signed the documents at my request. Thus, Kien directed the signing of the authorization contract, and used illegal documents to determine the amount of tax payable, which is a violation of the law.

Defendant Kien repeatedly stated that he had no intention of evading taxes, and that Ms. Nguyen Thuy Huong was entitled to a tax exemption. Regarding the content of the indictment, there is content that the defendant knew in advance about the tax exemption. Defendant Kien stated that after listening to the accountant's report, because he knew that Resolution 32 had not been implemented, he did not pay personal income tax at that time. However, the Procuracy agreed not to include this content in the litigation.

Regarding the crime of Fraudulent appropriation of property, defendant Tran Ngoc Thanh represented ACI to sign with Hoa Phat Steel One Member Co., Ltd. At point 1 of this contract, ACI Company committed to ensuring that the transferred shares were legally owned by ACI, had not been transferred and were not in dispute.

By June 27, Hoa Phat had transferred the money to ACI's account and ACI had spent all the money but still did not release the mortgage. On September 7, 2012, the Investigation Agency issued Official Letter No. 497 requesting ACB to transfer back VND264 billion, but ACI only had VND53 billion left.

ACB's leadership also decided not to agree to liquidate ACI's shares.

On September 17, 2012, the Investigation Agency - Ministry of Public Security issued a decision to prosecute additional charges of fraud.

The defendant's lawyer and the defendant argued that the prosecution originating from the investigation agency was incorrect. In specific cases, the investigation agency has the right to prosecute when discovering a crime.

During the investigation, defendant Kien submitted a petition to remedy the consequences, but in court, the defendant did not confirm his petition.

According to VOV