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 professional exchanges, please add: sswls66.
According to the judicial interpretation on online gambling, the amount of gambling fundscumulatively reaching RMB 300,000 or more shall result in a statutory penalty of five years or more imprisonment for the crime of opening a casino.
Due to the strong anti-investigation awareness and money laundering methods employed by operators of online gambling platforms, platform servers are often located overseas, server data is automatically cleared on a regular basis, electronic evidence is highly susceptible to damage or loss, and gambling funds are settled through third-party payment platforms, underground banks, 'running points' platforms, virtual currencies, etc.,accurately determining the amount of gambling funds involved in the case is not an easy task for judicial authorities. In judicial practice, cases where there is a significant discrepancy between the amount charged by the public prosecution and the amount ultimately determined by the court's judgment are not uncommon.
Therefore, defense opinions regarding the amount of gambling funds are crucial to the conviction and sentencing of the defendant. This article summarizes and organizes key defense points related to the amount of gambling funds.
Author | Attorney Shao Shiwei
01
The betting amount displayed on the platform does not necessarily represent the actual amount
According to the 2010 Judicial Interpretation on Online Gambling, 'the amount of gambling funds may be determined by multiplying the points bet or won online by the actual monetary value represented by each point. For funds directly or indirectly exchanged for virtual items such as virtual currencies or game props, which are then used as chips for betting, the amount of gambling funds shall be determined based on the amount of funds required to purchase such virtual items or the amount actually paid';
however, the ascertainment of facts requires evidentiary support and cannot rely solely on the confessions of the perpetrator.
Furthermore, although the judicial interpretation also stipulates that 'for funds inbank accountsused to receive or circulate gambling funds in crimes of opening a casino, if the criminal suspect or defendantcannot explain the lawful source thereof, such funds may be deemed as gambling funds.' However, this provision refers to transactions in 'bank accounts,' not virtual points on online gambling platforms.
Case No.: (2018) Ji 0982 Xing Chu 774
The procuratorate accused the defendant of recruiting 238 members within three months, with an effective betting amount of nearly RMB 7 million.
The defense counsel argued that the RMB 7 million figure represented virtual numbers rather than Renminbi, that this volume was calculated through double counting, and that there was no clear evidence to corroborate it, making it impossible to verify evidence favorable to the defendant.
The court held that although the defendant confessed to the public security organs that one unit of volume was equivalent to one Renminbi yuan, he denied this during the trial, arguing that the 7 million was a volume figure rather than a monetary amount, and that the members were assigned by the main station. Moreover,the public security organs could not verify the details of the gambling fundsor the detailed information of the members; therefore, the courtdid not support this part of the accusation。
02
There were mutual transfers between multiple bank accounts controlled by the defendant, and the public prosecution acknowledged the existence of such double counting.
Case No.: (2019) Gui 1021 Xing Chu 39
The court held that in this case, the defendant used multiple bank accounts to receive and circulate gambling funds, and mutual transfers between these accounts were common. When calculating the amount of gambling funds, the public prosecution aggregated all deposits or income amounts in each bank account. For example, several sums of gambling funds were first deposited into Account A, and thus were included in the calculation of gambling funds for Account A. Later, the gambling funds from Account A were directly transferred to Account B. When calculating the gambling funds for Account B, this sum was again included along with the gambling funds directly received by Account B, resulting in double counting. That is, the gambling funds originally belonging to Account A were statistically counted again, leading to an inaccurate determination of the gambling funds.
03
If the defendant cannot explain the lawful source, the funds may be deemed as gambling funds, but the premise is that the investigative authorities must fulfill their obligation to collect evidence
According to the 2020 Judicial Interpretation on Cross-Border Online Gambling, for funds in bank accounts primarily used to receive or circulate gambling funds in crimes of opening a casino, if the criminal suspect or defendant cannot explain the lawful source, such funds may be deemed as gambling funds. In other words, the party bears the burden of proving that the funds flowing into the account are not gambling funds. However, if the investigative authorities fail to fulfill their obligation to collect evidence (e.g., by failing to obtain relevant transaction details), the aforementioned provision cannot be applied.
The transaction records showed that Mr. Yao's Alipay account received XX yuan. Since there was no evidence to prove that the defendant used Mr. Yao's Alipay account to collect gambling funds, nor any evidence to prove that Mr. Yao participated in the online gambling involved in this case, this amount should be deducted from the total gambling funds.
Transfers from the defendant's China Construction Bank card to Mr. Yao's Industrial and Commercial Bank of China account could be matched one-to-one. However, this card also had numerous transaction records of transfers to Mr. Yao's bank card ending in XX,and since the investigative authorities did not provide historical transaction details for the aforementioned bank cards, and it could not be confirmed whether these cards were related to this case, the amounts in these cards could not be verified.
The defendant argued that some incoming amounts exceeding RMB 10,000 wereupstream agents'payments for advertising services provided by him. Upon investigation, among the seven bank accounts used to collect gambling funds, apart from amounts transferred between them, most of the directly deposited gambling funds ranged from hundreds to thousands of yuan, with a few reaching tens of thousands. However, these funds did not all originate from the same source, and the defen-dant failed to specifically identify the account numbers or names of the so-called 'upstream agents,' or the approximate times of the remittances. Therefore, it was impossible to verify whether his defense was truthful. Furthermore, the defendant could not explain the lawful source of the few amounts reaching tens of thousands of yuan. In accordance with the provisions of the 'Opinions,'these amounts should be deemed as gambling funds in this case.
04
Cumulative betting amounts should not be deemed as the actual amount of gambling funds
Online gambling allows for cumulative betting and circular wagering. If the cumulative amount rather than the actual betting amount is used for determination, the potential prison sentence for the defendant may vary significantly. This point was also mentioned in Attorney Shao's previous article ➡️ 'In Online Gambling Criminal Cases, Can the Betting Amount Be Directly Deemed as the Amount of Gambling Funds?', and will not be reiterated here.
05
Where downstream agents may have multiple upstream agents, the gambling funds accepted by upstream agents from downstream agents should not be double-counted
In situations where downstream agents (gamblers or lower-level agents) may have multiple upstream agents (higher-level agents), the amount of gambling funds accepted by upstream agents from downstream agents must not be double-counted. That is, there must be evidence on record to prove whether the downstream betting amounts are associated with Agent A or Agent B. If it cannot be proven which upstream agent corresponds to the downstream bets, the unclear gambling funds bet by the downstream agent should not be calculated into the amounts accepted by either Agent A or Agent B.
Case No.: (2018) Yue 2071 Xing Chu 221
Regarding Cheng X's claim that his involved amount was between RMB 160,000 and 170,000, and the defense counsel's argument that the evidence accusing Cheng X of cumulatively accepting bets totalingover RMB 2 millionwas insufficient, as well as the defense opinion that Chen X had other upstream agents besides Cheng X: Upon investigation, call records, SMS records, and WeChat chat records between Chen X and Huang X proved that Defendant Chen X obtained account numbers, passwords, and bank account details from Huang X and conducted settlements with Huang X.This shows that Chen X had more than one upstream agent. ... Therefore, from the perspective favorable to the defendant, the amount for which Cheng X was found guilty of opening a casino was determined to beRMB 90,000。
06
When the involved platform has both gambling-related business and other lawful business but the distinction cannot be clarified, the amount of gambling funds involved should be determined according to the principle favorable to the defendant
Case No.: (2019) Zhe 03 Xing Zhong 1882
A certain company mainly profited from the gambling game project 'Car Racing Hegemony.' Co-defendants' confessions and witness testimonies stated: 'Most of the recharge amounts were used for gambling,' and 'At least two-thirds of the amounts recharged by players were used for gambling in Car Racing Hegemony.' The second-instance court held that the first-instance determination that member recharge amounts exceeded RMB 7.2 million and gambling funds exceeded RMB 3.6 million aligned with the facts confirmed by the above evidence. This determination, being favorable to the defendant by adopting the lower estimate, was confirmed.
07
Amounts bet by agents on their own behalf should not be double-counted
It should be noted that this point is controversial in practice. Some courts hold that amounts bet by agents on their own behalf should not be deducted; however, other courts hold that such amounts should be deducted. This issue has been thoroughly discussed in the article 'Practical Aspects of Criminal Defense in Online Gambling Cases | Can Amounts Bet by Agents on Their Own Behalf Be Deducted from Gambling Funds?', and will not be reiterated here.
Concluding Remarks:
Article 55 of the Criminal Procedure Law of the People's Republic of China stipulates: 'In the adjudication of all cases, emphasis shall be placed on evidence and investigation and research, and confessions shall not be readily credited. ... Based on all the evidence in the case, reasonable doubt regarding the established facts shall be excluded.'
For defense attorneys, in handling criminal cases involving gambling, based on a comprehensive review of the evidence on record, defense strategies can be formulated from multiple perspectives, including the three characteristics of evidence, examination of confessions, exclusion of reasonable doubt, exclusion of illegal evidence, and the presumption of innocence, so as to safeguard the legitimate rights and interests of the clients.
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