IS ILLEGAL GAMBLING ACT FACE A PENALTY OF IMPRISONMENT?

Case situation:

I have just been arrested by the police for playing lotto with a total amount of VND 6.5 million. Please advise me that how my act will be punished and whether I can apply for a suspended sentence. I have no criminal record before. Thank you.

FDVN’s Opinion:

Thank you for reaching out and expressing your interest in the services of FDVN Law firm. Regarding your inquiry, we have considered the relevant regulations and here is some information that you may find helpful:

1. The act of gambling, if there are legal signs specified below, may be considered penal liability for the crime of illegal gambling under Article 321 of the Penal Code 2015, as amended and supplemented in 2017.

Specifically:

 “Article 321: Illegal gambling

1. Any person who illegally gambles in any shape or form with the stakes (in cash or kind) assessed at from VND 5,000,000 to under VND 50,000,000 or under VND 5,000,000 despite the fact that he/she has incurred an administrative penalty or has an unspent conviction for the same offence or any of the offences specified in Article 322 hereof shall face a penalty of up to 03 year's community sentence or 06 - 36 months' imprisonment.

2. This offence committed in any of the following circumstances carries a penalty of 03 - 07 years' imprisonment:

a) The offence is committed in a professional manner;

b) The stake is assessed at VND ≥ 50,000,000;

c) The offence is committed using the Internet, a computer network, telecommunications network or electronic device;

d) Dangerous recidivism.

3. The offender might also be liable to a fine of from VND 10,000,000 to VND 50,000,000.”

Therefore, depending on the nature and severity of the violation, after the investigation and verification process, it will be determined whether your act is a illegal gambling crime and the level of punishment.

2. Regarding the condition for probation, according to Article 65 of Penal Code 2015, amended and supplemented in 2017, and Article 2 of Resolution No. 02/2018/NQ-HĐTP dated May 15, 2018 of the Judicial Council of the Supreme People's Court, a person is sentenced to imprisonment may be considered for a suspended sentence when fully meeting the following conditions:

Condition No. 1: Be sentenced to imprisonment of up to 03 years.

Condition No. 2: Have good record of the offender.

It is considered to have good record of the offender if, apart from this act, the offender always strictly abides by the policies and laws and fully fulfills the obligations of citizens in the place of residence or work.

For a person who has been convicted but is considered to have no criminal record, who has been convicted but his/her criminal record has been expunged, who has been administratively sanctioned or disciplined for which the period from that administratively sanctioned or disciplined has not been handled is more than 6 months since the date of this crime, if it is considered that the nature and severity of the new act are less serious or If the offender is an accomplice who plays an insignificant role in the case and meets other conditions, he/she can also serve a suspended sentence.

Condition No. 3: He/she has two or more circumstances extenuating his/her penal liability, including at least one circumstance specified in Clause 1, Article 51 of the Penal Code, and has no circumstances aggravating his/her penal liability specified in Clause 1, Article 52 of the Penal Code.

In case he/she has circumstances aggravating his/her penal liability, his/her circumstances extenuating his/her penal liability must be at least two more than the aggravating circumstances, including at least one circumstance specified in Clause 1, Article 51 of the Penal Code.

Extenuating circumstances for penal liability are specified in Clause 1, Article 51 of the Penal Code, in which there are a number of circumstances that you can consider such as: The offender voluntarily makes rectification, pays damages or relieves the consequences; The crime has not inflicted damage or the damage inflicted is not significant; The offender commits a less serious crime and does not have prior criminal record; The offender expresses cooperative attitude or contrition; The offender arduously assisting the agencies concerned in discovery of crimes or investigation; The offender has made reparation in an effort to atone for the crime; The offender is an excellent worker, soldier or student; The offender is revolutionist, parent, spouse or child of a war martyr or war veteran...

Condition No. 04: He/she has a clearly addressed place of residence or stable workplace so that he/she can be supervised and educated by a competent agency or organization.

A clearly addressed place of residence means a place of temporary residence or permanent residence with an address specifically indicated in accordance with the Law on Residence where the convict entitled to suspended sentence intends to reside frequently after being sentenced.

A stable workplace means a place where the convict entitled to suspended sentence works under a labor contract with a term of at least one year or under a decision of a competent agency or organization.

Condition No. 05: He/she is able to reform himself/herself so that it is unnecessary to force him/her to serve imprisonment penalty and the suspension of his/her sentence will cause no danger to the society and no bad impact on social security, order and safety.

You can consider the above-mentioned legal provisions for your case to protect your legitimate rights and interests.

This is FDVN's legal advice regarding your request based on our research on relevant regulations. We hope this advice will be useful to you and feel free to contact us if you have any further question.

By Phạm Cao Linh – FDVN Law firm

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