Regarding the determination of the amount of gambling funds in online gambling - the retrial of the defendant Hua Jiyu et al. opening a casino

[Summary of the trial]

Article 8 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in the Handling of Criminal Cases of Gambling stipulates that where a gambling crime is committed through a computer network, the amount of gambling funds may be determined according to the number of points wagered or won on the computer network multiplied by the amount actually represented by each point. The judicial interpretation does not stipulate how to calculate the amount of gambling funds for online gambling with repeated betting. If the calculation is doubled, there will be a huge deviation from the calculation method of offline online gambling and gambling funds, which is not conducive to the fairness of the trial of the case. In this case, the judicial interpretation was applied to determine the amount of gambling funds based on the initial investment of the actor in online gambling.

[Basic facts of the case]

The protest organ: Shanghai Municipal People's Procuratorate.

On December 25, 2014, the defendant in the original trial, Hua Jiyu, was sentenced to one year imprisonment and fined RMB 100,000 by the Shanghai Songjiang District People's Court for the crime of opening a casino.

Defendants in the original trial, Hou Haoping, Zhu Changfa, Cao Weiling, Hou Xiaoping, and Ye Jiansheng (basic information omitted). The Shanghai Songjiang District People's Court ascertained through an open trial that between October 2013 and April 2014, the defendant in the original trial, Hou Haoping, obtained the baccarat account of the overseas "Shenbo" Suncity gambling website from Hong Chuanzhong (already sentenced), acted as an agent for the website, recruited Hou Xiaoping and Wang Zheng (handled in a separate case) as subordinate agents, and then Hou Xiaoping and Wang Zheng recruited subordinate agents or members to accept member betting. During this period, the defendants in the original trial, Zhu Changfa and Cao Weiling, assisted Hou Haoping in collecting gambling funds and opening an account. Between February and April 2014, defendant Hou Xiaoping obtained an account number from Hou Haoping, and together with defendant Ye Jiansheng, acted as an agent for the website, recruited defendant Hua Jiyu and others as subordinate agents, and then recruited members and accepted bets from members. During the period, the cumulative betting amount reached more than 190 million yuan. Among them, Hua Jiyu recruited Zhu Shuilin as a member and accepted betting. The "Baccarat" account computer displays a "betting amount" of more than 200 yuan, and the computer displays a "win or loss amount" of 20,000 yuan.

The above facts were not objected to by the defendant during the trial, and were confirmed by the testimony of witnesses Zhang Mouwei, Xie Mouheng, Wang Mou, Xie Moumin, Zhu Moulin and others, identification records, website screenshots, mobile phone screenshots, text message records, remote investigation work records, electronic bills of relevant account numbers, bank account opening information and transfer information, search records, seizure decisions and lists, notices of assistance in freezing assets, the occurrence and arrest of the case, and household registration information.

The Shanghai Songjiang District People's Court held in the first instance that gambling funds refer to funds or items used for gambling, and in practice they usually include three forms, namely, money and goods used for gambling in gambling crimes, money and goods exchanged for chips, or money and goods won through gambling. In online gambling, because there is a certain time delay between the specific gambling behavior and the final settlement of funds, in principle, gambling funds can be determined according to the number of points betted or won on the Internet. However, in the form of "baccarat", which can be carried out for many consecutive rounds in a relatively short period of time, the betting amount displayed in its network system is accumulated by rolling each game of betting, and there may be a certain degree of double counting between the amount of winning and losing and winning relative to the gambling amount or the final settlement of gambling funds, and the huge difference between the cumulative betting amount and the final actual winning and losing amount in this case shows that the problem of double counting must exist, and the procuratorate simply determines the amount of gambling funds based on the cumulative amount of betting. On this basis, it was determined that the defendant Hua Jiyu constituted serious circumstances and had insufficient basis to correct it. Defendants Hou Haoping, Zhu Changfa, Cao Weiling, Hou Xiaoping, and Ye Jiansheng recruited subordinate agents for gambling websites, and the subordinate agents accepted bets from members, and their conduct constituted the crime of opening a casino, and the circumstances were serious; Defendant Hua Jiyu acted as an agent for gambling websites and accepted bets from members, and his conduct constituted the crime of opening a casino. The prosecution was convicted of the offence charged. Defendant Hou Haoping is a repeat offender and should be given a heavier punishment in accordance with law. In the joint crime of defendants Hou Haoping, Zhu Changfa, and Cao Weiling, defendant Hou Haoping played a major role and was the principal offender; Defendants Zhu Changfa and Cao Weiling played a secondary role and were accomplices, and their punishment should be commuted in accordance with law. The six defendants truthfully confessed their crimes after being brought into the case, and had a good attitude in admitting guilt in court, and were all given lighter punishments in accordance with law. In summary, based on the facts, circumstances, and nature of the defendant's crime, the degree of harm to society, and the role it played in the joint crime, the defendant Hou Haoping was found guilty of the crime of opening a casino, and sentenced to five years and six months imprisonment and a fine of RMB 3 million; Defendant Zhu Changfa committed the crime of opening a casino and was sentenced to one year and six months imprisonment and a fine of 50,000 yuan; Defendant Cao Weiling was sentenced to one year and three months imprisonment, suspended for one year and six months, and fined RMB 30,000: Defendant Hou Xiaoping was sentenced to three years and six months imprisonment and a fine of RMB 400,000 for the crime of opening a casino; Defendant Ye Jiansheng committed the crime of opening a casino and was sentenced to three years and six months imprisonment and a fine of RMB 400,000; Defendant Hua Jiyu committed the crime of opening a casino and was sentenced to one year imprisonment and a fine of 100,000 yuan.

After the verdict was pronounced, the Shanghai Songjiang District People's Procuratorate raised a protest, arguing that according to the relevant laws, judicial interpretations, and normative opinions, acting as an agent for a gambling website and accepting bets, and the cumulative amount of gambling funds reached more than 300,000 yuan, it was a serious circumstance of opening a casino. The amount of money wagered can be determined by multiplying the number of points wagered or won on the network by the amount actually represented by each point. The fact that the defendant in the original trial of this case, Hua Jiyu, acted as an agent of a gambling website and accepted bets totaling more than 200 yuan is clear, the evidence is credible and sufficient, and the cumulative amount of gambling funds involved in Hua Jiyu's case reached more than 300,000 yuan, which is a "serious circumstance" as stipulated in the crime of opening a casino. The original judgment did not find that the defendant Hua Jiyu's conduct in opening a casino was serious, resulting in an unusually light sentence.

The First Branch of the Shanghai Municipal People's Procuratorate held that the original judgment did not identify the cumulative betting amount as gambling funds, and then did not find that the circumstances of the original trial defendant Hua Jiyu's opening of the casino were serious, resulting in an unusually light sentence, and decided to support the Songjiang District Procuratorate's counter-appeal.

Hua Jiyu, the defendant in the original trial, has no objection to the facts ascertained in the original judgment. The defender pointed out that the amount of "betting amount" displayed in the network system of "baccarat", a form of gambling, was accumulated by rolling each round of betting, which was the result of repeated simple calculation, and held that this "betting amount" was equivalent to the amount of gambling money, which was unfair to the defendant Hua Jiyu in the original trial. The accusation that Hua Jiyu had "serious circumstances" was not based on sufficient grounds, and requested that the protest be rejected and the original judgment upheld.

The facts and evidence ascertained by the Shanghai No. 1 Intermediate People's Court after trial are the same as those of the original judgment.

The Shanghai No. 1 Intermediate People's Court held that the defendants Hou Haoping, Zhu Changfa, Cao Weiling, Hou Xiaoping, and Ye Jiansheng recruited subordinate agents for gambling websites, and the subordinate agents accepted bets from members, and their conduct constituted the crime of opening a casino, and the circumstances were serious; The defendant in the original trial, Hua Jiyu, acted as an agent for a gambling website and accepted bets from members, and his conduct constituted the crime of opening a casino. With regard to the prosecutorial counter-appeal, the witness Zhu Shuilin used the online "baccarat" account provided by the defendant Hua Jiyu in the original trial to place bets, without actually investing money, and the basis for settling with the defendant Hua Jiyu after the gambling was the amount under the "amount of wins and losses". In this case, the defendant in the original trial, Hua Jiyu, was arrested by the public security organs before settling accounts with the witness Zhu Shuilin, and did not actually settle the settlement and did not collect or pay the gambling money. The "betting amount" of more than 200 yuan displayed in the online "baccarat" account is a number of times that the witness Zhu Shuilin repeatedly bets on rolling superposition, and the figure cannot truly and objectively reflect the amount of gambling funds involved in the case. In the case of a specific analysis of the case, the court of first instance found that there was a problem of double counting of the "betting amount" displayed in the online "baccarat" system, and when the objective and true amount of gambling funds could not be calculated based on the number of betting points, combined with all aspects of the evidence in this case and with reference to the amount under the item of "winning or losing", it held that the accusation that the defendant Hua Jiyu's act of opening a casino was a serious circumstance, and the basis was insufficient and not improper. The court rejected the protest and upheld the original judgment.

After the judgment took effect, the Shanghai Municipal People's Procuratorate raised a protest in accordance with the trial supervision procedures, arguing that the original first- and second-instance judgments did not find that the defendant Hua Jiyu's conduct in opening a casino constituted "serious circumstances", which was an error in the application of law, resulting in an unusually light sentence for Hua Jiyu. Hua Jiyu served as an agent of gambling websites and accepted bets of more than 200 yuan; According to articles 1 and 3 of the "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 Online Gambling Crimes" (hereinafter referred to as the "Opinions on Online Gambling Cases"), the amount of gambling funds may be determined by multiplying the number of points wagered or won on the computer network by the amount actually represented by each point, and the cumulative amount of gambling funds reaching more than 300,000 yuan is a "serious circumstance".

Hua Jiyu and the defender proposed: 1. In this case, the "betting amount" displayed in the network system and the "betting amount" in the "Opinions on Online Gambling Cases" are not the same concept, and cannot be confused and applied. 2. In this case, Zhu Shuilin, a gambling participant, did not actually invest money, and the basis for settling with the defendant Hua Jiyu after the gambling was completed was the amount under the "amount of wins and losses". Hua Jiyu was arrested by the public security organs before settling with Zhu Shuilin, and did not make an actual settlement, nor did he collect or pay gambling money. 3. As for the calculation of the "amount of gambling funds", the Opinions on Online Gambling Cases do not provide clear provisions on whether the amount of repeated bets in online gambling can be accumulated. Therefore, in line with the principle of favoring the defendant, Hua Jiyu's betting amount cannot be determined to exceed 300,000 yuan and be found to be "serious circumstances".

The facts and evidence ascertained by the Shanghai Municipal High People's Court after retrial were the same as those of the original first and second instance, and confirmed that the defendant in the original trial, Hua Jiyu, accepted a bet from member Zhu Shuilin and provided Zhu with an account with a virtual amount of 100,000 yuan.

The Shanghai Municipal High People's Court held that the defendant in the original trial, Hua Jiyu, acted as an agent for a gambling website and accepted bets from a member, and his conduct constituted the crime of opening a casino. Zhu Shuilin used the account provided by Hua Jiyu to bet within the virtual limit, and did not actually invest money, and the basis for his settlement with Hua Jiyu was the amount under the "win or loss amount", and both parties had been caught before the settlement, and did not actually pay the gambling money. The "betting amount" of the online "baccarat" account is more than 20 yuan, which is a number of repeated bets and rolling superposition, there is a problem of double counting, and it cannot truly and objectively reflect the amount of gambling funds involved in the case. The procuratorial counter-appeal organ's counter-appeal opinion that it should be found that the circumstances of the original trial defendant Hua Jiyu's opening of the casino were serious, and that the original sentence was unusually light, was not supported. Accordingly, the court rejected the protest and upheld the original judgment.

【Focus of Controversy】

The focus of the dispute in this case is how the amount of gambling funds for the defendant Hua Jiyu's act of opening a casino should be calculated, and whether the circumstances have reached the level of seriousness. Among them, the core issue is what is the difference between online gambling crimes and offline gambling crimes in the calculation of gambling funds.

[Comments]

First, the original judgment did not improperly apply the law. Article 8 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in the Handling of Criminal Cases of Gambling (hereinafter referred to as the "Interpretation of Gambling Cases") stipulates that where a gambling crime is committed through a computer network, the amount of gambling funds may be determined according to the number of points wagered or won on the computer network multiplied by the amount actually represented by each point. Article 3 of the Opinions on Online Gambling Cases stipulates that the amount of gambling funds for online gambling crimes may be determined by multiplying the number of points wagered or won on the Internet by the amount actually represented by each point. Whether it is offline gambling or online gambling, the Interpretation of Gambling Cases and the Opinions on Online Gambling Cases both stipulate that there are two ways to calculate the amount of gambling funds, namely the amount of bets and the amount of winning, but do not provide a detailed explanation of the specific calculation methods of the two methods. In this case, there was nothing wrong with the calculation method adopted by the court to use the initial betting amount as the amount of gambling funds, and the method adopted by the procuratorate was not operable, which would cause a huge deviation from the calculation method of offline online gambling gambling funds, which was not conducive to the fairness of the trial of the case.

Secondly, it is appropriate for online gambling to calculate the amount of gambling funds based on the initial bet amount and the amount of winnings.

The Interpretation of Gambling Cases and the Opinions on Online Gambling Cases stipulate that there are two ways to calculate the amount of gambling funds, namely the amount of bets and the amount of winnings. If calculated according to the amount of bets, there are generally three ways to calculate: one is to calculate the amount of money invested in advance by each actor in actual or virtual money, the amount of virtual money is like "baccarat" similar to the online gambling system online offline to provide accounts, each account has the amount of virtual funds, according to a certain period of settlement, gambling personnel do not need to invest real funds in advance; The second is the opinion of the procuratorate in this case, that is, the amount of gambling funds is calculated according to the final amount of betting displayed by the online gambling computer (one person, multiple games); Third, according to the spatio-temporal characteristics of online gambling, the betting amount of all participants in the gambling game parallel to the actor in the cyberspace will be calculated as a whole (multiple people and multiple games). If calculated according to the amount of winning, there are generally two ways to calculate: one is to calculate the amount of gambling funds according to the final amount of wins and losses displayed by the online gambling computer (one person has multiple games); Second, according to the spatiotemporal characteristics of online gambling, the winners and losses of all participants in the gambling game who are parallel to the actor in cyberspace are calculated and calculated together (multiple players and multiple games).

1. The amount of online "baccarat" gambling cannot be calculated by adding the amount of gambling funds of multiple people.

In judicial practice, the determination of the amount of gambling funds for offline gambling crimes is generally based on the funds seized by judicial personnel on the spot, and the amount of gambling funds is the cumulative amount of gambling funds accumulated by multiple gambling participants in multiple rounds of gambling in the same time and space. The online "baccarat" gambling is a new type of online gambling and an online gambling method. The obvious difference between this gambling method and offline online gambling is that the latter gambling participants do not participate in gambling in the same space, but participate in parallel network space at the same time, and other gambling participants are unknown and invisible to each other, and it is generally impossible to know the betting amount or winning amount of other gambling participants at the same time. For example, there are 4 offline gambling participants, each of whom brings 100,000 yuan in cash to the offline casino for gambling, and the final gambling amount for the offline casino is 400,000 yuan seized; However, online network "baccarat" gambling can only know the amount of one's bets or wins, so the amount of gambling funds of online network "baccarat" gambling is determined that it is impossible to realize the calculation method of adding the amount of gambling funds of all participants in the parallel space of the network.

2. The amount of online baccarat gambling should not be calculated by the cumulative calculation method of one person and multiple games.

In this case, the amount of gambling funds determined by the procuratorate was calculated based on the final amount of gambling displayed by the computer. The "bet amount" in the online "baccarat" gambling is similar to the trading volume in securities trading, and the characteristic of this amount is that it can be bet continuously and repeatedly within the account limit, and the bet amount will be added positively each time in the settlement cycle. As a result, the cumulative wagering amount at each settlement may be much greater than the amount of money actually invested by the participant. In this case, the procuratorate alleged that the betting amount of the "VM56688" account provided by the defendant Hua Jiyu in the original trial was more than 200 yuan, and this data was that Zhu Shuilin, a gambling participant, used the virtual points in the account with a limit of 100,000 yuan provided by the defendant Hua Jiyu in the original trial, and the number of repeated betting and rolling superposition within the upper and lower limits of the bets agreed in advance was the sum of the betting amount of multiple games, and the amount of gambling funds deviated greatly from the initial betting amount, which would have an extremely unfair result for the defendant. Suppose that there are 4 gambling participants, each of whom brings 100,000 yuan in cash into the offline casino to gamble with each other, and the final gambling amount is generally not more than 400,000 yuan. However, if a gambling participant uses a gambling account of 100,000 yuan to participate in online baccarat gambling, the cumulative sum of one person's betting amount per game is used as the amount of gambling funds for opening a casino, 10 gambling games as a benchmark, no one makes a profit, and each game loses 10,000 yuan, and the betting amount is reduced from 100,000 yuan in turn, that is, 550,000 yuan, which is higher than the amount of gambling funds for multiple people participating in offline gambling.

Similarly, if the cumulative calculation of the winning amount per game is adopted, there are also problems that the amount is unusually high or light, and the size of the amount will be related to the gambling skills of the participants, which is also obviously inappropriate.

3. The amount of online "baccarat" gambling funds should be calculated by the initial amount of gambling participants.

The amount of gambling money for online network "baccarat" gambling casinos is calculated by adding the amount of money initially placed in each account of the perpetrator, whether actual or virtual. This data not only objectively reflects the funds accepted by the actor who opened the casino, but the more accounts, the greater the subjective malice and objective harm; At the same time, this calculation method will not lightly indulge criminals, and has the possibility of actual calculation and execution, and has the same severe punishment as similar offline gambling and opening casinos, reflecting the value goal of fair adjudication. This calculation method can not only balance online gambling crimes and offline gambling crimes, but also form a deterrent effect on online gambling criminals. It is important to note that this account amount does not necessarily equate to the number of bettors, as a bettor may have multiple accounts.

In addition, judging from the available evidence in this case, the defendant Hua Jiyu in the original trial acted as an agent for a gambling website and accepted bets from an adult gambling participant (member), and in a case related to Hong Chuanzhong, he belonged to the fourth level of agency (Hong Chuanzhong, Hou Haoping, Hou Xiaoping, and Hua Jiyu), and the time was relatively short, and there was no profit, nor did it meet the other circumstances of serious circumstances as provided for in paragraph 2 of article 1 of the "Opinions on Online Gambling Cases", and it cannot be determined that the defendant Hua Jiyu's conduct in opening a casino was a serious circumstance.

The original article was published in China Trial Guidance Series. Trial Supervision and Guidance, 2019, Vol. 1: Sun Huapu, edited by Sun Huapu, edited by the Trial Supervision Court of the Supreme People's Court, People's Court Press, December 2019, first edition, the author of this article is Jin Guo, a judge of the Criminal Division of the Shanghai Pudong District People's Court. P137-143。

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