How high are the amounts subject to confiscation and fines in gambling-related cases?
Special Disclaimer: This article is an original work by Attorney Shao Shiwei. It represents only the personal views of the author and does not constitute legal consultation or legal advice on specific matters. For article reposting, legal consultation, or business exchanges, please add: sswls66
In cases involving the crime of opening a casino and the crime of gambling, apart from the term of imprisonment, what parties and their families are most concerned about ishow the court will handle the defendant’s property.
If the court’s final judgment determines that the amounts ofgambling funds, illegal gains, and fines involved are particularly huge,this will impose a heavy economic burden on the defendant and their family. Indeed, in judicial practice, it is not uncommon for case-handling authorities to enforce execution against the party’s lawful property, marital community property, and other assets under their name.
This article clarifies and defines concepts such as gambling funds, illegal gains, and fines.
Author | Attorney Shao Shiwei
01
Concepts and Disposition Methods for Gambling Funds and Illegal Gains
The definition of gambling funds is primarily stipulated in the following legal provisions:(The definitions of gambling funds and illegal gains in the 2010 “Opinions on Several Issues Concerning the Application of Law in Handling Online Gambling Criminal Cases” and the 2020 “Opinions on Several Issues Concerning the Handling of Cross-Border Gambling Criminal Cases” are identical to those in the 2005 judicial interpretation below; therefore, they are not repeated here).
Gambling funds include: money or property used as stakes, money or property exchanged for chips, and money or property won through gambling. In offline gambling venues, gambling funds are determined based on the money or property seized on-site. In online gambling, the amount of gambling funds may be determined by multiplying the points wagered or won on computer networks by the actual monetary value represented by each point.
Regarding illegal gains, China’s relevant laws and regulations do not provide a clear definition thereof.
As for the disposition methods for gambling funds and illegal gains, the law provides that gambling funds shall be recovered, and illegal gains shall be confiscated.
Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Specific Application of Law in Handling Criminal Cases of Gambling (Fa Shi [2005] No. 3)
Article 8: Money or property used as stakes, money or property exchanged for chips, and money or property won through gambling in gambling crimes constitute gambling funds. In gambling crimes committed via computer networks, the amount of gambling funds may be determined by multiplying the points wagered or won on computer networks by the actual monetary value represented by each point.
Gambling funds shall be recovered in accordance with the law; gambling paraphernalia, illegal gains from gambling, and funds, vehicles, communication tools, and other items owned by gambling criminals that are specifically used for gambling shall be confiscated in accordance with the law.
Opinions of the Supreme People’s Court, the Supreme People’s Procuratorate, and the Ministry of Public Security on Several Issues Concerning the Application of Law in Handling Cases of Opening Casinos Using Gambling Machines (Gong Tong Zi [2014] No. 17)
V. Determination of Gambling Funds
The term “gambling funds” referred to in these Opinions includes:
(1) Money or property used for gambling seized on the spot;
(2) The actual monetary value represented by tokens, securities, gambling points, etc.;
(3) The actual monetary value represented by points wagered or won on gambling machines.
The handling methods of “recovery” and “confiscation” mentioned in the above legal provisions may semantically appear to apply only to the money or property actually seized by case-handling authorities. However, this is not the case in criminal proceedings. Judgments typically state:
“The defendant’s gambling funds and illegal gains amounting to XX yuan, which have been recovered, are hereby confiscated; recovery of gambling funds amounting to XX yuan shall continue.” “Illegal gains present in the case are hereby confiscated; any shortfall shall be subject to continued recovery or an order for restitution; gambling funds seized in the case are hereby confiscated.” From this, we can see that if the court ultimately determines that the defendant’s involved gambling funds and illegal gains exceed the amounts actually seized, the seized portion will be confiscated, and the remaining portion will be subject to continued recovery.
02
Collection and Recovery of Gambling Funds
In criminal cases, gambling funds shall be recovered. In public security (administrative) cases, gambling funds shall be collected. This reflects the different terminologies used for the handling of gambling funds in criminal versus administrative cases.
Public Security Administration Punishments Law of the People’s Republic of China (2012 Amendment)
Article 11: Drugs, obscene materials, and other contraband, gambling paraphernalia and gambling funds, utensils for smoking or injecting drugs, and tools owned by the individual and directly used to commit acts violating public security administration, which are seized in the handling of public security cases, shall be collected and disposed of in accordance with regulations.
03
Scope of Illegal Gains
As mentioned above, while the law provides a clear definition of “gambling funds,” there are no explicit provisions defining what constitutes “illegal gains” or what they include.
Precisely due to the lack of a clear scope definition, we observe that in judicial practice,a broad interpretation is adopted for determining the defendant’s “illegal gains”,namely: judicial authorities may determine that any proprietary benefits obtained by the defendant, directly or indirectly, through criminal conduct constitute “illegal gains.”
Directly obtained benefits include, for example, profits gained from providing gambling websites to others for gambling, participating in profit-sharing from gambling websites, providing technical support, advertising, member recruitment, fund payment and settlement services for gambling websites, serving as an agent and recruiting players or downlines, etc.
Indirectly obtained benefits include, for example, using the aforementioned directly obtained benefits to purchase real estate or vehicles, invest in stocks, or convert them into other properties, proprietary benefits, or fruits thereof.
04
Fines
Article 303 of the Criminal Law of China stipulates mandatory fines for both the crime of opening a casino and the crime of gambling. However, it does not prescribe a maximum cap for the amount of such fines.
According to Article 52 of the Criminal Law, the amount of a fine shall be determined based on the circumstances of the crime. Therefore, in practice, the amount of the fine is subject to the court’s discretion, comprehensively determined by considering the specific facts of the case (such as the involved gambling funds, illegal gains, social impact, number of agents and members recruited, etc.) and relevant sentencing factors (such as voluntary surrender, truthful confession, pleading guilty and accepting punishment, etc.).
How should the absence of a statutory cap on fines be understood? For instance, in a particular case, the defendant was sentenced to pay a fine of RMB 10 million.
05
Conclusion
This article has clarified the concepts of gambling funds, illegal gains, and fines in gambling-related criminal cases.
In subsequent articles, we will continue to discuss issues regarding the judicial determination of gambling funds and illegal gains. For example, whether criminal costs should be deducted from illegal gains, and how to conduct defense arguments regarding amounts related to gambling funds.
For defense attorneys, this is of utmost significance not only for the defendant’s conviction and sentencing but also for the amount of property penalties that the court may impose.
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