2019-01-07

Supreme Court Rules in Favor of Online Gambling

On December 20, 2018, Taiwan's Supreme Court upheld a ruling of the Taiwan High Court Kaohsiung Branch acquitting an online gambler of the Offense of Gambling under Article 266 of the Criminal Code, and rejected the extraordinary appeal by the Prosecutor General against this ruling.
 
According to paragraph 1 of Article 266 of the Criminal Code, a person who gambles "in a public place or a place open to the public" commits the Offense of Gambling.
 
The Supreme Court in the acquittal appears to take the view that in this case of online gambling, however, the accused engaged in online gambling on her computer in her house (a private place) by connecting to the Internet, logging in to the gambling website, and betting on said website.  These activities, the Supreme Court stated, were not conducted in a public place or a place open to the public, and thus should not be viewed as a violation of Article 266 of the Criminal Code with respect to offense of gambling, per the current text of said Article 266.
 
Taiwan's Supreme Court, nevertheless, emphasized that whether a person engaging in online gambling will be viewed as committing the criminal gambling offence depends on the particular facts of the accused’s gambling actions, and it is impossible to generalize and or to issue a unified opinion.
 
In addition, even in cases where there is no "gambling in a public place or a place open to the public", online gamblers may still be punished pursuant to Article 84 of the Social Order Maintenance Act, which stipulates: "A person who gambles on property in non-public places or non-publicly accessible casinos shall be punishable by a fine of not more than Nine Thousand New Taiwan Dollars (NTD 9,000) (approximately US$ 300).
 
Notwithstanding the aforesaid Supreme Court's decision, the Taiwan High Court Kaohsiung Branch recently found an online gambler to be guilty of gambling.  The judges in this case reasoned that the "public place" includes cyberspace on the Internet, so as to accord with modern social common sense.
 
Given the uncertainty arising from the ambiguity of the current text of Article 226 online gambling may be unregulated in some cases and regulated in others.
 
A better solution may be to have Article 226 amended by the Legislative Yuan to deal with the evolution of modern gambling and the rapid growth of the online gambling industry.
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