Joint Circular No. 01/1998/TTLT/TANDTC-VKSNDTC-BNV guiding the application of certain provisions of the Law amending and supplementing some articles of the Criminal Code.

JOINT CIRCULAR

Guidelines for Implementing Certain Provisions of the Law Amending and Supplementing Certain Articles of the Criminal Code

To uniformly apply the provisions of the Law Amending and Supplementing Certain Articles of the Criminal Code adopted by the National Assembly, Session 11, Term IX on May 10, 1997, the Supreme People's Court, the Supreme People's Procuracy, and the Ministry of Interior have jointly issued the following guidelines:

A. ON THE EFFECTIVE DATE

1. According to Clause 1 Article 75 of the Law on Legislative Documents, "Laws, Resolutions of the National Assembly, Ordinances, and Resolutions of the Standing Committee of the National Assembly shall take effect from the date of promulgation by the President of the State, except where such documents provide a different effective date"; therefore, the Law Amending and Supplementing Certain Articles of the Criminal Code adopted by the National Assembly on May 10, 1997, and promulgated by the President on May 22, 1997 (hereinafter referred to as the Law Amending and Supplementing...) shall take effect from May 22, 1997.

2. Clause 1 Article 7 of the Criminal Code provides that "The law applicable to a criminal act is the law in force at the time the act was committed"; accordingly, the provisions of the Law Amending and Supplementing shall be applied to all criminal acts committed before May 22, 1997, but prosecuted, tried at first instance, appealed, or reviewed after that date, shall still apply the old provisions of the Criminal Code, and not the new provisions of the Law Amending and Supplementing... which prescribe new offenses or harsher penalties, specifically:

a) Regarding Article 1 of the Law Amending and Supplementing...

The following provisions shall not be applied, except as provided in Point 4 Part A of this Circular:

- The offense of embezzlement of socialist property (Article 133);

- The offense of taking advantage of position or power to defraud and appropriate socialist property (Clauses 2, 3, 4 Article 134a);

- The offense of taking advantage of position or power to improperly use socialist property (Clauses 2, 3, 4 Article 137a);

- The offense of misusing position or power to appropriate property of citizens (Article 156);

- The offense of establishing illegal funds (Article 175);

- The offense of abusing authority while performing official duties (Article 221a);

- The offense of forging official documents (Article 224);

- The offense of accepting bribes (Article 226);

- The offense of offering bribes, the offense of brokering bribes (Article 227);

- The offense of taking advantage of position or power to influence others for personal gain (Article 228a).

b) Regarding Article 2 of the Law Amending and Supplementing...

The provisions of Articles 185a, 185b, 185c, 185d, 185đ, 185e, 185g, 185h, 185i, 185k, 185m, 185n, and Clause 3 Article 185o shall not be applied.

c) Regarding Article 3 of the Law Amending and Supplementing...

The provisions of Articles 112a, 113a, 114, 202, 202a, 202b shall not be applied.

d) Regarding Article 4 of the Law Amending and Supplementing...

The following provisions shall not be applied:

- Point c Clause 1 Article 39 regarding the aggravating circumstance "Taking advantage of high positions to commit crimes."

- Paragraph 2 Clause 3 Article 100.

- The offense of rape (Article 112).

- The offense of forcible sexual assault (Article 113).

- Additional penalties for newly added offenses (Article 118).

- The offense of fraudulently appropriating socialist property (Article 134);

- The offense of improperly using socialist property (Clauses 2, 3 Article 137);

- Additional penalties for newly added offenses (Article 142);

- The offenses of concealing crimes, failing to report crimes for newly added offenses (Articles 246, 247).

4. Clause 3 Article 7 of the Criminal Code stipulates that "A provision abolishing an offense or prescribing a lighter penalty shall be applied to a crime committed before the enactment of such provision"; accordingly, the provisions of the Law Amending and Supplementing... not mentioned in Point 3 Part A of this Circular shall be applied to crimes committed before May 22, 1997, but prosecuted, tried at first instance, or reviewed after that date. In addition, the specific provisions of the Law Amending and Supplementing shall also be applied to the penalties for crimes committed before May 22, 1997.

- Clause 1 Article 133, Clause 1 Article 134a, and Clause 1 Article 156 (Law Amending and Supplementing...) shall be applied to not prosecute individuals who commit corresponding acts (embezzlement of socialist property, taking advantage of position or power to defraud and appropriate socialist property, misusing position or power to defraud and appropriate socialist property, misusing position or power to appropriate property of citizens) if the appropriated property is valued under five million dong and does not fall into serious consequences, repeated violations, or violations after disciplinary action. However, in this case, it is necessary to recommend disciplinary or administrative action to the competent authorities.

- According to previous guidance documents of the Supreme People's Court and relevant agencies, if an individual commits embezzlement of socialist property or misuses position or power to appropriate property of citizens with appropriated property valued at five tons of rice or more, they will be considered to have appropriated a large amount of property and will be criminally prosecuted according to Clause 2 Article 133 or Clause 2 Article 156 of the Criminal Code. Now, according to Clause 1 Article 133 and Clause 1 Article 156 of the Criminal Code (Law Amending and Supplementing...), if an individual commits embezzlement of socialist property or misuses position or power to appropriate property of citizens with appropriated property valued between five million dong and less than one hundred million dong and does not fall into any of the circumstances prescribed in Clause 2 of the corresponding articles, then only be criminally prosecuted according to Clause 1 of the corresponding article; therefore, this provision of the Law Amending and Supplementing... shall be applied to cases of embezzlement of socialist property or misuse of position or power to appropriate property of citizens according to Clause 1 Article 133 or Clause 1 Article 156 of the Criminal Code, if the appropriated property is valued at less than one hundred million dong.

- Clause 1 Article 134a (Law Amending and Supplementing...) shall be applied without applying Point đ Clause 2 Article 134 of the Criminal Code to the act of taking advantage of position or power to defraud and appropriate socialist property, if it does not fall into any of the circumstances prescribed in Clauses 2, 3, and 4 Article 134a. If it falls into one of these circumstances, then Point đ Clause 2 Article 134 of the Criminal Code must be applied.

- Clause 1, Article 226, Clause 1, Article 227 (Amended and Supplementary Law...) shall be applied to not pursue criminal responsibility for persons committing corresponding acts (receiving bribery, offering bribery, brokering bribery) if the bribe value is under five hundred thousand dong and does not fall within cases causing serious consequences, violating multiple times, or having been disciplined but still violating. However, in this case, it is necessary to make recommendations to competent authorities to handle disciplinary measures or administrative penalties.

- Clause 1, Article 137 (Amended and Supplementary Law...) shall be applied to not pursue criminal responsibility for persons committing the act of improperly using state-owned property, if no serious consequences have occurred or no administrative penalty has been imposed.

- According to Clause 2, Article 100 of the Criminal Code (unamended), Vietnamese citizens who commit the crime of producing, storing, transporting, buying, or selling illegal narcotics shall be punished with community service or residence prohibition from one to five years. Now, Article 185 (o) (Amended and Supplementary Law...) does not stipulate supplementary punishments of community service or residence prohibition for those committing such crimes; therefore, this provision shall be applied to not impose community service or residence prohibition on persons committing the crime of producing, storing, transporting, buying, or selling illegal narcotics that were committed before May 22, 1997.

5. For judgments and decisions that had legal effect before May 22, 1997, and were tried according to the provisions of the Criminal Code that had not yet been amended and supplemented by the Amended and Supplementary Law... and previous guidelines before the issuance of this Circular, these provisions of the Amended and Supplementary Law and the guidelines of this Circular shall not be applied to appeal through the extraordinary review procedure.

B. APPLICATION OF CERTAIN SPECIFIC PROVISIONS

I. REGARDING THE AMENDED AND SUPPLEMENTARY LAW...

1. REGARDING SOME CIRCUMSTANCES AS CRIMINAL ELEMENTS OR SENTENCING FACTORS

a) The circumstance "committing multiple times," provided for in Clause 1, Article 133, Clause 1, Article 134a, Clause 1, Article 156, Clause 1, Article 226, Clause 1, Article 227, Clause 1, Article 228a, means having committed violations two or more times (two or more times of embezzlement of state-owned property...) where each violation involves assets valued below the threshold set by the relevant articles (below five hundred thousand dong according to Clause 1, Article 133, Clause 1, Article 134a, Clause 1, Article 227, Clause 1, Article 228a), and none of these violations have been subject to disciplinary action and the disciplinary action time limit has not expired. (According to Circular No. 12/LĐ-TT dated May 28, 1977 of the Ministry of Labor, now the Ministry of Labor, Invalids and Social Affairs, "the disciplinary period shall not exceed one month from the date of discovery of the mistake. In complex cases, it may be extended up to three months"). In this case, the offender must bear criminal responsibility for the total value of the assets involved in all violations.

b) The circumstance "having been disciplined and still committing a violation" provided for in Clause 1, Article 133, Clause 1, Article 134a, Clause 1, Article 137a, Clause 1, Article 156, Clause 1, Article 175, Clause 1, Article 226, Clause 1, Article 227, Clause 1, Article 228a means that prior to the current violation, there was a previous violation which was subject to one form of disciplinary action, and now another similar violation has been committed and discovered. In this case, the offender only bears criminal responsibility for the value of the assets involved in the latest un-disciplined violation. (It should be noted that only violations subject to disciplinary action since May 22, 1997 onwards are counted).

c) The circumstance "having been administratively penalized and still committing a violation" provided for in Clause 1, Article 175 means that prior to the current violation, there was a previous illegal fund-raising act which was subject to one form of administrative penalty, but the administrative penalty period has not yet expired, and now another illegal fund-raising act has been committed and discovered. (According to Article 10 of the Administrative Violation Handling Ordinance, "individuals or organizations are considered to have been penalized or from the day the penalty becomes effective"). In this case, the offender only bears criminal responsibility for the newly discovered illegal fund-raising act, if the value of the illegal fund is fifty million dong or more. (It should be noted that only cases subject to administrative penalties since May 22, 1997 onwards are counted).

đ) The circumstance "having many circumstances specified in Clause 2 of this Article" and the circumstance "having many circumstances specified in Clause 3 of this Article" provided for in Articles 133, 134a, 137a, 156, 175, 221, 221a, 224, 226, 227, and 228a mean that there must be at least two circumstances specified in Clause 2 (or Clause 3) of the corresponding article.

e) When applying the circumstances "causing serious consequences," "causing very serious consequences," and "causing particularly serious consequences" as provided for in the corresponding articles of the Amended and Supplementary Law..., it should be noted that the determination of "serious consequences," "very serious consequences," and "particularly serious consequences" is not based on the value of the assets seized (as the value of the assets seized is already a sentencing factor in the corresponding articles) but rather on the consequences caused by the criminal act. These consequences can include damage to life, health, property (property damage caused by the criminal act, beyond the value of the seized assets); negative impact on political situation, social order and security...

In cases where only property damage occurs, "serious consequences," "very serious consequences," and "particularly serious consequences" are determined as follows:

- Causing property damage valued from three hundred million dong to less than five hundred million dong is considered causing serious consequences.

- Causing property damage valued from five hundred million dong to less than one billion dong is considered causing very serious consequences;

- Causing property damage valued from one billion dong or more is considered causing particularly serious consequences.

Practical investigations, prosecutions, and trials show that there are many cases where both property damage and other types of damage occur; therefore, in such cases, a comprehensive assessment of the consequences caused by the criminal act must be made. Although the value of the property damage may be below the corresponding thresholds mentioned above, it can still be considered causing serious consequences, very serious consequences, or particularly serious consequences.

If the damage is not related to property, it is necessary to comprehensively examine and assess the consequences caused by the criminal act in that specific case to determine which cases constitute "serious consequences," which cases constitute "very serious consequences," and which cases constitute "extremely serious consequences."

* Example: In the case of embezzlement of socialist public property valued at six million dong, where the medicine was confiscated and thus unavailable for treating a disease, resulting in harm to people's health or lives. To determine "serious consequences," "very serious consequences," or "extremely serious consequences," consideration must be given to the number of people harmed, the extent of harm, the number of deaths, etc. If the consequence only results in death, then causing the death of one person constitutes serious consequences, causing the death of two persons constitutes very serious consequences, and causing the death of three or more persons constitutes extremely serious consequences.

g) Clause 1 of Article 175 provides: "A person who takes advantage of their position or authority to illegally establish a fund with a value from fifty million dong to less than two hundred million dong and uses that fund to cause serious consequences, or has been subject to disciplinary action or administrative punishment but still commits the violation, shall be sentenced to imprisonment for a term of one to five years." According to the spirit of this provision, criminal responsibility for the crime of illegally establishing a fund will not be pursued against a person who takes advantage of their position or authority to illegally establish a fund if:

- The illegal fund has a value below fifty million dong (including in the cases provided for in Clauses 2 and 3 of Article 175).

- The illegal fund has a value of fifty million dong or more, but it has not been used or has been used but did not cause serious consequences.

- The illegal fund has a value of fifty million dong or more, but has not been subject to disciplinary action or administrative punishment.

A person who, although not directly establishing an illegal fund, subsequently inherits the position or authority of the person who established the illegal fund, acknowledges it, and uses it, causing serious consequences, shall still be held criminally responsible for the crime of illegally establishing a fund.

2. Application of the sentencing range based on the value of the property

a) For the crime of embezzlement of socialist public property (Article 133) and the crime of taking advantage of position or authority to defraud and appropriate socialist public property (Article 134a).

If the determination is solely based on the value of the appropriated property without mitigating circumstances stipulated in Article 38 of the Criminal Code and also without aggravating circumstances stipulated in Point 39 of the Criminal Code, the corresponding clauses should be applied and the offender should be punished with a sentence commensurate with the value of the appropriated property as follows:

- Sentenced to imprisonment for a term of two to five years, if the appropriated property has a value from five million dong to less than sixty million dong (Clause 1 of Article 133 or Clause 1 of Article 134a);

- Sentenced to imprisonment for a term of five to seven years, if the appropriated property has a value from sixty million dong to less than one hundred million dong (Clause 1 of Article 133 or Clause 1 of Article 134a);

- Sentenced to imprisonment for a term of seven to eleven years, if the appropriated property has a value from one hundred million dong to less than two hundred million dong (Clause 2 of Article 133 or Clause 2 of Article 134a);

- Sentenced to imprisonment for a term of eleven to fifteen years, if the appropriated property has a value from one hundred million dong to less than two hundred million dong (Clause 2 of Article 133 or Clause 2 of Article 134a);

- Sentenced to imprisonment for a term of fifteen to eighteen years, if the appropriated property has a value from two hundred million dong to less than three hundred million dong (Clause 3 of Article 133 or Clause 2 of Article 134a);

- Sentenced to imprisonment for a term of eighteen to twenty years, if the appropriated property has a value from four hundred million dong to less than five hundred million dong (Clause 3 of Article 133 or Clause 3 of Article 134a);

- Sentenced to life imprisonment, if the appropriated property has a value from five hundred million dong to less than one billion dong (Clause 4 of Article 133 or Clause 4 of Article 134a);

- Sentenced to death, if the appropriated property has a value of one billion dong or more (Clause 4 of Article 133 or Clause 4 of Article 134a).

b) For the crime of misusing position or authority to appropriate citizens' property (Article 156)

In cases where there are no numerous mitigating circumstances stipulated in Article 38 of the Criminal Code and also no numerous aggravating circumstances stipulated in Article 39 of the Criminal Code, the corresponding clauses should be applied and the offender should be punished with a sentence commensurate with the value of the appropriated property as follows:

- Sentenced to imprisonment for a term of one to four years, if the appropriated property has a value from five million dong to less than sixty million dong (Clause 1);

- Sentenced to imprisonment for a term of four to six years, if the appropriated property has a value from sixty million dong to less than one hundred million dong (Clause 1);

- Sentenced to imprisonment for a term of six to ten years, if the appropriated property has a value from one hundred million dong to less than two hundred million dong (Clause 2);

- Sentenced to imprisonment for a term of ten to thirteen years, if the appropriated property has a value from two hundred million dong to less than three hundred million dong (Clause 2);

- Sentenced to imprisonment for a term of thirteen to seventeen years, if the appropriated property has a value from three hundred million dong to four hundred million dong (Clause 3);

- Sentenced to imprisonment for a term of seven to twenty years, if the appropriated property has a value from four hundred million dong to less than five hundred million dong (Clause 3);

- Sentenced to life imprisonment, if the appropriated property has a value from five hundred million dong to less than one billion dong (Clause 4);

- Sentenced to death, if the appropriated property has a value of one billion dong or more (Clause 4).

c) For the crime of illegally establishing a fund (Article 175)

In cases where all elements constituting the crime of illegally establishing a fund are present and the determination is solely based on the value of the illegal fund without mitigating circumstances stipulated in Article 38 of the Criminal Code and also without aggravating circumstances stipulated in Article 39 of the Criminal Code, the corresponding clauses should be applied and the offender should be punished with a sentence commensurate with the value of the illegal fund as follows:

- Sentenced to imprisonment for a term of one to three years, if the illegal fund has a value from fifty million dong to less than one hundred twenty million dong (Clause 1);

- Sentenced to imprisonment for a term of three to five years, if the illegal fund has a value from one hundred twenty million dong to less than two hundred million dong (Clause 1);

- Imprisonment for a term of from five to eight years, if the illegal fund has a value from two hundred million VND to less than four hundred million VND (Clause 2);

- Imprisonment for a term of from eight to ten years, if the illegal fund has a value from four hundred million VND to less than five hundred million VND (Clause 2);

- Imprisonment for a term of from ten to thirteen years, if the illegal fund has a value from five hundred million VND to less than eight hundred million VND (Clause 3);

- Imprisonment for a term of from thirteen to fifteen years, if the illegal fund has a value from eight hundred million VND to less than one billion VND (Clause 3);

- Imprisonment for a term of from fifteen to eighteen years, if the illegal fund has a value from one billion VND to less than one billion five hundred million VND (Clause 4);

- Imprisonment for a term of from eighteen to twenty years, if the illegal fund has a value of one billion five hundred million VND or more (Clause 4).

In cases where the illegal fund has a value of two billion five hundred million VND or more, even with many mitigating circumstances, the offender must be sentenced to imprisonment at the highest level within the prescribed penalty range (Clause 4)

In cases where the illegal fund has a value of two billion five hundred million VND or more, even with many mitigating circumstances, the offender must be sentenced to imprisonment at the highest level within the prescribed penalty range (Clause 4).

d) For the crime of accepting bribes (Article 226)

If only based on the value of the bribe without any mitigating circumstances as stipulated in Article 38 of the Penal Code and also without any aggravating circumstances as stipulated in Article 39 of the Penal Code, the corresponding clauses should be applied and the offender should be punished with a sentence commensurate with the value of the bribe as follows:

- Imprisonment for a term of from two to five years, if the bribe has a value from five hundred thousand VND to less than six million VND (Clause 1);

- Imprisonment for a term of from five to seven years, if the bribe has a value from six million VND to less than ten million VND (Clause 1);

- Imprisonment for a term of from seven to eleven years, if the bribe has a value from ten million VND to less than thirty million VND (Clause 2);

- Imprisonment for a term of from eleven to fifteen years, if the bribe has a value from twenty million VND to less than thirty million VND (Clause 2);

- Imprisonment for a term of from fifteen to eighteen years, if the bribe has a value from thirty million VND to less than forty million VND (Clause 3);

- Imprisonment for a term of from eighteen to twenty years, if the bribe has a value from forty million VND to less than fifty million VND (Clause 3);

- Life imprisonment, if the bribe has a value from fifty million VND to less than one hundred million VND (Clause 4).

- Death penalty, if the bribe has a value of one hundred million VND or more (Clause 4).

đ) For the crime of offering a bribe, the crime of brokering a bribe (Article 227)

If only based on the value of the bribe without any mitigating circumstances as stipulated in Article 38 of the Penal Code and also without any aggravating circumstances as stipulated in Article 39 of the Penal Code, the corresponding clauses should be applied and the offender should be punished with a sentence commensurate with the value of the bribe as follows:

- Imprisonment for a term of from one to three years, if the bribe has a value from five hundred thousand VND to less than five million VND (Clause 1);

- Imprisonment for a term of from three to six years, if the bribe has a value from five million VND to less than ten million VND (Clause 1);

- Imprisonment for a term of from six to ten years, if the bribe has a value from ten million VND to less than twenty million VND (Clause 2);

- Imprisonment for a term of from ten to thirteen years, if the bribe has a value from twenty million VND to less than thirty million VND (Clause 2);

- Imprisonment for a term of from thirteen to seventeen years, if the bribe has a value from thirty million VND to less than forty million VND (Clause 3);

- Imprisonment for a term of from seventeen to twenty years, if the bribe has a value from forty million VND to less than fifty million VND (Clause 3);

- Life imprisonment, if the bribe has a value from fifty million VND to less than one hundred fifty million VND (Clause 4);

- Death penalty, if the bribe has a value of one hundred fifty million VND or more (Clause 4).

e) For the crime of taking advantage of position or power to cause others to be subjected to measures for personal gain

If only based on the amount of money or the value of property or other material benefits obtained by the offender without any mitigating circumstances as stipulated in Article 38 of the Penal Code and also without any aggravating circumstances as stipulated in Article 39 of the Penal Code, the corresponding clauses should be applied and the offender should be punished with a sentence commensurate with the amount of money or the value of property or other material benefits obtained as follows:

- Imprisonment for a term of from one to three years, if the amount of money or property or other material benefits has a value from five hundred thousand VND to less than five million VND (Clause 1);

- Imprisonment for a term of from three to six years, if the amount of money or property or other material benefits has a value from five million VND to less than ten million VND (Clause 1);

- Imprisonment for a term of from six to ten years, if the amount of money or property or other material benefits has a value from ten million VND to less than twenty million VND (Clause 2);

- Imprisonment for a term of from ten to thirteen years, if the amount of money or property or other material benefits has a value from twenty million VND to less than thirty million VND (Clause 2);

- Imprisonment for a term of from thirteen to seventeen years, if the amount of money or property or other material benefits has a value from thirty million VND to less than forty million VND (Clause 3);

- Imprisonment for a term of from twenty years, if the amount of money or property or other material benefits has a value of fifty million VND or more (Clause 4);

- Life imprisonment, if the amount of money or property or other material benefits has a value of one hundred million VND or more (Clause 4).

g) In practice, investigations, prosecutions, and trials show that there are many cases of crimes with many mitigating circumstances and also many cases of crimes with many aggravating circumstances; therefore, when applying the value-based sentencing guidelines as directed above in cases with many mitigating or aggravating circumstances, it shall be carried out as follows:

- If comprehensively examining and evaluating all mitigating circumstances and aggravating circumstances, it is found that there is no basis to mitigate criminal responsibility for the defendant or to aggravate criminal responsibility against the defendant (there is a balance between mitigating circumstances and aggravating circumstances), then a sentence corresponding to the value of the property as directed above must be decided for the defendant.

- If comprehensively examining and evaluating all mitigating circumstances and aggravating circumstances, it is found that there are many mitigating circumstances, no aggravating circumstances, or if there are, but there are more mitigating circumstances, then a lower sentence within the prescribed penalty range may be decided for the defendant, even though the value of the property according to the prescribed penalty range is high. Clause 3 of Article 38 of the Criminal Code shall only be applied to decide a penalty below the lowest level prescribed by the law for the defendant, with many mitigating circumstances as provided for in Article 39 of the Criminal Code and the value of the property according to the prescribed penalty range is low.

- If comprehensively examining and evaluating all mitigating circumstances and aggravating circumstances, it is found that there are many aggravating circumstances, no mitigating circumstances, or if there are, but there are more aggravating circumstances, then a higher sentence within the prescribed penalty range must be decided for the defendant, even though the value of the property according to the prescribed penalty range is low. If the value of the property according to the prescribed penalty range is high, then the highest sentence within the prescribed penalty range must be decided for the defendant.

II. ON ARTICLE 2 OF THE LAW AMENDING AND SUPPLEMENTING...

1. Regarding narcotics, precursor substances, tools, and equipment used for producing or using narcotics illegally.

a) Narcotics are substances that have been identified and given specific names in science. Article 2 of the Law amending and supplementing... has specified certain common narcotics such as: Heroin, Cocaine, opium resin, cannabis resin, coca extract... In addition, the law also provides for other narcotics in solid or liquid form without specifying what they are. Therefore, other narcotics should be understood as those narcotics specifically defined in international conventions on drug control to which Vietnam is a party, apart from the specifically defined narcotics in Article 2 of the Law amending and supplementing... (Annexed to this Circular is a list of narcotics as stipulated in international conventions to which Vietnam is a party). In cases where it is necessary to determine whether a substance is a narcotic or not, or what type of narcotic it is, a forensic examination must be requested. If the substance examined is not a narcotic, but the person performing the act believes it to be a narcotic, then depending on the specific criminal act, that person will be held criminally responsible under the corresponding offense provisions regarding drug-related crimes.

It should be noted that opium resin includes: opium resin extracted from the opium poppy plant, concentrated opium resin in gel form, ball form... For opium solution for injection, it is not considered a narcotic in liquid form but the concentration of opium in the solution must be determined to calculate the weight of the opium.

b) Precursor substances used for illegally producing narcotics include specific narcotic precursors defined in international conventions on drug control to which Vietnam is a party (Annexed to this Circular is a list of narcotic precursors as stipulated in international conventions to which Vietnam is a party). In cases where it is necessary to determine whether a substance is a precursor used for illegally producing narcotics, a forensic examination must be requested.

e) Tools and equipment used for producing or using narcotics illegally are those tools and equipment produced primarily for the purpose of producing or using narcotics illegally, or although produced for general use in daily life, have been specifically used for the purpose of producing or using narcotics illegally.

2. Specific criminal acts

a) The illegal production of narcotics as stipulated in Article 185b is the act of manufacturing narcotics from the fruit of the opium poppy plant, leaves, flowers, fruits of the cannabis plant, leaves of the coca plant, as well as processing precursor substances into narcotics or converting one type of narcotic into another type of narcotic contrary to the regulations of the State.

Simple acts aimed at facilitating the use of already existing narcotics, such as preparing opium into a solution for injection, grinding heroin into powder for inhaling, are not considered illegal production of narcotics.

b) The illegal possession of narcotics as stipulated in Article 185c is the act of unlawfully storing narcotics anywhere without the purpose of selling or producing other illegal narcotics. The length of time for possession does not affect the pursuit of criminal responsibility.

A person who unlawfully stores narcotics for another person knowing that the purpose is to sell the narcotics illegally, shall be held criminally responsible for the crime of "illegal sale of narcotics" as an accomplice (an aider).

c) The illegal transportation of narcotics as stipulated in Article 185d is the act of unlawfully transporting narcotics from one place to another under any form without the purpose of selling.

A person who transports narcotics for another person, shall be held criminally responsible for the crime of "illegal sale of narcotics" as an accomplice (an aider).

d) The illegal sale of narcotics as stipulated in Article 185d is the act of selling or buying, storing for resale, or producing other narcotics for resale illegally, as well as exchanging, paying... with narcotics illegally.

đ) The act of appropriating narcotics as stipulated in Article 185e is manifested in one of the following acts: robbery, coercion, snatch theft, open appropriation, theft, embezzlement, fraud, abuse of trust to appropriate...

e) The act of organizing the illegal use of narcotics as prescribed in Article 185i is the act of preparing locations (such as renting locations, borrowing locations, etc.) for the illegal use of narcotics; the act of preparing means and tools for the illegal use of narcotics; the act of introducing narcotics into another person's body with the purpose of profit...

Any person who, in addition to organizing the illegal use of narcotics, also commits acts of illegally storing, buying and selling narcotics, shall be criminally prosecuted not only for the crime of "organizing the illegal use of narcotics" under Article 185i but also for the crimes of illegally storing and buying and selling narcotics according to the corresponding articles.

3. Regarding certain circumstances that are elements in determining guilt or sentencing range

a) Criminal responsibility shall be pursued against those who plant opium plants, coca plants, cannabis plants, or other types of plants containing narcotics (Article 185a) only when they have been subject to all three measures and still violate: having been educated multiple times; having been provided conditions to stabilize their lives and having been administratively punished.

- Having been educated multiple times means being organized by state agencies as well as local authorities responsible persons from two times or more to persuade, remind about not planting opium or other types of plants containing narcotics, or disseminate policies and laws prohibiting the planting of opium or other types of plants containing narcotics.

- Having been provided conditions to stabilize their lives means having been supported with capital for production, seeds, livestock, or having been guided on animal husbandry techniques, fruit trees, industrial crops, food crops instead of opium or other types of plants containing narcotics...

- Having been administratively punished and still violating means that before planting opium or other types of plants containing narcotics, they were once administratively punished in one of the forms of administrative punishment, but within the period during which they are considered not yet administratively punished, they again plant opium or other types of plants containing narcotics and are discovered.

b) The circumstance "committing the crime multiple times" as stipulated in Clause 2 of Article 185b, Clause 2 of Article 185c, Clause 2 of Article 185d, Clause 2 of Article 185e, Clause 2 of Article 185g, Clause 2 of Article 185h, Clause 2 of Article 185i, Clause 2 of Article 185k, Clause 2 of Article 185m, Clause 2 of Article 185n is understood as committing the crime at least twice (two or more times of illegally producing narcotics, two or more times of illegally storing narcotics...) each time with all the elements constituting the offense as stipulated in Clause 1 of the corresponding article; meanwhile, none of these offenses has been criminally prosecuted. In this case, the offender must bear criminal responsibility for the total quantity of narcotics from all offenses combined, if the law provides for the quantity of narcotics to determine the sentencing range.

Anyone who organizes, coerces, or entices others to use narcotics two or more times, even if it is only for one person, is considered committing the crime multiple times.

c) The circumstance "committing the crime against multiple people" as stipulated in Clause 2 of Article 185i, Clause 2 of Article 185k, Clause 2 of Article 185m is understood as, in a specific offense, the offender commits the crime against two or more people.

d) The circumstance "having multiple circumstances stipulated in Clause 2 of this Article" and "having multiple circumstances stipulated in Clause 3 of this Article" as stipulated in Articles 185b through 185g, 185i, 185m, and 185n is understood as having at least two circumstances stipulated in Clause 3 of the corresponding article.

The circumstance "having two or more types of narcotics whose total quantity is equivalent to the quantity of narcotics specified in one of the points from..." as stipulated in Clause 2, Clause 3, and Clause 4 of Article 185b and corresponding articles is determined as follows:

* First case:

If these narcotics are specified in the same point, then the weight of these narcotics is added together and compared with the weight provision in the corresponding article to criminally prosecute the offender under which clause of that article.

Example: A person produces three hundred grams of opium resin and three hundred grams of cannabis resin. Since opium resin and cannabis resin are specified in the same point d of Clause 2, point b of Clause 3, point a of Clause 4 of Article 185b, therefore, only the weight of opium resin and cannabis resin needs to be added together to six hundred grams (300g + 300g = 600g). Comparing with the weight provision in Article 185b, the offender will be criminally prosecuted under point d of Clause 2 of Article 185b.

* Second case

- If these narcotics are specified in different points of the same Clause 2 (or the same Clause 3) of Article 185b and corresponding articles, then there is no need to determine the total quantity of these narcotics to apply the circumstance: "having two or more types of narcotics whose total quantity..." but rather apply the circumstance "having multiple circumstances stipulated in Clause 2 of this Article" or "having multiple circumstances stipulated in Clause 3 of this Article" as stipulated in Clause 3 or Clause 4 of the corresponding article.

* Third case

If all these narcotics have a weight below the minimum threshold specified in Clause 2 (i.e., falling under Clause 1) of the corresponding article, then the determination of the total quantity of these narcotics is as follows:

- Determine the percentage of the weight of each type of narcotic relative to the minimum threshold specified in Clause 2 of the corresponding article for that type of narcotic at the corresponding points.

- Add the percentages of the weight of each type of narcotic together.

If the total percentage weight ratio of narcotic substances is less than 100%, the offender shall only be criminally prosecuted according to Clause 1 of the corresponding Article. If it is 100% or more, the offender shall be criminally prosecuted according to the aggravating circumstance: "having two or more types of narcotic substances whose total quantity is equivalent to the quantity of narcotic substances specified in one of the points from..." as stipulated in Clause 2 of the corresponding Article.

Example One:

A person produces two hundred grams of opium resin and two grams of heroin. In this case, the total quantity of narcotic substances is determined as follows:

+ The weight percentage ratio of opium resin compared to the minimum level prescribed in Clause 2 of Article 185b for opium resin is 40% (two hundred grams compared to five hundred grams).

+ The weight percentage ratio of heroin compared to the minimum level prescribed in Clause 2 of Article 185b for heroin is 40% (two grams compared to five grams).

+ The total weight percentage ratio of both opium resin and heroin is 80% (40% + 40%).

In this case, the total weight percentage ratio of narcotic substances is below 100%, therefore, the offender shall only be criminally prosecuted according to Clause 1 of Article 185b.

Example Two:

A person produces four hundred grams of opium resin and three grams of heroin. According to the determination method in Example One, we have:

+ The weight percentage ratio of opium resin compared to the minimum level prescribed in Clause 2 of Article 185b for opium resin is 80% (four hundred grams compared to five hundred grams).

+ The weight percentage ratio of heroin compared to the minimum level prescribed in Clause 2 of Article 185b for heroin is 60% (three grams compared to five grams).

+ The total weight percentage ratio of both opium resin and heroin is 140% (80% + 60%).

In this case, the total weight percentage ratio of narcotic substances is above 100%, therefore, the offender shall be criminally prosecuted according to Point i of Clause 2 of Article 185b.

* Example Four:

If among the narcotic substances, there is a substance with a weight prescribed in Clause 1, another substance with a weight prescribed in Clause 2 (or Clause 3), or a substance with a weight prescribed in Clause 2 and another substance with a weight prescribed in Clause 3 of the corresponding Article, then the total quantity of these narcotic substances is determined as follows:

- Determine the weight percentage ratio of the narcotic substance with the highest weight compared to the minimum level prescribed for that substance in Clause 3 or Clause 4 of the corresponding Article (if the substance with the highest weight belongs to Clause 2, compare it with the minimum level prescribed at Clause 3, and if it belongs to Clause 3, compare it with the minimum level prescribed at Clause 4).

- Determine the weight percentage ratio of other narcotic substances compared to the minimum level prescribed for that substance in Clause 3 or Clause 4 of the corresponding Article which prescribes the minimum level for the substance with the highest weight.

- Add the percentages of the weight of each type of narcotic together.

If the total weight percentage ratio of narcotic substances is 100% or more, the offender shall be criminally prosecuted according to the aggravating circumstance: "having two or more types of narcotic substances whose total quantity is equivalent to the quantity of narcotic substances specified in one of the points from..." of Clause 3 or Clause 4 of the corresponding Article which prescribes the minimum level for the substance with the highest weight.

Example One: A person produces four hundred grams of opium resin and twenty-four grams of heroin. In this case, heroin has a weight under Clause 2 of Article 185b, while opium resin has a weight under Clause 1 of Article 185b; therefore, heroin has the highest weight. The total quantity of narcotic substances is determined as follows:

+ The weight percentage ratio of heroin compared to the minimum level prescribed in Clause 3 of Article 185b is 80% (twenty-four grams compared to thirty grams).

+ The weight percentage ratio of opium resin compared to the minimum level prescribed in Clause 3 of Article 185b is 40% (four hundred grams compared to one kilogram).

+ The total weight percentage ratio of both opium resin and heroin is 120% (80% + 40%).

In this case, the total weight percentage ratio of narcotic substances is over 100%, therefore, the offender shall be criminally prosecuted according to Point e of Clause 3 of Article 185b.

Example Two: A person produces four point five kilograms of opium resin and four grams of heroin. In this case, opium resin has a weight under Clause 3 of Article 185b, while heroin has a weight under Clause 1 of Article 185b; therefore, opium resin has the highest weight. The total quantity of narcotic substances is determined as follows:

+ The weight percentage ratio of opium resin compared to the minimum level prescribed in Clause 4 of Article 185b is 90% (four point five kilograms compared to five kilograms).

+ The weight percentage ratio of heroin compared to the minimum level prescribed in Clause 4 of Article 185b is 4% (four grams compared to one hundred grams).

+ The total weight percentage ratio of both opium resin and heroin is 94% (90% + 4%).

In this case, the total weight percentage ratio of narcotic substances is below 100%, therefore, the offender shall only be criminally prosecuted according to Clause 3 of Article 185b.

Example Three: A person produces four kilograms of opium resin and twenty grams of heroin. In this case, opium resin has a quantity under Point b of Clause 3, while heroin belongs to Point e of Clause 2 of Article 185b; therefore, opium resin has the highest weight. The total quantity of narcotic substances is determined as follows:

+ The weight percentage ratio of opium resin compared to the minimum level prescribed in Clause 4 of Article 185b is 80% (four kilograms compared to five kilograms).

+ The weight percentage ratio of heroin compared to the minimum level prescribed in Clause 4 of Article 185b is 20% (twenty grams compared to one hundred grams).

+ The total weight percentage ratio of both opium resin and heroin is 100% (80% + 20%).

In this case, the total weight percentage ratio of narcotic substances is 100%, therefore, the offender shall be criminally prosecuted according to Point đ of Clause 4 of Article 185b.

4. Application of the Aggravating Circumstance Regarding the Weight of Narcotic Substances

a) For the crime of illegally producing narcotics (Article 185b), the crime of illegally trading in narcotics (Article 185d), and the crime of illegally appropriating narcotics (Article 185e)

If the determination is based solely on the weight of the narcotics without any mitigating circumstances prescribed in Article 38 of the Penal Code and also without any aggravating circumstances prescribed in Article 39 of the Penal Code, then the corresponding clauses shall be applied to impose sentences commensurate with the weight of the narcotics as follows:

- Imprisonment for a term of three to ten years (Clause 1 of Article 185b, Clause 1 of Article 185d, Clause 1 of Article 185e) if:

+ Opium gum, cannabis resin, or cocaine extract weighing less than three hundred grams;

+ Heroin or cocaine weighing less than three grams;

+ Cannabis leaves, flowers, fruits, or coca leaves (except under Article 185b) weighing less than six kilograms;

+ Dried opium poppy capsules (except under Article 185b) weighing less than thirty kilograms;

+ Fresh opium poppy capsules (except under Article 185b) weighing less than six kilograms;

+ Other narcotic substances in solid form weighing less than twelve grams;

+ Other narcotic substances in liquid form less than sixty milliliters;

+ Having two or more types of narcotics where the total quantity of such substances is less than 60% (as calculated according to point e of item 3 above);

- Imprisonment for a term of ten to thirteen years (Clause 2 of Article 185b, Clause 2 of Article 185d, Clause 2 of Article 185e) if:

+ Opium gum, cannabis resin, or cocaine extract weighing from five hundred grams to less than eight hundred grams;

+ Heroin or cocaine weighing from five grams to less than twenty grams;

+ Cannabis leaves, flowers, fruits, or coca leaves (except under Article 185b) weighing from ten kilograms to less than twenty kilograms;

+ Fresh opium poppy capsules (except under Article 185b) weighing from ten kilograms to less than thirty-five kilograms;

+ Other narcotic substances in solid form weighing from twenty grams to less than seventy grams;

+ Other narcotic substances in liquid form from one hundred milliliters to less than two hundred milliliters;

+ Having two or more types of narcotics where the total quantity of such substances is less than 200% (as calculated according to point e of item 3 above);

- Imprisonment for a term of thirteen to fifteen years (Clause 2 of Article 185b, Clause 2 of Article 185d, Clause 2 of Article 185e) if:

+ Opium gum, cannabis resin, or cocaine extract weighing from eight hundred grams to less than one kilogram;

+ Heroin or cocaine weighing from twenty grams to less than thirty grams;

+ Cannabis leaves, flowers, fruits, or coca leaves (except under Article 185b) weighing from twenty kilograms to less than twenty-five kilograms;

+ Dried opium poppy capsules (except under Article 185b) weighing from one hundred fifty kilograms to less than two hundred kilograms;

+ Fresh opium poppy capsules (except under Article 185b) weighing from thirty kilograms to less than fifty kilograms;

+ Other narcotic substances in solid form weighing from seventy grams to less than one hundred grams;

+ Other narcotic substances in liquid form from two hundred milliliters to less than two hundred fifty milliliters;

+ Having two or more types of narcotics where the total quantity of such substances is 200% or more (as calculated according to point e of item 3 above);

- Imprisonment for a term of fifteen to eighteen years (Clause 3 of Article 185b, Clause 3 of Article 185d, Clause 3 of Article 185e) if:

+ Opium gum, cannabis resin, or cocaine extract weighing from one kilogram to three point five kilograms;

+ Heroin or cocaine weighing from thirty grams to less than seventy grams;

+ Cannabis leaves, flowers, fruits, or coca leaves (except under Article 185b) weighing from twenty-five kilograms to less than sixty kilograms;

+ Dried opium poppy capsules (except under Article 185b) weighing from two hundred kilograms to less than four hundred fifty kilograms;

+ Fresh opium poppy capsules (except under Article 185b) weighing from fifty kilograms to less than one hundred ten kilograms;

+ Other narcotic substances in solid form weighing from one hundred grams to less than two hundred twenty grams;

+ Other narcotic substances in liquid form from two hundred fifty milliliters to less than five hundred fifty milliliters;

+ Having two or more types of narcotics where the total quantity of such substances is less than 200% (as calculated according to point e of item 3 above);

- Imprisonment for a term of eighteen to twenty years (Clause 3 of Article 185b, Clause 3 of Article 185d, Clause 3 of Article 185e) if:

+ Opium gum, cannabis resin, or cocaine extract weighing from three point five kilograms to less than five kilograms;

+ Heroin or cocaine weighing from seventy grams to less than one hundred grams;

+ Cannabis leaves, flowers, fruits, or coca leaves (except under Article 185b) weighing from sixty kilograms to less than seventy-five kilograms;

+ Dried opium poppy capsules (except under Article 185b) weighing from four hundred fifty kilograms to less than six hundred kilograms;

+ Fresh opium poppy capsules (except under Article 185b) weighing from one hundred ten kilograms to less than one hundred fifty kilograms;

+ Other narcotic substances in solid form weighing from two hundred twenty grams to less than three hundred grams;

+ Other narcotic substances in liquid form from five hundred fifty milliliters to less than seven hundred fifty milliliters;

+ Having two or more types of narcotics where the total quantity of such substances is 200% or more (as calculated according to point e of item 3 above);

- Life imprisonment (Clause 4 of Article 185b, Clause 4 of Article 185d, Clause 4 of Article 185e) if:

+ Opium gum, cannabis resin, or cocaine extract weighing five kilograms;

+ Heroin or cocaine weighing one hundred grams;

+ Cannabis leaves, flowers, fruits, or coca leaves (except under Article 185b) weighing seventy-five kilograms;

+ Dried opium poppy capsules (except under Article 185b) weighing six hundred kilograms;

+ Fresh opium poppy capsules (except under Article 185b) weighing one hundred fifty kilograms;

+ Other narcotic substances in solid form weighing three hundred grams;

+ Other narcotic substances in liquid form seven hundred fifty milliliters;

+ Having two or more types of narcotics where the total quantity of such substances is less than 200% (as calculated according to point e of item 3 above);

- Capital punishment (Clause 4 of Article 185b, Clause 4 of Article 185d, Clause 4 of Article 185e) if:

+ Opium gum, cannabis resin, or cocaine extract weighing more than five kilograms;

+ Heroin or cocaine weighing more than one hundred grams;

+ Cannabis leaves, flowers, fruits, or coca leaves (except under Article 185b) weighing more than seventy kilograms;

+ Dried opium poppy capsules (except under Article 185b) weighing more than six hundred kilograms;

+ Other narcotic substances in solid form weighing more than three hundred grams;

+ Other narcotic substances in liquid form more than seven hundred fifty milliliters;

+ Having two or more types of narcotics where the total quantity of such substances is 200% or more (as calculated according to point e of item 3 above);

b) For the crime of illegally storing narcotics (Article 185c) and the crime of illegally transporting narcotics (Article 185d)

* Any person who illegally stores or transports one of the following narcotic substances without the purpose of buying, selling, or illegally producing such substances, and the quantity does not reach the level for criminal prosecution, shall be subject to administrative handling:

+ Opium gum, hashish, or cocaine resin weighing less than one gram:

+ Heroin or cocaine weighing less than one gram;

+ Cannabis leaves, flowers, fruits, or coca leaves weighing less than one kilogram;

+ Dried opium poppy capsules weighing less than one kilogram;

+ Fresh opium poppy capsules weighing less than one kilogram;

+ Other narcotic substances in liquid form under five milliliters.

* However, the following cases should be noted:

+ Any person who illegally stores or transports one of the narcotic substances with the weight specified above without the purpose of buying, selling, or illegally producing such substances, and has been educated multiple times and administratively handled by being compulsorily admitted to a treatment facility, shall be criminally prosecuted according to Article 185l on the crime of "illegally using narcotics."

+ Any person who has been convicted of the crime of illegally storing or transporting narcotic substances and has not had their sentence expunged, and again illegally stores or transports one of the narcotic substances with the weight specified above, shall be criminally prosecuted according to Clause 1 of Article 185c or Clause 1 of Article 185d, respectively, if they illegally store or transport two or more narcotic substances each with the weight specified above.

If only based on the weight of the narcotic substance and there are no mitigating circumstances stipulated in Article 38 of the Criminal Code and also no aggravating circumstances stipulated in Article 39 of the Criminal Code, then the corresponding clauses should be applied and the offender should be sentenced to a punishment commensurate with the weight of the narcotic substance as follows:

- Sentenced to imprisonment from two years to five years (Clause 1 of Article 185c, Clause 1 of Article 185d), if:

+ Opium gum, hashish, or cocaine resin weighing from one gram to under three hundred grams.

+ Heroin or cocaine weighing from three grams to under five grams;

+ Cannabis leaves, flowers, fruits, or coca leaves weighing from six kilograms to under ten kilograms;

+ Dried opium poppy capsules weighing from thirty kilograms to under fifty kilograms;

+ Fresh opium poppy capsules weighing from six kilograms to under ten kilograms;

+ Other narcotic substances in solid form weighing from twelve grams to under twenty grams;

+ Other narcotic substances in liquid form from sixty milliliters to under one hundred milliliters;

+ Having two or more narcotic substances with a total quantity from 60% to under 100% (calculated as directed at point e, item 3 above).

- Sentenced to imprisonment from seven to eleven years (Clause 2 of Article 185c, Clause 2 of Article 185d), if:

+ Opium gum, cannabis resin, or cocaine extract weighing from five hundred grams to less than eight hundred grams;

+ Heroin or cocaine weighing from five grams to under twenty grams;

+ Cannabis leaves, flowers, fruits, or coca leaves weighing from ten kilograms to under twenty kilograms;

+ Fresh opium poppy capsules weighing from fifty kilograms to under one hundred fifty kilograms;

+ Fresh opium poppy capsules weighing from ten kilograms to under thirty-five kilograms;

+ Other narcotic substances in solid form weighing from twenty grams to less than seventy grams;

+ Other narcotic substances in liquid form from one hundred milliliters to under two hundred milliliters.

+ Having two or more narcotic substances with a total quantity under 200% (calculated as directed at point e, item 3 above).

- Sentenced to imprisonment from one year to fifteen years (Clause 2 of Article 185c, Clause 2 of Article 185d), if:

+ Opium gum, cannabis resin, or cocaine extract weighing from eight hundred grams to less than one kilogram;

+ Heroin or cocaine weighing from twenty grams to under thirty grams;

+ Cannabis leaves, flowers, fruits, or coca leaves weighing from twenty kilograms to under twenty-five kilograms;

+ Dried opium poppy capsules weighing from one hundred fifty kilograms to under two hundred kilograms;

+ Fresh opium poppy capsules weighing from thirty kilograms to under fifty kilograms;

+ Other narcotic substances in solid form weighing from seventy grams to under one hundred grams;

+ Other narcotic substances in liquid form from two hundred milliliters to less than two hundred fifty milliliters;

+ Having two or more types of narcotics where the total quantity of such substances is 200% or more (as calculated according to point e of item 3 above);

* When applying Clauses 3 and 4 of Article 185c and Clauses 3 and 4 of Article 185d, the sentence should be commensurate with the weight of the narcotic substances similar to the application of Clauses 3 and 4 of Article 185b, Clauses 3 and 4 of Article 185d, and Clauses 3 and 4 of Article 185e as directed at point a, item 4 above.

c) In practice, during investigation, prosecution, and trial, many cases have numerous mitigating circumstances and also many cases have numerous aggravating circumstances: therefore, when applying the weight-based sentencing guidelines as directed above, in cases with numerous mitigating or aggravating circumstances, it should be done as follows:

- If comprehensively assessing all mitigating and aggravating circumstances and finding that there is no basis to mitigate the criminal responsibility of the defendant or to aggravate the criminal responsibility of the defendant (there is symmetry between mitigating and aggravating circumstances), then the defendant should be sentenced to a punishment commensurate with the weight of the narcotic substance as directed above:

- If comprehensively assessing all mitigating and aggravating circumstances and finding that there are numerous mitigating circumstances, no aggravating circumstances, or some but more numerous mitigating circumstances, then the defendant may be sentenced to a lower punishment within the prescribed penalty range, even though the weight of the narcotic substance is at the higher end of the prescribed penalty range. Only Clause 3 of Article 38 of the Criminal Code should be applied to sentence the defendant to a punishment below the lowest level prescribed by the law when there are numerous mitigating circumstances stipulated in Clause 1 and Clause 2 of Article 38 of the Criminal Code, no aggravating circumstances stipulated in Article 39 of the Criminal Code, and the weight of the narcotic substance is at the lower end of the prescribed penalty range.

- If comprehensively assessing all mitigating and aggravating circumstances and finding that there are numerous aggravating circumstances, no mitigating circumstances, or some but more numerous aggravating circumstances, then the defendant must be sentenced to a higher punishment within the prescribed penalty range with a lower limit. If the weight of the narcotic substance is at the higher end of the prescribed penalty range, the defendant must be sentenced to the highest punishment within the prescribed penalty range.

5. The pursuit of criminal responsibility in cases involving multiple offenses.

a) Any person who commits multiple criminal acts under Articles from Article 185a to 185e, where such acts are closely related to each other (one act is a condition for committing or is an inevitable consequence of the other act), shall be held criminally responsible for the criminal act according to the article that provides a heavier offense. The heavier offense is the offense with the highest possible punishment being higher. In cases where the highest possible punishments are equal, the heavier offense is the offense with the starting point of punishment being higher.

Example: A person who illegally produces heroin and then illegally transports it to a new location and illegally stores it. In this case, the offender shall be held criminally responsible for the offense of "illegally producing narcotic drugs" under Article 185b.

In cases where the criminal acts above under different articles provide different offenses but have the same highest possible punishments and the same starting points of punishment, the offender shall be held criminally responsible for the first committed criminal act according to the corresponding offense.

Example: A person who steals liquid drugs and sells them. In this case, the offender shall be held criminally responsible for the offense of "stealing drugs" under Article 185e.

b) Any person who commits multiple independent criminal acts provided for in Articles from Article 185a to Article 185e shall be held criminally responsible for those independent offenses according to the relevant articles.

Example: A person caught buying and selling heroin illegally, when searching their house, it was found that they were also producing opium. In this case, the offender shall be held criminally responsible for the offense of "illegally buying and selling narcotic drugs" under Article 185d and the offense of "illegally producing narcotic drugs" under Article 185b.

c) Article 185g stipulates four criminal acts: storing, transporting, buying and selling precursor chemicals used for illegally producing narcotic drugs, and Article 185h also stipulates four criminal acts: producing, storing, transporting, and buying and selling equipment and tools used for illegally producing or using narcotic drugs. In cases where the offender commits one or more of these criminal acts, they shall be held criminally responsible as follows:

- Any person who commits one of the criminal acts prescribed in Article 185g (or in Article 185h) shall be held criminally responsible for the offense name corresponding to the criminal act committed according to the relevant article.

Example: A person who only buys and sells precursor chemicals used for illegally producing narcotic drugs shall be held criminally responsible for the offense of "buying and selling precursor chemicals used for illegally producing narcotic drugs" under Article 185g.

- Any person who commits multiple criminal acts prescribed in Article 185g (or in Article 185h), where such acts are closely related to each other (one act is a condition for committing or is an inevitable consequence of the other act), shall be held criminally responsible for the complete offense name corresponding to the criminal acts committed according to the relevant article and shall only bear one punishment.

Example: A person who buys and sells precursor chemicals used for illegally producing narcotic drugs, then transports them to a new location and stores the precursor chemicals there, shall be held criminally responsible for the offense name "buying, transporting, and storing precursor chemicals used for illegally producing narcotic drugs" under Article 185g and shall only bear one punishment.

- Any person who commits multiple independent criminal acts prescribed in Article 185g (or in Article 185h) shall be held criminally responsible for the independent offenses that they have committed. When sentencing, the court will apply Article 41 of the Penal Code to determine the combined punishment.

Example: A person who buys and sells a type of precursor chemical used for illegally producing narcotic drugs and is caught, during a search of their house, it is found that they are also storing another type of precursor chemical. In this case, the offender shall be held criminally responsible for the offense of "buying and selling precursor chemicals used for illegally producing narcotic drugs" and the offense of "storing precursor chemicals used for illegally producing narcotic drugs" both under Article 185g (however, depending on specific circumstances, the corresponding punishment range will be applied for each offense).

III. ON ARTICLE 3 AND ARTICLE 4 OF THE LAW AMENDING AND SUPPLEMENTING...

1. On some specific criminal acts

a) The act of forcible rape of a minor prescribed in Article 113a is the act of the offender using all means to make a minor dependent on themselves or forcing a minor in a difficult situation to engage in sexual intercourse.

b) The act of engaging in sexual intercourse with a child prescribed in Article 114 is the act of engaging in sexual intercourse between the offender and a child with consent: agreement of the child and the sexual intercourse is not for any material purpose.

c) The act of purchasing sex from a minor prescribed in Article 202a is the act of the offender using material goods to entice a minor to agree to engage in sexual intercourse.

d) The act of indecent assault on a child prescribed in Article 202b is the act of the offender, such as touching, squeezing... the genital areas of a child or forcing a child to perform such acts on the offender or another person but without engaging in sexual intercourse with the child.

2. On some circumstances that are factors determining the punishment range

a) The circumstance "of incestuous nature" prescribed in Clause 2 of Article 112a, Clause 2 of Article 113a, Clause 2 of Article 114, Clause 2 of Article 112, and Clause 2 of Article 113 is understood as the offender having raped, forcibly raped, or engaged in sexual intercourse with a person of the same bloodline in direct lineage, with siblings from the same parents, half-siblings from the same father, or half-siblings from the same mother.

b) The circumstance "multiple persons raping one person" prescribed in Clause 3 Article 112a and Clause 2 Article 112, and the circumstance "multiple persons committing statutory rape against one person" prescribed in Clause 3 Article 113a and Clause 2 Article 115 shall be understood as having two or more persons raping one person or committing statutory rape against one person also being considered as "multiple persons raping one person" or "multiple persons committing statutory rape against one person," if there are two or more persons who have conspired with each other to take turns raping one person or committing statutory rape against one person, but during the implementation of the crime, only one or some of them actually committed the act of rape or statutory rape.

It shall not be considered as "multiple persons raping one person" or "multiple persons committing statutory rape against one person" if there are two or more persons who collude with each other to organize or assist one of them in raping one person or committing statutory rape against one person, and when implementing the crime, only one person commits the act of rape or statutory rape.

c) The circumstance "committing the offense multiple times" prescribed in Clause 3 Article 112a, Clause 3 Article 113a, Clause 2 Article 114, Clause 2 Article 201, and Clause 2 Article 137 shall be understood as having committed the offense two or more times (two or more acts of rape, two or more acts of statutory rape...) and each act of committing the offense has all the elements prescribed in Clause 1 of the corresponding article, while none of these offenses have been prosecuted for criminal responsibility.

Also, it shall be considered as committing the offense multiple times if a person rapes, commits statutory rape, or engages in sexual intercourse... from two times or more with one person.

d) The circumstance "having multiple circumstances prescribed in Clause 2 of this Article" and the circumstance "having multiple circumstances prescribed in Clause 3 of this Article" prescribed in certain corresponding articles of Article 3 and Article 41 of the Law amending and supplementing... shall be understood as having two or more circumstances prescribed in Clause 2 or Clause 3 of the corresponding article.

It shall be considered as the circumstance "property of significant value" prescribed in Clause 2 Article 134 if the property has a value of seventy million dong to less than two hundred and fifty million dong.

It shall be considered as the circumstance "property of very significant value" prescribed in Clause 3 Article 134 if the property has a value of two hundred and fifty million dong to less than four hundred and fifty million dong.

It shall be considered as the circumstance "property of exceptionally significant value" prescribed in Clause 4 Article 134 if the property has a value of four hundred and fifty million dong or more.

3. Application of Clause 4 Article 112a.

When applying Clause 4 Article 112a, the stricter punishment shall be imposed if the age of the victim is younger; specifically:

a) Imposing a sentence of twenty years' imprisonment if the victim is a child aged six or older but under thirteen.

b) Imposing a sentence of life imprisonment or death penalty if the victim is a child under six.

c) In cases where there are multiple aggravating circumstances prescribed in Article 39 of the Criminal Code or there is a sentencing factor prescribed in Clause 2 or Clause 3 of Article 112a (Amended and Supplemental Law...), even though the victim is a child aged six or older, life imprisonment or death penalty must still be imposed.

C. ON THE APPROACH TO HANDLING

1. From May 22, 1997 onwards, anyone who commits any of the offenses prescribed in the Amended and Supplemental Law... must be punished strictly according to the provisions of this Law.

2. If before May 22, 1997, anyone commits any of the offenses prescribed in the Amended and Supplemental Law... in a more serious manner, although the old provisions of the Criminal Code must be applied to punish them, the new provisions of the Amended and Supplemental Law... should be referred to in deciding a justifiable punishment.

3. In cases where a person is indicted, prosecuted, and tried for a crime involving multiple offenses (for example, multiple offenses of illegal drug trafficking), including offenses committed before May 22, 1997, and offenses committed from May 22, 1997 onwards, the amended and supplemented provisions of the Amended and Supplemental Law... shall be applied for trial (in the above example, Article 185d must be applied), but when determining the punishment, the quantity and nature of the offenses committed before and after May 22, 1997 must be taken into account to decide a justifiable punishment for all such offenses.

D. EFFECTIVE DATE OF IMPLEMENTATION

This Circular takes effect from January 17, 1998 and replaces Circular Joint No. 09/TTLN dated October 10, 1996 and other related documents of the Supreme People's Court, the Supreme People's Procuracy, and the Ministry of Interior guiding the investigation, prosecution, and trial of drug-related crimes and other crimes amended and supplemented in the Amended and Supplemental Law...

During the implementation of this Circular, if any difficulties arise, the investigating, prosecuting, and trial agencies shall immediately report to the Supreme People's Court, the Supreme People's Procuracy, and the Ministry of Interior for timely guidance./.