Committing the crime two or more times, yet still receiving a suspended sentence (!?)

Around the beginning of June 2018, LQC went to Cambodia to connect with an unknown individual to obtain a football betting account on the website www.bong88.com. This person also instructed C. to split the account into sub-accounts to organize betting for lower-level agents. C. agreed with this individual that after the 2018 World Cup season ended, he would return to Cambodia to share the profits.

Upon returning to Vietnam, LQC organized several others to establish a domestic football betting ring, which was later dismantled by the police. During the trial of this gambling ring, the Tan Phu District People's Court (Ho Chi Minh City) convicted N.D.B, KHCh, LNH, and NVTr of "gambling"; B. and Ch. received 3-year suspended sentences, while H. and Tr. received 1-year suspended sentence.

As for the defendants who organized the gambling, the trial court sentenced them all to imprisonment, including LQC.

Three appeals, two reviews by the Supreme Court.

Following the first-instance judgment, the Ho Chi Minh City People's Procuracy appealed through the appellate procedure, requesting the Ho Chi Minh City People's Court to apply the aggravating circumstance of "committing the crime two or more times" to the four defendants who received suspended sentences, and not to apply Article 65 of the Criminal Code to grant them suspended sentences.

However, the Ho Chi Minh City People's Court of Appeal upheld the first-instance judgment, sentencing N.D.B and KHCh to 3 years in prison but suspending their sentences; and LNH and NVTr to 1 year in prison each, also suspended.

Reviewing the case file, the High People's Procuracy in Ho Chi Minh City continued to appeal for cassation against the appellate criminal judgment of the Ho Chi Minh City People's Court, seeking a retrial with the aim of not granting suspended sentences to the four defendants. In its cassation decision, the High People's Court in Ho Chi Minh City rejected the appeal of the High People's Procuracy, upholding the appellate criminal judgment of the Ho Chi Minh City People's Court against B., Ch., H., and Tr.

Since the High People's Court in Ho Chi Minh City did not accept the appeal, the High People's Procuracy in Ho Chi Minh City reported to the Chief Procurator of the Supreme People's Procuracy to appeal for cassation review of the case.

Subsequently, the Supreme People's Court's panel of judges decided to accept the appeal for cassation review by the Chief Prosecutor of the Supreme People's Procuracy, overturning the cassation review decision of the High People's Court in Ho Chi Minh City and the appellate criminal judgment of the Ho Chi Minh City People's Court regarding the principal penalties for the four defendants N.D.B, KHCh, LHH, and NVTr, in order to conduct a retrial at the appellate level, with the aim of not granting the defendants suspended sentences.

There are aggravating circumstances that increase criminal liability, therefore a suspended sentence is not granted.

According to the case file, N.D.B recorded bets on a total of 32 football matches with a total amount exceeding 900 million VND; KHCh participated in betting on 6 matches with a total gambling amount of 510 million VND; LNH bet on 9 matches with a total amount of nearly 26 million VND; NVTr bet on 16 matches with a total amount of 86.5 million VND.

The appeal by the Director of the Supreme People's Procuracy points out that these four defendants committed the crime two or more times, which is an aggravating circumstance under point g, clause 1, Article 52 of the 2015 Penal Code. Furthermore, clause 5, Article 3 of Resolution 02/2018/HĐTP, which guides the application of Article 65 of the Penal Code regarding suspended sentences, stipulates that "persons who commit crimes multiple times" are not eligible for a suspended sentence.

Furthermore, the Supreme People's Procuratorate pointed out that the appellate court's application of penalties to the defendants did not ensure the principle of fairness. When N.D.B committed the crime with two aggravating circumstances, namely "money or objects used for gambling worth 50 million VND or more" and "using the internet to commit the crime," with the amount of money gambled exceeding 900 million VND, the defendant only had one mitigating circumstance; however, N.D.B's sentence was equal to that of defendant KHCh, who only had one aggravating circumstance, "money used for gambling worth 50 million VND or more," with the amount of money gambled by Ch. being only 510 million VND, while having two mitigating circumstances.

Similarly, it is unfair that defendant NVTr, who gambled more times and with larger sums of money, received the same sentence as LHH, who gambled fewer times and with smaller amounts of money. Therefore, the Supreme People's Procuratorate requests that the verdict be overturned and the case retried to ensure fairness.

Following the acceptance of the Supreme People's Court's Judges Council's appeal for judicial review by the Chief Prosecutor of the Supreme People's Procuracy, the Supreme People's Procuracy requested the entire sector to learn from experience and improve the quality of its work in exercising the power of prosecution and supervising criminal trials.

Falsifying medical records

Another case is that of PSNh, who was charged with "gambling." The People's Court of Krong Pac District ( Dak Lak ) sentenced Nh. to 3 years in prison in the first instance. In the appeal, the People's Court of Dak Lak Province rejected Nh.'s appeal for a suspended sentence, upholding the first instance verdict of 3 years in prison.

However, the panel of judges of the High People's Court in Da Nang reviewed the case and amended the appellate criminal judgment of the Dak Lak Provincial People's Court, upholding the 3-year prison sentence but granting PSNh a suspended sentence.

During the review of the case file, the Supreme People's Procuracy appealed under the supervisory review procedure, requesting the Supreme People's Court's panel of judges to hear the case under the supervisory review procedure, overturn the supervisory review decision of the Judges' Committee of the High People's Court in Da Nang, and uphold the appellate judgment, denying Nh. a suspended sentence.

The Supreme People's Procuratorate analyzed that PSNh committed the crime of "gambling" with two aggravating circumstances: the money used for gambling was worth 50 million VND or more, and the crime was committed using the internet and computer networks; there was also an aggravating circumstance of "committing the crime two or more times," but the High People's Court in Da Nang amended the appellate judgment, giving Nh. a suspended sentence, which violates Clause 5, Article 3 of Resolution 02.

Furthermore, according to verification by the Supreme People's Procuracy, the medical records and expert assessment report from the Ho Chi Minh City Oncology Hospital regarding PSNh show signs of forgery. Therefore, the Chief Justice of the High People's Court in Da Nang, relying on these medical records and reports to appeal for cassation without proper verification, is unfounded. Subsequently, the Judges' Committee of the High People's Court in Da Nang continued to rely on these medical records to grant defendant Nh. a suspended sentence, which constitutes a serious error in the application of the law.  

(to be continued)

Cases where the offender commits the crime two or more times but receives a suspended sentence.

Resolution 01/2022/NQ-HĐTP amends and supplements several articles of Resolution 02/2018/HĐTP guiding the application of Article 65 of the Penal Code on suspended sentences, adding Clause 5 to Article 3, stating that a person who commits a crime two or more times is not entitled to a suspended sentence, except in one of the following cases:

a) The offender is under 18 years of age;

b) All offenses were minor crimes;

c) In all instances of the crime, the offender was an accomplice in the crime, playing an insignificant role;

d) Instances of crime committed through self-confession by the offender.

Cases where suspended sentences are not granted

1. The offender is the mastermind, leader, commander, stubbornly resisting, a thug, using cunning tactics, acting professionally, abusing their position and authority for personal gain, and intentionally causing exceptionally serious consequences.

2. The perpetrator of the crime has fled and has been subject to a warrant issued by the prosecuting authorities.

3. A person on probation commits a new crime during the probationary period; a person on probation is tried for another crime committed before being granted probation.

4. An offender may be tried for multiple offenses at the same time, except when the offender is under the age of 18.

5. Repeat offenders, except in cases where the offender is under 18 years of age.

6. The offender is a repeat offender or a dangerous repeat offender.

(Article 3 of Resolution 02/2018/HĐTP guiding the application of Article 65 of the Criminal Code on suspended sentences)

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