Joint Circular No. 09-TTLN guiding the application of Article 96a and Article 203 of the Criminal Code

JOINT CIRCULAR

GUIDING THE APPLICATION OF ARTICLE 96a AND ARTICLE 203 OF THE CRIMINAL CODE

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In recent times, the Supreme People's Court, the Supreme People's Procuracy, and the Ministry of Public Security have issued several guiding documents on the application of Article 96a and Article 203 of the Criminal Code. These documents have made positive contributions to combating drug-related criminal activities. However, given the increasingly complex situation of drug-related crimes, there are some issues that have not been specifically guided or some issues that were previously guided but are no longer suitable for combating drug-related criminal activities, leading to difficulties and obstacles in investigation, prosecution, and trial of such criminal acts.

To meet the practical requirements of combating drug-related criminal activities under current circumstances, the Supreme People's Court, the Supreme People's Procuracy, and the Ministry of Public Security, after exchanging opinions with the Ministry of Health, have agreed to guide the application of Article 96a and Article 203 of the Criminal Code as follows:

A. ON DRUGS

1. Article 96a and Article 203 of the Criminal Code stipulate criminal responsibility for drug-related offenses. Common drugs include: opium poppy fruits, cannabis leaves, flowers, and fruits, coca leaves, and their preparations such as opium (Opium), cannabis resin and oil (Cannabis), heroin (Heroin), cocaine (Cocaine)... in raw or refined forms; new psychoactive substances like morphine (Morphine), codeine (Codeine), pethidine (Pethidine), dolargan (Dolargan), dolosan (Dolosan), amphetamine (Amphetamine), methamphetamine (Methamphetamine), diazepam (Diazepam), seduxen (Seduxen), valium (Valium)...; precursors such as ephedrine (Ephedrine), pseudoephedrine (Pseudoephedrine), acetic anhydride (Acetic Anhydride)... used to synthesize drugs.

In addition to the aforementioned drugs, there are other drugs, other new psychoactive substances, and other precursors used to synthesize drugs as prescribed by the State.

2. In cases where it is necessary to determine whether a substance is a drug or what type of drug it is, an appraisal must be requested. If the substance appraised is not a drug, but the person performing the act believes it to be a drug, they may still be held criminally responsible under Article 96a or Article 203 of the Criminal Code depending on the specific criminal act.

B. ON ARTICLE 96a OF THE CRIMINAL CODE

I. CRIMINAL ACTS AND DISPOSITIONS:

1. The illegal production of drugs as defined in this Circular refers to the preparation of drugs from opium poppy fruits, cannabis leaves, flowers, and fruits, coca leaves, and the processing of these drugs into other drugs contrary to state regulations.

2. Illegally storing drugs refers to the unlawful storage of drugs at any location without the purpose of buying or selling. The person committing this offense shall be prosecuted for the crime of "illegally storing drugs." The length of time for storing drugs does not affect the determination of the crime. If a person stores drugs for another person knowing that the purpose is to illegally buy or sell drugs, they shall be prosecuted for the crime of "illegally buying or selling drugs" as an accomplice (aiding and abetting).

3. Illegally buying or selling drugs refers to the illegal sale or purchase, storage for resale (which could involve purchasing to resell the drug or purchasing to produce another drug for resale); also includes illegal exchanges, payments... using drugs.

4. Illegally transporting drugs refers to the illegal transfer of drugs from one place to another under any form without the purpose of buying or selling. The person committing this offense shall be prosecuted for the crime of "illegally transporting drugs." If a person transports drugs for another person knowing that the purpose is to illegally buy or sell drugs, they shall be prosecuted for the crime of "illegally buying or selling drugs" as an accomplice (aiding and abetting).

Anyone who illegally transports drugs across borders shall be prosecuted under Article 96a of the Criminal Code; if they commit another crime, they shall also be prosecuted under the corresponding provisions of the Criminal Code for that other crime.

5. Anyone responsible for managing addictive drugs who intentionally violates management regulations to produce, buy, sell, store, or transport addictive new psychoactive substances illegally shall be prosecuted under Article 96a of the Criminal Code; additionally, depending on the specific case, they may also be prosecuted under Article 221 of the Criminal Code for the crime of abusing power or dereliction of duty while performing official duties. If a person responsible for managing addictive drugs fails to fulfill their responsibilities resulting in improper use of addictive drugs causing serious consequences, they shall be prosecuted under Article 220 of the Criminal Code for the crime of dereliction of duty causing serious consequences.

6. Article 96a of the Criminal Code does not specify acts of appropriation (implemented through crimes such as embezzlement, robbery, coercion, theft, fraud, etc.) of drugs; therefore, anyone who appropriates drugs under the management of state agencies or currently possessed by individuals shall be prosecuted as follows:

a) Anyone who appropriates another person's property knowing that it is a drug, in addition to being prosecuted for the act of appropriation according to the corresponding provisions of the Criminal Code, shall also be prosecuted under Article 96a of the Criminal Code for the act committed against the appropriated drug.

b) Any person who commits acts of appropriating another's property without knowing that it contains narcotic substances, but later becomes aware of this and then conceals, transports, sells, or produces other narcotic substances from such appropriated property shall, in addition to being criminally prosecuted under the corresponding offense for the act of appropriation (robbery, snatch theft, coercion, theft, fraud, etc.), also be criminally prosecuted under Article 96a of the Criminal Code for the acts already committed concerning the narcotic substances that were appropriated.

c) Any person who commits acts of appropriating another's property without knowing that it contains narcotic substances and is immediately apprehended shall only be criminally prosecuted under the corresponding offense for the act of appropriation already committed and shall not be criminally prosecuted under Article 96a of the Criminal Code.

The person whose illegal narcotics were appropriated shall also be criminally prosecuted under Article 96a of the Criminal Code.

7. Article 96a of the Criminal Code stipulates four criminal offenses: producing, storing, buying and selling, and transporting narcotic substances illegally. In cases where the offender commits one or more of these offenses, they may be criminally prosecuted as follows depending on the specific circumstances:

a) Any person who commits one of the offenses prescribed in Article 96a of the Criminal Code shall be criminally prosecuted with the name of the offense corresponding to the criminal act committed. For example, if a person only engages in the illegal transportation of opium, they will be criminally prosecuted for the offense of "illegally transporting narcotic substances."

b) Any person who commits multiple offenses prescribed in Article 96a of the Criminal Code, where these acts are closely related to each other (one criminal act is a condition for committing or a necessary consequence of the other criminal act), shall be criminally prosecuted with the full name of the offense corresponding to all acts committed. For example, a person who illegally buys opium, then illegally transports it to another location, and illegally produces opium shall be criminally prosecuted for the offense of "illegally buying, transporting, and producing narcotic substances" and shall only bear one punishment for that offense.

c) Any person who commits multiple offenses prescribed in Article 96a of the Criminal Code, where these acts are independent of each other, shall be criminally prosecuted for the separate offenses committed. When sentencing, the court will apply Article 41 of the Criminal Code to determine the combined punishment. For example, a person who simultaneously buys opium and accepts storage of opium or other narcotic substances for others shall be criminally prosecuted for two offenses: the offense of "illegally buying narcotic substances" and the offense of "illegally storing narcotic substances."

8. For offenders who produce, store, buy and sell, or transport narcotic substances illegally, mandatory additional penalties must be applied, including compulsory probation or residence ban for one to five years (Clause 2, Article 100 of the Criminal Code) and mandatory additional penalty of fines up to ten times the value of the illegal goods (Clause 3, Article 100 of the Criminal Code). Additionally, confiscation of part or all of the assets must be applied (Clause 4, Article 100 of the Criminal Code). As for the objects and money used by the offender to commit the crime, they must be confiscated for state funds or destroyed (Article 33 of the Criminal Code, Article 58 of the Criminal Procedure Code).

II. REGARDING THE QUANTITY OF ILLEGAL GOODS AS THE BASIS FOR CRIMINAL PROSECUTION UNDER THE CLAUSES OF ARTICLE 96A OF THE CRIMINAL CODE.

The quantity of illegal goods serving as the basis for criminal prosecution under the clauses of Article 96a of the Criminal Code is determined as follows:

1. Any person who illegally stores or transports one of the narcotic substances listed below without the purpose of selling, and the quantity is as follows, shall not yet reach the level of criminal prosecution but must be administratively handled:

a) Opium resin, cannabis resin, cocaine powder: less than 100 grams;

b) Cannabis leaves, flowers, fruits, and coca leaves: less than 1 kilogram;

c) Dried poppy fruits: less than 10 kilograms; d) Fresh poppy fruits: less than 2 kilograms;

đ) Heroin, Cocaine: less than 2 grams;

e) Solid narcotic substances (tablet form, sticky form, or powder form, except Heroin and Cocaine): less than 5 grams;

g) Addictive drugs: less than 10 vials (each vial from 1 ml to 2 ml);

h) Precursors for synthesizing narcotic substances: less than 200 grams;

i) Liquid narcotic substances: less than 20 milliliters;

2. Any person who illegally stores or transports one of the narcotic substances with quantities specified in Clause 1 of Section II above, if falling into one of the following situations, must be criminally prosecuted under Clause 1 of Article 96a of the Criminal Code:

a) Has been administratively punished for one of the acts of illegally storing, transporting, using, or organizing the use of narcotic substances, and has not yet passed the period considered as not having been administratively punished according to Article 10 of the Administrative Violations Handling Ordinance;

b) Has been convicted under Article 96a or Article 203 of the Criminal Code, and has not yet had the conviction erased.

A person who illegally stores or transports multiple narcotic substances, with each narcotic substance having quantities specified in Clause 1 of Section II above, must also be criminally prosecuted under Clause 1 of Article 96a of the Criminal Code.

3. Any person who illegally stores or transports one of the narcotic substances with quantities as follows shall be criminally prosecuted under Clause 1 of Article 96a of the Criminal Code:

a) Opium resin, cannabis resin, cocaine powder: from 100 grams to less than 1 kilogram;

b) Cannabis leaves, flowers, fruits, and coca leaves: from 1 kilogram to less than 20 kilograms;

c) Dried poppy fruits: from 10 kilograms to less than 100 kilograms;

d) Fresh poppy fruits: from 2 kilograms to less than 20 kilograms;

đ) Heroin, Cocaine: from 2 grams to less than 20 grams;

e) Solid narcotic substances (tablet form, sticky form, or powder form, except Heroin and Cocaine): from 5 grams to less than 50 grams;

g) Addictive drugs: from 10 vials to less than 100 vials (each vial from 1 ml to 2 ml);

h) Precursors for synthesizing narcotic substances: from 200 grams to less than 500 grams;

i) Liquid narcotic substances: from 20 milliliters to less than 200 milliliters.

4. Any person who illegally produces, buys, or sells any of the narcotic substances in any quantity below the maximum level specified in Clause 3, Section II hereof shall be criminally liable under Clause 1, Article 96a of the Penal Code.

5. Any person who illegally stores, transports, produces, or sells any of the narcotic substances in the cases specified in Clauses 2, 3, and 4, Section II hereof, and has any of the aggravating circumstances prescribed in Clause 2, Article 96a of the Penal Code, shall be criminally liable under Clause 2, Article 96a of the Penal Code.

Also criminally liable under Clause 2, Article 96a of the Penal Code is any person who illegally produces, stores, buys, or sells multiple narcotic substances, each in quantities specified in Clauses 3 and 4, Section II hereof.

6. Any person who illegally produces, stores, buys, or sells any of the narcotic substances in the following quantities shall be considered to have committed a crime involving a large amount of contraband and shall be criminally liable under Clause 2, Article 96a of the Penal Code:

a) Opium gum, cannabis resin, cocaine powder: from 1 kg to less than 3 kg; b) Leaves, flowers, fruits of the cannabis plant, leaves of the coca plant: from 20 kg to less than 50 kg;

c) Dried opium poppy fruits: from 100 kg to less than 400 kg; d) Fresh opium poppy fruits: from 20 kg to less than 100 kg;

đ) Heroin, cocaine: from 20 grams to less than 100 grams;

e) Narcotic substances in solid form (pill form, sticky form, or powder form, except for heroin and cocaine): from 50 grams to less than 200 grams;

g) Addictive drugs: from 100 vials to less than 250 vials (each vial from 1 ml to 2 ml);

h) Precursors for synthesizing narcotic substances: from 500 grams to less than 1 kg;

i) Narcotic substances in liquid form: from 200 ml to less than 500 ml.

7. Any person who illegally produces, stores, buys, or sells any of the narcotic substances in quantities exceeding the maximum levels specified in Clause 6, Section II hereof shall be considered to have committed a crime in a particularly serious case and shall be criminally liable under Clause 3, Article 96a of the Penal Code.

Any person who illegally produces, stores, buys, or sells any of the narcotic substances in the following quantities, if there are not many mitigating circumstances, shall be sentenced to imprisonment from 12 years to 17 years:

a) Opium gum, cannabis resin, cocaine powder: from 3 kg to less than 13 kg;

b) Leaves, flowers, fruits of the cannabis plant, leaves of the coca plant: from 50 kg to less than 250 kg;

c) Dried opium poppy fruits: from 400 kg to less than 2000 kg; d) Fresh opium poppy fruits: from 100 kg to less than 600 kg;

đ) Heroin, cocaine: from 100 grams to less than 300 grams;

e) Narcotic substances in solid form (pill form, sticky form, or powder form, except for heroin and cocaine): from 200 grams to less than 650 grams;

g) Addictive drugs: from 250 vials to less than 1200 vials (each vial from 1 ml to 2 ml);

h) Precursors for synthesizing narcotic substances: from 1 kg to less than 2.5 kg;

i) Narcotic substances in liquid form: from 500 ml to less than 2500 ml.

Such persons may also be sentenced to imprisonment from 12 years to 17 years if they illegally produce, store, buy, or sell multiple narcotic substances, each in quantities specified in Clause 6, Section II hereof, or if they illegally produce, store, buy, or sell one of the narcotic substances in quantities specified in Clause 6, Section II hereof but have been previously convicted under Article 96a or Article 203 of the Penal Code without having their criminal record expunged or if they commit a dangerous recidivism.

8. Any person who illegally produces, stores, buys, or sells any of the narcotic substances in the following quantities, if there are not many mitigating circumstances, shall be sentenced to imprisonment from 17 years to 20 years:

a) Opium gum, cannabis resin, cocaine powder: from 13 kg to less than 20 kg;

b) Leaves, flowers, fruits of the cannabis plant, leaves of the coca plant: from 250 kg to less than 400 kg;

c) Dried opium poppy fruits: from 2000 kg to less than 3000 kg; d) Fresh opium poppy fruits: from 600 kg to less than 1000 kg;

đ) Heroin, cocaine: from 300 grams to less than 500 grams;

e) Narcotic substances in solid form (pill form, sticky form, or powder form, except for heroin and cocaine): from 650 grams to less than 1 kg;

g) Addictive drugs: from 1200 vials to less than 2000 vials (each vial from 1 ml to 2 ml);

h) Precursors for synthesizing narcotic substances: from 2.5 kg to less than 3.5 kg;

i) Narcotic substances in liquid form: from 2500 ml to less than 4000 ml.

Such persons may also be sentenced to imprisonment from 17 years to 20 years if they illegally produce, store, buy, or sell multiple narcotic substances, each in quantities specified in Clause 7, Section II hereof, or if they illegally produce, store, buy, or sell one of the narcotic substances in quantities specified in Clause 7, Section II hereof but have been previously convicted under Article 96a or Article 203 of the Penal Code without having their criminal record expunged or if they commit a dangerous recidivism.

9. Any person who illegally produces, stores, buys, or sells any of the narcotic substances in the following quantities, if there are not many mitigating circumstances, shall be sentenced to life imprisonment:

a) Opium gum, cannabis resin, cocaine powder: from 20 kg to less than 25 kg;

b) Leaves, flowers, fruits of the cannabis plant, leaves of the coca plant: from 400 kg to less than 500 kg;

c) Dried opium poppy fruits: from 3000 kg to less than 4000 kg;

d) Fresh opium poppy fruits: from 1000 kg to less than 1500 kg;

đ) Heroin, cocaine: from 500 grams to less than 1 kg;

e) Narcotic substances in solid form (pill form, sticky form, or powder form, except for heroin and cocaine): from 1 kg to less than 1.5 kg;

g) Addictive drugs: from 2000 vials to less than 2500 vials (each vial from 1 ml to 2 ml);

h) Precursors for synthesizing narcotic substances: from 3.5 kg to less than 5 kg;

i) Narcotic substances in liquid form: from 4000 ml to less than 5000 ml.

Such persons may also be sentenced to life imprisonment if they illegally produce, store, buy, or sell multiple narcotic substances, each in quantities specified in Clause 8, Section II hereof, or if they illegally produce, store, buy, or sell one of the narcotic substances in quantities specified in Clause 8, Section II hereof, but have been previously convicted under Article 96a or Article 203 of the Penal Code without having their criminal record expunged or if they commit a dangerous recidivism.

10. Any person who illegally produces, stores, buys, or sells any of the narcotic substances in the following quantities, if there are not many mitigating circumstances, shall be sentenced to death:

a) Opium gum, cannabis resin, cocaine powder: 25 kg or more;

b) Leaves, flowers, fruits of the cannabis plant, leaves of the coca plant: 500 kg or more;

c) Dry fruits of the opium poppy plant: 4,000 kg or more;

d) Fresh fruits of the opium poppy plant: 1,500 kg or more;

đ) Heroin, cocaine: 1 kg or more;

e) Solid narcotic substances (in pill form, gel form, or powder form, except for heroin and cocaine): 1.5 kg or more;

g) Narcotic drugs: 2,500 vials or more (each vial from 1 ml to 2 ml);

h) Precursors for synthesizing narcotic substances: 5 kg or more;

i) Liquid narcotic substances: 5,000 ml or more.

A death penalty may also be imposed on individuals who produce, store, buy, sell, or transport illicitly large quantities of narcotic substances, where each type of narcotic substance reaches the quantity specified in Clause 9, Section II herein, or in cases where an individual produces, stores, buys, sells, or transports illicitly one of the types of narcotic substances specified in Clause 9, Section II herein, but has previously been convicted under Article 96a or Article 203 of the Penal Code and has not had their criminal record expunged or poses a danger of recidivism.

C. REGARDING ARTICLE 203 OF THE PENAL CODE

I. CRIMINAL ACTS AND GUIDELINES FOR HANDLING

1. The act of organizing the use of narcotic substances is an act of enticing, luring, soliciting, bribing, coercing, harboring, providing venues, or means to introduce narcotic substances into another person's body or assisting others in using narcotic substances contrary to state regulations.

2. Individuals who organize the use of narcotic substances and also engage in acts of producing, storing, buying, selling, or transporting illicitly narcotic substances shall, in addition to being held criminally responsible under Article 203 of the Penal Code, also be held criminally responsible for corresponding acts under Article 96a of the Penal Code.

3. For individuals who commit the crime of organizing the use of narcotic substances, a supplementary mandatory fine of between fifty thousand dong (50,000 dong) and two million five hundred thousand dong (2,500,000 dong) must be applied, along with supplementary penalties such as compulsory residence restriction or prohibition of residence for one to five years, as well as confiscation of part of their assets (Clauses 2 and 3 of Article 218 of the Penal Code). As for objects and money used by the offender in committing the crime, they must be confiscated for state funds or destroyed (Article 33 of the Penal Code, Article 58 of the Criminal Procedure Code).

II. ON THE APPLICATION OF THE CLAUSES OF ARTICLE 203 OF THE PENAL CODE

1. Any individual who organizes the use of narcotic substances for one to nine persons will be held criminally responsible under Clause 1 of Article 203 of the Penal Code.

2. Any individual who organizes the use of narcotic substances in any of the following circumstances will be considered to have committed a serious offense and will be held criminally responsible under Clause 2 of Article 203 of the Penal Code:

a) Organizing the use of narcotic substances that causes death or injury;

b) Organizing the use of narcotic substances for pregnant women knowing that they are pregnant;

c) Organizing the use of narcotic substances for minors;

d) Organizing the use of narcotic substances for individuals undergoing drug rehabilitation or those under detention;

đ) Organizing the use of narcotic substances for ten or more persons.

D. EFFECTIVE DATE OF IMPLEMENTATION

1. This Circular takes effect from the date of issuance and replaces Circular No. 07/TTLN dated December 5, 1992, Circular No. 05/TTLN dated February 14, 1995, Notice No. 09/LN dated March 4, 1995, and Inter-Ministerial Circular No. 05/TTLN dated August 31, 1996 issued by the Supreme People's Court, the Supreme People's Procuracy, and the Ministry of Interior regarding the application of Articles 96a and 203 of the Penal Code.

2. For acts of producing, storing, buying, selling, or transporting illicitly narcotic substances and organizing the use of narcotic substances that were carried out before the issuance of this Circular, but whose investigation, prosecution, and trial had not concluded before the issuance of this Circular or began after its issuance, this Circular shall be applied during the investigation, prosecution, and trial.

3. In cases where first-instance and appellate trials were conducted before the issuance of this Circular and there was an appeal seeking a harsher sentence, the appellate and supervisory trials shall be conducted according to the guidelines set forth in this Circular.

4. For judgments that have become legally binding before the issuance of this Circular and cases that were tried according to previous guidelines, these guidelines in this Circular shall not be applied to seek supervisory appeals.

During the implementation of this Circular, if any issues arise, investigative, prosecutorial, and judicial agencies shall immediately report to the Supreme People's Court, the Supreme People's Procuracy, and the Ministry of Interior for timely guidance.