On November 19, 2024, at the headquarters of Lam Dong Provincial People's Court, the appeal trial of criminal case No. 188/2024/TLPT-HS dated October 11, 2024 against defendant Ngo Van T was held, due to the defendant's appeal against the First Instance Criminal Judgment No. 135/2024/HS-ST dated August 28, 2024 of Lam Ha District People's Court, Lam Dong Province.
– The defendant appealed:
Ngo Van T; born in 1987 in Bac Ninh province; place of permanent residence and residence: Village Q, Commune G, District L, Lam Dong province; occupation: Farmer; educational level: Grade 5/12; ethnicity: Kinh; gender: Male; religion: None; nationality: Vietnamese; son of Mr. Ngo Van P and Mrs. Nguyen Thi H; wife of Nguyen Thuy A and has 02 children born in 2012 and 2018; criminal record: none; defendant is subject to preventive measures of being prohibited from leaving the place of residence. Present.
In the case, there are also defendants Dinh Xuan L, Nguyen Tat S, Nguyen Huu T1, Nguyen Van T2, Bui Xuan T3, Dang Thanh T4, people with related rights and obligations who did not appeal, the case was not protested.
CASE CONTENT
According to the documents in the case file and the proceedings at the trial, the content of the case is summarized as follows:
At about 2:00 p.m. on May 4, 2024, Nguyen Van T2 called Ngo Van T and Nguyen Tat S to invite them to go to shop C in village Q, commune G, district L, Lam Dong province to drink coffee, and T and S agreed. Then, Ngo Van T drove a white Vision motorbike with license plate number 49D1-861.xx; Nguyen Tat S drove a silver-gray Wave motorbike with license plate number 49D1-632.xx to the shop and parked them in the concrete yard of the shop. Here, Nguyen Van T2 called Bui Xuan T3 and Dinh Xuan L to come to the shop to drink coffee together, and T3 and L agreed. Bui Xuan T3 drove a red-black Vision motorbike with license plate number 49D1-809.xx to arrive first; Dinh Xuan L drove a black and white Vario motorbike with license plate 49D1-767.xx to the shop and parked it in the yard of the shop, then went into the wooden hut behind the shop to meet Nguyen Van T2, Nguyen Tat S, and Ngo Van T. Here, the group invited each other to gamble in the form of "lieng" with cash to win or lose, and everyone agreed. Ngo Van T took an old deck of cards on the wooden frame of the hut for everyone to gamble. About 15 minutes later, Nguyen Huu T1 came to watch and asked to play, and everyone agreed. At about 4:00 p.m. the same day, Dang Thanh T4 came to watch everyone gamble. Because he had to go home, Nguyen Van T2 asked Dang Thanh T4 to take his place and T2 gave T4 280,000 VND for T4 to gamble with everyone. When everyone was gambling until about 4:30 p.m. the same day, the L District Police inspected, discovered and made a record of the crime of gambling in flagrante delicto. During the inspection, Bui Xuan T3 ran away. Afterwards, T3 and T2 went to the Police Station to surrender and hand over the evidence.
The gambling method is as follows: All players use a deck of 52 cards and deal each player 03 cards, the initial bet amount (called water money) is 20,000 VND, unlimited betting. After receiving 03 cards, players will place additional bets depending on the quality of the 03 cards dealt. The dealer will play first and follow the counterclockwise direction. When it is their turn, players will have 03 options: Raise: when they see that their 03 cards have a high score, the possibility of winning is high, they can choose to raise and bet more money; Call: when seeing the previous player raise, the next player has the right to follow or not follow (give up and lose); B: the player gives up and does not participate in the bet. If no one follows the whole game, the person who raises will be the winner, the card of that person is kept secret, but if the game has at least 02 followers, those 02 people need to show their cards to compare points, the person whose card has the highest score will be the winner. Everyone agrees with each other Sap: a set of 03 cards of the same value. In which, 02 is the smallest and A (At) is the largest. For example, 4 (clubs), 4 (spades) and 4 (hearts); Lieng: 03 consecutive cards from A (A) to K. The set with the larger number will be stronger or in case of equal sets, compare the suits in order of decreasing strength (clubs) > (diamonds) > (clubs) > (spades); Three of a kind: 03 cards with all face numbers (J, Q, K), not counting as a consecutive lieng set JQK. If the sets have the same three of a kind, then also consider the suits to see who is the winner. In other cases, it will be based on the total points of 03 cards. In which, cards 2-10 will be counted as the corresponding total points, A (Ace) will be counted as 01 point, J, Q, K will be counted as 10 points.
During the investigation, the subjects Ngo Van T, Nguyen Van T2, Bui Xuan T3, Nguyen Tat S, Dinh Xuan L, Nguyen Huu T1, and Dang Thanh T4 confessed to all of their crimes. When participating in gambling, the subjects confessed to using the money to gamble specifically as follows: Ngo Van T brought 2,000,000 VND and used all of it for gambling. When starting to play, T spent 400,000 VND, the remaining 1,600,000 VND was kept in his wallet and when he lost, he took it out to gamble; Nguyen Van T2 brought 1,090,000 VND, T2 lent Bui Xuan T3 500,000 VND to gamble, the remaining 590,000 VND was used by T2 to gamble; Bui Xuan T3 did not bring any money to gamble, but borrowed 500,000 VND from Nguyen Van T2 to gamble; Dinh Xuan L brought 1,500,000 VND and used all of it for gambling; Nguyen Tat S brought 1,000,000 VND and used all of it for gambling; Nguyen Huu T1 brought 1,000,000 VND and used all of it for gambling; Dang Thanh T4 was given 280,000 VND by Nguyen Van T2 and used all of it for gambling.
The total amount of money the subjects used for gambling purposes was: 6,590,000 VND (six million five hundred and ninety thousand VND).
Evidence and documents seized:
– Confiscated on the table the amount of money: 500,000 VND, 01 used deck of playing cards;
Indictment No. 127/CT-VKS dated July 10, 2024 of Lam Ha District People's Procuracy prosecuted the defendants Ngo Van T, Dinh Xuan L, Nguyen Tat S, Nguyen Huu T1, Nguyen Van T2, Bui Xuan T3, Dang Thanh T4 for the crime of "Gambling" as prescribed in Clause 1, Article 321 of the Penal Code.
First-instance criminal judgment No. 135/2024/HSST dated August 23, 2024 of the People's Court of Lam Ha district, Lam Dong province ruled:
Declare the defendants Ngo Van T, Dinh Xuan L, Nguyen Tat S, Nguyen Huu T1, Nguyen Van T2, Bui Xuan T3, Dang Thanh T4 guilty of the crime of "Gambling".
– Apply Clause 1, Article 321; Point i, Point s, Clause 1, Article 51; Article 17; Article 36; Article 58 of the Penal Code.
Sentence defendant Ngo Van T to 18 (eighteen) months of non-custodial reform. The term of non-custodial reform is calculated from the date the agency or organization assigned to supervise and educate the convicted person receives the decision to execute the sentence and a copy of the judgment.
Hand over defendant Ngo Van T to the People's Committee of G commune, L district, Lam Dong province for supervision and education. The defendant's family is responsible for coordinating with local authorities in supervising and educating the defendant during the period of non-custodial reform. The defendant must fulfill a number of obligations according to the regulations on non-custodial reform. The defendant's income is exempted.
– Apply Clause 1, Article 321; Point s, Clause 1, Article 51; Point h, Clause 1, Article 52; Article 17; Article 58; Article 38 of the Penal Code.
Sentence defendant Nguyen Tat S to 06 (six) months in prison. The prison term is calculated from the date of execution of the sentence.
– Apply Clause 1, Article 321; points i, s, Clause 1, Article 51; Article 17; Article 35; Article 58 of the Penal Code.
Fine the defendants Dinh Xuan L and Nguyen Huu T1 each 25,000,000 VND to the state budget.
Fine the defendants Nguyen Van T2, Bui Xuan T3, Dang Thanh T4 each 20,000,000 VND to be added to the state budget.
– Apply Clause 3, Article 321 of the Penal Code. Fine the defendant Ngo Van T an additional VND 10,000,000 to the state budget.
In addition, the judgment also handles evidence, declares court costs and the right to appeal.
On August 26, 2024, defendant Ngo Van T appealed for a fine.
At the trial, the defendant admitted all of his criminal acts as the first instance judgment had judged him, did not question or complain about the first instance judgment and maintained his appeal to be fined.
The representative of Lam Dong Provincial People's Procuracy, based on Point a, Clause 1, Article 355; Article 356 of the Criminal Procedure Code, requested the Trial Panel not to accept the defendant's appeal and uphold the original judgment.
JUDGMENT OF THE COURT
Based on the content of the case, based on the documents in the case file that were debated at the trial, the Trial Panel determined as follows:
[1] The agency conducting the proceedings at the first instance stage has properly exercised its authority, order and procedures as prescribed by the Criminal Procedure Code.
[2] The appeal of defendant Ngo Van T is correct in form and content, within the statutory time limit, so the appeal of the defendant is valid and has sufficient basis for the Appellate Court to consider according to the appeal procedure.
[3] At the trial, the defendant admitted all acts as stated in the first instance judgment. Considering the defendant's confession is consistent with all documents and evidence in the case file, there is sufficient basis to conclude: From about 2:30 p.m. to 4:30 p.m. on May 4, 2024, the defendants Ngo Van T, Nguyen Tat S, Nguyen Huu T1, Dinh Xuan L, Nguyen Van T2, Bui Xuan T3 and Dang Thanh T4 engaged in illegal gambling in the form of winning or losing cards for money at shop C in village Q, commune G, district L, Lam Dong province with the lowest penalty being 160,000 VND and the highest being 500,000 VND. The total amount of money the defendants used for illegal gambling as proven by the Investigation Agency was 6,590,000 VND.
The court of first instance's verdict that the defendants Ngo Van T, Dinh Xuan L, Nguyen Tat S, Nguyen Huu T1, Nguyen Van T2, Bui Xuan T3, and Dang Thanh T4 were guilty of "Gambling" as prescribed in Clause 1, Article 321 of the Penal Code was well-founded, lawful, and not unjust.
[4] Considering the defendant's appeal, it is found that: The defendant was applied mitigating circumstances by the Court of First Instance as prescribed in Point i, s, Clause 1, Article 51 of the Penal Code and was sentenced to 18 months of non-custodial reform, which is well-founded and in accordance with the law. The defendant appealed for a fine but did not present any new mitigating circumstances. The level of punishment imposed by the Court of First Instance on the defendant ensured the strictness of the law, had sufficient educational and deterrent effects on the defendant and was a general preventive measure. Therefore, it is appropriate to not accept the defendant's appeal as stated by the Representative of the People's Procuracy of Lam Dong Province.
[5] Regarding court fees: Because the appeal was not accepted, the defendant must pay the criminal appeal court fees.
For the above reasons,
DECISION
1. Pursuant to Point a, Clause 1, Article 355; Article 356 of the Criminal Procedure Code. Not accepting the appeal of defendant Ngo Van T, upholding the original judgment.
Declared defendant Ngo Van Trong guilty of T5 "Gambling".
Apply Clause 1, Clause 3, Article 321; Point i, s, Clause 1, Article 51; Article 17; Article 36; Article 58 of the Penal Code.
Sentence defendant Ngo Van T to 18 (eighteen) months of non-custodial reform. The term of non-custodial reform is calculated from the date the Criminal Enforcement Agency of L District Police receives the decision to execute the sentence and a copy of the judgment.
Hand over defendant Ngo Van T to the People's Committee of G commune, L district, Lam Dong province for supervision and education. The defendant's family is responsible for coordinating with local authorities in supervising and educating the defendant during the period of non-custodial reform. The defendant must fulfill a number of obligations according to the regulations on non-custodial reform. The defendant's income is exempted.
Additional fine of defendant Ngo Van T 10,000,000 VND to the state budget.
2. Pursuant to Article 135 of the Criminal Procedure Code; Article 23 of Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 of the Standing Committee of the National Assembly on court fees and charges. Defendant Ngo Van T must pay 200,000 VND in criminal appeal court fees.
3. Other decisions of the first instance judgment that are not appealed or protested shall take legal effect from the date of expiration of the appeal or protest period.
The appellate judgment takes legal effect from the date of judgment./.
