Around the beginning of June 2018, LQC went to Cambodia to connect with an unknown person to get a football betting account on the website www.bong88.com. This person also instructed C. to divide the account into sub-accounts to organize for lower-level agents to record bets. C. agreed with this person that after the end of the 2018 World Cup season, he would return to Cambodia to share the profits.
Upon returning to Vietnam, LQC organized a number of other people to establish a domestic football betting ring, which was later dismantled by the police. During the trial of this gambling ring, Tan Phu District People's Court (HCMC) sentenced N.D.B, KHCh, LNH, and NVTr to "gambling"; in which B. and Ch. were sentenced to 3 years in prison, suspended; H. and Tr. to 1 year in prison, suspended.
As for the defendants with the role of organizing gambling, the first instance panel sentenced them to prison, including LQC.
Three appeals, two appeals
After the first instance verdict, the Ho Chi Minh City People's Procuracy appealed according to the appeal procedure, requesting the Ho Chi Minh City People's Court to apply the circumstance of "committing the crime 2 times or more" to the 4 defendants who were sentenced to prison and were given suspended sentences as mentioned above and not apply Article 65 of the Penal Code to allow the defendants to receive suspended sentences.
However, the Ho Chi Minh City People's Court of Appeal upheld the first instance sentence of N.D.B and KHCh to 3 years in prison but suspended the sentence; LNH and NVTr were both sentenced to 1 year in prison but suspended the sentence.
Reviewing the case file, the High People's Procuracy in Ho Chi Minh City continued to appeal the final judgment of the Ho Chi Minh City People's Court for a retrial in the direction of not allowing the above 4 defendants to receive a suspended sentence. In the final judgment of the High People's Court in Ho Chi Minh City, the appeal of the High People's Procuracy in Ho Chi Minh City was not accepted, and the final judgment of the Ho Chi Minh City People's Court for the cases of B., Ch., H., and Tr. was upheld.
Because 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 Justice of the Supreme People's Procuracy to appeal for a final review of the case.
Then, the Supreme People's Court's Judicial Council decided to accept the appeal of the Chief Justice of the Supreme People's Procuracy, annull the appeal decision of the High People's Court in Ho Chi Minh City and the criminal appeal judgment of the Ho Chi Minh City People's Court on the main punishment for the four defendants N.D.B, KHCh, LHH, NVTr to re-try the appeal in the direction of not allowing the defendants to receive suspended sentences.
There are aggravating circumstances of criminal responsibility, no suspended sentence allowed.
According to the case file, N.D.B bet on a total of 32 football matches with a total of more than 900 million VND; KHCh bet on 6 matches with a total of 510 million VND; LNH bet on 9 matches with a total of nearly 26 million VND; NVTr bet on 16 matches with a total of 86.5 million VND.
The protest of the Chief Justice of the Supreme People's Procuracy shows that these 4 defendants have committed crimes 2 times or more, which is an aggravating circumstance of criminal liability as prescribed in Point g, Clause 1, Article 52 of the 2015 Penal Code. In addition, Clause 5, Article 3 of Resolution 02/2018/HDTP guiding the application of Article 65 of the Penal Code on suspended sentences stipulates that "repeated offenders" are not eligible for suspended sentences.
In addition, the Supreme People's Procuracy pointed out that the appellate court's application of punishment to the defendants did not ensure the principle of fairness. When N.D.B committed the crime with two framing circumstances: "money or objects used for gambling worth 50 million VND or more" and "using the internet to commit the crime", the gambling amount was more than 900 million VND, the defendant only had one mitigating circumstance; but the sentence of defendant N.D.B was equal to that of defendant KHCh, who only had one framing circumstance: "money used for gambling worth 50 million VND or more", the gambling amount of Ch. was only 510 million VND, while there were 2 mitigating circumstances.
Similarly, for defendant NVTr, who gambled more times and gambled more money, but the sentence was equal to that of defendant LHH, who gambled less times and gambled less money, it was unfair. Therefore, the Supreme People's Procuracy requested to cancel the sentence and retry to ensure fairness.
After the Supreme People's Procuracy Chief Justice's appeal for review was accepted by the Supreme People's Court's Council of Judges, the Supreme People's Procuracy requested the entire sector to learn from experience and improve the quality of the practice of the right to prosecute and supervise criminal trials throughout the sector.
Falsifying medical records
Or another case, is the case of PSNh committing the crime of "gambling". The People's Court of Krong Pac District (Dak Lak) sentenced Nh. to 3 years in prison at the first instance. At the second instance, the People's Court of Dak Lak Province rejected Nh.'s appeal for a suspended sentence, upholding the first instance sentence of 3 years in prison.
However, the High People's Court's Judicial Committee in Da Nang held a final review and amended the criminal appeal judgment of the Dak Lak Provincial People's Court in the direction of maintaining the 3-year prison sentence but giving PSNh a suspended sentence.
During the process of reviewing the case file, the Supreme People's Procuracy appealed according to the cassation procedure, requesting the Supreme People's Court's Judicial Council to review the case according to the cassation procedure, annul the cassation decision of the Judicial Committee of the High People's Court in Da Nang, and uphold the appellate judgment, not allowing Nh. to receive a suspended sentence.
The Supreme People's Procuracy analyzed that PSNh committed the crime of "gambling" with 2 circumstances determining the penalty: the money used for gambling was worth 50 million VND or more, and using the internet and computer networks to commit the crime; there was an aggravating circumstance of "committing the crime 2 times or more", but the High People's Court in Da Nang revised the appeal judgment, giving Nh. a suspended sentence, which violated Clause 5, Article 3 of Resolution 02.
Furthermore, according to the verification of the Supreme People's Procuracy, the medical records and the minutes of the examination conclusion of the Ho Chi Minh City Oncology Hospital for PSNh showed signs of forgery. Therefore, the Chief Justice of the High People's Court in Da Nang based on these medical records and minutes to appeal for a final judgment without checking and verifying clearly, which was unfounded. Afterwards, the Judicial Committee of the High People's Court in Da Nang continued to base on these medical records to give defendant Nh. a suspended sentence, which was a serious mistake in the application of the law.
(to be continued)
In case of committing a crime 2 times or more but receiving a suspended sentence
Resolution 01/2022/NQ-HDTP amends and supplements a number of articles in Resolution 02/2018/HDTP guiding the application of Article 65 of the Penal Code on suspended sentences, including adding Clause 5, Article 3, that a person who commits a crime 2 times or more shall not be entitled to a suspended sentence, except in one of the following cases:
a) The offender is under 18 years of age;
b) All crimes are less serious crimes;
c) In the cases where the offender is an accomplice in a crime, the role of the offender is insignificant;
d) Crimes committed by the offender himself/herself.
Cases where suspended sentence is not granted
1. The offender is the mastermind, leader, commander, stubborn opponent, thug, using cunning tricks, professionally, taking advantage of position and power for personal gain, intentionally causing especially serious consequences.
2. The person who committed the crime fled and was wanted by the prosecuting agencies.
3. A person serving a suspended sentence commits a new crime during the probation period; a person serving a suspended sentence is tried for another crime committed before receiving the suspended sentence.
4. A criminal may be tried at the same time for multiple crimes, except in cases where the criminal is under 18 years of age.
5. A person who commits a crime multiple times, except in cases where the offender is under 18 years of age.
6. The offender is a recidivist or dangerous recidivist.
(Article 3 of Resolution 02/2018/HDTP guiding the application of Article 65 of the Penal Code on suspended sentences)
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