Circular No. 2098/VHH-HS supplements Circular No. 301/VHH-HS dated January 14, 1957 on the eradication of gambling

CIRCULAR

OF THE MINISTER OF JUSTICE NUMBER 2098/VHH-HS
DATE 31 MAY 1957 SUPPLEMENTING CIRCULAR 301/VHH-HS DATE 14-1-1957 ON ELIMINATING GAMBLING EVILS

THE MINISTER OF JUSTICE

Respectfully submitted to:

TO THE PUBLIC PROSECUTORS AND PRESIDENTS OF THE PEOPLE'S COURTS OF APPEAL
IN THE ZONES, REGIONS, CITIES, PROVINCES, AND CITIES.

WHILE IMPLEMENTING CIRCULAR 301/VHH-HS OF 14-1-1957 OF THE MINISTRY OF JUSTICE ON ELIMINATING GAMBLING EVILS, SOME PEOPLE'S COURTS HAVE RAISED SOME QUESTIONS.

DECREE 168-SL ON PUNISHING GAMBLING CRIMES ISSUED DURING THE RESISTANCE PERIOD IS NOW CONSIDERED TO HAVE SOME POINTS THAT ARE NO LONGER SUITABLE AND NEED TO BE REVISED. THESE REVISIONS MUST WAIT FOR A DECREE (THE MINISTRY HAS SUBMITTED A PROJECT TO THE INTERNAL AFFAIRS COMMITTEE FOR APPROVAL IN 1956, STILL AWAITING APPROVAL FROM THE GOVERNMENT AND NATIONAL ASSEMBLY). UNTIL THEN, THE MAIN POINTS OF THE DECREE MUST STILL BE RESPECTED. HOWEVER, THERE ARE SOME POINTS NOT FUNDAMENTAL PRINCIPLES RAISED BY THE COURTS THAT THE MINISTRY BELIEVES CAN BE INTERPRETED IN THE SPIRIT (NOT STRICTLY FOLLOWING THE WORDING) OF DECREE 168 TO APPLY THE LAWS MORE ACCORDING TO CURRENT REALITY.

BASED ON THIS SPIRIT, THE MINISTRY OPINES TO ANSWER THE QUESTIONS RAISED BY THE COURTS AS FOLLOWS:

I. REGARDING PENALTIES

1. REGARDING THE LEVEL OF PENALTY

ARTICLE 4 OF DECREE 168 SPECIFIES THAT: "EVEN IF THE COURT FINDS THAT THE CIRCUMSTANCES WARRANT REDUCTION, IT MUST STILL APPLY THE MINIMUM SENTENCE OF IMPRISONMENT AND FINES... THE COURT MUST IMPOSE BOTH IMPRISONMENT AND FINES AND CANNOT GRANT SUSPENSION OF SENTENCE..."

THE COURTS HAVE RAISED THE CASE WHERE IF THE DEFENDANT IS SENTENCED TO THE MINIMUM ONE YEAR IMPRISONMENT, IT IS TOO SEVERE, BUT IF ONLY WARNED AT THE PROSECUTOR'S OFFICE, IT IS TOO LENIENT. WHAT SHOULD BE DONE IN SUCH A CASE?

REGARDING THIS CASE, AT THE BEGINNING OF THIS YEAR, THE MINISTRY OPINED THAT THE PROSECUTOR COULD APPLY A PROCEDURE THAT THE COURTS USUALLY APPLY WHEN THE LEGISLATION IS INADEQUATE, WHICH IS NON-PROSECUTION.

NOW, UPON REVIEW, THIS MEASURE DOES NOT ACCORD WITH THE SPIRIT OF THE LAW GUARANTEEING PERSONAL FREEDOM ISSUED ON 24-1-1957. THEREFORE, IN THIS CASE, THE PROSECUTOR WILL CAREFULLY CONSIDER BETWEEN PROSECUTION AND NON-PROSECUTION. IF NECESSARY TO PROSECUTE TO SUPPORT EDUCATIONAL EFFORTS, THE CASE SHOULD BE PROSECUTED AND THE COURT SHOULD BE REQUESTED TO SENTENCE THE MINIMUM PENALTY. IF CONSIDERED UNNECESSARY TO PROSECUTE, THE DEFENDANT SHOULD BE WARNED AT THE PROSECUTOR'S OFFICE AND RELEASED. OF COURSE, IF THE FILE IS INCOMPLETE AND IT IS NECESSARY TO DETAIN THE DEFENDANT FOR FURTHER INVESTIGATION, THE PROSECUTOR STILL HAS THE RIGHT TO DETAIN THE DEFENDANT ACCORDING TO CURRENT LEGISLATION.

2. REGARDING THE ISSUE OF FINES

ACCORDING TO ARTICLE 2 OF DECREE 168-SL, THOSE WHO GAMBLE, IN ADDITION TO IMPRISONMENT, ARE ALSO SUBJECT TO A FINE OF 5,000 TO 50,000 DONG, AND THOSE WHO ORGANIZE GAMBLING, IN ADDITION TO IMPRISONMENT, ARE ALSO SUBJECT TO A FINE OF 10,000 TO 100,000 DONG.

ACCORDING TO ARTICLE 7 OF DECREE 32-NĐ OF 6-4-1952 OF THE MINISTRY OF JUSTICE, "SPECIFICALLY FOR THE CRIME OF GAMBLING, THE FINES SET OUT IN ARTICLE 2 OF DECREE 168/SL OF 14-4-1946 ARE EQUIVALENT TO 200 TO 1,000 CATTIES OF RICE FOR THE ORGANIZER AND 100 TO 500 CATTIES OF RICE FOR THE GAMBLER."

SOME COURTS HAVE RAISED THE ISSUE OF WHETHER TO APPLY THE FINE AS STATED IN DECREE 168 OR DECREE 32 MENTIONED ABOVE?

ACCORDING TO THE MINISTRY'S OPINION, THE FINE IN DECREE 168 SHOULD BE APPLIED FOR THE FOLLOWING REASONS:

a. A DECREE OF THE MINISTRY OF JUSTICE, EVEN ISSUED PURSUANT TO A DECISION OF THE COUNCIL OF MINISTERS, CANNOT CONTRADICT THE SPIRIT AND TEXT OF A DECREE SIGNED BY THE PRESIDENT OF THE STATE.

b. THE FINES SET IN DECREE 32-NĐ OF THE MINISTRY OF JUSTICE, CALCULATED AT CURRENT RICE PRICES, ARE MUCH STRONGER THAN THE FINES SET IN DECREE 168. APPLYING DECREE 32 WOULD BE HARMFUL TO THE DEFENDANT, CONTRARY TO THE GENERAL PRINCIPLE OF LEGALITY THAT WHEN THERE IS A CONTRADICTION OR SHORTAGE IN THE LAW, THE COURT MUST INTERPRET IN THE INTEREST OF THE DEFENDANT.

3. REGARDING THE ISSUE OF SURVEILLANCE

THE END OF ARTICLE 2 OF DECREE 168 STATES THAT: "FURTHERMORE, THE DEFENDANTS MAY ALSO BE SUBJECTED TO SURVEILLANCE FOR A PERIOD OF 1 TO 5 YEARS."

SOME COURTS ASK WHETHER THERE IS STILL A SURVEILLANCE PENALTY NOW?

ACCORDING TO THE MINISTRY'S OPINION, ALTHOUGH THERE IS NO OFFICIAL DOCUMENT ABOLISHING SURVEILLANCE, IN PRACTICE, THE SURVEILLANCE PENALTY IS NO LONGER APPLIED. MOREOVER, FOR DEFENDANTS INVOLVED IN GAMBLING AND ORGANIZING GAMBLING, IT IS CURRENTLY NOT NECESSARY TO IMPOSE ADDITIONAL SURVEILLANCE.

IT SHOULD ALSO NOT BE CONFUSED WITH THE SUPERVISION MENTIONED IN DECREE 175 OF 18-8-1953. ACCORDING TO THE PREVIOUS UNDERSTANDING, SURVEILLANCE WAS AN ACCESSORY PUNISHMENT AIMED AT PREVENTING BAD ELEMENTS FROM ACTING ILLEGALLY (SEE ARTICLE 20 OF THE OLD CRIMINAL CODE). AS FOR SUPERVISION, ACCORDING TO DECREE 175 OF 18-8-1953, SUPERVISION IS A PRIMARY PUNISHMENT AIMED AT PREVENTING BAD ELEMENTS FROM ACTING ILLEGALLY, WHILE ALSO REFORMING THEM INTO GOOD CITIZENS.

IN THE CURRENT SITUATION, IF SURVEILLANCE IS ENFORCED, IT WOULD BE CONFUSED WITH SUPERVISION.

II. REGARDING THE SEIZURE OF PROPERTY

1. ARTICLE 2 OF DECREE 168 PROVIDES THAT:

"ALL FURNITURE AND UTENSILS USED IN GAMBLING, ANY MONEY FOUND ON THE GAMBLING TABLE OR MAT SHALL BE SEIZED."

REGARDING THE SEIZURE OF FURNITURE AND UTENSILS USED IN GAMBLING, THE COURTS HAVE NO QUESTIONS, BUT REGARDING THE MONEY SEIZED, SOME COURTS HAVE RAISED THE FOLLOWING QUESTIONS:

a. CAN MONEY CARRIED ON THE PERSON BE SEIZED?

b. CAN THE MONEY IN THE POCKET AND THE MONEY WON BE SEIZED?

c. CAN ITEMS PURCHASED WITH MONEY WON BE SEIZED?

AFTER COLLECTING THE OPINIONS OF SOME COURTS, THE MINISTRY BELIEVES THAT NONE OF THE THREE CASES ABOVE CAN BE SEIZED, BECAUSE ARTICLE 2 SPECIFICALLY STATES THAT ONLY MONEY ON THE TABLE OR MAT CAN BE SEIZED. ALLOWING THE SEIZURE OF MONEY IN THE POCKET WOULD LEAD TO MANY ABUSES, SUCH AS SEIZING MONEY NOT USED FOR GAMBLING OR WON. FOR EXAMPLE, IF A GAMBLER HAS 50,000 DONG IN HIS POCKET BUT INTENDS TO SPEND ONLY 10,000 DONG, SEIZING ALL 50,000 DONG WOULD BE HARMFUL TO THE GAMBLER'S FAMILY, CONTRARY TO THE PRINCIPLE THAT ONLY THE GUILTY SHOULD BE PUNISHED. EVIDENCE IN THESE CASES IS USUALLY PROVIDED BY THE GAMBLERS, WHO TEND TO OVERSTATE THEIR LOSSES AND UNDERSTATE THEIR WINS.

2. IN THE CASE OF CATCHING GAMBLING IN FLAGRANTE DELICTO BUT CONSIDERING IT NOT NECESSARY TO BRING THE CASE TO COURT, CAN THE PROSECUTOR ISSUE AN ORDER TO SEIZE THE MONEY FOUND ON THE TABLE OR MAT?

In the context where our laws have gaps, Decree 168 is very strict regarding penalties, such as imposing at least one year of imprisonment if punishment is carried out. In practice, when the accused is not prosecuted before the People's Court, it is necessary to confiscate the seized gambling funds from the table or the gambling mat. The Ministry agrees that the Prosecutor may issue an order for confiscation on their own. This approach effectively combats gambling while not contravening the wording of Decree 168 (which allows confiscation but does not specify whether the authority lies with the Court or the Prosecutor). Of course, the Prosecutor should only issue an order for confiscation in cases where gambling is caught in the act.

3. Should the seized money from the table or gambling mat be allocated as a reward for those who report gambling activities?

- This cannot be done because there is no regulation allowing such action.

III. SHOULD THE WINNER OF GAMBLING BE ORDERED TO RETURN THE WAGERED AMOUNT TO THE LOSER?
THE PERSON WHO LOSES THE BET RECEIVES THE MONEY?

This cannot be done for the following reasons:

1. Gambling is an illegal activity. The loser cannot base their request for legal protection on an illegal act of their own.

2. It is also difficult to provide evidence in this matter.

IV. SHOULD THE ORGANIZER OF GAMBLING BE ALLOWED TO LURE GAMBLERS TO PLAY AND THEN BE ARRESTED?

This should not be done as it is illegal and politically disadvantageous.

If there is any punishment in such a case, it should target the mastermind organizing the gambling.

V. ARE GAMES LIKE TÚ LÔ KHƠ AND CHƯỢC AT TABLES, WHERE THERE IS NO MONEY STAKE, PROHIBITED?

Regarding this point, Circular 301/VHH-HS has clearly stated, which we will reiterate here: "Games played for entertainment without monetary stakes such as tú lô khơ, bài lá (tú lôm, tài bài, chắn, tam cúc, bất), and chược are not prohibited, but should only be played during 'rest days, rest hours, without hindering production.'"

However, if there is sufficient evidence that these games appear to be for entertainment but are actually played with monetary stakes, even if there is no actual money on the gambling table or mat but instead items like matches or tokens substitute for money, they can still be prosecuted for gambling.

VI. THE SALE OF GAMBLING DEVICES SUCH AS TÚ LÔ KHƠ, BÀI LÁ, AND CHƯỢC IN THE CURRENT CONTEXT
THE LEAF GAME IN THE SITUATION
SHOULD NOT BE PROHIBITED

As explained in Circular No. 301/VHH-HS mentioned above, but should not be encouraged either. The Ministry will issue a directive to the Ministry of Commerce to take appropriate measures to limit the production of these card sets.

The above is the opinion of the Ministry regarding the issues raised. If the People's Courts find any points requiring further clarification, they are advised to reflect them back to the Ministry.