Judgment no. 33/2021/HS-PT dated 14/01/2021 on gambling and gambling organization

SUPERIOR PEOPLE’S COURT IN HO CHI MINH CITY

JUDGMENT NO. 33/2021/HS-PT DATED 14/01/2021 ON GAMBLING AND GAMBLING ORGANIZATION

On January 14, 2021, an appellate trial was conducted at the office of the Superior People’s Court in Ho Chi Minh City to hear the Criminal Case No. 574/2020/TLPT-HS dated October 21, 2020 against Hyung Yong W and 03 other defendants as the defendants filed appeals against the First-Instance Criminal Judgment No. 243/2020/HSST dated 11/09/2020 2016 by the People’s Court of Ho Chi Minh City.

*Appellants:

1. Hyung Yong W (also known as J); sex: male; born on 10/5/1977 in South Korea; place of residence: H, J, J, South Korea; temporary residence: A S apartment, N ward, C district, Ho Chi Minh City, Vietnam; occupation: operating director; nationality: South Korean; religion: none; father: Mr. Hyung Nam C, born in 1953 (deceased); mother: Mrs. Han Soon B, born in 1954; has a wife and one child born in 2012; previous convictions and previous administrative violations: none;

In temporary detention from 30/6/2019. (Present at trial)

2- Nguyen Ba H; sex: male; born on 17/7/1988 in Dong Nai province; place of residence: A D, H neighborhood, H ward, Bien Hoa city, Dong Nai province; occupation: seller; education level: 12/12; nationality: Vietnamese; ethnicity: Kinh; religion: none; father: Mr. Nguyen Ba D, born in 1950; mother: Mrs. Le Thi Thuy N, born in 1954; has no wife and children; previous convictions and previous administrative violations: none;

The appellant was kept in temporary detention from 30/6/2019 and imposed residential confinement from 16/8/2019;

The appellant was out on bail. (Present at trial)

3- Dau Van T; sex: male; born on 20/11/1983 in Nghe An province; place of residence: A hamlet, T commune, C district, Nghe An province; temporary residence: B, G ward, A district, Ho Chi Minh City; occupation: none; education level: 12/12; nationality: Vietnamese; ethnicity: Kinh; religion: none; father: Mr. Dau Van C, born in 1958 (deceased); mother: Mrs. Hoang Thi T, born in 1962; has no wife and children;

Previous convictions and previous administrative violations: none; Record: the appellant was sentenced to 02 years in prison by the People’s Court of Vinh city, Nghe An province for the crime of theft according to Judgment No. 331/HSST dated 24/8/2011 by the People’s Court of Vinh city, Nghe An province; kept in temporary detention from 30/6/2019 and imposed residential confinement from 10/7/2019;

The appellant was out on bail. (Present at trial)

4- Nguy Nhu Bich L; sex: female; born on 27/10/1984 in Da Nang City; place of residence: A, A neighborhood, P ward, district 2, Ho Chi Minh City; temporary residence: A apartment, P apartment building, No. C, P ward, district 2, Ho Chi Minh City; occupation: housewife; education level: higher education; nationality: Vietnamese; ethnicity: Kinh; religion: none; father: Mr. Nguy Nhu Q, born in 1955; mother: Mrs. Le Thi T, born in 1956; has a husband and 01 child born in 2018; previous convictions and previous administrative violations: none;

The appellant was out on bail. (Present at trial)

* The advocate for the appellant Hyung Yong W: Mr. Nguyen Van Quynh and Lawyer Tran Dang Si - Ho Chi Minh City Bar Association (Present).

* The interpreter for the appellant Hyung Yong W: Ms. Nguyen Thi Bich Ngoc (Present).

Other defendants and participants in legal proceedings of the case are not related to the appeal, thus they were not summoned.

THE CASE

* According to the documents contained in the case file and the progress at the trial, the contents of the case are summarized as follows:

At 10:00PM on 30/6/2019, the criminal police body affiliated to Ho Chi Minh City Police inspected Imperial Sports LLC at No. H, D ward, district 2, caught the following act in flagrante and drew up a record thereof: Hyung Yong W together with Kim J, Andrada Carbonilla Domingo A, Dy Villanueva R, Nguyen Thi Thu H, Pham Dinh Hanh Nu N and Vo Kim N were organizing cash poker games for 14 individuals as follows: Nguyen Ba H, Dau Van T, Nguyen Hoang S, Anoux Davin W, Do Quang T, Nguy Nhu Bich L and La Tuan Nha N were playing at table No. 1 (confiscated chips worth 58.975 points in total, including chips worth 4.000 points in pot, chips worth 49.150 points kept by the players, chips worth 5.500 points as rake and chips worth 325 points for tips); Van B Pham, Son S, Nguyen Van D, Kim Chang K, Thirani V, Do Van H and Jeong K were playing at table No. 2 (confiscated chips worth 80.980 points in total, including chips worth 655 points in pot, chips worth 78.525 points kept by the players, chips worth 1.500 points as rake and chips worth 300 points for tips).

After investigation, it was confirmed that, on 07/2/2018, the People’s Committee of Thao Dien ward, district 2 issued Decision No. 38/QĐ-UBND recognizing Imperial Bridge & Poker Club (hereinafter referred to as “Imperial Poker Club”) at No. H, D ward, C district with Ms. Tran Thuy T (born in 1991; place of residence: T, D ward, T district) as the president. Imperial Poker Club was engaged in poker sports business (tournaments). On 04/6/2019, Department of Planning and Development of Ho Chi Minh City issued the enterprise registration certificate to Imperial Sports LLC at No. H, D ward, C district with the name of Mr. Do Minh D (born in 1980; place of residence: A, C ward, district 8) in the certificate. In reality, Lee Seong J (born in 1976; nationality: South Korean; passport number: M23714004) was the investor and general manager of Imperial Poker Club. From early 2018, besides poker tournaments, Lee Seong J also organized cash poker games for guests at 5 tables in the club, with guests changing cash into chips, and cashing in their chips after they finished playing, to make illegitimate profit by collecting rake.

To manage Imperial Poker Club, Lee Seong J discussed and hired Hyung Yong W to be the operating director of the club. Hyung Yong W conspired with and hired Kim J, Andrada Carbonilla Domingo A, Dy Villanueva R and Bui Tran Anh Tri as managers; Vo Kim N as cashier; Nguyen Thi Thu H, Pham Dinh Hanh Nu H, Nguyen Ngoc Dong Nhi and Nguyen Thi Ha Sao as dealers. When guests came to play cash games, Tri informed Kim J or A and R (if Kim J was not there) to welcome the guests.

After changing cash into chips, guests would gamble with other players at a poker table. The number of players of each game ranged from 05 to 09 people. Dealers used 52-card decks for cash games.

For rake percentage: after a game concluded, the dealer would take 5% of total amount of money won by the winner and put it into the cabinet of the poker table. At the end of the day, someone would collect and cash in this amount of chips and give the money to Lee Seong J.

* For defendants charged with gambling organization:

1. Hyung Yong W (nationality: South Korean): in early 6/2019, when Lee Seong J (friend met in South Korea) told Hyung Yong W he had a poker club in Vietnam and asked Huyng Yong W to manage the club, Hyung Yong W agreed to it. On 22/6/2019, Hyung Yong W came to Vietnam to meet Lee Seong J and started to work as the operating director of Imperial Poker Club at No. H, D ward, C district. The club made its profit from rake collected from cash game players. Lee Seong J earned 70% and Hyung Yong W earned 30% of the total profit (Hyung Yong W had not received his share from Lee Seong J). On 23/6/2019, in a company meeting, Lee Seong J announced that Hyung Yong W would direct all operations of the club in Lee Seong J’s place, Hyung Yong W would be subordinate to Lee Seong J, and Kim J, Andra Andrada Carbonilla Domingo A and Dy Villanueva R. Andrada Carbonilla Domingo A (Filipino) would manage changing cash to chips and cashing in chips for guests. Hyung Yong W was to act on behalf of Lee Seong J and take directions from Lee Seong J to manage the club. Hyung Yong W had not received his share of profit from Lee Seong J when he was caught in flagrante on 30/6/2019.

* For defendants charged with gambling:

At table No. 1: when caught in flagrante, Nguyen Thi Thu H was dealing cards to 07 cash game players, including H, T and L, and chips worth 58.975 points in total were confiscated (chips worth 4.000 points in pot, chips worth 49.150 points kept by the players, chips worth 5.500 points as rake and chips worth 325 points for tips), which were equivalent to VND 58.975.000.

1. Nguyen Ba H: at 06:30PM on 30/6/2019, H took VND 61.000.000 to Imperial Poker Club to gamble. H exchanged VND 5.000.000 to chips worth 5.000 points with Vo Kim N and played cash games in seat No. 1 at table No. 1. When caught in flagrante, H was playing with 06 other players at the table and had chips worth 6.075 points, which were equivalent to VND 6.075.000 (won 1.075 points, equivalent to VND 1.075.000).

2. Dau Van T: at 2PM on 30/6/2019, T brought VND 35.000.000 to Imperial Poker Club. T changed VND 6.000.000 to chips worth 6.000 points to join a poker tournament until 7PM. Then he changed VND 5.000.000 to chips worth 5.000 points to play cash poker games in seat No. 2 at table No. 1. When caught in flagrante, T was playing with 06 other players and had chips worth 10.450 points, which were equivalent to VND 10.450.000 (won 4.450 points, equivalent to VND 4.450.000). T confessed he had gambled at Imperial Poker Club 5 times.

3. Nguy Nhu Bich L: as her house was near Imperial Poker Club, from early 2019, L usually visited the club to join free poker tournaments 2-3 times/week. At 9:30PM on 30/6/2019, L visited Imperial Poker Club to play poker tournaments but it was past tournament time so L met a foreign club manager and changed VND 3.000.000 to chips worth 3.000 points. L played cash games in seat No. 06 at table No. 1. When caught in flagrante, L was playing with 06 other players and had chips worth 10.500 points, which were equivalent to VND 10.500.000 (won 7.500 points, equivalent to VND 7.500.000).

* According to First-Instance Criminal Judgment No. 378/2020/HS-ST dated September 11, 2020 by the People’s Court of Ho Chi Minh City:

1. Pursuant to Points a and c Clause 1 Article 322; Point s Clause 1 and Clause 2 Article 51; Article 50; and Article 58 of the 2015 Criminal Code (amended in 2017) in Viet Nam;

Sentence Hyung Yong W to three years in prison for gambling organization. The prison term commences from 30/6/2019.

2. Pursuant to Point b Clause 2 Article 321; and Point s Clause 1 Article 51 of the 2015 Criminal Code (amended in 2017);

Sentence Dau Van T to three years in prison for gambling. The prison term commences from the date upon which the defendant executes the judgment. The temporary detention period from 30/6/2019 to 10/7/2019 is counted towards the prison term.

3. Pursuant to Point b Clause 2 Article 321; Point s Clause 1 and Clause 2 Article 51; Article 54; and Article 65 of the 2015 Criminal Code (amended in 2017);

- Sentence Nguyen Ba H to two years in prison in the form of suspended sentence for gambling with a probation period of four years from the first-instance judgment pronouncement date.

Send the defendant to the People’s Committee of Hiep Hoa ward, Bien Hoa City, Dong Nai province for supervision and education during the probation period. If the defendant changes his place of residence, regulations in Article 93 of the Law on Execution of Criminal Judgments in Viet Nam shall apply. During the probation period, if the defendant deliberately fails to meet his obligations according to regulations of the Law on Execution of Criminal Judgments two times or more, the Court may decide to force the defendant to serve his prison sentence.

- Sentence Nguy Nhu Bich L to two years in prison in the form of suspended sentence for gambling with a probation period of four years from the first-instance judgment pronouncement date.

Send the defendant to the People’s Committee of An Phu ward, district 2, Ho Chi Minh City for supervision and education during the probation period. If the defendant changes her place of residence, regulations in Article 93 of the Law on Execution of Criminal Judgments shall apply. During the probation period, if the defendant deliberately fails to meet her obligations according to regulations of the Law on Execution of Criminal Judgments two times or more, the Court may decide to force the defendant to serve her prison sentence.

The first-instance judgment includes the penalties for other defendants, handling of exhibits, court fees and right to appeal.

After the first-instance trial, within the time limit for appeal, Hyung Yong W filed an appeal for sentence reduction, Dau Van T filed an appeal for suspended sentence, and Nguyen Ba H and Nguy Nhu Bich L filed appeals to have their suspended sentences reduced to fines.

 At today’s trial, the appellants upheld their appeals.

* Opinions of the representative of the People’s Procuracy:

- Regarding legal proceedings: the first-instance court, appellate court and participants in legal proceedings adhere to regulations on legal proceedings and the appeals are lawful.

- Regarding appeal contents: appellant W was in charge of the club’s operations and takes primary responsibility. The sentence imposed by the first-instance court is appropriate. Appellant T has poor record. The sentences imposed by the first-instance court upon appellants T, H and L have valid grounds.

The appellants filed their appeals without new mitigating circumstances, hence request the court not to accept their appeals and uphold the penalties imposed by the first-instance court.

* Arguments of Lawyer Quynh: that the indictment accuses appellant W of being the main offender is inappropriate as the main offender is Lee Seong J. Appellant W has not received any profit since he started managing the club. He is the main worker of his family and has a young child. Therefore, request the court to reduce his sentence.

* Arguments of Lawyer Si: request the court to consider the circumstance under which appellant W committed his offence: he had just arrived in Vietnam for one week, thought the club was operating legally as it had been granted a license and had no knowledge about Vietnamese law. Request the court to reduce his sentence.

Appellant W agreed with the arguments of his lawyers and had no further argument.

* Representation of appellant H: he knew that the club had a license and played cash games in the club for recreational purpose. Request the court to accept his appeal.

* Representation of appellant T: he is in a difficult situation and requests to have a suspended sentence so as to support his family.

* Representation of appellant L: she has a child younger than 36 months old and her husband is a foreigner living abroad, thus she appeals for leniency so that she can soon reunite with her husband abroad.

JUDGMENT OF THE COURT

Based on the contents of the case, documents in the case file which have been argued at the trial, the Trial Panel found that:

 [1]- At today’s trial, all appellants admitted to their offences per the conclusion of the first-instance court, according to which

At 10:00PM on 30/6/2019, the criminal police body affiliated to Ho Chi Minh City Police inspected Imperial Sports LLC at No. H, D ward, district 2, caught the following act in flagrante and drew up a record thereof: Hyung Yong W together with other defendants were organizing cash poker games for 14 individuals, including Nguyen Ba H, Dau Van T and Nguy Nhu Bich L at table No. 1 and other individuals, and confiscated chips worth 58.975 points in total, which were equivalent to VND 58.975.000.

To manage Imperial Poker Club, from 23/6/2019, Lee Seong J (owner and general manager of Imperial Poker Club) discussed and hired Hyung Yong W to be the operating director of the club. The club made its profit from rake collected from cash game players. Lee Seong J earned 70% and Hyung Yong W earned 30% of the total profit. Hyung Yong W conspired with and hired Kim J, Andrada Carbonilla Domingo A, Dy Villanueva R and Bui Tran Anh Tri as managers; Vo Kim N as cashier; Nguyen Thi Thu H, Pham Dinh Hanh Nu H, Nguyen Ngoc Dong Nhi and Nguyen Thi Ha Sao as dealers. When guests came to play cash games, Tri informed Kim J or A and R (if Kim J was not there) to welcome the guests.

The inspection caught 2 tables playing cash poker games with 14 players and confiscated a total of VND 128 million from the 2 tables.

There were valid grounds for the first-instance court to charge Hyung Yong W with gambling organization according to Points a and c Clause 1 Article 322 and Dau Van T, Nguyen Ba H and Nguy Nhu Bich L with gambling according to Point b Clause 2 Article 321 of the Criminal Code in Viet Nam.

 [2]- Upon consideration of the appeal for sentence reduction of Hyung Yong W, it was found that:

Hyung Yong W was the manager of Imperial Poker Club, hired by Lee Seong J (owner of Imperial Poker Club) to manage the club and direct other defendants on behalf of Lee Seong J to organize gambling and collect rake, and to earn 30% of profit generated from gambling organization. Hyung Yong W took charge of gambling organization at the club.

The appellant’s act was dangerous to the society, infringed public safety and order and enabled gambling. Thus, he should be imposed a strict penalty. The three-year prison sentence imposed by the first-instance court had valid grounds and corresponded to the nature and extent of the offence committed by the appellant.

The appellant filed his appeal without new mitigating circumstances, hence there are no grounds to accept his appeal. Uphold the penalty imposed by the first-instance court.

 [3]- Regarding the appeal for suspended sentence filed by Dau Van T and appeal to have his sentence reduced to fine filed by Nguyen Ba H:

Dau Van T brought VND 35.000.000 to Imperial Poker Club to gamble, changed a total of VND 11.000.000 to chips and had VND 58.875.000 in total at the game table (converted from confiscated chips). T confessed he had gambled at Imperial Poker Club 5 times but he was not prosecuted for these gambling times due to lack of evidence. The appellant had poor record: in 2011, he was sentenced to 02 years in prison for theft by the People’s Court of Vinh city, Nghe An province, but he did not learn from that experience and committed another offence. Therefore, he must be separated from the society for an amount of time and receive education to become a good citizen.

For Nguyen Ba H: he brought VND 61.000.000 to Imperial Poker Club to gamble, played at the same table as Dau Van T and changed VND 5.000.000 to chips.

The offences committed by Dau Van T and Nguyen Ba H were dangerous to the society and they brought a large amount of money to gamble. The first-instance court had considered all mitigating circumstances when deciding their penalties and the penalties imposed upon them were appropriate for the nature and extent of their offences.

The appellants filed their appeals without new mitigating circumstances, hence their appeals are rejected. Uphold the penalties imposed by the first-instance court.

 [4]- For the appeal filed by Nguy Nhu Bich L: she gambled for the first time and brought a small amount of money (VND 3.000.000) to Imperial Poker Club to gamble. She had good record and no previous conviction or administrative penalty, showed a cooperative and remorse attitude during investigation and trial and had a child under 36 months old while her husband could not return to Vietnam due to COVID-19 pandemic, thus she should be enabled to reunite with her family. Therefore, her appeal is accepted and her suspended sentence will be reduced to a fine appropriate to the nature and extent of her offence and sufficient to educate her.

 [5]- Appellants whose appeals are rejected shall incur the appellate court fee. Appellant L is not required to incur the appellate court fee.

Based on the abovementioned facts and matters,

HEREBY DECIDES

Pursuant to Point b Clause 1 Article 355; and Point dd Clause 1 Article 357 of the Criminal Procedure Code in Viet Nam;

Reject the appeals filed by Hyung Yong W, Dau Van T and Nguyen Ba H; accept the appeal filed by Nguy Nhu Bich L; amend the penalty imposed upon Nguy Nhu Bich L in the first-instance judgment;

uphold the penalties imposed upon Hyung Yong W, Dau Van T and Nguyen Ba H in the First-Instance Criminal Judgment No. 378/2020/HSST dated 11/9/2020 by the People’s Court of Ho Chi Minh City as follows:

1. Pursuant to Points a and c Clause 1 Article 322; Point s Clause 1 and Clause 2 Article 51; Article 50; and Article 58 of the 2015 Criminal Code (amended in 2017);

Sentence Hyung Yong W to three years in prison for gambling organization. The prison term commences from 30/6/2019.

2. Pursuant to Point b Clause 2 Article 321; and Point s Clause 1 Article 51 of the 2015 Criminal Code (amended in 2017);

Sentence Dau Van T to three years in prison for gambling. The prison term commences from the date upon which the defendant executes the judgment. The temporary detention period from 30/6/2019 to 10/7/2019 is counted towards the prison term.

3. Pursuant to Point b Clause 2 Article 321; Point s Clause 1 and Clause 2 Article 51; Article 54; and Article 65 of the 2015 Criminal Code (amended in 2017); sentence Nguyen Ba H to two years in prison in the form of suspended sentence for gambling with a probation period of four years from the first-instance judgment pronouncement date.

Send the defendant to the People’s Committee of Hiep Hoa ward, Bien Hoa City, Dong Nai province for supervision and education during the probation period. If the defendant changes his place of residence, regulations in Article 93 of the Law on Execution of Criminal Judgments shall apply. During the probation period, if the defendant deliberately fails to meet his obligations according to regulations of the Law on Execution of Criminal Judgments two times or more, the Court may decide to force the defendant to serve his prison sentence.

4. Pursuant to Point b Clause 2 Article 321; Point s Clause 1 and Clause 2 Article 51; Article 54; and Article 35 of the 2015 Criminal Code (amended in 2017); fine Nguy Nhu Bich L VND 100.000.000 (one hundred million) for gambling.

5. Regarding appellate court fee: Hyung Yong W, Dau Van T and Nguyen Ba H shall each incur VND 200.000 (two hundred thousand).

Other decisions in the first-instance judgment not subject to any petition or appeal shall come into force from the date on which the time to petition/appeal expires.

This appellate judgment takes effect from the date of pronouncement.