Special Declaration: 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 reprints, legal consultations, or business exchanges, please add: sswls66
Introduction:
The fact that a party is investigated by public security organs for alleged involvement in the crime of opening a casino, and subsequently subjected to detention, arrest, or released on bail pending trial, does not represent the final outcome of the case.
According to the provisions of the Criminal Procedure Law, the prerequisite for a court to render a guilty verdict is that the facts of the case are clear and the evidence is credible and sufficient. Otherwise, a not guilty verdict should be rendered.
By analyzing relevant not guilty judgments in cases involving the crime of opening a casino, Attorney Shao broadly categorizes the circumstances under which courts render not guilty verdicts into three types, which are introduced in this article.
Author of this article: Attorney Shao Shiwei
01
Explicit Legal Provisions Related to the Crime of Opening a Casino
Case One[1]: Is Being a Chess and Card Room Owner a "High-Risk Profession"?
The defendant, Dan Yunfei, was the owner of a chess and card room. One day, he was apprehended by public security organs and accused of suspected involvement in opening a casino. The defendant stated that he provided mahjong tables and chips to customers, with fees charged either as a table fee or a fixed fee per winning hand. Cash transactions were prohibited within the premises, and customers settled gambling funds via WeChat. The total turnover of the establishment was approximately 15
0,000 RMB. The procuratorate recommended sentencing the defendant to fixed-term imprisonment of six months to one year.
[Attorney Shao's Analysis]
The key point for acquittal in this case: the fee structure of the chess and card room.
First, the defendant’s company had obtained a business license, and its scope of business included chess and card activities. Therefore, providing mahjong tables constituted a business activity of providing a venue for others’ entertainment.
Second, the defendant’s fee structure was not linked to the gambling stakes, and there was no taking of a cut from the winnings for profit. The chess and card room provided services such as tea and cleaning for customers playing mahjong, and had to cover operating costs such as shop rent and utilities. Charging normal service fees was not illegal.
Finally, the defendant’s conduct did not constitute the crime of gambling. The customers playing mahjong were nearby residents with legitimate occupations and were not “making a living by gambling.”
Therefore, according to legal provisions, the defendant did not commit a crime.
2005 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
Article 9 Entertainment activities involving small amounts of property won or lost, not conducted for the purpose of profit, as well as business activities such as providing chess and card rooms or other entertainment venues where only normal venue and service fees are charged, shall not be treated as gambling.
Case Two[2]: Working at a Casino but Want to Avoid the Risk of Arrest? Then Become a "Marginal Figure"
Two individuals, A and B, partnered to open a casino and hired C to manage the venue operations, D to handle accounts, and E to watch the store and cook. One day, the establishment was raided. How should the liability of each party be determined? Clearly, the roles and responsibilities of A, B, C, and D played significant parts in the crime of opening a casino. Poor E, as one of the casino staff, naturally could not escape implication and was arrested along with the others.
arrested along with the others.
From E’s perspective regarding this group: "The casino had four shareholders. The major shareholder frequently interacted with public security organs and paid them off. The minor shareholders had to seek instructions from above for any issues. I did not know who received the daily money and accounts. It was agreed that my monthly salary would be 2,000 RMB, but I never received it. I worked at the casino for about 20 days, responsible for cooking, and had no contact with customers."
[Attorney Shao's Analysis]
Even though "marginal figures" face significantly lower risks compared to casino owners or those taking cuts from winnings, this is only relative. In this case, although Yu was ultimately acquitted, the process was quite arduous. He was first administratively detained, then his administrative penalty was revoked and converted to criminal detention, and it took two years before he was declared not guilty.
Therefore, ordinary workers should seek regular employment. If you know it is a casino, run away immediately!
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)
"VII. On the Grasp of the Criminal Policy of Tempering Justice with Mercy
In handling cases of opening casinos using gambling machines, the criminal policy of tempering justice with mercy shall be implemented, with a focus on cracking down on the funders and operators of the casino. For personnelemployedby the casino to engage in activities such as transporting gamblers, keeping lookout, dealing cards and acting as banker, or exchanging chips, except for those who participate in the casino'sprofit sharingor receivehigh fixedsalaries, criminal liability shall generally not be pursued, and public security organs may impose administrative penalties for public order violations in accordance with the law.
criminal liability shall generally not be pursued, and public security organs may impose administrative penalties for public order violations in accordance with the law.
02
Principled Provisions of the Criminal Procedure Law
Case Three[3]: College Students Seeking Part-Time Jobs Must Keep Their Eyes Open!
Several individuals jointly established a chess and card room, opening a casino by providing venues and gambling tools for others to play mahjong for gambling, and exchanging cash for chips, thereby taking a cut and collecting table fees. Several employees were hired, respectively responsible for greeting customers, accompanying customers to play mahjong for gambling, cashier duties, exchanging chips, and bookkeeping.
The defendant, Lin, worked as a cashier in this chess and card room. When customers came to play mahjong, they first purchased chips at the front desk, used the chips to calculate wins and losses, and then exchanged the chips for cash at the front desk after finishing.
[Attorney Shao's Analysis]
In light of the aforementioned provisions of Gong Tong Zi [2014] No. 17, Lin only engaged in general labor tasks such as cashier duties and exchanging chips, receiving a normal fixed salary without commissions. The defendant, Lin, was a senior university student who sought part-time work due to financial difficulties and impending graduation. The court ultimately determined that his criminal circumstances were significantly minor and the harm caused was negligible, rendering a not guilty verdict.
In practice, Article 16 of the Criminal Procedure Law is frequently cited by defense counsel. However, as this article constitutes a principled provision of criminal law, judges apply it with extreme caution. Therefore, persuading the court to apply this provision in practice is not easy. In this case, considering the party’s status as a student, the short duration of employment, minimal profits gained, and the auxiliary nature of the work performed,
the court, after comprehensive consideration, ultimately rendered a not guilty verdict.
Criminal Procedure Law
Article 16In any of the following circumstances, criminal liability shall not be pursued; if already pursued, the case shall be dismissed, or prosecution shall not be initiated, or the trial shall be terminated, or a declaration of innocence shall be made:
(1) The circumstances are significantly minor, the harm is negligible, and it is not considered a crime;
03
Presumption of Innocence in Case of Doubt
Case Four[4]: Ally or Enemy?
The procuratorate alleged: A group nominally operated an animation arcade but actually organized gambling by setting up gambling machines. The agreement was: Sun, Dong, and Li invested capital, while Liu invested by obtaining licenses and providing the venue for compensation.
The confessions of co-defendants Sun, Dong, and Li all identified Liu as responsible for obtaining the license for the animation arcade, stated that the game hall venue was owned by Liu, and asserted that Liu was aware of the presence of gambling machines in the game hall.
The procuratorate considered Liu and others as principal offenders and recommended sentencing them to fixed-term imprisonment of less than three years.
Ultimately, the court found all defendants guilty, except for Sun.
[Attorney Shao's Analysis]
According to the provisions of the Criminal Procedure Law, establishing a party’s guilt requires reaching the standard of: "the facts of the case are clear, and the evidence is credible and sufficient." It was a fact that the group operated a casino. Co-defendants, seeking leniency, reported against co-defendant Sun, and their statements were consistent. Why was Sun ultimately declared not guilty? Because conviction requires evidence.
Because conviction requires evidence.
The defense counsel in this case argued: The evidence presented by the public prosecution to accuse Liu Hong of the crime of opening a casino consisted solely of the confessions of co-defendant Sun and defendants Dong and Li. According to legal provisions,
the confessions of co-defendants belong to the category of defendant confessions as a form of evidence. According to legal provisions, emphasis must be placed on evidence in the adjudication of all cases, and confessions should not be readily trusted. A defendant cannot be found guilty based solely on their confession. The court accepted this opinion, holding that isolated evidence cannot sustain a conviction; therefore, Sun was not guilty.
Criminal Procedure Law of the People's Republic of China
Article 55: Emphasis must be placed on evidence and investigation and research in the adjudication of all cases, and confessions should not be readily trusted. If there is only the defendant's confession and no other evidence, the defendant cannot be found guilty or sentenced to punishment.
Case Five[5]: Who Bears Liability: The Company's Legal Representative or the Actual Operator?
A certain winery was shut down for operating Baccarat gambling tables. Staff at the venue (such as those exchanging chips, managing accounts, and serving as dealers) were all sentenced. After dealing with this group, public security organs apprehended Hua, the actual operator of the winery.
Hua stated: "Xiao Qiang" said he wanted to move some items into the winery's warehouse, but Hua did not know specifically what was inside. Two months later, Hua vaguely realized that Baccarat tables were being stored there, but since no one touched them, Hua did not pay attention. Furthermore, Hua provided an alibi for the two days when the gambling operation took place.
In this case, the behind-the-scenes organizer of the casino—the key figure "Xiao Qiang"—had not been brought to justice.
[Attorney Shao's Analysis]
Criminal cases emphasize substantive review. Therefore, nominal holders are generally not pursued for criminal liability. For example, in this case, the legal representative of the winery was Hua's spouse, while Hua was the actual manager of the winery. His spouse served as a witness in this case, not as a party to the case. If Hua had known that others were opening a casino in his winery, he would naturally not escape criminal
liability. However, there was no evidence in this case establishing Hua's "knowledge." Therefore, applying the principle of presumption of innocence in case of doubt, Hua was found not guilty.
Criminal Procedure Law
Article 200
(3) If the evidence is insufficient and the defendant cannot be found guilty, a not guilty verdict shall be rendered on the grounds of insufficient evidence and the failure of the charged crime to be established.
Case Six[6]: Indeed, the Court Erroneously Judged: Both the Venue Owner and the Banker Were Found Not Guilty
The court found:
Venue Owner: The first floor involved in the case was the Yang family's property, rented to others for operating a late-night snack business. During the day, the first floor was idle and open. Yang placed a mahjong table there, and nearby residents often came to play mahjong. Yang was aware of the gambling activities occurring at the venue and adopted an attitude of knowing allowance without intervention.
Banker: He passed by this location one day, saw people wanting to play Pai Gow but lacking a banker, voluntarily offered to act as the banker, and set the betting amounts. One hour later, public security organs apprehended He on the spot. The next day, Yang was summoned. Both individuals were detained.
The court held:
Regarding venue owner Yang: Yang did not directly manage the premises. There was no evidence confirming that Yang provided the gambling tools or whether Yang collected venue fees. Although witnesses stated that the banker would give 50 RMB to the landlord, there was no direct evidence proving whether the money was given by the banker, or whether it was given to Yang.
Regarding banker He: He acted as the banker and participated in gambling on a spontaneous impulse. This did not constitute the crime of opening a casino, and there was no evidence proving that He and Yang conspired together.
[Attorney Shao's Analysis]
This was a highly tumultuous case. The parties refused to accept the original guilty verdict and appealed. The second-instance court ruled to remand the case for retrial. Both defendants were detained for nearly a year before finally obtaining a not guilty verdict.
A point similar to Case 5 is that the venue manager failed to properly supervise their premises, allowing anyone free access. Consequently, when others opened a gambling operation, the manager became implicated.
Concluding Remarks:
As the most severe form of punishment, the application of criminal law should reflect rigor. The adjudication of all cases must reach the standard of "clear facts and credible, sufficient evidence"; otherwise, wrongful convictions will occur.
Simultaneously, the principle of tempering justice with mercy must be reflected. For example, personnel performing auxiliary tasks in the crime of opening a casino, or those who have not received high wages or profit shares, may not be pursued for criminal liability if they have already been subjected to administrative penalties for public order violations.
[1] (2019) Yue 0606 Xing Chu No. 789
[2] (2015) Chang Xing Chu Zi No. 15
[3] (2018) Yue 2071 Xing Chu No. 2025
[4] (2020) Xin 2324 Xing Chu No. 1
[5] (2014) Liao Zhong Xing Chu Zi No. 417
[6] (2017) Qiong 0108 Xing Chu No. 367
