Joint Circular No. 17/2007/TTLT-BCA-VKSNDTC-TANDTC-BTP guiding the application of certain provisions in Chapter XVIII "Crimes related to narcotics" of the Penal Code of 1999.

JOINT CIRCULAR

Guidelines on the application of certain provisions in Chapter XVIII "Drug-related Offenses"

on narcotics” of the Penal Code of 1999

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To apply correctly and uniformly the provisions of Chapter XVIII "Drug-related Offenses" of the Penal Code of 1999 (hereinafter referred to as the Penal Code), the Ministry of Public Security, the Supreme People's Procuracy, the Supreme People's Court, and the Ministry of Justice have jointly issued the following guidelines:

I. REGARDING CERTAIN CONCEPTS AND CERTAIN CIRCUMSTANCES AS ELEMENTS OF CRIMINALIZATION OR SENTENCING

1. Regarding certain concepts

1. 1. "Drug" refers to addictive substances and psychotropic substances listed in the drug categories promulgated by the Government. In this regard, the following cases should be distinguished:

b) For opium smoke, it should not be considered as opium resin but the morphine content in the opium smoke must be determined to calculate the weight of the opium.

1. 2. "Precursor chemicals used for illegal production of drugs" refers to indispensable chemicals in the process of manufacturing drugs as specified in the precursor chemical lists promulgated by the Government.

1. 3. "Means and equipment used for illegal production or use of drugs" refers to items specifically produced for the purpose of illegally producing or using drugs, or although produced for other purposes, they have been specifically used for the purpose of illegally producing or using drugs.

In the case where a person knows that the drug is fake but makes others believe it is real and thus buys, exchanges... the person will not be held criminally responsible for drug offenses but will be held criminally responsible for fraud under Article 139 of the Penal Code, if the other elements of the crime are also satisfied.

2. Regarding certain circumstances as elements of criminalization or sentencing.

2. 1. The circumstance "abusing position or power" stipulated in Clause 2 of Articles 193, 194, 195, 196, and 198 of the Penal Code is understood as the offender relying on their position or power to commit the criminal act.

2. 2. The circumstance "abusing the name of an organization or institution" stipulated in Clause 2 of Articles 193, 194, 195, and 196 of the Penal Code is understood as the offender abusing the name of the organization or institution where they work or serve to commit the criminal act.

2. 3. The circumstance "committing the offense multiple times" stipulated in Clause 2 of Articles 193, 194, 195, 196, 197, 198, 200, and 201 of the Penal Code is understood as having committed the offense two or more times (two or more instances of illegal drug production, two or more instances of illegal drug possession, two or more instances of illegal drug sale...) with each instance meeting the elements of the offense stipulated in Clause 1 of the corresponding article, and none of these instances has been prosecuted and the statute of limitations has not expired.

In such cases, the offender shall be held criminally responsible for the total quantity of drugs from all instances combined, if the law provides for the quantity of drugs to determine the sentencing range.

A person who organizes the illegal use of drugs; harbors the illegal use of drugs; forces or entices others to illegally use drugs against one person two or more times is also considered to have committed the offense multiple times.

2. 4. The circumstance "committing the offense against multiple persons" stipulated in Clause 2 of Articles 197, 198, and 200 of the Penal Code is understood as committing the offense against two or more persons in one instance (for example: Organizing two or more persons to illegally use drugs in one instance; harboring two or more persons to illegally use drugs in one instance; forcing or enticing two or more persons to illegally use drugs in one instance).

2. 5. The circumstance "having two or more types of drugs whose total quantity is equivalent to the quantity of a single type of drug specified in one of the points from..." stipulated in Point i Clause 2, Point e Clause 3, Point đ Clause 4 Article 193 or Point o Clause 2, Point h Clause 3, Point h Clause 4 Article 194 of the Penal Code is determined as follows:

a) In the case where each of those drugs weighs below the minimum threshold specified in Clause 2 (i.e., Clause 1) of Article 193 or Clause 2 of Article 194 of the Penal Code, the total weight of those drugs is determined through the following steps:

Step 1: Determine the percentage of the weight of each drug relative to the minimum threshold for each drug at the corresponding point specified in Clause 2 of Article 193 or Clause 2 of Article 194 of the Penal Code.

Step 2: Add up the percentage of the weight of each drug.

Step 3: Determine the point, clause, and article of the law. If the total percentage weight ratio of the narcotics is less than 100%, the offender will only be criminally prosecuted under Clause 1 Article 193 or Clause 1 Article 194 of the Penal Code. If the total percentage weight ratio of the narcotics is 100% or more, the offender will be criminally prosecuted based on the aggravating circumstance: "Having two or more types of narcotics whose total quantity corresponds to the quantity of narcotics specified in one of the points from..." as stipulated in Point i Clause 2 Article 193 or Point o Clause 2 Article 194 of the Penal Code.

Example 1: A person produces two hundred grams of opium resin and two grams of heroin (both falling under Clause 1 Article 193 of the Penal Code). The total weight of the narcotics is determined as follows:

- The percentage weight ratio of opium resin compared to the minimum threshold for opium resin specified in Point đ Clause 2 Article 193 of the Penal Code is 40% (two hundred grams compared to five hundred grams).

- The percentage weight ratio of heroin compared to the minimum threshold for heroin specified in Point e Clause 2 Article 193 of the Penal Code is 40% (two grams compared to five grams).

- The total percentage weight ratio of both opium resin and heroin is 40% + 40% = 80% (less than 100%), therefore, the offender will only be criminally prosecuted under Clause 1 Article 193 of the Penal Code.

Example 2: A person buys and sells four hundred grams of opium resin and three grams of heroin (both falling under Clause 1 Article 194 of the Penal Code). The total weight of the narcotics is determined as follows:

- The percentage weight ratio of opium resin compared to the minimum threshold for opium resin specified in Point g Clause 2 Article 194 of the Penal Code is 80% (four hundred grams compared to five hundred grams).

- The percentage weight ratio of heroin compared to the minimum threshold for heroin specified in Point h Clause 2 Article 194 of the Penal Code is 60% (three grams compared to five grams).

- The total percentage weight ratio of both opium resin and heroin is 80% + 60% = 140% (equal to or greater than 100%), therefore, the offender will be criminally prosecuted under Point o Clause 2 Article 194 of the Penal Code.

b) In cases where all narcotics are specified in the same point of Clause 2, Clause 3, or Clause 4 of Article 193 or in the same point of Clause 2, Clause 3, or Clause 4 of Article 194 of the Penal Code, the weights of the narcotics are added together and compared with the weight provisions in the relevant articles to criminally prosecute the offender according to the appropriate 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 đ Clause 2, Point b Clause 3, and Point a Clause 4 of Article 193 of the Penal Code, it is only necessary to add the weights of opium resin and cannabis resin, which is 300g + 300g = 600g. Comparing this with the weight provisions in Article 193 of the Penal Code, the offender will be criminally prosecuted under Point đ Clause 2 of Article 193 of the Penal Code.

c) In cases where the narcotics have different weights at different points within the same Clause 2 (Clause 3) of Article 193 or Clause 2 (Clause 3) of Article 194 of the Penal Code, the total weight of the narcotics is determined through the following steps:

Step 1: Determine the percentage weight ratio of each narcotic compared to the minimum threshold for each narcotic at the corresponding point specified in Clause 3 (Clause 4) of Article 193 or Clause 3 (Clause 4) of Article 194 of the Penal Code.

Step 2: Add the percentage weight ratios of each narcotic together.

Step 3: Determine the point, clause, and article of the law. If the total percentage weight ratio of the narcotics is less than 100%, the offender will only be criminally prosecuted under Clause 2 (Clause 3) Article 193 or Clause 2 (Clause 3) Article 194 of the Penal Code; if the total percentage weight ratio of the narcotics is 100% or more, the offender will be criminally prosecuted based on the aggravating circumstance: "Having two or more types of narcotics whose total quantity corresponds to the quantity of narcotics specified in one of the points from..." as stipulated in Point e Clause 3 (Point đ Clause 4) Article 193 or Point h Clause 3 (Point h Clause 4) Article 194 of the Penal Code.

Example 1: A person produces six hundred grams of opium resin and nine grams of heroin (both falling under Clause 2 Article 193 of the Penal Code). The total weight of the narcotics is determined as follows:

- The percentage weight ratio of opium resin compared to the minimum threshold for opium resin specified in Point b Clause 3 Article 193 of the Penal Code is 60% (six hundred grams compared to one kilogram).

- The percentage weight ratio of heroin compared to the minimum threshold for heroin specified in Point c Clause 3 Article 193 of the Penal Code is 30% (nine grams compared to thirty grams).

- The total percentage weight ratio of both opium resin and heroin is 60% + 30% = 90% (less than 100%), therefore, the offender will only be criminally prosecuted under Point i Clause 2 Article 193 of the Penal Code.

Example 2: A person buys and sells four kilograms of opium resin and thirty grams of cocaine (both falling under Clause 3 Article 194 of the Penal Code). The total weight of the narcotics is determined as follows:

- The percentage weight ratio of opium resin compared to the minimum threshold for opium resin specified in Point a Clause 4 Article 194 of the Penal Code is 80% (four kilograms compared to five kilograms).

- The percentage weight ratio of cocaine compared to the minimum threshold for cocaine specified in Point b Clause 4 Article 194 of the Penal Code is 30% (thirty grams compared to one hundred grams).

- The total percentage weight ratio of both opium resin and cocaine is 80% + 30% = 110% (equal to or greater than 100%), therefore, the offender will be criminally prosecuted under Point h Clause 4 Article 194 of the Penal Code.

Step 1: Determine the weight percentage ratio of the drug with the highest weight compared to the minimum threshold for that drug as prescribed in Clause 3 (Clause 4) Article 193 or Clause 3 (Clause 4) Article 194 of the Criminal Code, based on the principle that if the drug with the highest weight falls under Clause 2, it shall be compared to the minimum threshold for that drug as prescribed in Clause 3; if the drug with the highest weight falls under Clause 3, it shall be compared to the minimum threshold for that drug as prescribed in Clause 4.

Step 2: Determine the weight percentage ratio of other drugs compared to the minimum threshold for that drug as prescribed in Clause 3 (Clause 4) Article 193 or Clause 3 (Clause 4) Article 194 of the Criminal Code, based on the principle that the minimum threshold for the drug with the highest weight at which clause applies shall be the basis for determining the minimum thresholds for other drugs.

Step 3: Add together the weight percentage ratios of each drug and determine the point, clause, or article. If the total weight percentage ratio of the drugs is 100% or more, the offender shall be held criminally responsible according to the aggravating circumstance: "Having two or more types of drugs whose total quantity is equivalent to the quantity of a type of drug prescribed in one of the points from..." as stipulated in Point e Clause 3 (Point đ Clause 4) Article 193; at Point h Clause 3 (Point h Clause 4) Article 194 of the Criminal Code (the corresponding clause of the article prescribing the minimum threshold for the drug with the highest weight).

Example 1: A person produces four hundred grams of opium resin and twenty-four grams of heroin. In this case, heroin has a weight falling under Point e Clause 2 Article 193 of the Criminal Code, while opium resin has a weight falling under Clause 1 Article 193 of the Criminal Code; therefore, heroin has the highest weight. The total weight of the drugs is determined as follows:

- The weight percentage ratio of heroin compared to the minimum threshold for heroin as prescribed in Point e Clause 3 Article 193 of the Criminal Code is 80% (twenty-four grams compared to thirty grams).

- The weight percentage ratio of opium resin compared to the minimum threshold for opium resin as prescribed in Point b Clause 3 Article 193 of the Criminal Code is 40% (four hundred grams compared to one kilogram).

- The total weight percentage ratio of both opium resin and heroin is 80% + 40% = 120% (falling within the range of 100% or more), thus the offender shall be held criminally responsible according to Point e Clause 3 Article 193 of the Criminal Code.

Example 2: A person buys and sells four point five kilograms of opium resin and four grams of heroin. In this case, opium resin has a weight falling under Point a Clause 3 Article 194 of the Criminal Code, while heroin has a weight falling under Clause 1 Article 194 of the Criminal Code; therefore, opium resin has the highest weight. The total weight of the drugs is determined as follows:

- The weight percentage ratio of opium resin compared to the minimum threshold for opium resin as prescribed in Point a Clause 4 Article 194 of the Criminal Code is 90% (four point five kilograms compared to five kilograms).

- The weight percentage ratio of heroin compared to the minimum threshold for heroin as prescribed in Point b Clause 4 Article 194 of the Criminal Code is 4% (four grams compared to one hundred grams).

- The total weight percentage ratio of both opium resin and heroin is 90% + 4% = 94% (below 100%), thus the offender shall still be held criminally responsible according to Clause 3 Article 194 of the Criminal Code.

Example 3: A person produces four kilograms of opium resin and twenty grams of heroin. In this case, opium resin has a weight falling under Point b Clause 3 Article 193 of the Criminal Code, while heroin has a weight falling under Point e Clause 2 Article 193 of the Criminal Code; therefore, opium resin has the highest weight. The total weight of the drugs is determined as follows:

- The weight percentage ratio of opium resin compared to the minimum threshold for opium resin as prescribed in Point a Clause 4 Article 193 of the Criminal Code is 80% (four kilograms compared to five kilograms).

- The weight percentage ratio of heroin compared to the minimum threshold for heroin as prescribed in Point b Clause 4 Article 193 of the Criminal Code is 20% (twenty grams compared to one hundred grams).

- The total weight percentage ratio of both opium resin and heroin is 80% + 20% = 100% (falling within the range of 100% or more), thus the offender shall be held criminally responsible according to Point đ Clause 4 Article 193 of the Criminal Code.

3. Criminal liability in cases involving multiple criminal acts.

3. 1. In cases where a person commits multiple criminal acts prescribed in different articles, from Article 192 to Article 194 of the Criminal Code, and these acts are closely related to each other (one act is a condition for committing another act or is an inevitable consequence of another act), if the crimes are not equal, the offender shall be held criminally responsible for the criminal act prescribed in the article that prescribes the heavier crime.

Example: A person grows opium poppy plants (having been educated many times, having been provided conditions to stabilize their life, and having been administratively punished for this act), then proceeds to illegally produce drugs. In this case, the offender shall be held criminally responsible for the crime of illegally producing drugs as prescribed in Article 193 of the Criminal Code (the crime of illegally producing drugs is heavier than the crime of growing opium poppy plants or other plants containing drugs).

3. 2. In cases where a person commits multiple criminal acts prescribed in different articles, from Article 192 to Article 194 of the Criminal Code, and these acts are closely related to each other (one act is a condition for committing another act or is an inevitable consequence of another act), if the crimes are equal, the offender shall be held criminally responsible for the first committed criminal act according to the corresponding offense.

For persons who commit the acts of storing, transporting, buying and selling, or appropriating drugs for the purpose of illegally producing drugs, they shall be held criminally responsible for the crime of illegally producing drugs as prescribed in Article 193 of the Criminal Code.

3. 3. In case a person commits multiple offenses as stipulated from Article 192 to Article 194 of the Criminal Code, and such acts are independent of each other, they shall be held criminally responsible for those separate offenses according to the corresponding provisions.

For example, if a person is arrested for illegally trading heroin and during a house search, it is discovered that the person also engaged in producing opium, in this case, the offender will be held criminally responsible for the offense of illegally trading narcotic substances under Article 194 of the Criminal Code and the offense of illegally producing narcotic substances under Article 193 of the Criminal Code.

3. 4. The determination of equal, more serious, or less serious offenses shall be carried out in accordance with the guidance provided in Subpoint 2.2, Section 2, Part II of Resolution No. 04/2004/NQ-HĐTP dated November 5, 2004, issued by the Supreme People's Court Council on guiding the implementation of certain provisions in Part Three "Trial at First Instance" of the Criminal Procedure Code 2003.

3. 5. In case a person commits one or more offenses as prescribed in a single article (Articles 194, 195, and 196 of the Criminal Code), the following distinctions shall be made:

a) In case a person only commits one of the offenses as stipulated in Article 194 (or Article 195 or Article 196) of the Criminal Code, they shall be held criminally responsible for the specific offense committed according to the corresponding provision.

For example, if a person only engages in buying and selling precursor chemicals intended for illegal drug production, they shall be held criminally responsible for the offense of buying and selling precursor chemicals intended for illegal drug production under Article 195 of the Criminal Code.

b) In case a person commits multiple offenses as stipulated in Article 194 (or Article 195 or Article 196) of the Criminal Code, and these acts are closely related to each other (one act is a condition for committing another act or is an inevitable consequence of another act), they shall be held criminally responsible for all the completed acts under the full name of the offense according to the corresponding provision and shall only bear one punishment.

For example, if a person buys and sells precursor chemicals intended for illegal drug production, then transports them to a new location and stores them, they shall be held criminally responsible for the offense of buying, transporting, and storing precursor chemicals intended for illegal drug production under Article 195 of the Criminal Code and shall only bear one punishment.

c) In case a person commits multiple offenses as stipulated in Article 194 (or Article 195 or Article 196) of the Criminal Code, and these acts are independent of each other, they shall be held criminally responsible for the separate offenses they have committed. When sentencing, the court applies Article 50 of the Criminal Code to determine the combined punishment.

For example, if a person buys and sells one type of precursor chemical intended for illegal drug production and is caught, during a house search, it is found that the person also stores another type of precursor chemical but not for the purpose of trading. In this case, the offender will be held criminally responsible for the offense of buying and selling precursor chemicals intended for illegal drug production and the offense of storing precursor chemicals intended for illegal drug production under Article 195 of the Criminal Code. Depending on the specific circumstances, the person may be punished with the corresponding penalties for each offense and then the combined punishment for both offenses will be determined according to Article 50 of the Criminal Code.

II. REGARDING SPECIFIC CRIMES

1. The crime of planting opium or other plants containing narcotic substances (Article 192).

1. 1. "Other plants containing narcotic substances" refers to plants containing addictive substances or psychotropic substances as defined by the Government, excluding opium, coca, and cannabis plants.

1. 2. "Planting opium, coca, cannabis, or other plants containing narcotic substances" as stipulated in Article 192 of the Criminal Code means the act of sowing, cultivating, or harvesting parts of the plant (such as leaves, flowers, fruits, stems containing narcotic substances).

1. 3. A person who commits the act of planting narcotic substance-containing plants shall only be held criminally responsible when all three measures have been fully applied: "Having been educated many times," "having been provided conditions to stabilize their livelihood," and "having been administratively punished for this act and still violated."

a) "Having been educated many times" means having been persuaded, reminded, or informed about the prohibition of planting narcotic substance-containing plants by state agencies, organizations, or responsible individuals in the locality two or more times. These educational measures must be recorded in a protocol. It is only considered "having been educated many times" if the education was conducted before administrative punishment.

b) "Having been provided conditions to stabilize their livelihood" means having received financial support, technical assistance for production, seedlings, livestock, or guidance on animal husbandry and crop cultivation techniques for fruit trees, industrial crops, food crops... to replace narcotic substance-containing plants.

c) "Having been administratively punished for this act and still violated" means that prior to this, the person had planted narcotic substance-containing plants and was administratively punished with a warning or fine according to the law on administrative violations, but within the period not yet considered as having been administratively punished, they again committed the act of planting narcotic substance-containing plants and were discovered. (According to the current Administrative Violations Handling Ordinance, there are two forms of administrative punishment: warning or fine).

1. 4. Anyone who knows that others are sowing, cultivating, or harvesting narcotic substance-containing plants, and has been fully applied with all three measures: "Educated many times," "provided conditions to stabilize their livelihood," and "administratively punished for this act," but still assists them in committing one of these acts, shall be held criminally responsible as an accomplice for this offense.

1. 5. In case a person growing drug-containing plants has been fully subjected to all three measures: "multiple educational sessions," "provided stable living conditions," and "administratively punished," but still refuses to eradicate the plants and sells them to others, they shall still be held criminally responsible for the crime of growing opium poppy, coca, cannabis, or other drug-containing plants as stipulated in Article 192 of the Penal Code.

A person who purchases drug-containing plants to continue caring for them shall be held criminally responsible for this offense if they satisfy the elements constituting a criminal offense. If a person buys or sells illicitly drug-containing plants when such plants or parts thereof containing drugs are objects (drugs) as defined in Article 194 of the Penal Code, they shall be held criminally responsible for the crime of illicitly buying or selling drugs under Article 194 of the Penal Code.

2. The crime of illegally manufacturing drugs (Article 193)

2. 1. "Illegally manufacturing drugs" means producing drugs (processing, refining...) manually or using science and technology from drug-containing plants, from precursors and chemicals, or making drugs from other drugs without permission from competent authorities or not in accordance with the content already permitted by competent authorities.

Acts aimed at facilitating the use of existing drugs, such as diluting opium into a solution for injection, grinding heroin from cakes into powder for inhalation... are not considered acts of illegally manufacturing drugs.

2. 2. The professional nature of the crime as prescribed in point a, Clause 3 refers to cases where the offender fulfills all of the following conditions:

a) Committing the act of illegally manufacturing drugs five times or more, regardless of whether they have been tried or not, if the statute of limitations for criminal prosecution has not expired or if their criminal record has not been expunged;

b) The offender makes the act of illegally manufacturing drugs their livelihood and relies on the proceeds of the criminal act of illegally manufacturing drugs as their main source of income.

3. The crime of illegally storing, transporting, buying, selling, or appropriating drugs (Article 194)

3. 1. "Illegally storing drugs" means unlawfully keeping or hiding drugs anywhere (such as in a house, outside a garden, buried underground, placed in a suitcase, put in a car fuel tank, concealed in clothing, personal belongings worn on the body or carried with them...) without the purpose of buying, selling, transporting, or illegally manufacturing drugs. The length of time for storage does not affect the determination of this crime.

3. 2. "Illegally transporting drugs" means unlawfully moving drugs from one place to another in any form (which may be through different means of transportation such as cars, airplanes, ships; along different routes such as roads, railways, airways, waterways, postal services; it can be carried on the person like putting in a coat pocket, trouser pocket, swallowing in the stomach, carrying in luggage like suitcases, bags, etc...) without the purpose of buying, selling, storing, or illegally manufacturing other drugs.

A person who holds or transports drugs illegally for another person, knowing that the purpose is to buy or sell drugs illicitly, shall be held criminally responsible for the crime of illicitly buying or selling drugs as an accomplice.

3. 3. "Illicitly buying or selling drugs" includes any of the following acts:

a) Illicitly selling drugs to others (regardless of the origin of the drugs), including selling drugs for others to earn money or other benefits;

b) Buying drugs with the intent to sell them illicitly to others;

c) Requesting drugs with the intent to sell them illicitly to others;

d) Using drugs to exchange or pay illicitly (regardless of the origin of the drugs);

đ) Using non-monetary assets to exchange, pay... for drugs with the intent to sell them illicitly to others;

e) Storing drugs with the intent to sell them illicitly to others;

g) Transporting drugs with the intent to sell them illicitly to others.

A person who organizes, incites, or assists in committing any of the acts of illicitly buying or selling drugs as specified from point a to point g of sub-item 3.3 shall be held criminally responsible for the crime of illicitly buying or selling drugs.

3. 5. Narcotic substances and psychotropic substances are drugs; while narcotic medicines and psychotropic medicines are for medical treatment (containing a certain amount of drugs) and are managed according to the pharmaceutical management regulations of the Ministry of Health. A person who does not belong to the category prescribed in Article 201 of the Penal Code and violates the regulations on producing, storing, transporting, or selling narcotic medicines or psychotropic medicines for business purposes or for medical treatment shall be subject to administrative penalties or be held criminally responsible for another corresponding crime that is not a drug-related crime (for example: illegal business operation, smuggling...). In cases where narcotic medicines or psychotropic medicines are produced, stored, transported, or sold illicitly to satisfy the demand for illicit drug use for oneself or others, they shall be dealt with as drug-related crimes (if they meet the weight requirements for drugs as stipulated by law).

3. 6. A person who illegally stores, transports, or appropriates drugs with the following quantities without the purpose of buying or selling or illegally manufacturing other drugs shall be subject to Clause 4 of Article 8 of the Penal Code, according to which criminal responsibility will not be pursued but administrative penalties must be imposed:

a) Opium resin, cannabis resin, or coca paste weighing less than one gram;

b) Heroin or cocaine weighing less than zero point one gram;

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

d) Dried opium poppy fruits weighing less than five kilograms;

d) Dried opium pellets with a weight under five kilograms;

d) Fresh opium weighing less than one kilogram;

e) Other solid narcotic substances weighing less than one gram;

g) Other liquid narcotic substances from ten milliliters or less;

3. 7. When pursuing criminal responsibility for the offenses of illegal possession, transportation, purchase, sale, or appropriation of narcotics, it is necessary to distinguish:

a) A person who has been convicted of the offense of illegal possession, transportation, or appropriation of narcotics, and who has not yet had their criminal record expunged, and who again illegally possesses, transports, or appropriates one of the narcotics specified in points a to g of sub-item 3.6 above, if they do not constitute a dangerous recidivist, shall be pursued for criminal responsibility under Clause 1, Article 194 of the Criminal Code. If they are a dangerous recidivist, they shall be pursued for criminal responsibility under Clause 2 of Article 194 of the Criminal Code.

b) A person who illegally sells narcotics to another person and also provides them with a place under their ownership, possession, or management for the illegal use of narcotics shall, in addition to being pursued for criminal responsibility for the offense of illegal purchase and sale of narcotics under Article 194 of the Criminal Code, also be pursued for criminal responsibility for the offense of harboring the illegal use of narcotics under Article 198 of the Criminal Code;

c) A person who knows that another person intends to purchase narcotics for illegal use and sends money to that person to buy narcotics on their behalf shall bear criminal responsibility for the quantity of narcotics purchased on their behalf. The purchaser shall bear criminal responsibility for the total quantity of narcotics purchased for themselves and on behalf of others.

d) A person who knows that another person intends to purchase narcotics for illegal use and uses a means of transport to carry them along with the narcotics and is apprehended, if the quantity of narcotics reaches the level requiring criminal responsibility for the offense of illegal possession or transportation of narcotics, then that person is an accomplice with the purchaser for the offense of illegal possession or transportation of narcotics as stipulated in Article 194 of the Criminal Code.

đ) A person who illegally possesses or transports one of the narcotics specified in points a to g of sub-item 3.6 item 3 part II of this Circular without the purpose of illegal purchase or production of other narcotics, but can prove that it was intended for illegal use of narcotics, even though they have been educated multiple times and administratively sanctioned by compulsory admission to a treatment facility, must be pursued for criminal responsibility for the offense of illegal use of narcotics under Article 199 of the Criminal Code.

4. The offense of illegal possession, transportation, purchase, or appropriation of precursor chemicals used for the illegal production of narcotics (Article 195).

4. 1. "Illegal possession of precursor chemicals used for the illegal production of narcotics" means unlawfully keeping or hiding precursor chemicals at any location (such as in a house, outside a garden, buried underground, placed in a suitcase, or put in a fuel tank...) for the purpose of illegal production of narcotics.

4. 2. "Illegal transportation of precursor chemicals used for the illegal production of narcotics" means unlawfully moving precursor chemicals from one place to another in any form (which may be through different means such as cars, airplanes, ships...; on various routes such as roads, railways, airways, waterways, postal services...; may be carried on the person such as in a coat pocket, pants pocket, swallowed in the stomach...; may be in luggage such as suitcases, bags...), for the purpose of illegal production of narcotics.

4. 3. "Illegal purchase and sale of precursor chemicals used for the illegal production of narcotics" includes any of the following acts:

a) Selling precursor chemicals to another person so that they produce narcotics illegally;

b) Purchasing precursor chemicals with the intent to sell them to another person so that they produce narcotics illegally;

c) Requesting precursor chemicals with the intent to sell them illegally to another person so that they produce narcotics illegally;

d) Using precursor chemicals to exchange or pay illegally to another person so that they produce narcotics illegally;

đ) Using property (not money) to exchange or pay for precursor chemicals with the intent to resell them to another person so that they produce narcotics illegally;

e) Illegally possessing precursor chemicals with the intent to sell them to another person so that they produce narcotics illegally;

g) Transporting precursor chemicals with the intent to sell them to another person so that they produce narcotics illegally.

4. 4. "Appropriation of precursor chemicals used for the illegal production of narcotics" includes any of the acts of theft, fraud, abuse of trust, coercion, robbery, snatch theft, public appropriation... of precursor chemicals belonging to another person for the purpose of illegal production of narcotics.

4. 5. A person who illegally possesses, transports, purchases, or appropriates precursor chemicals used for the illegal production of narcotics shall only be pursued for criminal responsibility under Article 195 of the Criminal Code when these acts are carried out with the purpose of producing narcotics illegally or selling them to another person for them to produce narcotics illegally. In cases where the purpose of producing narcotics illegally or selling them to another person for them to produce narcotics illegally cannot be proven, they will not be held criminally responsible under Article 195 of the Criminal Code, but depending on specific circumstances, they may be pursued for criminal responsibility for other offenses as stipulated in the Criminal Code.

In cases where precursor chemicals weigh less than 50 grams (for solid precursor chemicals) or less than 75 milliliters (for liquid precursor chemicals), Clause 4, Article 8 of the Criminal Code shall be applied to not pursue criminal responsibility but administrative sanctions shall be imposed.

5. The offense of illegal production, possession, transportation, purchase, or sale of equipment and tools used for the illegal production or use of narcotics (Article 196).

5. 1. "Illegal production of equipment and tools used for the illegal production or use of narcotics" means making equipment and tools specified in sub-item 1.3 item 1 part I of this Circular (which may be done manually or using scientific and technological methods) for the purpose of illegal production or use of narcotics.

5. 2. "Storing equipment and tools for the illegal production or use of narcotic drugs" refers to the act of keeping the equipment and tools specified in Subpoint 1.3, Section 1, Part I of this Circular at any location (such as inside a house, outside a garden, buried underground, placed in a suitcase or put in a fuel tank...) for the purpose of illegally producing or using narcotic drugs.

5. 3. "Transporting equipment and tools for the illegal production or use of narcotic drugs" refers to the act of moving the equipment and tools specified in Subpoint 1.3, Section 1, Part I of this Circular from one place to another under any form (which may be through different means such as cars, airplanes, ships...; on various routes such as roads, railways, airways, waterways, postal services...; it may be carried on the person such as in a coat pocket, pants...; it may be in luggage such as suitcases, bags...) for the purpose of illegally producing or using narcotic drugs.

5. 4. "Buying and selling equipment and tools for the illegal production or use of narcotic drugs" includes any of the following acts:

a) Selling the equipment and tools specified in Subpoint 1.3, Section 1, Part I of this Circular to others for them to use in the illegal production or use of narcotic drugs;

b) Purchasing the equipment and tools specified in Subpoint 1.3, Section 1, Part I of this Circular with the intent to sell them to others for them to use in the illegal production or use of narcotic drugs;

c) Requesting the equipment and tools specified in Subpoint 1.3, Section 1, Part I of this Circular with the intent to illegally sell them to others for them to use in the illegal production or use of narcotic drugs;

d) Using the equipment and tools specified in Subpoint 1.3, Section 1, Part I of this Circular to exchange or pay illegally to others for them to use in the illegal production or use of narcotic drugs;

đ) Using property (not money) to exchange or pay for the equipment and tools specified in Subpoint 1.3, Section 1, Part I of this Circular with the intent to illegally sell them to others for them to use in the illegal production or use of narcotic drugs;

e) Storing the equipment and tools specified in Subpoint 1.3, Section 1, Part I of this Circular with the intent to illegally sell them to others for them to use in the illegal production or use of narcotic drugs;

g) Transporting the equipment and tools specified in Subpoint 1.3, Section 1, Part I of this Circular with the intent to illegally sell them to others for them to use in the illegal production or use of narcotic drugs.

5. 5. When pursuing criminal responsibility for individuals who engage in the illegal production, storage, transportation, or sale of equipment and tools for the illegal production or use of narcotic drugs, distinctions must be made:

a) Criminal responsibility will only be pursued if the production, storage, transportation, or sale of the equipment and tools is intended for their use in the illegal production or use of narcotic drugs;

b) For individuals who produce, store, transport, or sell equipment and tools for the illegal use of narcotic drugs for the first time and only use these tools and equipment for their own illegal use of narcotic drugs, they have not yet reached the level of being pursued for criminal responsibility but must be subject to administrative penalties. If they have been administratively penalized according to the laws on administrative violations and still violate, then they must be pursued for criminal responsibility;

c) In cases where the production, storage, transportation, or sale involves up to five sets of equipment and tools (which can be of the same type or different types), Article 8, Clause 4 of the Penal Code shall apply to not pursue criminal responsibility, but they must be subject to administrative penalties.

d) "Illegal items in large quantities" as defined in Clause 2 of Article 196 of the Penal Code refers to cases involving the production, storage, transportation, or sale of twenty or more sets of equipment and tools (which can be of the same type or different types).

6. The crime of organizing the illegal use of narcotic drugs (Article 197)

6. 1. "Organizing the illegal use of narcotic drugs" refers to any of the following acts:

a) Directing, assigning, or managing activities that illegally introduce narcotic drugs into the bodies of others;

b) Directing, assigning, or managing the preparation, provision of narcotic drugs, locations, equipment, and tools for the illegal use of narcotic drugs, and finding users of narcotic drugs.

 Those who carry out any of the following acts under the direction, assignment, or management of others shall be considered accomplices in the crime of organizing the illegal use of narcotic drugs: illegally introducing narcotic drugs into the bodies of others; providing narcotic drugs illegally to others for them to use illegally; preparing narcotic drugs in any form (buying, requesting, storing, producing...), with the aim of illegally introducing narcotic drugs into the bodies of others; preparing locations (renting locations, borrowing locations, using locations not under their possession or management to serve as places to illegally introduce narcotic drugs into the bodies of others); preparing equipment and tools for the illegal use of narcotic drugs in any form (buying, requesting, storing...), with the aim of using them to illegally introduce narcotic drugs into the bodies of others; finding users of narcotic drugs to illegally introduce narcotic drugs into their bodies.

6. 2. When pursuing criminal responsibility for those who organize the illegal use of narcotic drugs, distinctions must be made:

a) A drug addict who provides narcotic drugs (regardless of the source of the drugs) to other drug addicts for joint illegal use will not be pursued for criminal responsibility for the crime of organizing the illegal use of narcotic drugs, but may be pursued for criminal responsibility for the crime of illegally storing narcotic drugs or the crime of illegally using narcotic drugs depending on the specific circumstances.

b) Any person who commits the act of organizing the illegal use of drugs and also commits one or more other drug-related offenses as stipulated in corresponding articles of the Criminal Code shall, in addition to being held criminally responsible under Article 197 of the Criminal Code, be subject to criminal responsibility for other crimes committed as stipulated in corresponding articles of the Criminal Code, depending on the circumstances.

6. 3. Regarding certain circumstances that are elements determining the sentencing framework as provided for in Article 197 of the Criminal Code.

a) The phrase "against a person undergoing rehabilitation" as specified in Point d, Clause 2 of Article 197 of the Criminal Code refers to the situation where the offense is committed against a person who has been officially concluded by competent authorities to be addicted to drugs and is currently undergoing rehabilitation at a detoxification center, at home, or within the community.

b) The phrase "causing dangerous diseases to others" as specified in Point g, Clause 2 of Article 197 of the Criminal Code refers to the situation where the organizer of the illegal use of drugs (whether knowing or not) causes some dangerous diseases to drug users such as HIV/AIDS, hepatitis B, tuberculosis...

In cases where the organizer of the illegal use of drugs knows that they or another person is infected with HIV and intentionally transmits HIV to drug users, in addition to being held criminally responsible for the crime of organizing the illegal use of drugs as stipulated in Point g, Clause 2 of Article 197 of the Criminal Code, such person will also be held criminally responsible for the crime of transmitting HIV to others as stipulated in Article 117 of the Criminal Code or the crime of intentionally transmitting HIV to others as stipulated in Article 118 of the Criminal Code.

c) The phrase "causing dangerous diseases to multiple people" as specified in Point b, Clause 3 of Article 197 of the Criminal Code refers to causing dangerous diseases to two or more people.

d) The phrase "causing harm to the health of multiple people with a disability rate from 31% to 60%" as specified in Point b, Clause 3 of Article 197 of the Criminal Code refers to the situation where harm is caused to the health of two or more people, with each person having a disability rate from 31% to 60%.

đ) The phrase "causing harm to the health of multiple people with a disability rate of 61% or higher" as specified in Point a, Clause 4 of Article 197 of the Criminal Code refers to the situation where harm is caused to the health of two or more people, with each person having a disability rate of 61% or higher.

7. Crime of harboring the illegal use of drugs (Article 198)

7. 1. "Harboring the illegal use of drugs" is the act of a person who has a location under their possession or management, knowing that another person is an object of illegal drug use, but still allows them to borrow or rent the location for them to directly illegally use drugs to satisfy their drug use needs.

7. 2. "Committing any other act of harboring the illegal use of drugs" refers to the situation where a person who has a location under their possession or management, knowing that another person (who is not their grandparents, parents, children, grandchildren, siblings, spouse) is an object of illegal drug use, although not renting or lending the location to them, still allows them to use drugs illegally twice or more times or allows multiple people to use drugs illegally.

7. 3. When pursuing criminal responsibility for a person harboring the illegal use of drugs, it is necessary to distinguish:

a) A person who lends a location to another person knowing that they will use it not to satisfy their own drug use needs, but to illegally introduce drugs into another person's body, must be held criminally responsible for the crime of "organizing the illegal use of drugs" as stipulated in Article 197 of the Criminal Code.

b) A drug addict who allows another drug addict to use drugs illegally together at a location under their ownership, possession, or management does not bear criminal responsibility for the crime of harboring the illegal use of drugs; if a person fully meets the elements constituting the crime of illegal drug use, then that person must bear criminal responsibility for the crime of illegal drug use as stipulated in Article 199 of the Criminal Code.

8. Crime of illegal drug use (Article 199)

8. 1. "Illegal drug use" is the act of oneself or through another person introducing drugs illegally into one's own body in any form (such as smoking, inhaling, drinking, injecting...) to satisfy one's drug use needs.

8. 2. Pursuit of criminal responsibility for the crime of illegal drug use as stipulated in Article 199 of the Criminal Code only applies in cases where a person using drugs illegally has been "educated multiple times" and subsequently "administratively handled by being placed in a compulsory treatment facility," yet continues to use drugs illegally.

a) "Educated multiple times" means being persuaded, reminded, or educated (the application of these educational measures must be documented) or administratively punished by state agencies, organizations, or responsible persons in the locality two or more times, but continues to use drugs illegally;

b) "Administratively handled by being placed in a compulsory treatment facility" means being placed in a compulsory detoxification facility according to Articles 28 and 29 of the Law on Prevention and Control of Drugs 2000, Article 26 of the Administrative Violation Handling Decree 2002, and Government Decree No. 135/2004/NĐ-CP dated June 10, 2004, which stipulates the regime of applying compulsory treatment measures, the operation of treatment facilities according to the Administrative Violation Handling Decree, and the regime applied to minors and voluntary entrants (there must be a decision by the Chairman of the People's Committee of the district, town, city, or provincial city to place in a compulsory detoxification facility, and the person must actually have been placed there, without requiring completion of the decision), but the period has not yet expired to be considered as not having been administratively handled according to the law on administrative violation handling.

8. 3. In cases where a drug addict voluntarily or through family submits an application for rehabilitation and is accepted for rehabilitation at a compulsory detoxification facility, it is not considered as "being administratively handled by being placed in a compulsory treatment facility."

9. Crime of forcing or enticing others to use drugs illegally (Article 200)

9. 1. "Forcing others to illegally use drugs" refers to the act of using violence or threatening to use violence, or other means to psychologically intimidate others, compelling them to illegally use drugs against their will.

9. 2. "Inducing others to illegally use drugs" refers to the act of enticing, persuading, inciting, or using other means to arouse the desire of others to illegally use drugs.

9. 3. Regarding certain circumstances for determining the sentencing framework prescribed in Article 200 of the Penal Code:

a) "Out of base motives" as stipulated in point c, Clause 2, Article 200 of the Penal Code refers to motives of revenge or other selfish and low motives;

b) "Causing dangerous diseases to others" as stipulated in point i, Clause 2, Article 200 of the Penal Code refers to cases where the offender (whether aware or not) has caused those coerced or induced to illegally use drugs to suffer from dangerous diseases such as HIV/AIDS, hepatitis B, tuberculosis, etc.;

In cases where the person coercing or inducing others to illegally use drugs knows that they or someone else is infected with HIV and intentionally transmits HIV to drug users, in addition to being held criminally responsible for the crime of coercing or inducing others to illegally use drugs under point i, Clause 2, Article 200 of the Penal Code, such person shall also be held criminally responsible for the crime of transmitting HIV to others under Article 117 of the Penal Code or the crime of intentionally transmitting HIV to others under Article 118 of the Penal Code.

c) "Causing dangerous diseases to multiple people" as stipulated in point b, Clause 3, Article 200 of the Penal Code refers to causing dangerous diseases to two or more people.

d) "Causing the death of multiple people" as stipulated in Clause 4, Article 200 of the Penal Code refers to cases where the act of coercing or inducing others to illegally use drugs results in the death of two or more people.

e) "Causing particularly serious consequences" as stipulated in Clause 4, Article 200 of the Penal Code refers to causing the death of one person while simultaneously causing dangerous diseases to multiple people, or causing particularly serious economic and social consequences (such as hindering drug rehabilitation efforts, causing public dissatisfaction, making the public anxious and fearful, etc.).

10. The crime of violating regulations on managing and using narcotic drugs or other controlled substances (Article 201)

"Violating regulations on managing and using narcotic drugs or other controlled substances" as stipulated in Clause 1, Article 201 of the Penal Code refers to the act of a person responsible for researching, appraising, producing, exporting, importing, transiting, buying and selling, transporting, storing, holding, distributing, dispensing, using, disposing of, exchanging narcotic drugs and other controlled substances who fails to comply with state regulations on managing and using these substances (such as failing to follow the permitted quantity, quality, type, deviating from the prescribed procedures, or dispensing incorrectly to the designated recipients. For example, selling narcotic drugs to others without a prescription from an authorized physician... or failing to fulfill responsibilities in export, import, purchase and sale, transportation, storage, distribution, dispensing, or use of narcotic drugs or other controlled substances, resulting in loss, damage, incorrect quantity, quality, type, etc.).

III. EFFECTIVE DATE OF IMPLEMENTATION

1. This Circular takes effect fifteen days after its publication in the Official Gazette and replaces Joint Circular No. 01/1998/TTLT-TANDTC-VKSNDTC-BNV dated January 2, 1998 issued by the Supreme People's Court, the Supreme People's Procuracy, and the Ministry of Home Affairs (now the Ministry of Public Security) guiding the application of certain provisions of the Law Amending and Supplementing Certain Articles of the Penal Code and Joint Circular No. 02/1998/TTLT-TANDTC-VKSNDTC-BCA dated August 5, 1998 issued by the Supreme People's Court, the Supreme People's Procuracy, and the Ministry of Public Security guiding the application of certain provisions in Chapter VIIA "Drug-related Offenses" of the Penal Code.

2. Any guidance provided in this Circular that reduces criminal liability compared to previous documents shall be applied during investigation, prosecution, first-instance trial, appellate trial, supervisory trial, or retrial proceedings concerning persons who committed criminal acts before this Circular takes effect.

3. For cases where the offender has been correctly sentenced according to previous documents and the judgment has taken legal effect, this Circular's guidance shall not be applied to file supervisory or retrial protests unless there are other grounds for protest. If, according to this Circular, they are not criminally liable, the matter shall be resolved through the procedure for exemption from enforcement of punishment.

4. For cases currently undergoing investigation, prosecution, first-instance trial, appellate trial, supervisory trial, or retrial, if this Circular's guidance is applied to declare the accused or defendant exempt from criminal responsibility, the investigating agency, the Procuracy, and the Court need to clearly explain to them that this exemption from criminal responsibility does not serve as the basis for compensation for damages caused by the authority of the investigative agency.

5. During the implementation of this Circular, if any issues arise or further guidance and explanation are needed, please report to the Ministry of Public Security, the Supreme People's Procuracy, the Supreme People's Court, and the Ministry of Justice for timely clarification and guidance.