Attorney Shao Shiwei | Criminal Defense Practice in Online Gambling Cases | Can the Amount Wagered by an Agent on Their Own Behalf Be Deducted from the Gambling Funds?

1. Should Not Be Deducted

Some courts hold that the amount wagered by an agent on their own behalf should not be deducted.

For example, in Judgment No. 659 (2019) Yue 19 Xing Zhong, the court’s view was as follows:

A similar view was expressed in Judgment No. 294 (2019) Chuan 1623 Xing Chu. In that case, the judge reasoned that “according to legal provisions, amounts wagered by oneself should not and cannot be deducted.” However, this merely reflects the judge’s personal understanding; the law does not contain explicit provisions on this point.

Other cases, such as No. 188 (2019) Yu 0114 Xing Chu and No. 2095 (2017) Jing 0108 Xing Chu, adopt the same viewpoint.

2. Should Be Deducted

Some courts hold that the amount wagered by an agent on their own behalf should be deducted.

For example, in Judgment No. 59 (2016) Yue 5191 Xing Chu, the court’s view was as follows:

Other cases, such as No. 382 (2018) Yue 0402 Xing Chu and No. 84 (2019) Yue 0511 Xing Chu, adopt the same viewpoint.

I believe that amounts wagered by an agent on their own behalf should be excluded. The reasons are as follows:

The principle of legality in crime and punishment is one of the fundamental principles of China’s Criminal Law. Clearly, under the current Criminal Law and related judicial interpretations, it is not explicitly stated that the act of an agent accepting bets includes accepting their own bets. If an agent account contains only gambling funds wagered by the agent themselves, their conduct is no different from that of an ordinary gambler.

Situations where an agent accepting bets constitutes the crime of operating a casino fall into two categories: the first is “serving as an agent and accepting bets,” and the second is “having downstream agents accept bets.” Interpreting the text and considering the systematic structure of the law, the conduct targeted by this provision should be that of an agent helping the casino publicly solicit gamblers from the general public.

If amounts wagered by the agent themselves are also recognized as gambling funds for the crime of operating a casino, it would contravene the principle of legality in crime and punishment under China’s Criminal Law, raising suspicions of convicting conduct not explicitly defined by law through analogy.

Therefore, Attorney Shao believes that although amounts wagered by an agent on their own behalf constitute gambling funds, they should not be included in the amount of gambling funds for the purpose of determining liability for the suspected crime of operating a casino. This leads to the following question.

Defense counsel argues for the exclusion ofamounts wagered by the agent themselvesto reduce the amount of gambling funds attributed to the agent in the alleged crime of operating a casino, thereby seeking lighter or mitigated penalties for the client based on the gambling fund amount.

However, if this portion is excluded, will judicial authorities determine that the agent separately committed the crime of gambling, thereby imposingcombined punishment for multiple crimes(operating a casino plus gambling)on the defendant?This question can be answered by examining the constitutive elements of the crime of gambling and practical trial outcomes.

What is the crime of gambling? It refers to acts of gathering people to gamble or making gambling one’s profession, with the purpose of making a profit. Therefore, does participating in gambling always constitute the crime of gambling? Certainly not. Generally, gambling is subject to administrative penalties. Based on practical judgments, parties are typically found guilty of both operating a casino and gambling only when their gambling behavior meets the criteria of “gathering people to gamble” or “making gambling one’s profession.”

For example, in Case No. 441 (2022) Hu 0112 Xing Chu, because the defendant additionally engaged in gathering others to gamble for profit, the court found the defendant guilty of both operating a casino and gambling.

Similarly, in Case No. 118 (2021) Yun 0425 Xing Chu, in addition to serving as an agent for a gambling website and accepting bets, Xu repeatedly gambled in Macau and other locations (even though the gambling occurred overseas, criminal liability for gambling may not be pursued according to law), winning over RMB 8 million in gambling proceeds. The court held that Xu had no legitimate employment and was engaged in gambling as a profession, thus finding him guilty of both operating a casino and gambling, among other offenses.

Furthermore, in the three cases cited earlier in Part I of this article under the “should be deducted” viewpoint, even though the courts held that amounts wagered by the agent themselves should be deducted, they did not separately find that the agent committed the crime of gambling based on the deducted amounts.

Having discussed the above, we can draw the following conclusions regarding the issues addressed in this article:

Can amounts wagered by an agent on their own behalf be deducted from gambling funds? — Not necessarily.

If an agent also gambles themselves, will they face combined punishment for multiple crimes? — It depends on whether the agent’s own conduct is deemed to constitute “gathering people to gamble” or “making gambling one’s profession.”

In summary, there is no perfect standard to accurately measure all cases involving gambling-related crimes and their corresponding judgments. Beyond the basic circumstances of conviction and sentencing, judgment outcomes are influenced by complex factors such as local economic development levels, the operational status of the gambling websites involved, and judicial personnel’s understanding and interpretation of legal provisions.

Different courts hold different views, resulting in inconsistent judgments for similar cases, which is the current reality.

Attorney Shao wishes to emphasize that legal issues are complex. Defense attorneys must approach every case detail with reverence. Taking the issue discussed in this article as an example, we cannot take for granted that amounts wagered by an agent on their own behalf should automatically be excluded when determining gambling funds.

Litigation is precisely like this: the law does not automatically protect those who passively wait for their rights. Facing the powerful state apparatus, even legitimate rights require proactive action to secure and uphold.

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