Precedent No. 48/2021/AL was adopted by the Council of Justices of the Supreme People’s Court on November 25, 2021, and promulgated under Decision No. 594/QD-CA dated December 31, 2021, of the Chief Justice of the Supreme People’s Court.
1. What is a precedent?
Precedents are arguments and rulings in legally effective judgments and decisions of the Court regarding a specific case selected by the Council of Justices of the Supreme People’s Court and published by the Chief Justice of the Supreme People’s Court as precedents for Courts to study and apply in trials. (Article 1 of Resolution 04/2019/NQ-HĐTP)
Selected precedents must meet the following criteria:
– Contain value in clarifying legal provisions that have different interpretations, analyzing and explaining legal issues and events, and pointing out principles, guidelines for handling, and legal norms to be applied in a specific case or demonstrating equity for issues not yet specifically regulated by law;
– Possess standard characteristics;
– Contain value in guiding the uniform application of law in trials.
2. Precedent No. 48/2021/AL on the mitigating factor of criminal liability “returning illegal profits”
2.1. Source of the precedent
Cassation Decision No. 03/2020/HS-GĐT dated April 22, 2020, of the Council of Justices of the Supreme People’s Court regarding the case of “Gambling” and “Organizing gambling” for defendants Ho Cong Nhat Q, Ho Viet H, and Nguyen Mong V.
Location of the precedent’s content:
Paragraph 3 of the “Court’s Assessment” section.
2.2. Overview of the precedent’s content
– Case situation:
The suspect or defendant returns the illegal profits gained from the criminal act.
– Legal solution:
In this case, the Court must determine that the defendant is entitled to a mitigating factor of criminal liability under Clause 2, Article 46 of the 1999 Penal Code (corresponding to Clause 2, Article 51 of the 2015 Penal Code, amended and supplemented in 2017).
Legal provisions related to the precedent:
– Clause 2, Article 46 of the Criminal Code of Vietnam 1999 (corresponding to Clause 2, Article 51 of the Criminal Code of Vietnam 2015, amended and supplemented in 2017);
– Point c, Section 5 of Resolution 01/2000/NQ-HĐTP dated August 04, 2000, guiding the application of several provisions in the General Part of the 1999 Penal Code.
Keywords of the precedent:
“Returning illegal profits”; “Mitigating factor of criminal liability”; “Gambling”; “Organizing gambling”.
CASE CONTENT:
On September 20, 2016, the Police Investigation Agency of T Province discovered and arrested a number of subjects committing acts of organizing large-scale illegal gambling via the Internet with many participants. The method of organizing gambling for this group was to receive betting accounts on the IBET website, divide them into multiple lower-level accounts, and then hand them over to lower-level subjects to organize gambling, gamble, or directly provide them to illegal gamblers via the Internet. These were illegal football betting accounts on a foreign website, using an English interface containing virtual dollars (hereinafter referred to as dollars), and the bookmaker and account recipient agreed on the exchange rate between one dollar and Vietnamese Dong. To organize gambling and gamble illegally online, the subjects in this case installed computers with Internet connections, used laptops, and mobile phones with Wifi as tools and means for organizing and gambling. Payment for winnings and losses between teams was settled in Vietnamese Dong, delivered directly or via acquaintances. The bookmaker paid the players a commission through the higher-level account via the Gross Comm section. To earn profits, all the gambling organizers in this case increased the conversion rate of 1 dollar to be higher than the received level (essentially pooling capital and contributing more money with the bookmaker) to gamble with players; at the same time, to encourage players, the gambling organizers also increased the commission paid to an account subject by two to three times. Specifically, the actions of Ho Cong Nhat Q, Ho Viet H, and Nguyen Mong V were as follows:
1. For Ho Cong Nhat Q:
In February 2016, Q declared receiving the football betting account TVK2 on the IBET website from a person named P (unknown full name and address), with a betting amount of 3,000,000 dollars. P and Q agreed that one dollar was worth 5,000 Vietnamese Dong; the commission P paid to Q was through the Gross Comm section. After receiving account TVK2, Q created 19 lower-level accounts. Q set 5,000 dollars per account and redistributed them to subjects for gambling or organizing gambling; among them, Q provided 03 accounts to Nguyen Mộng V, 03 accounts to Ho Viết H, and provided accounts to several other subjects. Q kept 02 accounts, then created many lower-level accounts and many sub-pages to provide to bettors upon demand.
During the investigation, the Investigation Agency collected detailed documents of 07 accounts: TVK204, TVK20B, TVK20K, TVK20N, TVK20P, TVK219, and TVK20S.
1.1. Act of organizing gambling:
– Q provided Ho Viết H with accounts: TVK20B, TVK204, TVK20K with the agreement that TVK204 was 10,000 VND/dollar, TVK20B and TVK20K were 7,000 VND/dollar. From June to September 2016:
+ On account TVK204, the betting amount was 116,877 dollars.
+ On account TVK20B, the betting amount was 261,819 dollars.
+ On account TVK20K, the betting amount was 131,060 dollars.
– Q provided Nguyen Mộng V with accounts TVK20N, TVK20P, TVK20S with the agreement that accounts TVK20N and TVK20P were 7,000 VND/dollar, and account TVK20S was 6,500 VND/dollar. From early June to September 2016:
+ On account TVK20N, the betting amount was 28,583 dollars.
+ On account TVK20P, the betting amount was 152,542 dollars.
+ On account TVK20S, the betting amount was 247,592 dollars.
– Q provided an individual named Q1 (residing in the USA) with account TVK219 at a rate of 6,000 VND/dollar. From June to September 2016, this account had a betting amount of 96,404 dollars.
In total, Q is criminally responsible for the crime of “Organizing gambling” through the 07 accounts above amounting to (116,877 + 261,819 + 131,060 + 28,583 + 152,542 + 247,592 + 96,404 dollars) x 5,000 VND/dollar = 5,174,385,000 VND.
– The commission Q received through Gross Comm was 8,759,400 VND.
– The commission Q paid to H was 22,713,030 VND. The commission Q paid to V was 10,533,887 VND. The commission Q paid to Q1 was 2,656,080 VND. The total commission Q paid to lower levels and players was 35,902,997 VND.
1.2. Act of gambling:
Based on detailed documents, summary tables, and the confessions of the defendants, Q increased the conversion of one point to be higher than the received level, specifically as follows:
Portion assigned to H (including points wagered and losses to be paid):
+ Account TVK204 [(116,877 dollars + 43,451.05 dollars) x (10,000 VND – 5,000 VND)] = 801,640,250 VND.
+ Account TVK20B [(261,819 dollars + 98,676.27 dollars) x (7,000 VND – 5,000 VND)] = 720,990,540 VND.
+ Account TVK20K [(131,060 dollars + 41,797.44 dollars) x (7,000 VND – 5,000 VND)] = 345,714,880 VND.
Portion assigned to V:
+ Account TVK20N [(28,583 dollars + 6,617.7 dollars) x (7,000 VND – 5,000 VND)] = 70,401,400 VND.
+ Account TVK20P [(152,542 dollars + 61,009.59 dollars) x (7,000 VND – 5,000 VND)] = 427,103,180 VND.
+ Account TVK20S [(247,592 dollars + 99,584.13 dollars) x (6,500 VND – 5,000 VND)] = 520,764,195 VND.
Portion assigned to Q1: Account TVK219 [(96,404 dollars + 42,802.9 dollars) x (6,000 VND – 5,000 VND)] = 139,206,900 VND.
The total amount Q used for gambling on account TVK2 was 3,025,821,385 VND. Among these, there were 74 bets where the accepted bet and loss to be paid were 5,000,000 VND or more per bet, with a total gambling amount of 692,170,780 VND; the remaining 13,480 bets had accepted bet and loss amounts under 5,000,000 VND per bet with a total of 2,333,650,605 VND, and thus were not subject to criminal liability.
Through gambling, Q won 884,599,190 VND and lost 825,636,385 VND on these 07 accounts, thus Q gained a profit of 58,962,805 VND.
2. For Ho Viết H:
Ho Viết H received from Ho Công Nhật Q accounts TVK204 (1 dollar = 10,000 VND), TVK20B (1 dollar = 7,000 VND), and TVK20K (1 dollar = 7,000 VND), then H re-provided TVK20B to Châu Anh T at a rate of 1 dollar = 12,000 VND for T to divide into many sub-pages for players. H paid T a commission at Gross Comm x 4. For account TVK204, H created 05 lower-level accounts and from these 05 accounts created 13 sub-pages for direct gambling. For account TVK20K, H also created 03 lower-level accounts and from these 03 accounts created 12 sub-pages for direct gambling.
2.1. Act of organizing gambling:
Based on detailed documents, summary tables, and defendants’ confessions, H’s act of organizing gambling is determined as follows: After receiving account TVK20B at 7,000 VND/dollar, H provided it to Châu Anh T; from March 01, 2016, to September 20, 2016, the total amount bet on account TVK20B was 261,819 dollars x 7,000 VND = 1,832,733,000 VND. The commission H received from Q was 11,279,310 VND; the commission H had to pay T was 25,781,280 VND, so H did not profit from the act of organizing gambling.
2.2. Act of gambling:
– Gambling via Châu Anh T:
Since H provided account TVK20B to T at 12,000 VND/dollar, H contributed capital with the bookmaker to gamble with the lower level at 5,000 VND/dollar. Thus, the amount H used for gambling on this account was [(261,819 dollars + 98,676.27 dollars (H’s loss))] x 5,000 VND = 1,802,476,350 VND. Among these, there were 61 bets where the accepted bet and loss were 5,000,000 VND or more per bet, with a total of 643,134,000 VND; the remaining 7,381 bets were under 5,000,000 VND per bet with a total of 1,159,342,350 VND. H won 507,499,700 VND and lost 493,381,350 VND on this account, resulting in a profit of 14,118,350 VND.
– Gambling with the bookmaker:
With accounts TVK204 and TVK20K, H created many sub-pages and gambled directly with the bookmaker. From March 01, 2016, to September 20, 2016, the total dollars bet on these 02 accounts was 247,937 dollars (116,877 for TVK204, 131,060 for TVK20K). H’s winnings on these 02 accounts were 85,248.49 dollars (43,451.05 for TVK204, 41,797.44 for TVK20K). Thus, H gambled on account TVK204 for (116,877 + 43,451.05 dollars) x 10,000 VND = 1,603,280,500 VND and on account TVK20K for (131,060 + 41,797.44 dollars) x 7,000 VND = 1,210,002,080 VND.
On these 02 accounts, there were 115 bets where the bet amount and win amount were 5,000,000 VND or more per bet, totaling 1,282,290,840 VND; the remaining 3,187 bets were under 5,000,000 VND per bet, totaling 1,530,991,740 VND. H won 727,092,580 VND and lost 772,741,000 VND, so H did not profit from these gambling acts.
In total, the amount H is criminally responsible for regarding the crime of gambling on these 03 accounts is 643,134,000 VND + 1,282,290,840 VND = 1,925,424,840 VND; the remaining 10,568 bets with 2,690,334,090 VND were not subject to criminal liability as the bets were under 5,000,000 VND per bet. The commission H received while gambling was 11,433,720 VND.
3. For Nguyễn Mộng V:
Nguyễn Mộng V received from Ho Công Nhật Q 03 accounts: TVK20N (1 dollar = 7,000 VND), TVK20P (1 dollar = 7,000 VND), and TVK20S (1 dollar = 6,500 VND). V then re-provided TVK20P to Nguyễn Văn B. V paid B a commission of 1% of the total amount bet on the account. For the remaining accounts, V created lower-level accounts and then 10 sub-pages to gamble directly with the bookmaker.
3.1. Act of organizing gambling:
V received from Q account TVK20P at 1 dollar = 7,000 VND. From September 01, 2016, to September 20, 2016, the total amount bet on account TVK20P managed by V was 152,542 dollars. Thus, V is criminally responsible for the crime of “Organizing gambling” for 152,542 dollars x 7,000 VND = 1,067,794,000 VND.
The commission V received was 5,947,200 VND, while the commission V paid to B was 12,203,360 VND, so V did not profit from this act.
3.2. Act of gambling:
– Gambling via Nguyễn Văn B:
Since V provided account TVK20P to B at 1 dollar = 8,000 VND, V contributed capital with the bookmaker to gamble with the lower level at 1,000 VND/dollar. The amount V gambled on this account was 213,551,590 VND, but no single bet reached 5,000,000 VND. V’s total winnings were 1,374,920 VND.
– Gambling with the bookmaker:
After receiving TVK20N and TVK20S, V created 10 sub-pages and gambled directly with the upper level. From August 01, 2016, to September 20, 2016, account TVK20N had a total betting amount of 28,583 dollars, V won 6,617.7 dollars, and lost 9,617 dollars; total gambling on this account was (28,583 + 6,617.7 dollars) x 7,000 VND = 246,404,900 VND. Account TVK20S had a total betting amount of 247,592 dollars, V won 99,584.13 dollars, and lost 112,753 dollars; total gambling on this account was (247,592 + 99,584.13 dollars) x 6,500 VND = 2,256,644,845 VND.
Thus, the total amount V gambled on these 02 accounts was: 246,404,900 + 2,256,644,845 = 2,503,049,845 VND. Among these, there were 173 bets where the betting amount and win amount were 5,000,000 VND or more per bet, totaling 1,938,520,070 VND; the remaining 286 bets were under 5,000,000 VND per bet, totaling 564,529,675 VND.
V won 693,620,745 VND and lost 800,213,500 VND on these 02 accounts, thus V did not profit. The commission V received from Q for these 02 accounts was 4,586,688 VND.
In total, the amount V is criminally responsible for when gambling on these 03 accounts is 1,938,520,070 VND; the remaining 1,246 bets totaling 778,801,265 VND were not subject to criminal prosecution as each bet and win amount was under 5,000,000 VND.
In First-Instance Criminal Judgment No. 04/2018/HSST dated January 16, 2018, the People’s Court of Thừa Thiên Huế Province decided:
Applying Clause 1, Article 249; points b, p, Clause 1, Article 46 of the 1999 Penal Code, sentencing Hồ Công Nhật Q to 01 year and 03 months in prison for “Organizing gambling”. Applying point b, Clause 2, Article 248; points b, o, p, Clause 1, Article 46; Article 47 of the 1999 Penal Code, sentencing Hồ Công Nhật Q to 10 months in prison for “Gambling”.
Applying Clause 1, Article 249; points b, p, Clause 1, Clause 2, Article 46; Article 47 of the 1999 Penal Code, sentencing Hồ Viết H to 09 months in prison for “Organizing gambling”. Applying point b, Clause 2, Article 248; points b, o, p, Clause 1, Clause 2, Article 46; Article 47 of the 1999 Penal Code, sentencing Hồ Viết H to 06 months in prison for “Gambling”.
Applying Clause 1, Article 249; points b, p, Clause 1, Clause 2, Article 46; Article 47 of the 1999 Penal Code, sentencing Nguyễn Mộng V to 06 months in prison for “Organizing gambling”. Applying point b, Clause 2, Article 248; points b, o, p, Clause 1, Clause 2, Article 46; Article 47 of the 1999 Penal Code, sentencing Nguyễn Mộng V to 06 months in prison for “Gambling”.
Applying Article 50 of the Penal Code to aggregate the penalties, the defendants were ordered to serve a combined sentence for both crimes: 02 years and 01 month for Q, 01 year and 03 months for H, and 01 year for V.
On January 30, 2018, Hồ Công Nhật Q, Hồ Viết H, and Nguyễn Mộng V appealed for suspended sentences.
In Appellate Criminal Judgment No. 158/2018/HS-PT dated June 27, 2018, the High People’s Court in Da Nang decided to apply Clause 1, Article 249; point b, Clause 2, Article 248; points b, o, p, Clause 1, Clause 2, Article 46; Article 47; Article 50 of the 1999 Penal Code, sentencing:
Hồ Công Nhật Q to 09 months in prison for “Organizing gambling” and 06 months in prison for “Gambling”. Aggregate sentence: 15 months in prison.
Hồ Viết H to 05 months in prison for “Organizing gambling” and 04 months in prison for “Gambling”. Aggregate sentence: 09 months in prison.
Nguyễn Mộng V to 04 months and 19 days in prison for “Organizing gambling” and 04 months in prison for “Gambling”. Aggregate sentence: 08 months and 19 days in prison.
In Decision No. 03/2019/KN-HS dated June 19, 2019, the Chief Justice of the Supreme People’s Court protested Appellate Criminal Judgment No. 158/2018/HS-PT; requested the Council of Justices of the Supreme People’s Court to conduct a cassation trial, annul the aforementioned Appellate Judgment and First-Instance Judgment No. 04/2018/HSST regarding the main penalties and aggregate penalties for Q, H, and V; and transfer the case file to the People’s Court of Thừa Thiên Huế Province for a first-instance retrial in accordance with the law.
At the cassation trial, the representative of the Supreme People’s Procuracy agreed with the protest decision of the Chief Justice of the Supreme People’s Court.
COURT’S ASSESSMENT:
[1] Hồ Công Nhật Q received a football betting account on the IBET network and divided it into 19 smaller accounts. Q kept 02 accounts and handed the rest to Hồ Viết H, Nguyễn Mộng V, and others to organize gambling and gamble. After H and V received 03 accounts each, they both kept 02 and re-provided 01 to Châu Anh T and Nguyễn Văn B. In this case, the total amount Q was charged with for organizing gambling was 5,174,385,000 VND, H was 1,832,733,000 VND, and V was 1,067,794,000 VND. The act of organizing gambling by the defendants falls under the “large scale” case prescribed in Clause 1, Article 249 of the 1999 Penal Code, with a prison sentence frame of 01 to 05 years.
[2] From the retained accounts, H and V created many sub-pages to gamble directly with the bookmaker. Simultaneously, Q, H, and V increased the conversion rate of 1 dollar higher than received when providing accounts to others, thus Q, H, and V committed gambling acts with players. In the total gambling bets data collected by the Investigation Agency, Q is criminally responsible for 74 bets with betting/loss amounts of 5,000,000 VND or more per bet totaling 692,170,780 VND; H is responsible for 176 bets totaling 1,925,424,840 VND; and V is responsible for 173 bets totaling 1,938,520,070 VND. Defendants Q, H, and V were charged with “Gambling” under Clause 2, Article 248 of the Penal Code, with a prison sentence frame of 02 to 07 years, which is a serious crime.
[3] During the trial, the first-instance Court applied point b, Clause 1, Article 46 of the Penal Code for the defendants incorrectly, because returning illegal profits is not a mitigating factor under point b, Clause 1, Article 46 but rather a mitigating factor under Clause 2, Article 46 of the Penal Code. Furthermore, the first-instance Court applied “confession” as a mitigating factor under point o, Clause 1, Article 46 incorrectly: Q and V were arrested under an Emergency Arrest Order for illegal online gambling; after being arrested, Q admitted the crime. On October 04, 2016, H was prosecuted for “Gambling” and “Organizing gambling” and arrested under a Suspect Arrest Order. During the investigation, the defendants’ statements about gambling acts were merely honest declarations, not a case of voluntary confession. Additionally, the defendants performed multiple gambling acts with amounts of 5,000,000 VND or more, but the first-instance Court failed to apply the aggravating factor “committing a crime multiple times” under point g, Clause 1, Article 48 of the Penal Code for Q, H, and V. Therefore, the first-instance Court’s application of Article 47 for these defendants lacked basis; sentencing Q to 1 year 3 months, H to 9 months, and V to 6 months for “Organizing gambling” and Q to 10 months, H to 6 months, and V to 6 months for “Gambling” (below the minimum of the sentence frame) was too lenient and failed to ensure legal strictness.
[4] The appellate Court failed to detect the errors of the first-instance Court and over-emphasized certain mitigating factors already considered by the first-instance Court, such as returning illegal profits, being the main breadwinner, or having young children; at the appellate level, additional minor factors like paying supplementary fines and Q paying full illegal profits were insignificant. Reducing the sentences to Q (9 months and 6 months), H (5 months and 4 months), and V (4 months 19 days and 4 months) was a serious error in legal application, disproportionate to the nature and severity of the crimes and the roles of the defendants, and failed to meet the requirements of crime prevention for this type of offense.
For the above reasons, based on Article 382, Article 388, and Article 391 of the 2015 Criminal Procedure Code;
DECISION:
1. Accept Protest Decision No. 03/2019/KN-HS dated June 19, 2019, of the Chief Justice of the Supreme People’s Court.
2. Annul Appellate Criminal Judgment No. 158/2018/HS-PT dated June 27, 2018, of the High People’s Court in Da Nang and First-Instance Criminal Judgment No. 04/2018/HSST dated January 16, 2018, of the People’s Court of Thừa Thiên Huế Province regarding the main penalties and aggregate penalties for Hồ Công Nhật Q, Hồ Viết H, and Nguyễn Mộng V; transfer the case file to the People’s Court of Thừa Thiên Huế Province for a first-instance retrial in accordance with the law.
PRECEDENT CONTENT
“[3] During the trial, the first-instance Court applied point b, Clause 1, Article 46 of the Penal Code for the defendants incorrectly, because returning illegal profits is not a mitigating factor under point b, Clause 1, Article 46 of the Penal Code but rather a mitigating factor under Clause 2, Article 46 of the Penal Code…”
