Summary of Defense Points Regarding Duplicate Calculation of Gambling Amounts in Online Gambling Cases

Coin World reports:
According to the judicial interpretation of online gambling, the statutory penalty for the crime of operating a gambling establishment is five years or more if the accumulated gambling capital exceeds 300,000.
Due to the strong anti-investigation awareness and money laundering methods of online gambling platform operators, the platform servers are set up overseas and server data is automatically cleared periodically. Electronic evidence is easily destroyed and lost. Gambling capital is settled through third-party payment platforms, underground banks, score platforms, virtual currencies, etc. It is not an easy task for judicial authorities to accurately determine the amount of gambling involved. In judicial practice, cases with a huge disparity between the amount charged by the public prosecution and the amount determined by the final court judgment are not uncommon.
Therefore, defense lawyers’ arguments regarding the amount of gambling capital are crucial for the conviction and sentencing of the parties involved. This article summarizes the key points of defense related to the amount of gambling capital.
Author | Lawyer Shao Shiwei
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The displayed betting amount on the platform does not necessarily represent the actual amount
According to the 2010 judicial interpretation of online gambling, “the amount of gambling capital can be determined by multiplying the points bet or won on the Internet by the actual amount represented by each point. For the direct or indirect conversion of funds into virtual currencies, game props, and other virtual items, and using them as chips for betting, the amount of gambling capital is determined by the amount of funds required to purchase the virtual item or the actual amount paid for it.”
However, the establishment of facts requires supporting evidence and cannot solely rely on the confession of the individual.
In addition, although the judicial interpretation also stipulates that “for the funds in the bank accounts used to receive and circulate gambling capital in the crime of operating a gambling establishment, if the suspect or defendant cannot explain the legal source, it can be determined as gambling capital.” But this provision refers to the flow of funds in bank accounts, not the virtual points in online gambling platforms.
Case number: (2018) Ji 0982 Xing Chu 774
The prosecutor accused the defendant of developing 238 members within three months and placing bets totaling nearly 7 million.
The defense argues that the 7 million is a virtual number, not RMB. The calculation is repetitive and lacks clear evidence to support it, making it impossible to verify evidence favorable to the defendant.
The court believes that although the defendant confessed to the police that one point is equivalent to one RMB, they denied it during the trial, arguing that 7 million is a quantity, not a monetary amount, and the members were allocated by the main platform. Since the police cannot verify the details of the gambling capital and the member’s detailed information, the court does not support this part of the accusation.
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There is a transfer of funds between multiple bank accounts controlled by the defendant, and the prosecution should not calculate the duplicated amount
Case number: (2019) Gui 1021 Xing Chu 39
The court believes that in this case, the defendant used multiple bank accounts to receive and circulate gambling capital, and it is common for funds to be transferred between accounts. When calculating the amount of gambling capital, the prosecution included all the received or income amounts in each bank account. For example, if account A first receives several gambling capital transactions, then when calculating the amount of gambling capital in account A, these transactions are already included. Later, the gambling capital in account A is directly transferred to account B. When calculating the amount of gambling capital in account B, this transaction is also included, resulting in duplicated calculation. This indirectly counts the gambling capital originally belonging to account A again, leading to inaccurate determination of gambling capital.
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If the defendant cannot explain the legal source, it can be determined as gambling capital, but the investigating agency must fulfill its obligation to collect evidence
According to the 2020 judicial interpretation of cross-border online gambling, for the bank accounts mainly used to receive and circulate gambling capital in the crime of operating a gambling establishment, if the suspect or defendant cannot explain the legal source of the funds, it can be determined as gambling capital. In other words, the individual needs to prove that the funds flowing into the account are not gambling capital. However, if the investigating agency fails to fulfill its obligation to collect evidence (such as not obtaining relevant transaction details), the above-mentioned provision cannot be applied.
Case number: (2019) Gui 1021 Xing Chu 39
The transaction records show that Yao received xx yuan in his Alipay account. However, there is no evidence to prove that the defendant used Yao’s Alipay account to receive gambling capital, nor is there evidence to prove that Yao was involved in the online gambling in this case. Therefore, these amounts should be deducted from the amount of gambling capital.
Although the money transferred from the defendant’s Construction Bank card can be matched with Yao’s Industrial and Commercial Bank of China account, there are also a large number of transactions indicating the money transferred to Yao’s card with the account number xx. Since the investigating agency did not provide the transaction details of the mentioned bank card and it is still unable to verify its relevance to this case, the amount in this card cannot be confirmed.
The defendant argued that some of the amounts deposited, reaching over ten thousand yuan, were fees for advertising from their “upline.” After investigation, among the seven bank accounts used to receive gambling capital, apart from the amounts transferred between them, most of the directly deposited gambling capital ranged from hundreds to thousands of yuan, and only a few reached tens of thousands of yuan. However, the defendant failed to provide specific information about the “upline” account or name and approximate time of the deposited funds. Therefore, it cannot be verified whether their defense argument is true. Additionally, the defendant also failed to explain the legal source of the funds that reached tens of thousands of yuan. According to the provisions of the “Opinions,” it should be determined as gambling capital in this case.
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Accumulated betting amounts should not be regarded as actual gambling capital
In online gambling, bets can be accumulated and looped. If the accumulated amount rather than the actual betting amount is used for determination, the sentencing for the individuals involved may vary significantly. This viewpoint has been mentioned in a previous article by Lawyer Shao and will not be repeated in this article.
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When there are multiple “uplines” for a “downline,” the gambling capital accepted by the “upline” from the “downline” should not be double-counted
When there are multiple “uplines” (superior agents) for a “downline” (gamblers or lower-level agents), the gambling capital accepted by the “upline” from the “downline” should not be double-counted. That is, whether the amount bet by the lower-level agent is related to Agent A or Agent B needs to be proven with evidence in the case. If it cannot be proven which superior agent corresponds to the lower-level agent, the gambling capital that cannot be clarified by the lower-level agent should not be calculated in the amount accepted by Agent A or Agent B.
Case number: (2018) Yue 2071 Xing Chu 221
Regarding the alleged amount of 160,000 to 170,000 yuan mentioned by Cheng X and the defense’s argument that Cheng X had accumulated over 2 million yuan in bets, there is insufficient evidence. The defense and arguments of Chen’s other “uplines” besides Cheng X were examined. Investigation shows that the call records, text messages, and WeChat conversations between Chen X and Huang X prove that the defendant Chen X obtained account numbers, passwords, and bank accounts from Huang X and conducted transactions with Huang X. It can be seen that Cheng X has more than one “upline.”… Therefore, it is considered from the perspective favorable to the defendant that the amount of Cheng X’s operation of a gambling establishment is 90,000 yuan.
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When the gambling platform is involved in both gambling and other legal businesses but cannot be clarified, the principle favorable to the defendant should be applied to determine the gambling capital
Case number: (2019) Zhe 03 Xing Zhong 1882
A certain company mainly profits from gambling games, such as the car racing game. The confession of the co-defendant and the testimony of witnesses state that “most of the recharged amounts are used for gambling” and “at least two-thirds of the amount recharged by players are used for car racing gambling.” The appellate court believes that the lower court’s determination of member recharge exceeding 7.2 million yuan and gambling capital exceeding 3.6 million yuan is consistent with the evidence and favorable to the defendant, and therefore confirms it.
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The amount of bets made by agents themselves should not be double-counted
It should be noted that there is controversy over this viewpoint in practice. Some courts believe that the amount bet by agents themselves should not be deducted, while others believe that it should be deducted. In the article “Criminal Defense Practice in Online Gambling Cases | Can the Amount Bet by Agents Themselves Be Deducted from the Gambling Capital?” this issue has been fully discussed and will not be repeated here.
In conclusion:
Article 55 of the Criminal Procedure Law of the People’s Republic of China stipulates, “Judgments on all cases must be based on evidence, investigation, and research, and not solely on confessions… Comprehensive consideration of all the evidence in the case, the facts determined shall exclude reasonable doubt.”
For defense lawyers, in the process of handling criminal cases related to gambling, based on a comprehensive review of the evidence in the case, defense strategies can be developed from the perspective of the three characteristics of evidence, the examination of confessions, the exclusion of reasonable doubts, the exclusion of illegal evidence, the presumption of innocence, and other angles to protect the legitimate rights and interests of the parties involved.