Hong Kong phooey
Hong Kong's Gambling Ordinance banned online gambling from operators within the territory - but left offshore operators facing a gamble of their own, argues Peter Bullock, a partner at the Hong Kong office of international law firm Pinsent Masons.
HONG KONG’S Gambling Ordinance outlaws all gambling and lottery activities except when expressly exempted by the Government.
The Ordinance primarily addresses land-based gambling activities within the territory, which are often linked with illegal gambling syndicates and organised crime structures.
With the growing popularity of offshore betting with overseas gambling companies, the Gambling (Amendment) Ordinance 2002 was passed to ban all offshore betting, including offshore Internet betting.
Under the new Ordinance, offshore betting and bookmaking constitute criminal acts and the maximum punishment for operators and brokers is seven years’ imprisonment and a penalty of HK$5m.
The new Ordinance has effectively criminalised bookmaking and betting with offshore bookmakers – however it has fallen short of combatting offshore online gaming and lottery websites.
There is uncertainty as to what ‘game’ means. No local case directly addresses the point. UK examples suggest that it is necessary for there to be some form of participation, together with an element of excitement or fun to constitute a ‘game’.
There is also a requirement for the game to involve ‘chance,’ adding an extra layer of uncertainty. The Ordinance deems any game unlawful if there exists an element of chance. However, chance inevitably exists in our daily life. Therefore, it is reasonable to assume that the courts may require a reasonable degree of risk to be met before triggering the operation of the Ordinance.
It is also arguable that participating in a game or lottery through the Internet is not in breach of any specific offence under the Ordinance. There are offences of ‘gambling in a gambling establishment’ and ‘gambling in a place other than a gambling establishment “ but the definitions of ‘premises’ or ‘place’ may not include the internet.
Notwithstanding more than seven years have run since enactment of the new Ordinance, this central issue remains undetermined “ leaving offshore egaming operators facing a gamble of their own.
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