Man playing mahjong gambling for 135 yuan was detained for 12 days All the mahjong involved in winning money is gambling?

At about 17:30 on August 19, 2011, when Ren Hengquan, Wang X and Liu X were playing mahjong in a private room on the 2nd floor of the Gold Coast Tea House in Chengdu, they were seized by the Wenjiang Public Security Bureau, and at the same time, 575 yuan of gambling funds were seized, and 135 yuan of gambling funds involved in Ren Hengquan's case were seized on the spot. Later, the Wenjiang Public Security Bureau summoned Ren Hengquan to the bureau for questioning and verification, and the seized gambling funds were confiscated on the same day. The next day, it was decided to place Ren Hengquan under administrative detention for 12 days and fined him 500 yuan.

Ren Hengquan believes that the Wenjiang Public Security Bureau has no factual basis for gambling and punishing it, and that ren Hengquan and his relatives and friends should not be punished for engaging in mahjong with money and property to win or lose.

Therefore, Yanheng quan applied for reconsideration of the punishment of the public security organs. However, whether it was a reconsideration or a second-instance lawsuit filed later, Yanlord lost all of them.

Guest: Lawyer Li Wenqian

Director of Beijing Lanqin Law Firm

Fang Hong: Sichuan people are famous for their love of playing mahjong, is it illegal or even a crime to play mahjong as long as it involves winning money?

Lawyer Li Wenqian: Not really.

1. Circumstances of exemption from liability

The Ninth Notice of the Ministry of Public Security on Several Issues Concerning the Application of Law in handling Cases of Gambling Violations stipulates that "entertainment activities such as playing mahjong and playing poker with property and loss with property and property shall not be punished for not making profits; Article 27 of the Administrative Punishment Law stipulates: "Where the illegal act is minor and is promptly corrected, and no harmful consequences are caused, administrative punishment shall not be given".

Therefore, entertainment activities such as playing mahjong for the purpose of profit, even if they involve small bets, should not be considered illegal or even criminal according to law.

2. The level of violating the law (Public Security Administration Punishment Law).

Article 70 of the Law of the People's Republic of China on Public Security Administration Penalties stipulates that those who provide conditions for gambling for the purpose of making profits, or who participate in gambling with relatively large funds, shall be detained for not more than 5 days or fined not more than 500 yuan;

Playing mahjong involves property, and if it involves penalties, the following three conditions must be met:

1) for the purpose of making profits;

2) Activities such as playing mahjong between non-relatives;

3) The property must meet the "large gambling capital", that is, the excess "small amount".

Only when these three conditions are met can administrative penalties be imposed on those who provide conditions for gambling and those who participate in gambling.

Regarding the determination of "large gambling capital":

Question 1: "Gambling capital" with "large gambling capital" refers to the per capita gambling capital of those involved in playing cards? Or is it each person's own bet? Or the total amount of money to gamble?

Question 2: Even if the "gambling capital" is clearly identified, how is the "larger" of the "gambling capital" determined?

The above two problems should generally be determined according to the relevant specific regulations of each province.

Specific to this case, Sichuan Province currently has no clear provisions on "gambling capital is larger", for which XinhuaNet released on 2018-02-27 08:28:08 "Public Security Organs Debunk Rumors: "From the 25th, the National Strict Investigation of Chess and Card Rooms" is false news" has the following content:

In this regard, the police stressed that the mahjong hall investigated and punished by the public security organs is in violation of laws and regulations, suspected of gambling, and the mahjong hall of entertainment and leisure will not be investigated, hoping that everyone will not believe the Internet rumors. At the same time, the provisions that have been punished for "the total value of gambling funds collected on the spot are more than 1,000 yuan and less than 4,000 yuan, which is a large gambling capital" that have been widely disseminated in the circle of friends are also inaccurate, and there is currently no standard for large gambling funds in our province. Recently, in the anti-gang crime campaign carried out by Sichuan Province, the public security organs focused on illegal and criminal activities such as gathering crowds to gamble and releasing water in casinos, and there were no illegal acts such as gambling when the masses played mahjong entertainment. ”

Therefore, the determination of the amount of gambling funds for sichuan mahjong should be determined by the public security organs according to the specific case situation, but in addition to referring to the local economic development level, this judgment must conform to the "principle of proportionality of excessive punishment", that is, the type of punishment and the range of punishment must be adapted to the degree of illegal fault of the offender. Otherwise, the corresponding punishment is suspected of violating the law, and the administrative counterpart who has been punished may file an administrative lawsuit to protect the rights of the illegal punishment in accordance with law.

3. The level of crime

Article 303 of the Criminal Law stipulates that whoever, for the purpose of making a profit, gathers a crowd to gamble or engages in gambling shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also be fined. Whoever opens a casino shall be sentenced to fixed-term imprisonment of not more than five years, criminal detention or public surveillance, and shall also be fined; Whoever organizes citizens of the People's Republic of China to participate in gambling outside the country (territory) and the amount is huge or there are other serious circumstances shall be punished in accordance with the provisions of the preceding paragraph.

It can be seen from this that the premise of the criminal punishment of gambling in China's Criminal Law is also to be "for the purpose of making profits", and on this basis, it is divided into three types of criminal punishments, namely", "gathering people to gamble", "opening casinos", and "gambling as a profession".

1) "Gathering crowds to gamble": Entertainment activities that are not for the purpose of making profits and only carry out win-lose activities with a small amount of property should not be recognized as "crowd gambling", that is, they should not be recognized as gambling crimes;

2) "Opening a casino": Generally opening entertainment venues such as chess and card rooms, which only charge a fixed fee for the venue and services, should not be recognized as "opening a casino, that is, it should not be regarded as a gambling crime"

3) "Gambling as a profession": Daily playing cards and other recreational activities do not constitute gambling crimes, and will not even be punished by the public security administration, so it is not to say that "gambling is a profession", let alone violate the criminal law.

It is worth noting that according to judicial practice, gambling participants in some cases will be given criminal penalties for gambling cases such as large gambling funds, long gambling duration, high gambling frequency, and gambling after multiple administrative penalties for gambling.

In my opinion, those who benefit from gambling behavior are often those who open casinos and organize gambling, and generally those who simply participate in gambling lose nine times out of ten, and their personal and family work, production, and living order are often greatly affected, that is, they themselves are also victims of gambling, and they are also within the scope of the legal interests protected by gambling crimes. However, in view of the fact that there is still a risk of violating the criminal law in practice, we should still pay attention to and avoid acts involving large amounts of money in daily card playing.

Fang Hong: In this case, Ren Hengquan said that he played mahjong with relatives and friends, and it was mainly entertainment, is it also illegal?

Lawyer Li Wenqian: This is not illegal.

The Notice of the Ministry of Public Security on Several Issues Concerning the Application of Law in Handling Cases of Gambling Violations stipulates: "For the purpose of not making profits, there shall be no punishment for entertainment activities such as playing mahjong and playing poker with money and property to win or lose;

Fang Hong: The Sichuan Provincial High Court's retrial held that the first-instance court's application of the law was wrong, and the second-instance court's affirmation of this is also an error.

The judgment revokes the judgment of the court of first and second instance, and the administrative detention of the public security bureau is obviously improperly revoked. How to view the judgment of the retrial court?

Lawyer Li Wenqian: Both the first and second instance trials were wrong, and the retrial judgment was fair.

First of all, the factual part, because this case does not constitute gambling, the judgment facts of the first instance and the second instance were wrong.

Second, the legal part. The court of first instance held that, according to Article 2 of the Regulations on the Prohibition of Gambling in Sichuan Province, which was in effect at that time, "All activities that bet on property to win or lose are gambling acts..." The provision that the punishment imposed by the Public Security Sub-Bureau was not improper, was indeed wrong, because Article 17 of the Sichuan Provincial Regulations on the Prohibition of Gambling, which was in effect at that time, stipulated: "If a gambler commits any of the following acts or circumstances, he may be given a mitigated or exempt punishment: ... Other laws and regulations provide that punishment may be mitigated or exempted", and according to the Provisions of the Notice of the Ministry of Public Security on Several Issues Concerning the Application of Law in handling Cases of Gambling Violations, the conduct in this case does not constitute gambling, so even if the court of first instance cites the Regulations of Sichuan Province on the Prohibition of Gambling, it should also cite Article 17 of the Regulations instead of Article 2 separately, and the provisions of the Notice of the Ministry of Public Security on Several Issues Concerning the Application of Law in Handling Cases of Gambling Violations have been explicitly quoted in any one trial. However, the court of first instance still did not pay attention to and determine it.

Therefore, the court of first instance made an error in the application of the law, and the second instance upheld this, which is also an error.

Fang Hong: A wrong law enforcement led to Ren Hengquan being wrongly detained for 12 days, reconsidering, conducting a first-instance trial, a second-instance trial, and a retrial, during which time and energy and money were wasted, and more importantly, it consumed confidence in law enforcement justice. Judicial resources have also been wasted.

The English philosopher Bacon said, "The consequences of an unjust trial are even more than ten crimes." For to commit a crime that ignores the law — like polluting a stream of water, an unfair trial destroys the law — is like polluting a water source. "Administration according to law is a heavy task and a long way to go!"