The Yuelu District People's Court of Changsha City made public a first-instance criminal verdict: The six defendants established a gambling app for the purpose of making profits and provided it to others to organize gambling, constituting the crime of opening a casino, and were sentenced to fixed-term imprisonment ranging from 10 months to 2 years and 4 months, and fines ranging from 5,000 to 30,000 yuan.
Review of the case
At the end of May 2020, the defendant registered and established Hunan Senmi Network Technology Co., Ltd. (hereinafter referred to as Senmi Company) in Wangcheng, Yuelu District, Changsha, to promote a chess and card gambling APP called Youyou Interactive Travel, which can be used by people to organize gambling online and collect fixed room fees from winners for profit.
Monetization methods:
(1) The model of collecting room fees is stable and profitable
The "Friends and Friends" APP has a variety of chess and card games such as running fast and mahjong, and the financial staff of Sammi Company uses WeChat and Alipay to settle gambling funds with gambling personnel, and collects fixed room fees from winners as a source of profit.
(2) Use cheats to control wins and losses
In the course of providing gambling services to gambling participants, in order to obtain illegal benefits and activate the atmosphere of the Friends and Friends App, the defendant pretended to be a gambling player on the Friends Mutual Play APP to gamble with real gambling participants. The defendant can use the WIFI plug-in cheat to cheat to control the win or loss of each game.
Funds flow method:
There is no channel for the payment of funds within the "Friends and Friends" game, and the salesman of the "Friends and Friends" APP will lure players to participate in the gambling game through WeChat private chat or organizing WeChat groups. According to the rules of points in the game (1 point = 1 yuan), the group owner or financial officer will immediately transfer the WeChat transfer to the player after deducting the fixed room fee (3 yuan), and in the case of the player's loss, the player will also transfer the gambling funds to the group owner or financial officer through WeChat.
Who involved and why
1. The representative of the company is recognized as the main offender
Defendant Lin was responsible for the overall work of Senmi Company and the recruitment, management, division of labor and work arrangement of personnel; Defendant Lei Moujuan, mainly responsible for the company's financial accounting, using Alipay and WeChat to settle gambling funds with gambling personnel; The defendant Lei Moudan is the legal representative, responsible for guiding the employees of the business department to recruit gambling personnel and assisting the company's operation and management. The above three defendants violated paragraphs 1 and 4 of article 26 of the Criminal Law of the People's Republic of China by using the Internet to open casinos and still participated in it, online gambling involves a wide range of areas, is more harmful to society, plays a major role in the joint crime, is the principal offender, and shall be punished in accordance with all the crimes in which they participated.
2. Personnel of the operation department are convicted of accomplices
Two of the directors of the operation department of the defendants gambled on behalf of the company and the gambling personnel in the "Friends and Friends" APP, and the business groups divided according to the company were each responsible for managing the subordinate salesmen to promote the "Friends and Friends" APP, and solicited gambling participants to gamble on the APP, and their acts also constituted the crime of opening a casino, and they were accessories in the joint crime, and the provisions of Article 27 of the Criminal Law of the People's Republic of China apply.
InnoCheng interpretation
(1) Meet several statutory circumstances for online casinos
According to the provisions of the two judicial interpretations of the Opinions on Several Issues Concerning the Application of Law in the Handling of Online Gambling Crime Cases and the Opinions on Several Issues Concerning the Handling of Cross-border Gambling Crime Cases, online casinos mainly include the following situations:
(1) Establishing gambling websites and applications and accepting bets;
(2) Establishing gambling websites and applications and providing them to others to organize gambling;
(3) Purchasing or renting gambling websites or applications, or organizing others to gamble;
(4) Participating in the profit sharing of gambling websites and applications;
(5) Acting as a gambling website, application agent and accepting bets.
(2) The absence of a channel for the payment of funds in the game is still recognized as the reason for the crime of opening a casino
In this case, the salesman of the "Friends and Friends" APP would lure players to participate in the gambling game through WeChat private chat or organize WeChat groups, and after each game the player ended, he would help the player settle funds in the form of red envelopes according to the situation of game points, and deduct a fixed room fee as a service fee.
Under this model, the "Friends and Friends" APP itself does not have a fund payment channel, and on the surface it seems to be a legal and compliant game platform, but because its original intention in private chat and group establishment on the WeChat platform is to gather gamblers, facilitate the settlement of gambling funds for gamblers in the WeChat group and obtain profits, it is in line with "organizing others to gamble for the purpose of profit", and was thus characterized by the court as suspected of the crime of opening a casino.
(3) Is a suspended sentence applicable to an accessory to the crime of opening a casino?
If the accessory is not a repeat offender and is sentenced to fixed-term imprisonment of not more than three years or criminal detention, the circumstances of the crime are minor, there is remorse, there is no harm of reoffending, and the probation has no major adverse impact on the area where he resides, the suspended sentence may be applied.
However, in this case, the Yuelu District People's Court of Changsha City held that Lei et al., as accessory defendants, knew that Ye and others, who were the main offenders, were still involved in using the Internet to open casinos, and that online gambling involved a wide range of areas and caused great harm to society, and it was not appropriate to pronounce a suspended sentence for them, and did not adopt the defense opinion of applying suspended sentences to the accomplices in this case.