JOINT CIRCULAR No. 02/1998/TTLT-TANDTC-VKSNDTC-BCA OF AUGUST 5, 1998 GUIDING THE APPLICATION OF A NUMBER OF STIPULATIONS IN CHAPTER VIIA ON "NARCOTICS-RELATED CRIMES" OF THE PENAL CODE

For uniform application of the provisions of the Law on Amendments and Supplements to a Number of Articles of the Penal Code endorsed by the National Assembly (IX Legislature) at its 11th session on May 10, 1997, the Supreme People’s Court, the Supreme People’s Procurary and the Ministry of the Interior has promulgated Joint Circular No. 01/1998/TTLT-TANDTC-VKSNDTC-BNV of January 2, 1998 guiding the application of a number of provisions of the Law on Amendments and Supplements to a Number of Articles of the Penal Code (hereinafter called Joint Circular No. 01/1998). Since this Joint Circular took effect, a number of local law enforcement bodies have sent official letters, official telegrams and made phone calls to the Supreme People’s Court, the Supreme People Procurary and the Ministry of the Interior requesting more detailed guidance regarding acts of "trafficking in narcotics" and "organizing the illegal use of narcotics" as well as additional guidances for a number of the provisions of the Penal Code on "narcotics-related crimes."

In order to make a correct and uniform application of the provisions of Chapter VIIA on "narcotices-related crimes" of the Penal Code, the Supreme People’s Court, the Supreme People’s Procurary and the Ministry of Public Security have agreed to jointly provide the following guidances:

1. Acts of trafficking in narcotics prescribed in Article 185e of the Penal Code shall be one of the following acts:

a) Illegally selling narcotics to other persons;

b) Purchasing narcotics for the purpose of illegal selling to other persons;

c) Asking for narcotics for the purpose of illegal selling to other persons;

d) Storing narcotics for the purpose of illegal selling to other persons;

e) Transporting narcotics for the purpose of illegal selling to other persons;

f) Using narcotics for the purpose of illegal exchange, payment, etc.;

g) Using property (other than money) in exchange or payment, etc. for narcotics for the purpose of illegal reselling to other persons.

While implementing the afore-said guidance, attention shall be paid to:

- Those who commit one of the acts mentioned in Points a and f shall be examined for penal liability for the offence of "trafficking in narcotics" under Article 185e of the Penal Code without depending on the source of the narcotics.

- In order to have grounds for examining the penal liability of the persons committing one of the acts mentioned in Points b, c, d, e and g on the offence of trafficking in narcotics under Article 185e of the Penal Code, it is necessary to prove that the purpose of committing one of these acts is the illegal selling of the narcotics. Where it is impossible to prove their purpose of illegal selling of narcotics, depending on each specific case, it may be based on the guidance in Item b, Point 4, Section II, Part B of Joint Circular No. 01/1998 to handle administratively or examine for penal liability on the offence of "illegal storing of narcotics" under Article 185c of the Penal Code or the offence of "illegally transporting narcotics" according to Article 185d of the Penal Code.

- Those who commit one of the criminal acts referred to in Point 1 hereof and before or after that have committed one or more than one narcotics-related offences, the examination of penal liability shall comply with the guidance in Point 5, Section II, Part B of Joint Circular No. 01/1998.

- Those who organise, abet or assist other persons to perform one of the above-mentioned acts shall all be examined for penal liability for the offence of "trafficking in narcotics" stipulated in Article 185e of the Penal Code.

- Point 1 of this Circular shall replace Item d, Point 2, Section II, Part B of Joint Circular No. 01/1998.

2. The act of organizing the illegal use of narcotics stipulated in Article 185i of the Penal Code shall be one of the following acts:

a) Commanding, assigning and/or directing activities of illegally putting narcotic substances into the bodies of other persons;

b) Hiring, borrowing or using places under one’s ownership or one’s management as well as seeking places serving as the site to illegally put narcotic substance into the bodies of others.

c) Illegally supplying narcotics (except for the act of illegally selling narcotics) to other persons for their illegal use of narcotics;

d) Preparing narcotics in whatsoever forms (purchasing, asking for, storing, producing, etc.) with a view to illegally putting narcotics into the bodies of other persons;

e) Looking for narcotic users for organisers of illegal use of narcotics with a view to illegally putting narcotics into their bodies;

f) Preparing means and instruments for illegal use of narcotics in whatsoever forms (purchasing, asking for, storing, producing, etc.) with a view to illegally putting narcotics into the bodies of other persons;

g) With regard to other acts (apart from those mentioned about in Points a, b, c, d, e and f) that help other persons to illegally use narcotics (such as giving money or lending money to others to buy narcotics for illegal use; giving property or lending property other than money to others to exchange for narcotics for illegal use; to help others illegally smoke or inhale narcotics or to help others illegally inject narcotics, etc.), if the persons who perform one of these acts have already been:

- Condemned for one of the narcotics-related crimes prescribed in the Penal Code but their sentences have not been written off yet;

- Administratively dealt with for one of narcotics-related violations prescribed in the Penal Code and detailed in Joint Circular No. 01/1998 and this Circular, but the administrative sanction time limit has not expired;

- Exempt from penal liability by the procedural organs for one of the narcotics-related violations prescribed in the Penal Code and detailed in Joint Circular No. 01/1998 and this Circular, but exemption duration has not exceeded one year from the date of the penal liability exemption;

- Educated by State bodies (such as People’s Committees or Police of ward, commune or township level or higher and the agencies where they work, etc.), organisations and mass organisations (such as residents’ groups, youth or women’s organisations, etc.) as well as responsible persons in the agencies where they work or in the localities of their residence (such as heads of agencies, ward’s policemen, representatives of People’s Committees at various levels, heads of residents’ groups) but the time period has not exceeded one year from the date of such education. It should be noted that sufficient evidences (such as minutes of meeting; self-criticisms or written commitments made by violators; summons to competent State bodies for education; visits to subject persons’ families for education by responsible officials...) are required in order to confirm that the persons performing one of the above-mentioned acts have been educated.

Those who carry out acts of organizing of illegal use of narcotics, and also commit carry out one or more than one narcotics-related offences stipulated in the corresponding articles of the Penal Code shall, besides being examined for penal liability according to Article 185 of the Penal Code, also be examined for penal liability for other committed offences as stipulated in the corresponding articles of the Penal Code.

- Point 2 of this Circular shall replace Item e, Point 2, Section II, Part B of Joint Circular No. 01/1998.

3. Acts of illegally using narcotics as prescribed in Article 185 l of the Penal Code are those of putting by oneself or with the help of others narcotic substance into one’s body by whatsoever ways (such as smoking, inhaling or injecting, etc.) for the purpose of satisfying one’s need to use narcotics.

Penal liability for illegal use of narcotics as prescribed in Article 185 l of the Penal Code shall be examined only when illegal narcotics users have been educated time and again and have been administratively dealt with by their placement into forced cure establishments but still continue using narcotics.

- "Having been educated time and again" shall be understood as having been mobilized, persuaded, reminded or administratively sanctioned for more than twice by State bodies, organizations and for responsible persons, but the users still continue using narcotics.

- Being considered as having been administratively dealt with by the measure of placing them in forced cure establishments, if such measure is effected in strict conformity with the stipulations in Articles 10 and 24 of the Ordinance on the Handling of Administrative Violations (passed by the Standing Committee of the National Assembly on July 6, 1995) and the Regulations on Cure Establishments under the Ordinance on the Handling of Administrative Violations of July 6, 1995 (promulgated together with Government Decree No. 20/CP of April 13, 1996).

Those who have been sentenced for the offence of "illegal use of narcotics" and relapse into the offence shall be examined for penal liability according to Clause 2, Article 185i of the Penal Code.

4. Acts of harboring illegal use of narcotics as stipulated in Article 185k of the Penal Code shall be the acts committed by those who have places under their ownership or management and let such places to be borrowed or rented by other persons, who, they know, are illegal users of narcotics, for their direct use of narcotics to satisfy their need to use narcotics.

Those who have places and lend or lease such places to other persons with the knowledge that these persons shall use the places not for their use of narcotics for the purpose of satisfying their need but shall use the places to put narcotic substance into the bodies of other persons who are illegal narcotics users, shall be examined for penal liability for the offence of "organizing illegal use of narcotics" stipulated in Article 185i of the Penal Code.

5. Acts of forcing other persons to illegally use narcotics as stipulated in Article 185m of the Penal Code shall be the acts of resorting to force or threatening the use of force or resorting to other ploys to bully other persons’ spirit in order to force them to illegally use narcotics against their will.

6. Acts of drawing other persons into the illegal use of narcotics as stipulated in Article 185m of the Penal Code shall be the acts of inducing, enticing and inciting or resorting to other ploys to stir other persons’ desire to illegally use narcotics so that they use it illegally.

7. When examining for penal liability the offence of production, storing, transport, purchase and sale of means and instruments used for illegal production or use of narcotics, attention should be paid to the following points:

a) Acts of illegal production, storing, transport and illegal purchase and sale shall be understood as the corresponding acts mentioned in Items a, b, c, Point 2, Section II, Part B of Joint Circular No. 01/1998 and Point 1 hereof.

b) Those who are involved for the first time in illegal production, storing, transport and purchasing as well as selling of means and instruments used for the illegal use of narcotics by themselves shall not be subject to the level of examination for penal liability but shall be dealt with administratively; if continuing to commit such offences, notwithstanding such handling, they shall be examined for penal liability according to Article 185h of the Penal Code.

c) Being considered "law-breaking things in great quantity" as stipulated in Point e, Clause 2, Article 185h of the Penal Code, if these things comprise 5 instruments / means or more (may be of the same or different kinds).

8. Attention shall be paid to a number of circumstances which are factors for determination of offences or for setting penalty frames as follows:

a) In the law provisions on narcotics-related offences, there is a stipulation on the circumstance of "having been administratively sanctioned but still relapsing into violation", in this case, only administrative sanctions effected as from May 22, 1997 shall be counted.

b) In the law provisions on narcotics-related offences, it is stipulated that the circumstance of having committed offences "against a number of persons" shall be the one for fixing penalty frame, if at a time an offender has committed an offence against two persons or more (such as organizing the illegal use of narcotics at a time for two persons or more or at a time coercing or drawing from two persons or more into illegal use of narcotics, etc.)

c) The circumstance of fixing penalty frame of "committing offences time and again" as stipulated in Point b, Clause 2, Article 185d of the Penal Code shall be applied in the following cases:

- Illegal purchase of narcotics for two times or more for the purpose of illegal selling to other persons irrespective of selling for one or more than one time;

- Illegal purchase of narcotics once and illegally reselling such narcotics quantity twice or more to other person(s), irrespective of reselling twice or more to one or more than one person;

- Illegal purchase of narcotics once and illegally reselling such narcotics quantity simultaneously to two persons or more.

9. A number of guidances in Joint Circular No. 01/1998 shall be amended and supplemented as follows:

a) Paragraph 2, Item a, Point 1, Section II, Part B of Joint Circular No. 01/1998 shall be supplemented as follows:

"It should be noted that opium resin comprises opium resin taken from opium plants, opium resin boiled down into glue, ball, etc. Opium liquid for injection shall not be considered narcotics in liquid form and the content of opium in the liquid shall be determined to calculate the weight of opium. Opium dregs shall not be considered opium resin and the content of opium in the opium dregs shall be determined to calculate the weight of opium."

b) The guidance in the second (+) mark of the second (*) mark in Item b, Point 4, Section II, Part B of Joint Circular No. 01/1998 shall be amended and supplemented as follows:

"Those who have been sentenced for one of the narcotics-related offences stipulated in the Penal Code but, while their sentences have not yet been written off, illegally store or transport one of the narcotics substances referred to above (referred to in the first (*) mark in Item b, Point 4, Section II, Part B of Joint Circular No. 01/1998), if not falling into case of dangerous recidivists, shall be examined for penal liability under Clause 1, Article 185c or the corresponding Clause 1, Article 185d; if falling into the case of dangerous recidivists, they shall be examined for penal liability under Clause 2, Article 185c or the corresponding Clause 2, Article 185d.

Shall also be examined for penal liability according to Clause 1, Article 185c or the corresponding Clause 1, Article 185d those who illegally store or transport from two narcotic substances or more and each substance has the weight referred to above (referred to in the first (*) mark in Item b, Point 4, Section II, Part B of Joint Circular No. 01/1998)."

10. This Circular take effects from August 20, 1998.

- The guidances in this Circular, if extenuating the penal liability compared with the previous guiding documents, shall be applied when conducting investigation, prosecution, first instance trial, appellate trial or judicial review against the persons who commit the criminal acts before this Circular comes into force.

- Where offenders have already been sentenced in strict conformity with the previous guiding documents and the sentences have taken legal effect, the guidance hereof shall not be applied to appeal according to the judicial review order.

- For cases where investigation, prosecution, first-instance trials, appellate trials or judicial review are being underway and the guidances hereof are applicable to declare exemption of penal liability for the accused and defendants, the investigating bodies, procuracies and the courts shall make clear explanations to them that this exemption of penal liability shall not constitute the basis for claiming compensation caused by competent persons of the procedural organs.

Investigating bodies, the procuracies and the courts shall report immediately any difficulties that arise in the course of implementation of this Circular to the Supreme People’s Court, the Supreme People’s Procuracy and the Ministry of Public Security for timely guidance.

For the Minister of Public Security

Vice Minister