Precedent No. 48/2021/AL

Precedent No. 48/2021/AL on the mitigating circumstance of criminal liability for “returning illegally obtained profits” was adopted by the Council of Judges 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.

Source of case law:

Final judgment No. 03/2020/HS-GDT dated April 22, 2020 of the Council of Judges of the Supreme People's Court on the case of " Gambling " and " Organizing gambling " against defendants Ho Cong Nhat Q, Ho Viet H, Nguyen Mong V.

Location of case law:

Section 3 of “Court's Opinion”.

Overview of case law:

- Case law:

The accused must return the illegal profits from the crime.

- Legal solutions:

In this case, the Court must determine whether the defendant is entitled to mitigating circumstances of criminal liability according to 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 relating to precedents:

– 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);

– Point c, Section 5, Resolution 01/2000/NQ-HDTP dated August 4, 2000 guiding the application of a number of provisions in the General Part of the 1999 Penal Code.

CASE CONTENT

On September 20, 2016, the Investigation Police Agency of T Province Police discovered and arrested a number of subjects who organized illegal gambling via the Internet on a large scale with many participants. The method of organizing gambling by this group of subjects was to receive betting accounts on the IBET website, divide them into many subordinate accounts, and then hand them over to subordinates to organize gambling, gamble, or directly hand them over to illegal gamblers via the Internet.

This is an illegal football betting account on a foreign website, using an English interface containing a virtual amount of dollars (hereinafter referred to as dollars) and the bookie and the account recipient agree on how much Vietnamese Dong is equivalent to one dollar. To organize gambling and gamble illegally online, the subjects in this case installed computers with Internet connection, used laptops, and mobile phones with Wifi connection as tools and means to organize and gamble.

Payment of winnings and losses between teams is agreed in Vietnamese currency, delivered directly or sent through acquaintances. The bookmaker pays the player a commission through the superior account through the Gross Comm section. To gain profit, the gambling organizers in this case all increased the conversion rate of 1 USD higher than the level received (in fact, they contributed capital, contributed more money with the bookmaker) of gambling dollars with the player; at the same time, to encourage players, the gambling organizers also increased the commission paid to an account subject by two to three times.

In particular, the behavior of the subjects Ho Cong Nhat Q, Ho Viet H, Nguyen Mong V is as follows:

1. For Ho Cong Nhat Q:

In February 2016, Q confessed to receiving from a subject named P (name and address unknown) a TVK2 football betting account on the IBET website, with a bet of 3,000,000 USD. P and Q agreed that one dollar was worth 5,000 Vietnamese Dong, and P paid the commission to Q through the Gross Comm section. After receiving the TVK2 account, Q created 19 subordinate accounts. Q set up each of these accounts for 5,000 USD and re-issued them to gamblers or gambling organizations; in which Q issued 3 accounts to Nguyen Mong V, 3 accounts to Ho Viet H and issued accounts to a number of other subjects. Q kept 2 accounts and then created many subordinate accounts and created many separate pages to give to bettors when needed.

During the investigation, the Investigation Agency obtained detailed documents of 07 accounts: TVK204, TVK20B, TVK20K, TVK20N, TVK20P, TVK219 and TVK20S.

1.1. Gambling organization behavior:

- Q granted Ho Viet H the following accounts: TVK20B, TVK204, TVK20K with the convention that TVK204 is 10,000 VND/USD, TVK20B and TVK20K are 7,000 VND/USD. From June to September 2016:

+ On TVK204 account, there is a bet amount of $116,877.

+ On TVK20B account, the bet amount is $261,819.

+ On TVK20K account, the betting amount is 131,060 USD.

- Q granted Nguyen Mong V the accounts TVK20N, TVK20P, TVK20S with the convention that the TVK20N and TVK20P accounts are 7,000 VND/USD, and the TVK20S account is 6,500 VND/USD. From the beginning of June to September 2016:

+ On TVK20N account, there is a bet amount of $28,583.

+ On TVK20P account, the betting amount is 152,542 dollars.

+ On TVK20S account, the betting amount is 247,592 USD.

- Q gave a subject named Q1 (living in the United States) a TVK219 account with a convention of 6,000 VND/dollar. From June to September 2016, this account had a betting amount of 96,404 dollars.

In total, Q must bear criminal responsibility for the crime of "Organizing gambling" through the above 07 accounts: (116,877 USD + 261,819 USD + 131,060 USD + 28,583 USD + 152,542 USD + 247,592 USD + 96,404 USD) 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 subordinates and players was 35,902,997 VND.

1.2. Gambling behavior:

Based on detailed documents, summary tables and statements of the defendants, Q increased the conversion by one point higher than the received level, specifically as follows:

Part given to H (including points scored and money to be paid):

+ TVK204 account [(116,877 USD + 43,451.05 USD) x (10,000 VND - 5,000 VND)] = 801,640,250 VND.

+ TVK20B account [(261,819 USD + 98,676.27 USD) x (7,000 VND - 5,000 VND)] = 720,990,540 VND.

+ TVK20K account [(131,060 USD + 41,797.44 USD) x (7,000 VND – 5,000 VND)] = 345,714,880 VND.

Part assigned to V:

+ TVK20N account [(28,583 USD + 6,617.7 USD) x (7,000 VND – 5,000 VND)] = 70,401,400 VND.

+ TVK20P account [(152,542 USD + 61,009.59 USD) x (7,000 VND – 5,000 VND)] = 427,103,180 VND.

+ TVK20S account [(247,592 USD + 99,584.13 USD) x (6,500 VND – 5,000 VND)] = 520,764,195 VND.

Part assigned to Q1: TVK219 account [(96,404 USD + 42,802.9 USD) x (6,000 VND – 5,000 VND)] = 139,206,900 VND.

The total amount of money Q used to gamble on the TVK2 account was 3,025,821,385 VND. Of which, 74 bets had the amount of money received and lost from 5,000,000 VND/bet or more with a total amount of money gambled of 692,170,780 VND; the remaining 13,480 bets had the amount of money received and lost each bet under 5,000,000 VND/bet with a total amount of 2,333,650,605 VND, so he was not subject to criminal liability.

Through gambling, Q won 884,599,190 VND on these 7 accounts, Q lost 825,636,385 VND, so Q earned 58,962,805 VND.

2. For Ho Viet H:

Ho Viet H received from Ho Cong Nhat Q the accounts TVK204 (1 dollar = 10,000 VND), TVK20B (1 dollar = 7,000 VND), TVK20K (1 dollar = 7,000 VND), then H reissued TVK20B to Chau Anh T and agreed that 1 dollar is 12,000 VND for T to divide into many odd pages for players. H paid commission to T at the rate of Gross Comm x 4. For account TVK204, H created 05 subordinate accounts and from these 05 accounts created 13 odd pages for direct gambling. For account TVK20K, H also created 03 subordinate accounts and from these 03 accounts created 12 odd pages for direct gambling.

2.1. Gambling organization behavior:

Based on detailed documents, summary statements and confessions of the defendants, H's gambling organization behavior is determined specifically as follows: After receiving the TVK20B account at the rate of 7,000 VND/dollar, H reissued it to Chau Anh T; from March 1, 2016 to September 20, 2016, the total amount of bets on the TVK20B account was 261,819 USD 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 to T was 25,781,280 VND, so H did not profit from the gambling organization behavior.

2.2. Gambling behavior:

- Gambling behavior through Chau Anh T:

Because H provided T with a TVK20B account at 12,000 VND/dollar, H contributed capital to the gambling house with his subordinates at 5,000 VND/dollar. Thus, the amount of money H used to gamble on this account is [(261,819 USD + 98,676.27 USD (the money H lost)] x 5,000 VND = 1,802,476,350 VND. Of which, 61 bets received and lost were from 5,000,000 VND/bet or more with a total gambling amount of 643,134,000 VND; the remaining 7,381 bets received and lost were under 5,000,000 VND/bet with a total amount of 1,159,342,350 VND. H won on this account 507,499,700 VND, H lost 493,381,350 VND, so H earned 14,118,350 VND.

- Gambling behavior with the house:

After receiving the TVK204 and TVK20K accounts, H created many separate pages and directly gambled with the bookie. From March 1, 2016 to September 20, 2016, the total amount of bets on these two accounts was $247,937 (TVK204 was $116,877, TVK20K was $131,060). The amount H won on these two accounts is $85,248.49 (TVK204 is $43,451.05, TVK20K is $41,797.44). Thus, H gambled on account TVK204 is ($116,877 + $43,451.05) x 10,000 VND = 1,603,280,500 VND and gambled on account TVK20K is ($131,060 + $41,797.44) x 7,000 VND = 1,210,002,080 VND.

On these 02 accounts, there were 115 bets with betting amounts and winning amounts of 5,000,000 VND/bet or more with a total gambling amount of 1,282,290,840 VND; the remaining 3,187 bets had betting amounts and winning amounts of less than 5,000,000 VND/bet with a total amount of 1,530,991,740 VND. The amount H won when gambling on these 02 accounts was 727,092,580 VND, the amount H lost was 772,741,000 VND, so H did not profit from gambling.

The total amount of money that H must bear criminal responsibility for gambling on these 3 accounts is 643,134,000 VND + 1,282,290,840 VND = 1,925,424,840 VND; the remaining 10,568 bets with the amount of 2,690,334,090 VND because the bet amount is less than 5,000,000 VND/bet are not subject to criminal responsibility. The commission H received from gambling is 11,433,720 VND.

3. For Nguyen Mong V:

Nguyen Mong V received from Ho Cong Nhat Q 03 accounts: TVK20N (1 USD = 7,000 VND), TVK20P (01 USD = 7,000 VND) and TVK20S (01 USD = 6,500 VND), then V re-issued the TVK20P account to Nguyen Van B. V paid B a commission of 1% of the total amount bet on the account. For the remaining accounts, V created subordinate accounts and then continued to create 10 separate pages to directly gamble with the house.

3.1. Gambling organization behavior:

V received from Q the TVK20P account with the convention that 1 dollar = 7,000 VND. From September 1, 2016 to September 20, 2016, on the TVK20P account managed by V, there was a total bet of 152,542 dollars. Thus, V must bear criminal responsibility for the crime of "Organizing gambling" of 152,542 dollars x 7,000 VND = 1,067,794,000 VND.

The commission V received was 5,947,200 VND, the commission V paid to B was 12,203,360 VND, so V did not profit from this act.

3.2. Gambling behavior:

- Gambling behavior through Nguyen Van B:

Because V gave B a TVK20P account with the convention of 1 dollar = 8,000 VND, V contributed capital to the gambling house with his subordinates at 1,000 VND/1 dollar, the amount of money V gambled on this account was 213,551,590 VND, but there was no round with the amount of bet received and lost from 5,000,000 VND/round. The total amount of money V won from gambling was 1,374,920 VND.

- Gambling behavior with the house:

After receiving the TVK 20N and TVK20S accounts, V created 10 odd pages and directly gambled with his superiors. From August 1, 2016 to September 20, 2016, on the TVK20N account, the total amount of bets was 28,583 USD, V won 6,617.7 USD, V lost 9,617 USD, the total amount V gambled on this account was (28,583 USD + 6,617.7 USD) x 7,000 VND = 246,404,900 VND; On TVK20S account, the total bet amount is 247,592 USD, V wins 99,584.13 USD, V loses 112,753 USD, the total amount V gambled on this account is (247,592 USD + 99,584.13 USD) x 6,500 VND = 2,256,644,845 VND.

Thus, the total amount of money V gambled on the above 2 accounts is: 246,404,900 + 2,256,644,845 = 2,503,049,845 VND. Of which, 173 bets and winnings were from 5,000,000 VND/bet or more with a total bet of 1,938,520,070 VND; the remaining 286 bets and winnings were under 5,000,000 VND/bet with a total of 564,529,675 VND.

The amount of money V won from gambling on these two accounts was 693,620,745 VND, V lost 800,213,500 VND, so V did not make any profit. The commission V received from Q of these two accounts was 4,586,688 VND.

The total amount of money that V must bear criminal responsibility for gambling on these 3 accounts is 1,938,520,070 VND; the remaining 1,246 bets with the amount of 778,801,265 VND because the bet amount and winning amount for each bet are both under 5,000,000 VND/bet, so he is not subject to criminal prosecution.

In the First Instance Criminal Judgment No. 04/2018/HSST dated January 16, 2018, the People's Court of Thua Thien Hue province decided:

Applying Clause 1, Article 249; Points b, p, Clause 1, Article 46 of the 1999 Penal Code, sentence Ho Cong Nhat Q to 01 year and 03 months in prison for the crime of "Organizing gambling". Applying Point b, Clause 2, Article 248; Points b, o, p, Clause 1, Article 46; Article 47 of the 1999 Penal Code, sentence Ho Cong Nhat Q to 10 months in prison for the crime of "Gambling".

Applying Clause 1, Article 249; Points b, p, Clause 1, Clause 2, Article 46; Article 47 of the 1999 Penal Code, sentence Ho Viet H to 09 months in prison for the crime of "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, sentence Ho Viet H to 06 months in prison for the crime of "Gambling".

Applying Clause 1, Article 249; Points b, p, Clause 1, Clause 2, Article 46; Article 47 of the 1999 Penal Code, Nguyen Mong V is sentenced to 06 months in prison for the crime of "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, Nguyen Mong V is sentenced to 06 months in prison for the crime of "Gambling".

Applying Article 50 of the Penal Code, synthesizing the penalties, forcing the above defendants to serve the combined sentence of both crimes, specifically: for Q, it is 02 years and 01 month in prison, H is 01 year and 03 months in prison and V is 01 year in prison.

On January 30, 2018, Ho Cong Nhat Q, Ho Viet H and Nguyen Mong V appealed for a suspended sentence.

In the Criminal Appeal 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, to punish:

Ho Cong Nhat Q was sentenced to 9 months in prison for “Organizing gambling” and 6 months in prison for “Gambling”. The combined sentences mean Q must serve a combined sentence of 15 months in prison for both crimes.

Ho Viet H was sentenced to 05 months in prison for “Organizing gambling” and 04 months in prison for “Gambling”. Combining the sentences, H must serve a combined sentence of 09 months in prison for both crimes.

Nguyen Mong V was sentenced to 4 months and 19 days in prison for “Organizing gambling” and 4 months in prison for “Gambling”. The combined sentences mean V must serve a combined sentence of 8 months and 19 days in prison for both crimes.

In Decision No. 03/2019/KN-HS dated June 19, 2019, the Chief Justice of the Supreme People's Court appealed the Criminal Appeal Judgment No. 158/2018/HS-PT dated June 27, 2018 of the High People's Court in Da Nang; requested the Council of Judges of the Supreme People's Court to review the case, annul the above Criminal Appeal Judgment and the Criminal Judgment at First Instance No. 04/2018/HSST dated January 16, 2018 of the People's Court of Thua Thien Hue province regarding the main penalty and total penalty for Ho Cong Nhat Q, Ho Viet H, Nguyen Mong V; transferred the case file to the People's Court of Thua Thien Hue province for retrial at first instance in accordance with the provisions of law.

At the appeal hearing, the representative of the Supreme People's Procuracy agreed with the appeal decision of the Chief Justice of the Supreme People's Court.

JUDGMENT OF THE COURT

[1] Ho Cong Nhat Q received a football betting account from the IBET website and divided it into 19 accounts. Q kept 2 accounts, and gave the remaining accounts to Ho Viet H, Nguyen Mong V and several other subjects to organize gambling and gamble. After Ho Viet H and Nguyen Mong V each received 3 accounts, H and V kept 2 accounts and re-issued 1 account to Chau Anh T and Nguyen Van B to organize gambling and gamble. In this case, the total amount of money that Q was charged with organizing gambling was 5,174,385,000 VND, H was 1,832,733,000 VND and V was 1,067,794,000 VND. The defendants' gambling organization is a "large-scale" case as prescribed in Clause 1, Article 249 of the 1999 Penal Code, with a prison sentence of 01 to 05 years.

[2] From the retained accounts, H and V created many separate pages and directly gambled with the bookie. At the same time, Q, H and V also increased the conversion rate of 01 USD higher than the level received when handing over the account to others, so Q, H and V gambled with players. Of the total number of gambling sessions that the Investigation Agency collected data on, Q must bear criminal responsibility for 74 sessions with the amount of money received and lost bets to be paid from 5,000,000 VND/session or more, with a total amount of 692,170,780 VND; H must bear criminal responsibility for 176 sessions with the amount of money received and lost bets to be paid from 5,000,000 VND/session or more, with a total amount of 1,925,424,840 VND; V must bear criminal responsibility for 173 bets with the amount of money received and lost from 5,000,000 VND/bet or more, with a total amount of 1,938,520,070 VND. The defendants Q, H, and V were convicted of the crime of "Gambling" under the provisions of Clause 2, Article 248 of the Penal Code, with a prison sentence of 02 to 07 years, which is a serious crime.

[3] When trying the case, the Court of First Instance applied Point b, Clause 1, Article 46 of the Penal Code to the above defendants, which was incorrect, because returning the illegally obtained money is not a mitigating circumstance for criminal liability according to Point b, Clause 1, Article 46 of the Penal Code, but is a mitigating circumstance according to Clause 2, Article 46 of the Penal Code. On the other hand, the Court of First Instance applied the circumstance of "the offender confessing" as a mitigating circumstance for the defendants according to Point o, Clause 1, Article 46 of the Penal Code, which was illegal, because: Q and V were arrested under an Emergency Arrest Warrant for illegal use of the Internet for gambling; after being arrested, Q confessed to the crime. On October 4, 2016, H was prosecuted for the crimes of "Gambling" and "Organizing gambling" and was arrested under an Arrest Warrant for temporary detention. During the investigation of the case, the defendants' confessions about gambling were only sincere confessions and not self-confessions. In addition, the defendants gambled many times with amounts of VND 5,000,000 or more, but the Court of First Instance did not apply the aggravating circumstances of criminal liability stipulated in Point g (committing the crime many times), Clause 1, Article 48 of the Penal Code to Q, H and V, which was an omission. Therefore, the Court of First Instance's application of Article 47 of the Penal Code to these defendants was baseless, sentencing Q to 01 year and 03 months in prison, H to 09 months in prison, V to 06 months in prison, all for the crime of "Organizing gambling" and sentencing Q to 10 months in prison, H to 06 months in prison, V to 06 months in prison, all for the crime of "Gambling" (below the lowest level of the penalty frame) was too lenient, not ensuring the strictness of the law.

[4] The Court of Appeal did not find the error of the Court of First Instance, over-emphasizing some mitigating circumstances that had been considered and applied by the Court of First Instance, such as the defendants returning the illegally obtained profits, being the main breadwinner in the family, and having young children; At the appeal level, there were additional circumstances such as the defendants had paid the additional fines in full, defendant Q had also paid the illegal profits in full, Q's father had contributed to the locality, which were new insignificant mitigating circumstances, thereby reducing the sentences for the defendants, sentencing Q to 9 months in prison, H to 5 months in prison and V to 4 months and 19 days in prison, all for the crime of "Organizing gambling" and sentencing Q to 6 months in prison, H to 4 months in prison, V to 4 months in prison for the crime of "Gambling" was a serious mistake in the application of the law, not commensurate with the nature, level of crime and the role of the defendants in the case, not meeting the requirements of fighting and preventing this type of crime.

For the above reasons, pursuant to Articles 382, ​​388 and 391 of the 2015 Criminal Procedure Code,

DECISION

1. Accept Appeal Decision No. 03/2019/KN-HS dated June 19, 2019 of the Chief Justice of the Supreme People's Court.
2. Annul the Criminal Appeal Judgment No. 158/2018/HS-PT dated June 27, 2018 of the High People's Court in Da Nang and the Criminal First Instance Judgment No. 04/2018/HSST dated January 16, 2018 of the People's Court of Thua Thien Hue province regarding the main penalty and total penalty for Ho Cong Nhat Q, Ho Viet H and Nguyen Mong V; transfer the case file to the People's Court of Thua Thien Hue province for retrial in accordance with the provisions of law.

CONTENT OF PRECEDENT

“[3] When trying the case, the Court of First Instance applied Point b, Clause 1, Article 46 of the Penal Code to the above defendants incorrectly, because returning illegally obtained money is not a mitigating circumstance for criminal liability according to Point b, Clause 1, Article 46 of the Penal Code but is a mitigating circumstance according to Clause 2, Article 46 of the Penal Code…”

Major