Questions Raised in Yang Hyun-suk's Trial... 'What Is the Standard for Habitual Offense?'

[Asia Economy Reporter Seongpil Jo] 'What constitutes habitual gambling in habitual gambling offenses?' This question was raised during the trial of former YG Entertainment CEO Yang Hyun-seok.

Yang was indicted on charges of gambling worth $335,460 (approximately 400 million KRW) over 24 occasions at casinos in Las Vegas, USA, from 2015 to 2019. The prosecution applied the simple gambling charge under Article 246, Paragraph 1 of the Criminal Act. The gambling offense stipulates a fine of up to 10 million KRW for those who gamble. However, exceptions are made for cases considered mere occasional entertainment.

Yang Hyun-suk, former CEO of YG Entertainment / Photo by Jinhyung Kang aymsdream@

Sentences Vary Depending on Habitual Status

This was also the first point of contention in Yang’s trial. At the first hearing held on the 9th at the Seoul Western District Court, Criminal Division 9 Judge Park Soo-hyun asked, "Why is there so much evidence for a simple gambling case?" and "Do you have any special review or opinion regarding the application of simple gambling charges?" The judge expressed doubts about why Yang was indicted for simple gambling rather than habitual gambling (Article 246, Paragraph 2). Habitual gambling carries a heavier sentence, with imprisonment of up to three years or a fine of up to 20 million KRW.

At the first hearing, Prosecutor Hwang In-hye, who appeared in court, responded, "As a result of reviewing precedents and legal principles, the investigation team submitted a report indicating that habitualness was not recognized." The investigation into Yang was handled by the Criminal Division 3 of the Seoul Western District Prosecutors’ Office (then led by Chief Prosecutor Lee Jae-seung).

According to Supreme Court precedents, habitualness in habitual gambling offenses refers to a repeated gambling habit, indicating the offender’s disposition. When determining the presence of such a habit, factors such as prior gambling convictions and the number of gambling instances are important evidence. Even without prior gambling convictions, habitualness may be recognized by considering the nature and method of gambling, the scale of the gambling, and the circumstances under which the defendant engaged in gambling.

Shoo from S.E.S / Photo by Yonhap News

No Specific Legal Criteria for Recognizing Habitualness

Soo (real name Yoo Soo-young), a former member of the group S.E.S, was indicted on habitual gambling charges after such a habit was recognized. Soo was tried for gambling worth approximately 798.25 million KRW over 26 occasions at casinos in Macau from August 2016 to May 2018. The presiding judge, Chief Judge Yang Cheol-han of the Seoul Eastern District Court Criminal Division 11, recognized the habitual nature of the gambling and sentenced Soo to a suspended prison term: six months imprisonment with a two-year suspension. This ruling was finalized in February last year.

However, there are no specific criteria in the law for recognizing habitualness. This means there is considerable room for discretion by prosecutors and judges interpreting and applying the law. The concept of the offender’s disposition itself is ambiguous, and there is also a view that imposing aggravated punishment solely based on habitualness may conflict with the principle of culpability under criminal law. In the past, the Supreme Court’s full bench also expressed a minority opinion stating, "Habitualness alone cannot be used to consolidate multiple offenses into a single crime," and "Multiple offenses should, in principle, be treated as multiple crimes."

Possibility of Amending Yang Hyun-seok’s Indictment

In Yang’s trial, the prosecution stated regarding the application of simple gambling charges, "We will submit an opinion later." The possibility of amending the indictment cannot be ruled out. A lawyer in Seocho-dong said, "The judge’s expression of doubt about the applied charges can be seen as an indication that the prosecution’s indictment may be flawed." Yang’s next hearing is scheduled for October 28.