In a recent case, Defendant Q was a gold and silver jewellery polisher and used Cyanide (Xyanua) in the course of his professional activities. In addition, the defendant also sold the unused Xyanua to acquaintances engaged in jewellery processing and retained a small quantity of Xyanua at his residence for use in such processing activities.
The court of first instance sanctioned Defendant Q to 1 year of imprisonment for the offense of “Illegal use and trading of toxic substances” according to Clause 1, Article 311 of the Criminal Code 2015, as amended and supplemented in 2017 (“Criminal Code”). The court held that all the Xyanua seized from Defendant Q was possessed for the purpose of use. However, the People’s Procuracy of Ho Chi Minh City indicted Defendant Q for the offence of “Illegal possession, use, trading of toxic substances” under Clause 1, Article 311 of the 2015 Criminal Code, which the Trial Panel found to be inconsistent with the objective acts committed by the defendant and disadvantageous to him. Therefore, the Trial Panel adjudicated Defendant Q only for the offence of “Illegal use and trading of toxic subtances”, as prescribed in Clause 1, Article 311 of the Criminal Code, and imposed the corresponding crimial penalty.
Regarding the penalty level for Defendant Q, the Trial Panel held that: In Clause 1, Article 311 of the 2015 Criminal Code, as amended and supplemented in 2017, it is stipulated that “Those who illegally manufacture, store, transport, use, or trade in inflammable or toxic substances shall be subject to imprisonment from one (01) year to five (05) years”, which is understood as applying to a person who commits one or more of the objective acts enumerated therein, with the maximum term of imprisonment not exceeding five (05) years.
However, the People's Procuracy of Ho Chi Minh City (at the first-instance level) took the view that the acts of “illegal possession, use, and trading of toxic substances” are particularly dangerous to society, given that, in practice, many criminal cases have involved the use of Xyanua as a means to commit homicide. On this basis, the People's Procuracy of Ho Chi Minh City argued that a severe sentence, commensurate with the defendant’s criminal conduct, was necessary. Accordingly, the People’s Procuracy separated each objective act, namely illegal possession, illegal use, and illegal trading, and proposed separate penalties for each act. This approach resulted in a combined sentence proposal ranging from six (06) years and six (06) months to nine (09) years of imprisonment for Defendant Q.
Due to the divergence in legal assessment and viewpoints between the Court and the People’s Procuracy, the People's Procuracy of Ho Chi Minh City lodged an appeal against the entire first-instance Judgment, requesting the Court of Appeal of the Supreme People's Court in Ho Chi Minh City to conduct appellate proceedings and adjudicate the case in the direction of declaring Defendant Q guilty of the offence of “illegal possession, use, and trading of toxic substances” according to Clause 1, Article 311 of the Criminal Code, and to increase the term of the imprisonment imposed on Defendant Q.
From this case, it can be seen that the determination of the appropriate offence corresponding to the defendant's conduct remains inconsistent in practice, thereby raising the need for more in-depth analysis of the current interpretation and application of the law.
Firstly, regarding the prosecution of the act of “illegal possession” of toxic substances under Article 311 of the Criminal Code
The primary issue that requires clarification is the distinction between the act of “illegal possession” and the act of “illegal use” of toxic substances under Article 311 of the Criminal Code. Although this provision enumerates the acts of “illegal manufacture, possession, transportation, use, and trading of toxic substances” within a single offence structure, current legislation does not provide specific criteria for identifying “possession” as an independent criminal act. In criminal law theory and practice,“illegal possession” is generally understood as the intentional keeping or storing of toxic substances for a specific purpose, typically involving stockpiling, concealment, or preparation for other potentially dangerous act in the future. Accordingly, “illegal possession” is not equivalent to the temporary possession of toxic sunstabces during the course of legitimate use, nor is it an inevitable consequence of purchasing toxic substances for such use. In the present case, the fact that Defendant Q had Xyanua at work and at home stemmed from the need to serve gold and silver polishing activities. The Xyanua was kept at locations directly serving production purposes, not was not intended for concealment, stockpiling, or harmful use. Therefore, attributing the act of “illegal possession” concurrently with the act of use does not accord with the factual nature of the case, as the retention of cyanide in this context merely constituted a practical condition for the act of use, rather than an independent criminal act. Consequently, the approach adopted by the People’s Procuracy of Ho Chi Minh City, which simultaneously imputed the act of illegal possession, operated to the detriment of the defendant and was inconsistent with the substance of the conduct in question.
Secondly, does the use of Xyanua in professional activities constitute an illegal act?
A clear distinction must be drawn between the use of Xyanua in the course of professional activities and illegal use within the meaning of Article 311 of the Criminal Code. In practice, Xyanua is a chemical commonly used in many precious-metal processing techniques, including gold and silver polishing in artisanal and small-scale manufacturing facilities. This activity is professional in nature and does not constitute an act infringing upon any protected legal interest. In the present case, the purpose of using Xyanua was strictly occupational; the buying and selling occured only within a limited circle of individuals engaged in the same trade; and Xyanua was stored in a designated area, without dissemination into the community and without causing any harm to public health or property. These circumstances indicate that the defendant's conduct essentially amounted to a violation of state regulations on the management of chemicals, rather than an act with the potential purpose of causing harm. The argument in the direction of comparison with Xyanua murder cases is an unfavorable speculation, equating acts that have not caused damage with particularly serious acts, distorting the principle of objectively assessing the danger of criminal acts.
Thirdly, on the determination of penalties under Article 311 of the Criminal Code
Clause 1, Article 311 of the Criminal Code prescribes a penalty of “from one (01) year to five (05) years of imprisonment” for any person who commits one or more of the objective acts specified in the law. The structure of this provision demonstrates that the legislature treats the acts of “illegal possession, transportation, use, trading of toxic substances” as different manifestations of the same infringed legal interest – namely the State’s regulatory order over toxic substances – rather than as separate offences requiring the imposition of multiple penalties. Accordingly, there is no legal basis for determining a separate penalty for each individual act and then aggregating them into a combined sentence, as proposed by the first-instance People’s Procuracy. The approach of separating the acts and proposing a cumulative sentence of six (06) years and six (06) months to nine (09) years of imprisonment violates the fundamental principle of “one offence – one punishment” and imposes an unfounded and prejudicial burden on the defendant. By contrast, the first-instance Trial Panel’s reasoning, which confined the conviction to the offence of “illegal use and trading of toxic substances” and applied the penalty framework under Clause 1, Article 311 of the Criminal Code without imputing an additional act of “illegal possession”, represents an interpretation that is consistent with both the statutory text and the substantive nature of the case.
From the procedural developments and the divergent approaches taken by the adjudicating bodies, it is evident that there remains a lack of consistency in the application of Article 311 of the Criminal Code, particularly with respect to the relationship between the act of “illegal possession” and the act of “illegal use”, as well as the criteria for assessing the degree of social danger where the conduct is undertaken solely for professional purposes.
Where a single criminal provision is interpreted and applied in divergent ways by different law-enforcement authorities, this inevitably leads to legal uncertainty and inconsistent adjudication. It is therefore imperative that the Supreme People’s Court issue specific interpretative guidance on the determination of offences and the assessment of penalties under Article 311 of the Criminal Code in order to ensure uniformity and legal certainty in judicial practice
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