Recently, in a case involving alleged gambling operation charges handled by Attorney Deng Yi of King&Capital Law Firm, the prosecuting authorities lawfully decided not to prosecute Feng Mou during the review and prosecution stage. This outcome resulted from the attorney's professional and thorough case analysis coupled with extensive communication with the prosecuting authorities. Drawing on her solid professional expertise, Attorney Deng identified the core points of contention in the case and presented precise defense arguments. Her perspectives were fully adopted by the prosecuting authorities, successfully clearing Feng of criminal charges. The case achieved a satisfactory outcome and earned high recognition and trust from the client.
In judicial practice, the determination of gambling establishment offenses often suffers from misjudgments due to superficial factors like fund flows and personal connections, leading to situations where unrelated individuals are improperly implicated and prosecuted. Drawing from the experience of handling this case, this article shares the defense strategy and key points, providing reference for defending similar gambling-related criminal cases.
I. Involvement Through Account Borrowing: Investigation for Gambling Operation Charges
In this case, the public security authorities determined that Tong (Tong) recruited Feng (Feng) to recruit gamblers to Macau for baccarat gambling by providing free accommodation, air tickets, financial guarantees, and settlement services, thereby profiting from the operation. Feng was consequently investigated on suspicion of operating a gambling establishment. Investigation revealed that the core factual element concerning fund flows involved Tong borrowing Feng's bank card to execute transfers. Acting solely at Tong's request, Feng merely confirmed fund receipts and transferred amounts to designated accounts as instructed. Throughout the process, Feng remained unaware of the funds' origin, actual purpose, or nature. Moreover, Feng never withheld any funds from the accounts, derived no personal benefit, nor participated in any other related activities conducted by Tong.
The defense contends that the facts alleged in this case are unclear and the evidence insufficient, failing to meet the conditions for prosecution. A decision not to prosecute should be rendered.
II. Core Defense Arguments in This Case
In this case, the defense argues that Feng does not constitute the crime of operating a gambling establishment. The defense points are as follows:
(1) Feng lacked subjective knowledge of the gambling establishment operation and lacked criminal intent
The crime of operating a gambling establishment requires the perpetrator to possess direct intent—that is, to knowingly participate in another person's criminal act of operating a gambling establishment. In this case, the public security authorities merely inferred Feng's subjective knowledge of Tong's actions in soliciting gamblers and operating the gambling establishment based on their special friendship. This inference lacks objective evidence, and the existing evidence fails to form a closed chain. Based on the factual circumstances, Tong did not cohabit with Feng due to personal circumstances, and the two only met occasionally. Feng had no knowledge of Tong's relevant activities. Furthermore, no evidence in the entire case demonstrates that Feng was aware of Tong's gambling establishment operations or the gambling-related nature of the funds involved. The determination of subjective criminal intent lacks factual basis and cannot be made solely through a presumption of guilt based on their relationship.
(2) Feng objectively did not engage in the execution or facilitation of gambling operations, merely lending an account and performing transfers unknowingly
The objective elements of the crime of operating a gambling establishment require the perpetrator to establish or manage a gambling venue, or provide substantial assistance such as funding, premises, personnel, or settlement services for others' gambling operations. In this case, Feng's actions were limited to lending his bank card based on friendship and performing simple transfer operations as requested by Tong. He neither participated in core casino establishment activities such as soliciting gamblers, providing lodging/air tickets, or setting up gambling venues, nor was he involved in key aspects like guaranteeing, settling, or distributing the case-related funds. He was completely unaware of Tong's true purpose in borrowing the account. Feng's actions did not constitute substantive assistance or support for establishing a gambling operation. There is no causal relationship under criminal law between Feng's conduct and Tong's criminal acts, failing to meet the objective elements required for the crime of establishing a gambling operation.
(3) Feng did not derive any profit and lacked a common criminal intent with Tong, thus failing to establish joint criminal liability
Joint criminal liability requires explicit mutual intent among participants, joint execution of criminal acts, and shared profit. In this case, all funds entering Feng's account were transferred out in full as instructed by Tong. Feng did not retain any funds, did not derive any economic benefit, and did not engage in any communication or discussion with Tong regarding the operation of the gambling establishment. There was no common criminal intent between them to operate the gambling establishment, lacking the foundation for establishing joint criminal liability. Therefore, Feng cannot be legally recognized as an accomplice to Tong's operation of the gambling establishment.
(4) The Public Security Bureau's determination constitutes a presumption of guilt, violating the fundamental principles of legality and restraint in criminal law
The principles of legality and restraint are fundamental to criminal law. The determination of criminal liability must uphold the unity of subjective intent and objective acts, based on solid and sufficient evidence. It cannot rely solely on superficial conduct or identity relationships to presume guilt. In this case, the public security authorities designated Feng as an accomplice to Tong's gambling operation solely based on the superficial fact that his account was borrowed, without evidence proving Feng's subjective knowledge or objective participation. This approach violates fundamental criminal law standards and fails to meet the criteria for establishing the crime of operating a gambling establishment.
III. Case Outcome
Based on the above defense points, Attorney Deng Yi engaged in multiple thorough professional discussions with the prosecuting attorney regarding the core points of contention. She elaborated on the defense arguments in detail and submitted relevant evidence materials and legal basis, drawing upon the facts of the case and the relevant provisions of the Criminal Law concerning the crime of operating a gambling establishment. After a comprehensive and rigorous review of all case evidence, the prosecution fully acknowledged Attorney Deng Yi's defense arguments. They concluded that the facts supporting the charge against Feng for operating a gambling establishment were unclear and the evidence insufficient. Feng's actions did not meet the elements required for the crime of operating a gambling establishment. Consequently, the prosecution lawfully decided not to prosecute Feng.
IV. Defense Approach for Similar Cases
This case highlights scenarios in gambling-related criminal cases where unrelated individuals are improperly implicated due to superficial factors such as account borrowing, fund transfers, or personal connections. Drawing from the experience gained in handling this case, the defense strategies for similar cases involving the crime of operating a gambling establishment are outlined below to provide reference for similar cases:
1. Examine whether evidence of subjective knowledge is reliable and sufficient: Subjective knowledge is a core element of the crime of operating a gambling establishment. Defense efforts should focus on verifying whether objective evidence exists proving the actor's awareness of others' gambling operations. Subjective inferences based solely on familial ties or superficial contact should be refuted by examining factual evidence, upholding the principle of unifying subjective intent with objective conduct in criminal determination.
2. Distinguish the nature of the actor's objective conduct, differentiating substantive assistance from ordinary civil acts: For actions involving account lending, fund transfers, or routine communications, focus on whether the actor knew the true purpose of the conduct and whether they provided substantive help or support for the gambling operation. Strictly differentiate criminal assistance under the Criminal Law from ordinary civil acts to avoid criminalizing unrelated general conduct as criminal assistance.
3. Examine the elements for establishing joint criminal liability, focusing on intent coordination and profit-sharing: In cases where individuals are deemed accomplices, scrutinize whether explicit coordination of criminal intent existed among them and whether they profited from the gambling operation. If intent coordination is absent or no profit was gained, present a not-guilty defense based on the lack of essential elements for joint criminal liability.
4. Uphold the principle of legality in criminal law: When judicial authorities convict based solely on superficial facts, combine case evidence with legal provisions to highlight issues of presumption of guilt. Emphasize the restraint of criminal law and, for conduct falling short of the threshold for conviction, present defense arguments for non-prosecution in accordance with the law.
The conviction for operating a gambling establishment must strictly adhere to the elements of the crime, focusing on substantive examination of both objective and subjective facts to avoid expanding criminal liability based solely on superficial connections involving funds or personnel. This constitutes the core defense strategy in such cases.
V. Case Summary
Within criminal judicial procedures, the review and prosecution stage occupies a pivotal transitional position. Defense efforts during this phase are often regarded as the “golden window period” for salvaging case outcomes. Through case file review, evidence collection, and opinion exchange, attorneys can prompt prosecutorial authorities to promptly identify case ambiguities and correct errors or omissions. This stage represents the final stronghold for securing acquittal or non-prosecution before trial proceedings commence. Thus, the timely involvement and proactive work of defense counsel during the review and prosecution stage are crucial.
Securing a non-prosecution decision at this stage requires defense counsel to meticulously demonstrate, through factual analysis, evidentiary review, and legal application, that the case meets statutory criteria for lack of criminal facts, insufficient evidence, or minor circumstances. More importantly, defense counsel must not only counter the prosecutorial inertia of investigative authorities but also persuade prosecutors to fulfill their duties in accordance with the law. Thus, behind every non-prosecution decision lies a strenuous battle of legal expertise and judicial wisdom—a precious outcome that can transform the fate of the accused.
