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MINISTRY OF PUBLIC SECURITY OF VIETNAM – SUPREME PEOPLE’S
PROCURACY OF VIETNAM – SUPREME PEOPLE’S COURT OF VIETNAM – MINISTRY OF
JUSTICE OF VIETNAM
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SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No. 17/2007/TTLT-BCA-VKSNDTC-TANDTC-BTP
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Hanoi, December 24, 2007
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JOINT CIRCULAR
GUIDING APPLICATION OF CERTAIN REGULATIONS IN CHAPTER XVIII
ON OFFENCES INVOLVING NARCOTIC SUBSTANCES OF THE CRIMINAL CODE 1999
To ensure the proper and
consistent application of the regulations in Chapter XVIII on Offences
Involving Narcotic Substances of the Criminal Code 1999, the Ministry of Public
Security of Vietnam, the Supreme People's Procuracy of Vietnam, the Supreme
People's Court of Vietnam, and the Ministry of Justice of Vietnam hereby
jointly provide the following guidelines:
I.
DEFINITIONS AND CIRCUMSTANCES CONSTITUTING ELEMENTS OF OFFENCES OR SENTENCE
BRACKETS
1.
Definitions
1.1. “Narcotic
substances” refer to addictive and psychotropic substances listed in the list
of narcotic substances promulgated by the Government of Vietnam. Within this
list, the following distinctions shall be made:
a) For solid narcotic
substances that have been dissolved into a solution (such as opium solution,
heroin solution for injection) or liquid narcotic substances that have been
diluted for ease of use, the entire solution shall not be considered a liquid
narcotic substance. Instead, the morphine concentration in the solution must be
determined to calculate the actual weight of the narcotic substance.
b) For opium residue, it
shall not be considered opium latex; rather, the morphine concentration in the
residue must be determined to calculate the weight of the opium.
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1.3. “Equipment and
instruments used for the illegal production or use of narcotic substances”
refer to objects that are specifically produced and designed for the illegal
production or use of narcotic substances; or originally produced for other
legitimate purposes, but have been exclusively used for the illegal production
or use of narcotic substances.
1.4. In all cases where
substances suspected to be narcotic substances or precursors used for the
illegal production of narcotic substances are confiscated, forensic testing
must be conducted to determine the type, concentration, and weight of the
narcotic substance or precursor. If the examined substance is not a narcotic
substance or precursor used for the illegal production of narcotic substances,
but the person committing the act believes that it is such a substance or
precursor, then, depending on the specific criminal act, that person shall be
subject to criminal prosecution according to the criminal charges prescribed in
Clause 1 of the relevant article of the legal article applicable to narcotic
substance-related offences.
Where a person knows that
the substance is a fake narcotic substance but deceives others into believing
that is real and thereby conducts purchase, sale, exchange, etc., that person shall
not be criminally prosecuted for a narcotic substance-related offence, but
shall instead be criminally prosecuted for fraudulent appropriation of property
under Article 139 of the Criminal Code, if the other constituent elements of
that offence are satisfied.
2.
Circumstances constituting elements of offences or sentence brackets.
2.1. The circumstance of
“abuse of position or power” as prescribed in Clause 2 Articles 193, 194, 195,
196, and 198 of the Criminal Code shall be understood as the offender has
relied on the position or power entrusted to them to commit the offence.
2.2. The Circumstance of
“abuse of the name of an agency or organization” as prescribed in Clause 2
Articles 193, 194, 195, and 196 of the Criminal Code shall be understood as the
offender has taken advantage of the name of the agency or organization where
they work or are employed to commit the offence.
2.3. The circumstance of
“committing the offence multiple times” as prescribed in Clause 2 Articles 193,
194, 195, 196, 197, 198, 200, and 201 of the Criminal Code shall be understood
as committing the offence twice or more (2 or more times of illegal production
of narcotic substances; 2 or more times of illegal possession of narcotic
substances; 2 or more times of illegal sale of narcotic substances, etc.), with
each commission of the offence containing all the constituent elements of the
offence prescribed in Clause 1 of the corresponding legal article, and none of
those commissions have yet to be criminally prosecuted nor exceeded the
prescriptive period for criminal prosecution.
In such cases, the
offender shall be criminally prosecuted for the total quantity of narcotic
substances involved in all offences combined, if the legal article provides for
the quantity of narcotic substances used as a determinant of the sentence
bracket.
Any person who organizes
the illegal use of narcotic substances, harbors the illegal use of narcotic
substances, or forces or entices others to use narcotic substances illegally
with respect to one person on 2 or more occasions shall also be considered to
have committed the offence multiple times.
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2.5. The circumstance of
“having 2 or more narcotic substances, with the total quantity equivalent to
the quantity of a narcotic substance specified in one of the Points from…”
prescribed in Point i Clause 2, Point e Clause 3, and Point dd Clause 4 Article
193, or Point o Clause 2, Point h Clause 3, and Point h Clause 4 Article 194 of
the Criminal Code shall be determined as follows:
a) Where all such
narcotic substances have weights below the minimum threshold specified in
Clause 2 (i.e., falling under Clause 1) Article 193 or Clause 2 Article 194 of
the Criminal Code, the total weight of these narcotic substances shall be
determined through the following steps:
Step 1: Determine the
percentage of the weight of each narcotic substance compared to the minimum
threshold for each narcotic substance under Clause 2 Article 193 or Clause 2
Article 194 of the Criminal Code.
Step 2: Add together the
percentage of each narcotic substance.
Step 3: Determine the
applicable Points, Clauses, and Articles. Where the total percentage of the
weight of all narcotic substances is below 100%, the offender shall be
criminally prosecuted under Clause 1 Article 193 or Clause 1 Article 194 of the
Criminal Code. Where the total percentage of the weight of all narcotic
substances is 100% or higher, the offender shall be criminally prosecuted under
the circumstance of “having 2 or more narcotic substances, with the total quantity
equivalent to the quantity of a narcotic substance specified in one of the
Points from…” prescribed in Point i Clause 2 Article 193 or Point o Clause 2
Article 194 of the Criminal Code.
Example 1: A person
produces 200 grams of opium latex and 2 grams of heroin (both falling under
Clause 1 Article 193 of the Criminal Code). The total weight of the narcotic
substances shall be determined as follows:
- The percentage of the
weight of the opium latex compared to the minimum threshold for opium latex prescribed
in Point dd Clause 2 Article 193 of the Criminal Code is 40% (200 grams
compared to 500 grams).
- The percentage of the
weight of heroin compared to the minimum threshold for heroin prescribed in
Point e Clause 2 Article 193 of the Criminal Code is 40% (2 grams compared to 5
grams).
- The total percentage of
the weight of both the opium latex and heroin is 40% + 40% = 80% (below 100%).
Therefore, the offender shall only be criminally prosecuted under Clause 1
Article 193 of the Criminal Code.
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- The percentage of the
weight of the opium latex compared to the minimum threshold for opium latex
prescribed in Point g Clause 2 Article 194 of the Criminal Code is 80% (400
grams compared to 500 grams).
- The percentage of the
weight of heroin compared to the minimum threshold for heroin prescribed in
Point h Clause 2 Article 194 of the Criminal Code is 60% (3 grams compared to 5
grams).
- The total percentage of
the weight of both the opium latex and heroin is 80% + 60% = 140% (falling
under the case of 100% or higher). Therefore, the offender shall be criminally
prosecuted under Point o Clause 2 Article 194 of the Criminal Code.
b) Where all of the
narcotic substances are all prescribed in the same Point of Clauses 2, 3, and 4
Article 193, or in the same Point of Clauses 2, 3, and 4 Article 194 of the
Criminal Code, the total weight of those narcotic substances shall be
aggregated and compared with the weight thresholds provided in the
corresponding legal article to determine under which clause the offender shall
be criminally prosecuted.
Example: A person
produces 300 grams of opium latex and 300 grams of cannabis latex. Since opium
latex and cannabis latex are both prescribed in Point dd Clause 2, Point b
Clause 3, and Point a Clause 4 Article 193 of the Criminal Code, the total
weight of the opium latex and cannabis latex is combined: 300g + 300g = 600g.
In comparison with the weight thresholds prescribed in Article 193 of the
Criminal Code, the offender shall be criminally prosecuted under Point dd
Clause 2 Article 193 of the Criminal Code.
c) Where the narcotic
substances have thresholds prescribed in different Points within the same
Clause 2 (Clause 3) Article 193 or Clause 2 (Clause 3) Article 194 of the
Criminal Code, the total weight of those narcotic substances shall be
determined through the following steps:
Step 1: Determine the
percentage of the weight of each narcotic substance compared to the minimum
threshold for each narcotic substance under the corresponding Point in Clause 3
(Clause 4) Article 193 or Clause 3 (Clause 4) Article 194 of the Criminal Code.
Step 2: Add together the
percentage of each narcotic substance.
Step 3: Determine the
applicable Points, Clauses, and Articles. Where the total percentage of the weight
of all narcotic substances is below 100%, the offender shall be criminally
prosecuted under Clause 2 (Clause 3) Article 193 or Clause 2 (Clause 3) Article
194 of the Criminal Code. Where the total percentage of the weight of all
narcotic substances is 100% or higher, the offender shall be criminally
prosecuted under the circumstance of “having 2 or more narcotic substances,
with the total quantity equivalent to the quantity of a narcotic substance
specified in one of the Points from…” prescribed in Point e Clause 3 (Point dd
Clause 4) Article 193 or Point h Clause 3 (Point h Clause 4) Article 194 of the
Criminal Code.
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- The percentage of the
weight of the opium latex compared to the minimum threshold for opium latex
prescribed in Point b Clause 3 Article 193 of the Criminal Code is 60% (600
grams compared to 1 kilogram).
- The percentage of the
weight of heroin compared to the minimum threshold for heroin prescribed in
Point c Clause 3 Article 193 of the Criminal Code is 30% (9 grams compared to
30 grams).
- The total percentage of
the weight of both the opium latex and heroin is 60% + 30% = 90% (below 100%).
Therefore, the offender shall only be criminally prosecuted under Point i
Clause 2 Article 193 of the Criminal Code.
Example 2: A person
trades 4 kilograms of opium latex and 30 grams of cocaine (both falling under
Clause 3 Article 194 of the Criminal Code). The total weight of the narcotic
substances shall be determined as follows:
- The percentage of the
weight of the opium latex compared to the minimum threshold for opium latex
prescribed in Point a Clause 4 Article 194 of the Criminal Code is 80% (4
kilograms compared to 5 kilograms).
- The percentage of the
weight of cocaine compared to the minimum threshold for cocaine prescribed in
Point b Clause 4 Article 194 of the Criminal Code is 30% (30 grams compared to
100 grams).
- The total percentage of
the weight of both the opium latex and cocaine is 80% + 30% = 110% (falling
under the case of 100% or higher). Therefore, the offender shall be criminally
prosecuted under Point h Clause 4 Article 194 of the Criminal Code.
d) Where, among the
narcotic substances involved, some have weights falling under Clause 1 and
others under Clause 2 (or Clause 3), or some fall under Clause 2 and others
under Clause 3 Article 193 or Article 194 of the Criminal Code, the total
weight of those narcotic substances shall be determined through the following
steps:
Step 1: Determine the
percentage of the weight of the narcotic substance with the largest weight
compared to the minimum threshold for that substance as prescribed in Clause 3
(Clause 4) Article 193 or Clause 3 (Clause 4) Article 194 of the Criminal Code,
based on the following principle: if the narcotic substance with the largest
weight falls under Clause 2, compare it to the minimum threshold for that
substance prescribed in Clause 3; if the narcotic substance with the largest
weight falls under Clause 3, compare it to the minimum threshold for that
substance prescribed in Clause 4.
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Step 3: Add together the
percentage of the weight of each narcotic substance and determine the
applicable Points, Clauses, and Articles. Where to total percentage of the
weight of all narcotic substances is 100% or higher, the offender shall be
criminally prosecuted under the circumstance of “having 2 or more narcotic
substances, with the total quantity equivalent to the quantity of a narcotic
substance specified in one of the Points from…” prescribed in Point e Clause 3
(Point dd Clause 4) Article 193; Point h Clause 3 (Point h Clause 4) Article
194 of the Criminal Code (under the corresponding Clause specifying the minimum
threshold applicable to the narcotic substance with the largest weight).
Example 1: A person
produces 400 grams of opium latex and 24 grams of heroin. In this case, heroin
has a weight that falls under Point e Clause 2 Article 193 of the Criminal
Code, while opium latex has a weight that falls under Clause 1 Article 193 of
the Criminal Code; therefore, heroin is the narcotic substance with the largest
weight. The total weight of the narcotic substances shall be determined as
follows:
- The percentage of the
weight of heroin compared to the minimum threshold for heroin prescribed in
Point e Clause 3 Article 193 of the Criminal Code is 80% (24 grams compared to
30 grams).
- The percentage of the
weight of the opium latex compared to the minimum threshold for opium latex
prescribed in Point b Clause 3 Article 193 of the Criminal Code is 40% (400
grams compared to 1 kilogram).
- The total percentage of
the weight of both the opium latex and heroin is 80% + 40% = 120% (falling
under the case of 100% or higher). Therefore, the offender shall be criminally
prosecuted under Point e Clause 3 Article 193 of the Criminal Code.
Example 2: A person
produces 4,5 kilograms of opium latex and 4 grams of heroin. In this case,
opium latex has a weight that falls under Point a Clause 3 Article 194 of the
Criminal Code, while heroin has a weight that falls under Clause 1 Article 194
of the Criminal Code; therefore, opium latex is the narcotic substance with the
largest weight. The total weight of the narcotic substances shall be determined
as follows:
- The percentage of the
weight of the opium latex compared to the minimum threshold for opium latex
prescribed in Point a Clause 4 Article 194 of the Criminal Code is 90% (4,5
kilograms compared to 5 kilograms).
- The percentage of the
weight of heroin compared to the minimum threshold for heroin prescribed in
Point b Clause 4 Article 194 of the Criminal Code is 4% (4 grams compared to
100 grams).
- The total percentage of
the weight of both the opium latex and heroin is 90% + 4% = 94% (below 100%).
Therefore, the offender shall only be criminally prosecuted under Clause 3
Article 194 of the Criminal Code.
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- The percentage of the
weight of the opium latex compared to the minimum threshold for opium latex
prescribed in Point a Clause 4 Article 193 of the Criminal Code is 80% (4
kilograms compared to 5 kilograms).
- The percentage of the
weight of heroin compared to the minimum threshold for heroin prescribed in
Point b Clause 4 Article 193 of the Criminal Code is 20% (20 grams compared to
100 grams).
- The total percentage of
the weight of both the opium latex and heroin is 80% + 20% = 100% (falling
under the case of 100% or higher). Therefore, the offender shall be criminally
prosecuted under Point dd Clause 4 Article 193 of the Criminal Code.
3.
Criminal prosecution in cases involving multiple criminal acts.
3.1. Where a person
commits multiple criminal acts under different Articles, from Article 192 to
Article 194 of the Criminal Code, which are closely related (i.e., one criminal
act is a necessary condition for the commission of, or an inevitable
consequence of, another criminal act), if the offences are not of equal
severity, the offender shall be criminally prosecuted for the act corresponding
to the more serious offence.
Example: A person
cultivates opium poppies (after having been repeatedly educated, provided with
means to stabilize their livelihood, and received administrative penalties for
this act), and later engages in the illegal production of narcotic substances.
In this case, the offender shall be criminally prosecuted for the offence of
illegal production of narcotic substances under Article 193 of the Criminal
Code, as this offence is more serious than the offence of cultivating opium
poppy or other plants containing narcotic substances.
3.2. Where a person
commits multiple criminal acts under different Articles, from Article 192 to
Article 194 of the Criminal Code, which are closely related (i.e., one criminal
act is a necessary condition for the commission of, or an inevitable
consequence of, another criminal act), if the offences are of equal severity,
the offender shall be criminally prosecuted for the act committed first, in
accordance with the corresponding offence.
A person who possesses,
transports, illegally trades, or appropriates narcotic substances for the
purpose of illegal production of narcotic substances shall be criminally
prosecuted for the offence of illegal production of narcotic substances under
Article 193 of the Criminal Code.
3.3. Where a person
commits multiple criminal acts prescribed in Articles 192 through 194 of the
Criminal Code, which are independent of each other, the offender shall be
criminally prosecuted for each separate offence under the corresponding
Article.
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3.4. The determination of
whether offences are of equal severity, more serious, or less serious shall comply
with the guidelines provided in Subsection 2.2, Section 2, Part II of
Resolution No. 04/2004/NQ-HDTP dated November 5, 2004 of the Council of Judges
of the Supreme People’s Court of Vietnam.
3.5. Where a person
commits one or more criminal acts under a single Article (Article 194, Article
195, or Article 196 of the Criminal Code), the following distinctions shall be
made:
a) Where a person commits
only one of the criminal acts prescribed in Article 194 (or Article 195 or
Article 196) of the Criminal Code, that person shall be criminally prosecuted
under the offence title corresponding to the act committed as provided in the
relevant Article.
Example: A person who
only trades precursors used for the illegal production of narcotic substances
shall be criminally prosecuted for the offence of trading precursors used for
the illegal production of narcotic substances under Article 195 of the Criminal
Code.
b) Where a person commits
multiple criminal acts as prescribed in Article 194 (or Article 195 or Article
196) of the Criminal Code, which are closely related (i.e., one criminal act is
a necessary condition for the commission of, or an inevitable consequence of,
another criminal act), that person shall be criminally prosecuted under the
full offence title covering all acts committed, in accordance with the relevant
Article, and shall be subject to only one penalty.
Example: A person who
trades precursors used for the illegal production of narcotic substances, then
transports them to another place and possesses such precursors, shall be
criminally prosecuted under the full offence title of trading, transporting,
and possessing precursors used for the illegal production of narcotic
substances under Article 195 of the Criminal Code, and shall be subject to a
single penalty.
c) Where a person commits
multiple criminal acts prescribed in Article 194 (or Article 195 or Article
196) of the Criminal Code, which are independent of each other, that person
shall be criminally prosecuted for each separate offence committed. During the
trial, the Court shall apply Article 50 of the Criminal Code to determine the
aggregate penalty.
Example: A person who
trades one type of precursor used for the illegal production of narcotic
substances is arrested. During the house search, it is discovered that the
person also possesses another type of precursor not intended for trade. In this
case, the offender shall be criminally prosecuted for the offence of trading
precursors used for the illegal production of narcotic substances and the
offence of possessing precursors used for the illegal production of narcotic
substances under Article 195 of the Criminal Code. Depending on the specific
circumstances, the person shall be subject to specific penalties for each
offence, and an aggregate penalty shall then be determined under Article 50 of
the Criminal Code.
II.
SPECIFIC OFFENCES
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1.1. “Other plants
containing narcotic substances” refer to plants that contain addictive or
psychotropic substances as prescribed by the Government of Vietnam, excluding
opium poppies, coca plants, and cannabis plants.
1.2. “Cultivating opium
poppies, coca plants, cannabis plants, or other plants containing narcotic
substances” as prescribed in Article 192 of the Criminal Code refers to acts of
sowing, tending, or harvesting parts of such plants (such as leaves, flowers,
fruits, or stems containing narcotic substances).
1.3. A person who
cultivates plants containing narcotic substances shall only be criminally
prosecuted if all 3 of the following measures have already been applied: “has
been educated multiple times”, “has been given means to stabilize their
livelihood”, and “has been subject to administrative penalties for the same act
but continues to commit it”.
a) “Has been educated
multiple times” means that the person has been persuaded, advised, or reminded
2 or more times by state agencies, organizations, or local competent persons
about the prohibition on cultivating plants containing narcotic substances, or
has been informed about the guidelines, policies, and laws prohibiting such
cultivation. These educational measures must be recorded in writing. A person
is only considered to have been “educated multiple times” if such education
takes place before receiving administrative penalties.
b) “Has been given means
to stabilize their livelihood” means that the person has received financial or technical
assistance for production, or has been provided with seeds, livestock, or
guidance on farming techniques for cultivating fruit trees, industrial crops,
or food crops as substitutes for plants containing narcotic substances.
c) “Has received administrative
penalties for the same act but continues to commit the act” means that the
person has previously cultivated plants containing narcotic substances and has
received warning administrative penalties or been subject to fines under
administrative penalty laws, but before the period for being considered as
having no prior administrative penalty has expired, that person commits the
same act again and is detected. (According to the Ordinance on Handling of
Administrative Violations, the 2 forms of administrative penalties are warnings
and fines).
1.4. Any person who knows
that another person is sowing, tending, or harvesting plants containing
narcotic substances (who has already been subject to the 3 measures of
“educated multiple times”, “given means to stabilize their livelihood”, and
“received administrative penalties for the same act”), but still assists that
person in performing any of those acts, shall be criminally prosecuted as an
accomplice to this offence.
1.5. Where a person who
cultivates plants containing narcotic substances has already been subject to
all 3 measures of “educated multiple times”, “given means to stabilize their
livelihood”, and “received administrative penalties for the same act”, but
refuses to destroy the plants and instead sells them to another person, that
person shall still be criminally prosecuted for the offence of cultivating
opium poppies, coca plants, cannabis plants, or other plants containing
narcotic substances as prescribed in Article 192 of the Criminal Code. The
person who purchases such plants and continues to tend them shall also be
criminally prosecuted for this offence if all the constituent elements of that
offence are satisfied.
Anyone who illegally
trades plants containing narcotic substances, where the plants or their parts
contain narcotic substances specified in Article 194 of the Criminal Code,
shall be criminally prosecuted for the offence of illegal trading of narcotic
substances under Article 194 of the Criminal Code.
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2.1. “Illegal production
of narcotic substances” refers to creating narcotic substances (processing,
synthesizing, etc.) manually or using scientific and technological methods from
plants containing narcotic substances, from precursors and chemicals, or
producing one narcotic substance from another, without permission from a
competent authority, or not in accordance with the content authorized by such
authority.
Acts for facilitating the
use of existing narcotic substances, such as dissolving opium into a solution
for injection, or grinding heroin bricks into powder for inhalation, shall not
be regarded as illegal production of narcotic substances.
2.2. Commission of the
offence in a professional manner, as prescribed in Point a Clause 3, refers to
cases where the offender meets all of the following conditions:
a) The offender has
committed the act of illegal production of narcotic substances 5 times or more,
regardless of whether they have been tried, provided that the prescriptive
period for criminal prosecution has not expired or they have unspent
convictions;
b) The offender uses the
illegal production of narcotic substances as their regular occupation and
drives their main livelihood from the results of such criminal activities.
3.
Offence of illegal possession, transportation, trading, or appropriation of
narcotic substances (Article 194)
3.1. “Illegal possession
of narcotic substances” refers to illegally keeping or concealing narcotic
substances anywhere (such as in a house, garden, buried underground, inside a
suitcase, in a vehicle’s fuel tank, hidden in clothing or personal belongings
worn or carried, etc.) without the purpose of trading, transporting, or
producing narcotic substances illegally. The length of time the substances are
possessed does not affect the determination of this offence.
3.2. “Illegal
transportation of narcotic substances” refers to illegally moving narcotic
substances from one place to another in any form (by different vehicles such as
automobile, airplane, boat, etc.; by different routes such as road, railway,
air, waterway, postal services, etc.; concealed in the body such as in pockets,
swallowed, hidden in luggage such as suitcases, handbags, etc.) without the
purpose of trading, possessing, or producing other narcotic substances
illegally.
Anyone who keeps or
transports narcotic substances illegally for another person, knowing clearly
that the person intends to trade them illegally, shall be criminally prosecuted
as an accomplice to the offence of illegal trading of narcotic substances.
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a) Illegally selling
narcotic substances to another person (regardless of the origin of the narcotic
substances), including selling narcotic substances on behalf of another person
for wages or other benefits;
b) Purchasing narcotic
substances with the intent to sell them illegally to others;
c) Obtaining narcotic
substances (through request or solicitation) with the intent to sell them
illegally to others;
d) Using narcotic
substances as a means of illegal exchange or payment, regardless of their
origin;
dd) Using property other
than money to exchange or pay for narcotic substances, with the intent to resell
them illegally to others;
e) Possessing narcotic
substances with the intent to sell them illegally to others;
g) Transporting narcotic
substances with the intent to sell them illegally to others.
Anyone who organizes,
instigates, or assists another person in committing any of the acts of illegal
trading of narcotic substances listed from Points a to g of Subsection 3.3
shall also be criminally prosecuted for the offence of illegal trading of
narcotic substances.
3.4. “Appropriation of
narcotic substances” refers to any act of theft, fraud, embezzlement, abuse of
trust, extortion, robbery, snatching, or open appropriation of narcotic
substances belonging to another person. Where a person commits an act of
appropriating narcotic substances with the intent to resell them to others,
they shall be criminally prosecuted for the full offence title corresponding to
the act committed under Article 194 of the Criminal Code, and be subject to a
single penalty.
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3.6. Anyone who illegally
possesses, transports, or appropriates narcotic substances in the following
quantities without the purpose of illegally trading or producing other narcotic
substances shall be subject to administrative penalties instead of criminal
prosecution as prescribed in Clause 4 Article 8 of the Criminal Code:
a) Opium latex, cannabis
latex, or coca paste weighing less than 1 gram;
b) Heroin or cocaine
weighing less than 0,1 gram;
c) Leaves, flowers, or
fruits of the cannabis plant, or coca leaves weighing less than 1 kilogram;
d) Dried opium pods
weighing less than 5 kilograms;
dd) Fresh opium pods
weighing less than 1 kilogram;
e) Other narcotic
substances in solid form weighing less than 1 gram;
g) Other narcotic
substances in liquid form of 10 milliliters or less.
3.7. During the criminal
prosecution for the offences of illegal possession, transportation, trading, or
appropriation of narcotic substances, the following distinctions shall be made:
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b) Anyone who illegally
sells narcotic substances to another person and also allows that person to use
a place under their ownership, possession, or management to use narcotic
substances illegally shall, in addition to being criminally prosecuted for the
offence of illegal trading of narcotic substances under Article 194 of the
Criminal Code, also be criminally prosecuted for the offence of harboring
illegal use of narcotic substances under Article 198 of the Criminal Code;
c) Anyone who knows that
another person is purchasing narcotic substances for illegal use and gives
money to that person to buy narcotic substances on their behalf for use shall
be criminally prosecuted for the quantity of narcotic substances requested to
be purchased. The person who actually purchases the narcotic substances shall
be criminally prosecuted for the total quantity of narcotic substances
purchased for themselves and others.
d) Anyone who knows that
another person is purchasing narcotic substances for illegal use and uses a
vehicle to transport that person together with the narcotic substances, and is
arrested, shall be considered an accomplice to the offence of illegal
possession or transportation of narcotic substances as prescribed in Article
194 of the Criminal Code, if the quantity of narcotic substances reaches the
threshold for criminal liability.
dd) Anyone who illegally
possesses or transports any of the narcotic substances in the quantities
specified in Points a through g Subsection 3.6 Part II of this Circular,
without the purpose of illegally trading or producing other narcotic
substances, but can be proven to have done so for the purpose of illegally
using narcotic substances, and who has been educated multiple times and subject
to an administrative penalty in the form of compulsory rehabilitation in a
treatment facility, shall be criminally prosecuted for the offence of illegal
use of narcotic substances under Article 199 of the Criminal Code.
4.
Offence of illegal possession, transportation, trading, or appropriation of
precursors used for the illegal production of narcotic substances (Article
195).
4.1. “Possession of
precursors used for the illegal production of narcotic substances” refers to
the illegal keeping or concealment of precursors in any place (such as in a
house, garden, buried underground, stored in a suitcase, hidden in a vehicle’s
fuel tank, etc.) for use in the illegal production of narcotic substances.
4.2. “Illegal transportation
of precursors used for the illegal production of narcotic substances” refers to
illegally moving precursors from one place to another in any form (by different
vehicles such as automobile, airplane, boat, etc.; by different routes such as
road, railway, air, waterway, postal services, etc.; concealed in the body such
as in pockets, swallowed, hidden in luggage such as suitcases, handbags, etc.),
for use in the illegal production of narcotic substances.
4.3. “Illegal trading of
precursors used for the illegal production of narcotic substances” refers to
any of the following acts:
a) Selling precursors to
another person for use in the illegal production of narcotic substances;
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c) Obtaining precursors
(through request or solicitation) with the intent to sell them illegally to
another person for use in the illegal production of narcotic substances;
d) Using precursors as a
means of illegal exchange or payment to another person for illegal production
of narcotic substances;
dd) Using property other
than money to exchange or pay for precursors, with the intent to resell them to
another person for illegal production of narcotic substances;
e) Possessing precursors
with the intent to sell them illegally to another person for use in the illegal
production of narcotic substances;
g) Transporting precursors
with the intent to sell them illegally to another person for use in the illegal
production of narcotic substances.
4.4. “Appropriation of
precursors used for the illegal production of narcotic substances” refers to
any act of theft, fraud, abuse of trust, extortion, robbery, snatching, or open
appropriation of precursors belonging to another person for use in the illegal
production of narcotic substances.
4.5. Any person who
illegally possesses, transports, trades, or appropriates precursors used for
the illegal production of narcotic substances shall only be criminally
prosecuted under Article 195 of the Criminal Code when such acts are committed
for the purpose of producing narcotic substances illegally, or for selling them
to others for that purpose. Where it cannot be proven that the purpose is to
produce narcotic substances illegally or to sell them to others for illegal
production of narcotic substances, the offender shall be criminally prosecuted
under Article 195 of the Criminal Code, but depending on the specific
circumstances, may be criminally prosecuted for another offence as prescribed
by the Criminal Code.
If the quantity of
precursors involved is less than 50 grams (for solid precursors) or less than
75 milliliters (for liquid precursors), Clause 4 Article 8 of the Criminal Code
shall apply for the offender to not be subject to criminal prosecution but to
administrative penalties.
5.
Offence of producing, possessing, transporting, or trading equipment and
instruments used for the illegal production or use of narcotic substances
(Article 196).
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5.2. “Possession of
equipment and instruments used for the illegal production or use of narcotic
substances” refers to keeping or concealing the equipment and instruments
specified in Subsection 1.3 Section 1 Part I of this Circular in any place
(such as in a house, garden, buried under ground, kept in a suitcase, hidden in
a vehicle’s fuel tank, etc.) for use in the illegal production or use of
narcotic substances.
5.3. “Transportation of
equipment and instruments used for the illegal production or use of narcotic
substances” refers to moving the equipment and instruments specified in Subsection
1.3 Section 1 Part I of this Circular from one place to another by any means
(by different vehicles such as automobile, airplane, boat, etc.; by different
routes such as road, railway, air, waterway, postal services, etc.; concealed
in the body such as in pockets, hidden in luggage such as suitcases, handbags,
etc.) for use in the illegal production or use of narcotic substances.
5.4. “Trading of
equipment and instruments used for the illegal production or use of narcotic
substances” refers to any of the following acts:
a) Selling the equipment
and instruments specified in Subsection 1.3 Section 1 Part I of this Circular
to another person for use in the illegal production or use of narcotic
substances;
b) Purchasing the
equipment and instruments specified in Subsection 1.3 Section 1 Part I of this
Circular with the intent to sell them to another person for use in the illegal
production or use of narcotic substances;
c) Obtaining (through
request or solicitation) the equipment and instruments specified in Subsection
1.3 Section 1 Part I of this Circular with the intent to sell them illegally to
another person for use in the illegal production or use of narcotic substances;
d) Using the equipment
and instruments specified in Subsection 1.3 Section 1 Part I of this Circular
as a means of illegal exchange of payment to another person for use in the
illegal production or use of narcotic substances;
dd) Using property other
than money to exchange or pay for the equipment and instruments specified in
Subsection 1.3 Section 1 Part I of this Circular, with the intent to resell
them illegally to others for use in the illegal production or use of narcotic
substances;
e) Possessing the
equipment and instruments specified in Subsection 1.3 Section 1 Part I of this
Circular with the intent to sell them illegally to another person for use in
the illegal production or use of narcotic substances;
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5.5. During the criminal
prosecution for the offence of producing, possessing, transporting, or trading
equipment and instruments used for the illegal production or use of narcotic
substances, the following distinctions shall be made:
a) Criminal prosecution
shall only apply when the production, possession, transportation, or trading of
the equipment and instruments is for the purpose of illegal production or use
of narcotic substances;
b) A person who, for the
first time, produces, possesses, transports, or trades equipment and
instruments used for the illegal use of narcotic substances, and who uses such
equipment and instruments solely for their own illegal use of narcotic
substances, shall not be subject to criminal prosecution but to administrative
penalties. However, if that person has already been subject to administrative
penalties under the administrative handling law and repeats the offence, they
shall be criminally prosecuted;
c) In cases where a
person produces, possesses, transports, or trades 5 sets of equipment or
instruments or fewer (whether of the same type or of different types), Clause 4
Article 8 of the Criminal Code shall apply, meaning the person shall not be
subject to criminal prosecution but to administrative penalties.
d) “Large quantity of
illegal items” as prescribed in Clause 2 Article 196 of the Criminal Code
refers to cases where a person produces, possesses, transports, or trades 20 or
more sets of equipment or instruments (whether of the same type or of different
types).
6.
Offence of organizing the illegal use of narcotic substances (Article 197)
6.1. “Organization of the
illegal use of narcotic substances” refers to any of the following acts:
a) Directing, assigning,
or managing activities related to introducing narcotic substances illegally
into another person’s body;
b) Directing, assigning, and
managing the preparation or provision of narcotic substances, places,
equipment, or instruments used for the illegal use of narcotic substances, or
recruiting people to use narcotic substances.
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6.2. During the criminal
prosecution for the offence of organizing the illegal use of narcotic
substances, the following distinctions shall be made:
a) A drug addict who
shares narcotic substances (regardless of their origin) with another drug
addict for joint illegal use shall not be criminally prosecuted for the offence
of organizing the illegal use of narcotic substances, but depending on the
specific circumstances, may be criminally prosecuted for the offence of
illegally possessing narcotic substances or illegally using narcotic substances;
b) Any person who commits
the act of organizing the illegal use of narcotic substances and also commits
one or more other narcotic substance-related offences as prescribed in the
corresponding Articles of the Criminal Code shall, in addition to being
criminally prosecuted under Article 197 of the Criminal Code, also be
criminally prosecuted for the other narcotic substance-related offences
committed under corresponding Articles of the Criminal Code, depending on the
specific circumstances.
6.3 Regarding certain
aggravating elements prescribed in Article 197 of the Criminal Code:
a) “Against a person
undergoing drug rehabilitation” as prescribed in Point dd Clause 2 Article 197
of the Criminal Code refers to cases where the offence is committed against a
person who has been officially concluded by a competent authority to be
addicted to narcotic substances and is currently undergoing rehabilitation at a
rehabilitation center, at home, or within the community.
b) “Causing dangerous
diseases to others” as prescribed in Point g Clause 2 Article 197 of the
Criminal Code refers to cases where the organizer of the illegal use of
narcotic substances (whether knowingly or not) causes the transmission of
dangerous diseases to narcotic substance users, such as HIV/AIDS, hepatitis B,
tuberculosis, etc.
If the organizer of the
illegal use of narcotic substances knows that they or another person is
infected with HIV but intentionally transmits HIV to the narcotic substance
user, then in addition to being criminally prosecuted for the offence of
organizing the illegal use of narcotic substances under Point g Clause 2
Article 197 of the Criminal Code, that person shall also be criminally
prosecuted for the offence of transmitting HIV to another person under Article
117 of the Criminal Code or the offence of intentionally transmitting HIV to
another person under Article 118 of the Criminal Code.
c) “Causing dangerous
diseases to multiple persons” as prescribed in Point b Clause 3 Article 197 of
the Criminal Code refers to cases where the offender transmits dangerous
diseases to 2 or more persons.
d) “Causing harm to the
health of multiple persons, with a bodily injury percentage from 31% to 60%” as
prescribed in Point b Clause 3 Article 197 of the Criminal Code refers to cases
where the offender causes harm to the health of 2 or more persons, with each
person’s bodily injury percentage being from 31% to 60%.
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7.
Offence of harboring the illegal use of narcotic substances (Article 198)
7.1. “Harboring the
illegal use of narcotic substances” refers to the act of a person who owns or
manages a place and knows that others are engaging in the illegal use of
narcotic substances, yet allows them to borrow or rent that place so that they
can directly use narcotic substances to satisfy their own narcotic
substance-using needs.
7.2. “Any other act of
harboring the illegal use of narcotic substances” refers to cases where a
person who owns or manages a place and knows that others (who are not their
grandparents, parents, children, siblings, or spouse) are using narcotic
substances illegally, but does not lease out or lend the place to them, and
instead knowingly permits them to use narcotic substances illegally 2 or more
times, or knowingly allows multiple persons to use narcotic substances
illegally.
7.3. During the criminal
prosecution for the offence of harboring the illegal use of narcotic
substances, the following distinctions shall be made:
a) If a person who owns a
place allows others to rent or borrow it, knowing that they will not use it to
satisfy their own narcotic substance-using needs, but instead to introduce
narcotic substances into others’ bodies, that person shall be criminally
prosecuted for the offence of organizing the illegal use of narcotic substances
under Article 197 of the Criminal Code.
b) If a drug addict
allows another drug addict to use narcotic substances illegally at a place that
they own, possess, or manage, they shall not be criminally prosecuted for the
offence of harboring the illegal use of narcotic substances. However, any
person whose actions constitute the offence of illegal use of narcotic
substances shall be criminally prosecuted for the offence of illegally using
narcotic substances under Article 199 of the Criminal Code.
8.
Offence of illegally using narcotic substances (Article 199)
8.1. “Illegal use of
narcotic substances” refers to the act of a person introducing narcotic
substances into their own body, either by themselves or through another person,
by any means (such as smoking, inhaling, drinking, injecting, administering,
etc.) to satisfy their need for narcotic substance use.
8.2. Criminal prosecution
shall only apply for the offence of illegally using narcotic substances under
Article 199 of the Criminal Code in cases where the offender has been educated
multiple times and then subject to an administrative penalty in the form of
compulsory rehabilitation in a treatment facility, yet continues to use
narcotic substances illegally.
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b) “Has been subject to
an administrative penalty in the form of compulsory rehabilitation in a
treatment facility” means that the person has been sent to a compulsory
rehabilitation center in accordance with Articles 28 and 29 of the Law on
Prevention and Control of Narcotic Substances 2000, Article 26 of the Ordinance
on Handling of Administrative Violations 2002, and Decree No. 135/2004/ND-CP
dated June 10, 2004 of the Government of Vietnam (this refers to cases where a
decision by the President of the People’s Committee of the district,
district-level town, or district-level cities has been issued to send the
person to a compulsory rehabilitation center and the person has actually been
placed there; it is not required that the decision has been fully served), but
the period after which the person will be considered as having no longer been
subject to administrative penalties has yet to expire under the administrative
violation handling law.
8.3. In cases where a
drug addict voluntarily, or through their family, submits an application for
rehabilitation and has been admitted to a compulsory rehabilitation center,
such a case shall not be considered as “having been subject to an
administrative penalty in the form of compulsory rehabilitation in a treatment
facility”.
9.
Offence of forcing or enticing another person to use narcotic substances
illegally (Article 200)
9.1. “Forcing another person
to use narcotic substances illegally” refers to using force, threatening to use
force, or using other methods to mentally intimidate others to force them to
use narcotic substances illegally against their will.
9.2. “Enticing another
person to use narcotic substances illegally” refers to inviting, persuading,
inciting, or using other methods to arouse another person’s desire to use
narcotic substances illegally.
9.3 Regarding certain
aggravating elements prescribed in Article 200 of the Criminal Code:
a) “For despicable
motives”, as prescribed in Point c Clause 2 Article 200 of the Criminal Code,
refers to acts committed out of revenge or for other selfish or base motives.
b) “Causing dangerous diseases
to others” as prescribed in Point i Clause 2 Article 200 of the Criminal Code
refers to cases where the offender (whether knowingly or not) causes the victim
who has been forced or enticed to use narcotic substances illegally to contract
dangerous diseases such as HIV/AIDS, hepatitis B, tuberculosis, etc.
If the person who forces
or entices another to use narcotic substances illegally knows that they or
another person is infected with HIV but intentionally transmits HIV to the
narcotic substance user, then in addition to being criminally prosecuted for
the offence of forcing or enticing another person to use narcotic substances
illegally under Point i Clause 2 Article 200 of the Criminal Code, that person
shall also be criminally prosecuted for the offence of transmitting HIV to
another person under Article 117 of the Criminal Code or the offence of
intentionally transmitting HIV to another person under Article 118 of the
Criminal Code.
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d) “Causing the death of
multiple persons”, as prescribed in Clause 4 Article 200 of the Criminal Code,
refers to cases where the act of forcing or enticing others to use narcotic
substances illegally results in the death of 2 or more persons.
e) “Causing other
particularly serious consequences”, as prescribed in Clause 4 Article 200 of
the Criminal Code, refers to cases where the act causes the death of one person
while also causing dangerous diseases to multiple persons, or leads to other
particularly serious economic or social consequences (such as obstructing drug
rehabilitation efforts, causing public indignation, spreading panic or fear
among the community, etc.).
10.
Offence of violating regulations on the management and use of addictive
medicines or other narcotic substances (Article 201)
“Violation of regulations
on the management and use of addictive medicines or other narcotic substances”,
as prescribed in Clause 1 Article 201 of the Criminal Code, shall be understood
as the act of a person responsible for the research, examination, production,
export, import, transit, trading, transportation, preservation, possession,
distribution, allocation, use, disposal, or exchange of additive medicines and
other narcotic substances who fails to comply with the State’s regulations on
the management and use of such substances (i.g., failure to comply with the
license regarding the quantity, quality, or type; failure to follow the
prescribed operational procedures; failure to distribute or allocate the
substances to proper recipients. For example, selling addictive medicines to
another person without a prescription from a competent medical practitioner; or
showing negligence in activities such as export, import, trading,
transportation, preservation, distribution, allocation, or use of addictive
medicines or other narcotic substances, resulting in loss, damage, or discrepancies
in quantity, quality, or type, etc.).
III.
ENTRY INTO FORCE
1. This Circular comes
into force 15 days after the publication of the Official Gazette and replaces
Joint Circular No. 01/1998/TTLT-TANDTC-VKSNDTC-BNV dated January 2, 1998 of the
Supreme People’s Court of Vietnam, the Supreme People’s Procuracy of Vietnam,
and the Ministry of Home Affairs of Vietnam (now the Ministry of Public
Security of Vietnam) and Joint Circular No. 02/1998/TTLT-TANDTC-VKSNDTC-BCA
dated August 5, 1998 of the Supreme People’s Court of Vietnam, the Supreme
People’s Procuracy of Vietnam, and the Ministry of Public Security of Vietnam.
2. The guidance provided
in this Circular, if resulting in a lighter criminal liability compared to
previous documents, shall be applied during investigation, prosecution,
first-instance trial, appellate trial, cassation, or reopening trial for
persons who committed offences before the effective date of this Circular.
3. Regarding cases where
offenders have been lawfully convicted under previous documents and the
judgments have already taken legal effect, the guidance in this Circular shall
not be used as a basis for lodging a protest according to cassation or
reopening procedures, except where other grounds for protest exist. If, under this
Circular, such persons are not criminally liable, their cases shall be settled
according to procedures for exemption from serving the sentence.
4. Regarding cases under
investigation, prosecution, first-instance trial, appellate trial, cassation,
or reopening trial, where the application of the guidance in this Circular
results in a declaration of exemption from criminal liability for the accused
or defendant, the Investigation Agency, the Procuracy, and the Court must
explain to them that this exemption from criminal liability is not a ground for
compensation for damage caused by competent persons of the procedure-conducting
agencies.
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PP. PROSECUTOR GENERAL
SUPREME PEOPLE’S PROCURACY
DEPUTY PROSECUTOR GENERAL
Hoang Nghia Mai
PP. MINISTER
MINISTRY OF PUBLIC SECURITY
DEPUTY MINISTER
COLONEL GENERAL
Le The Tiem
PP. CHIEF JUSTICE
SUPREME PEOPLE’S COURT
STANDING DEPUTY CHIEF JUSTICE
Dang Quang Phuong
PP. MINISTER
MINISTRY OF JUSTICE
STANDING DEPUTY MINISTER
Hoang The Lien