The Gambling Law Review: Hong Kong
In Hong Kong1, the most common types of lawful gambling available to the general public are lotteries, horse racing and football betting. They are run by the Hong Kong Jockey Club, which is the only racing club and legal bookmaker in the territory, and so has a monopoly. Casino gambling in a land-based casino is not legal in Hong Kong. Macao, a major gaming city, is just about an hour away by road or ferry.
The position on online gambling is less certain, given that the main statute that regulates gambling looks at gambling in the traditional way where people have to be physically present in the same place to deal with each other. However, betting with illegal bookmakers, whether through the telephone, internet or otherwise, is specifically prohibited.
Gambling is not against Hong Kong's public policy, so any gaming credit granted in another jurisdiction or loan given for the purpose of gambling may be enforced through the Hong Kong courts as long as they are legal under the applicable governing law. This is in contrast with the situation in mainland China where lawsuits related to gaming credit or gambling will not be accepted. Hong Kong thus provides a useful forum for the collection of gaming credit obtained by mainland Chinese punters who have assets in Hong Kong.
Even though casinos do not legally exist in Hong Kong, marketing activities for gaming are not prohibited. Many large casino groups have marketing offices in Hong Kong to promote their products and services to high-rollers in the region. Hong Kong is also a strategic location for such activities in view of its proximity to Macao and mainland China. Gambling in general and gambling-related marketing activities remain unlawful in mainland China, notwithstanding most of the revenues to the major gaming hubs in Asia and beyond are contributed by punters from mainland China.
Legal and regulatory framework
The main legislation governing gambling in Hong Kong is the Gambling Ordinance (Cap. 148). The general position is that gambling is unlawful unless the act falls within one of the exemptions under the statute. The definitions of various key terms are laid out under Section 2. Gambling is defined to include 'gaming', 'betting' and 'bookmaking.' Historically, the law is targeted towards gambling at unlicensed establishments and betting with illegal bookmakers. Private bets, gaming carried out in private premises on social occasions and certain types of games carried out in licensed premises on social and non-social occasions are not unlawful under the Gambling Ordinance.
A 'game', which is one form of gambling, is widely defined to include 'a game of chance, a game of chance and skill combined and a pretended game of chance or chance and skill combined' and 'gaming' is defined to mean 'the playing of or at any game for winnings in money or other property whether or not any person playing the game is at risk of losing any money or other property'. Under these wide definitions, whatever activities where an element of chance is involved and the participants stand to win something will be a form of gambling, and will, therefore, be unlawful. One classic example of a game is a lucky draw, which is also a lottery. To lawfully conduct the game, the organiser has to obtain a licence and fulfill the conditions of the licence in conducting the game.
By the same token, a game played on an online gambling platform or virtual casino, which offers the players a chance to win money or other property falls within the definition of a game. However, a person who takes part in online gambling will usually do it at home in front of his or her computer, so the person cannot be charged with the offence of gambling in a gambling establishment under Section 6 of the Gambling Ordinance, where 'gambling establishment' is defined to include 'any premises or place, whether or not the public or a Section of the public is entitled or permitted to have access thereto, opened, kept or used, whether on one occasion or more than one occasion, for the purposes of or in connexion with unlawful gambling or an unlawful lottery'. Although Section 13 makes it an offence for someone to gamble in a place that is not a gambling establishment, one crucial element is that the place where the gambling takes place must be the place where the other person operates or manages or otherwise controls the unlawful gambling. In the case of online gambling, the physical location where the online gaming operator controls the gambling, usually in a jurisdiction where such operations are legal, will not be the same place as where the punter gambles. Theoretically speaking, both the operator and the punter can be in the same physical location in Hong Kong when the online gambling takes place, but it is only in this unlikely and narrow scenario that the statute can be applied against them.
For these reasons, there seems to be a loophole in the current legislative framework as regards online gambling (as opposed to betting, which is specifically regulated under the same statute), as historically the law was drafted to regulate traditional gambling activities where people have to be in front of each other in a physical location. Although one cannot safely assume playing poker or a casino-style game online at home, where real money is at stake, is immune from prosecution, it is at least questionable which specific offence is committed under the Gambling Ordinance in that situation.
In recent years, whether or not electronic sports is a form of gambling has become a hot topic. As the definition of a 'game' is 'a game of chance, a game of chance and skill combined', the sport concerned will not be a game if the playing of which is purely based on the player's skill and not chance and skill combined. For instance, a ping-pong game played on a ping-pong table is not a game because its outcome is solely based on the skill of the players, notwithstanding sometimes sports players will attribute the outcome of a match to their 'luck'. This is in contrast with someone's luck in a lucky draw where the participants have no control in the results at all.
iiBetting and bookmaking
The legal position on betting is much clearer. The Gambling Ordinance under Section 8 specifically prohibits betting with a bookmaker, whether or not the bet is received within or outside Hong Kong. Unauthorised bookmaking is also a crime in Hong Kong, but the law specifically provides that betting with a bookmaker authorised under the Betting Duties Ordinance (Chapter 108), (i.e., the Hong Kong Jockey Club) is lawful. As such, the only way to lawfully bet with a bookmaker in Hong Kong is to patronise the Hong Kong Jockey Club.
Betting with overseas bookmakers, even if they are legal in the jurisdiction where they operate, is an offence regardless of how the bet is placed. In practice, however, it is difficult to see how law enforcement can meaningfully crack down on this type of illegal betting given the ease of making a phone call and gaining access to the internet. The law seems to be more effective in deterring overseas bookmakers from soliciting business in Hong Kong, as most prominent bookmakers will deny access to their platforms if they detect that the users are accessing their webpage from Hong Kong.
A 'bet' can also be made between persons where none of them is a bookmaker, which is not prohibited by the Gambling Ordinance. This type of bet is more formally known as a 'wager'.
'Wager' is not defined in the Gambling Ordinance. As a common law jurisdiction and a former British colony, Hong Kong benefits from a rich body of case law applicable to gaming contracts and their enforcement. Traditionally, the courts had been asked to determine disputes relating to a 'wagering contract,' which is not defined in any statue. The term 'wagering' has been described judicially in Carlill v. Carbolic Smoke Ball Co  2 QB 484 as:
A wagering contract is one by which two persons professing to hold opposite views touching the issue of a future uncertain event, mutually agree that, dependent upon the determination of that event, one shall win from the other, and that other shall pay or hand over to him, a sum of money or other stake; neither of the contracting parties having any interest in that contract than the sum or stake he will so win or lose, there being no other real consideration for the making of such contract by either of the parties.2
This judicial description of wager, or bet, should not be treated in the same way as a statutory definition. It is possible that the meaning of the word will be reinterpreted or redefined in other cases. While this judicial definition of a wager is limited to a contract between two persons, the position in Hong Kong is that a bet made between two or more persons is lawful provided that none of the parties to the contract is a bookmaker or does it as a trade or business. As such, where there are more than two persons participating with their stakes forming a common fund to be paid over to the winner, such multipartite arrangement is lawful if none of the parties is a bookmaker.
At common law, betting is not illegal and a wagering contract is enforceable provided that it does not incite a breach of the peace and is not immoral or otherwise contrary to public policy. This is in contrast with some jurisdictions where a wagering contract is made unenforceable by statute.
ivContract for difference
A 'contract for difference' is defined in the Gambling Ordinance to mean 'an agreement the purpose or effect of which is to obtain a profit or avoid a loss by reference to fluctuations in the value or price of property of any description or in an index or other factor designated for that purpose in the agreement'. The Gambling Ordinance does not apply to any contracts for differences that are listed on any specified stock exchange or traded in any specified futures exchange.
Worldwide, gambling is recognised as being susceptible to use by organised crime and by terrorist organisations to place or layer the proceeds of illegal activities in the financial system. Hong Kong has a well-developed legal structure to combat money laundering and terrorist financing.
In September 2019, the Financial Action Task Force (FATF) issued a generally positive report on Hong Kong's regime for combatting money laundering (and terrorist financing). FATF found that Hong Kong has a solid record of investigating and prosecuting money-laundering offences, with significant amounts of money being restrained and confiscated.
The relevant Hong Kong laws on anti-money laundering are: the Drug Trafficking (Recovery of Proceeds) Ordinance (Cap. 405), the Organised and Serious Crimes Ordinance (Chapter 455), the United Nations (Anti-Terrorism Measures) Ordinance (Chapter 575) and the Anti-Money Laundering and Counter-Terrorist Financing Ordinance (Chapter 615).
Under these laws, it is a criminal offence to deal with property knowing, or having reasonable grounds to believe, that the property is the proceeds of an 'indictable offence' or of drug trafficking. The definition of 'indictable offence' includes the offences under the Gambling Ordinance described above.
There is also an obligation for a person to make a suspicious transaction report (STR) where he or she knows or suspects that any property in whole or in part directly or indirectly represents the proceeds of an indictable offence or drug trafficking or represents terrorist property. Failure to make a STR when required to do so by the legislation is a criminal offence.
The Joint Financial Intelligence Unit (JFIU) comprising officers from the Hong Kong Police Force and Hong Kong Customs and Excise manages the STR regime for Hong Kong. The JFIU receives and analyses STRs and shares them with law enforcement agencies in or outside Hong Kong or with financial intelligence units worldwide.
Further, a person arriving in Hong Kong and in possession of a large quantity of currency and bearer negotiable instruments of a total value more than HK$120,000 must make a written declaration to the customs.
As there are no casinos in Hong Kong, the bulk of the STRs filed with the JFIU are from financial institutions. Once a STR has been filed, an account can effectively be frozen by the authorities through an administrative procedure involving a 'no consent letter'. Also, financial institutions often have a contractual right to block or close an account tainted by suspicious transactions. This type of unilateral action by financial institutions has become more common in view of rising expectations on their role in combating money laundering.
Advertising and marketing
While gambling per se is unlawful in Hong Kong unless exempted by statute or licensed, marketing activities for gambling and gambling-related services are not prohibited in Hong Kong. Many well-known international groups of land-based casinos have marketing offices in Hong Kong and employ executives to attract high-rollers in the region to visit their properties in major gaming cities. It is worth pointing out that such marketing activities remain prohibited in mainland China, although punters from the mainland contribute a significant share of revenue to these big gaming operators.
Although the law in Hong Kong does not prohibit the advertisement or promotion of gambling, very rarely are such advertisements seen in the public. Major casinos and cruise ships usually only advertise their resorts and offers on rooms and dining without mentioning the gambling side. Promotion of casinos and gambling related services will usually be conducted by the marketing executives to targeted customers.
iLegal bookmakers and regulators
The Gambling Ordinance allows businesses to apply for licences to run trade promotion competitions that will otherwise be illegal, but it is basically impossible for anyone to enter into the lotteries or bookmaking market that has always been monopolised by the Hong Kong Jockey Club.
The Hong Kong Jockey Club is licensed and authorised by the Hong Kong government to conduct horse racing, football betting and lotteries. The government's power to license and authorise comes from the Betting Duty Ordinance (Chapter 108). Under the same statute, a Betting and Lotteries Commission is established comprising members appointed by the Chief Executive. The main functions of the Commission are to advise the government on, among other things, the regulation of the conduct of betting on horse races and football matches and lotteries, and the issuance and revocation of licences and the variation of the conditions of such licences. As such, the Commission's role is advisory instead of regulatory and the ultimate power to issue and revoke licences remains with the government.
In addition to a racing club, the Hong Kong Jockey Club is a private club with clubhouses in Hong Kong and Beijing. Only members of the club may own horses. Personal membership is not transferrable and will only be granted to applicants with the support of voting members subject to the ultimate decision of the Board of Stewards, which comprises a few voting members. Admission to the club's membership is always sought after among the local elites.
The betting operations and the membership arm are independent from each other and both are run by professional management teams, governed by the Board of Stewards. Thanks to the betting duties levied on the bets, the Hong Kong Jockey Club has been the largest tax payer in Hong Kong for many years. The profits made from the betting operations are applied to a charity trust set up by the club on donations and social projects for the general welfare of the public.
iiEnforcement of gaming credit
Punters cannot bet on credit with the Hong Kong Jockey Club. They have to either bring cash to buy a betting slip at the counter or deposit money with their betting accounts and apply the funds in the accounts for betting. Therefore there will not be any instance of outstanding credit or loss that must be collected by the club. This makes betting with illegal bookmakers somehow attractive to many people as they are not required to deposit cash up front with the bookmakers, which also offer better odds most of the time.
Under the Gambling Ordinance, it is an offence to provide 'money or other property to a person knowing that it is to be used by any person in or for or in connexion with unlawful gambling or an unlawful lottery'. Therefore, it is a crime to knowingly loan money for the purposes of unlawful gambling, and such loan is irrecoverable.
On the other hand, in many gaming jurisdictions such as Macao, Singapore and Las Vegas, legislation has been passed to allow licensed casinos to give credit to the punters. The credit will usually be granted in the form of a credit line, whereby the punters will be allowed to draw on the credit line by taking gaming chips on credit. The punters will have to settle the outstanding credit by returning gaming chips, cash, or a combination of both. The legislations provide that gaming credit is enforceable as a debt, so the casinos can take legal action against the punters to recover outstanding credit.
People unfamiliar with the concept of gaming credit may see it as the loss suffered by the punter at the casino and that a legal action filed by the casino to recover the credit is an action to sue for the casino's winnings. This is a misconception. The casino wins at the completion of the wager that is conducted on the gaming table, and its winnings are collected when the gaming chips are collected by the dealer immediately after the completion of each game. On the other hand, gaming credit effectively means buying chips on credit. A punter has to repay such credit whether he or she loses or wins at the games in which such chips are used. Therefore an enforcement action taken by the casino is to recover the money it has lent to the punter to buy chips, as opposed to recover the winnings of the casino, which has already been physically collected on the table.
In Hong Kong, there is a long line of case authorities that provide an action can be filed in Hong Kong to recover gaming credit that was legal under the law of the jurisdiction where it was advanced. These debts are enforceable and the creditor will generally be able to get judgment summarily without incurring the time and expenses of a full trial. For instance, many casinos in Macao, Singapore and the United States have sued punters in Hong Kong where the punters reside or have assets.
On occasions, the punters will tender a personal cheque signed in blank to the casino, known as a 'cheque on board', as collateral of the credit. When the punters default, the casino will fill in the outstanding amount and deposit the cheque for settlement of the credit. If the cheque is dishonoured, this gives an additional cause of action for the casino to sue the punter. The Hong Kong courts recognise that a cheque is enforceable even if the underlying transaction may not be enforceable as long as the same is not illegal.
Some mainland Chinese punters have no residence or other presence in Hong Kong other than a bank account, and they tender cheques drawn on such accounts as cheques on board. When casinos have to take legal action against them, they may rely on the dishonoured cheques to file the lawsuit in Hong Kong and apply for permission of the Hong Kong court to serve the court documents on the punters in the mainland. The courts may allow such application on the grounds that the cheque is governed by Hong Kong law and was dishonoured in Hong Kong. This is one possible way to bring mainland Chinese punters within the jurisdiction of the courts for recovery of gaming credit, even if the punter cannot be served with court process within Hong Kong.
The above example may arguably also apply to other situations where the punters reside in a country where suits on gaming debt are not recognised, but the punters have tendered cheques on board drawn with a bank situated in a jurisdiction where gaming credit and securities for gaming may be enforced.
iiiSanctions for non-compliance
The Gambling Ordinance contains a robust sanctions regime for non-compliance. As noted above, the Ordinance states that gambling is unlawful in Hong Kong save for a number of limited exceptions. The law creates a series of criminal offences relating to unlawful forms of gambling and lotteries including operating, managing or controlling a gambling establishment. The running of or participating in unlawful lotteries is an offence as is bookmaking. It is also an offence for owners, tenants, occupiers or persons in charge of premises to allow their premises to be used as a gambling establishment or as a bookmaker. The maximum penalties for these offences are a fine of HK$5 million and seven years' imprisonment.
The legal framework and jurisprudence in Hong Kong as regards gambling and enforcement of gaming credit have been quite settled. The law is not expected to change in any material way in the foreseeable future.
The Hong Kong Jockey Club will remain as the only racing club and betting operator in Hong Kong in the years to come, although the club has invested in a new racecourse in Conghua in mainland China, about 200km from Hong Kong. All stables currently in Hong Kong are expected to move there and the horses will be transported to the racecourse in Hong Kong whenever they race. Exhibition raceday has been held at this new racecourse, which will open the door for more similar events in mainland China. As to whether or not horse racing and betting will be legalised in mainland in the near future, this is something which everyone in the racing circuit is eager to find out.
More gaming resorts are being developed and built in Asian countries such as Japan, Taiwan, and the Philippines. If gaming credit is permitted and regulated by local legislation, it is expected Hong Kong will be a regular forum for enforcing gaming credit granted in those jurisdictions as traditionally high-rollers in the region will invariably have some assets or business interest in Hong Kong.