OPINION – To be or not to be: that is the question
Antonio Lobo Vilela is a Macau-based lawyer and the author of the Macau Gaming Law Book
The President of the Court of Cassation announced, in his speech at the solemn opening session of the judicial year 2022/2023, that “when the time comes, the High Court will issue (…) a judgment of unification binding on the question whether the six [casino] gaming concessionaires are companies operating on an exclusive basis, to determine whether the more than 50,000 employees of these companies are assimilated to “civil servants” within the meaning of the provisions of the Penal Code (…), to decide whether they should be sentenced as perpetrators of offenses whose subject is a civil servant”.
Without equivalent in the Penal Code of 1886, the (current) Penal Code of 1995 equates (for criminal purposes) certain entities with civil servants, in particular “[t]members of administrative, supervisory and other boards and employees of public companies, companies whose share capital is wholly or majority owned by the State, as well as concessionaires of public services or assets or companies operating on an exclusive basis” (Section 336(2)(c)). The inclusion of this provision was not, at the time, without criticism. According to the 1995 report of the working sessions devoted to the future Penal Code of Macau, the Legislative Assembly considered that the provision was “too broad” by including “workers who clearly should be excluded, such as those in public enterprises and dealers.”
The issue is whether or not casino gaming operators fall within the scope of “exclusively operating companies”.
When the Penal Code was approved, every type of gambling permitted in Macau (casino gambling, pari-mutuel betting and operations offered to the public) was granted under a monopoly regime. Thus, there was no doubt about STDM, the previous exclusive licensee for the operation of gambling casinos. The same is not true for current casino gaming operators in the context of the closed oligopoly resulting from the “liberalization” of the casino gaming sector that began in 2001.
The question is relevant and has consequences on at least three different levels.
First, the assimilation to civil servants becoming a binding case law, the employees of casino operators will be punished more severely than if they did not have this quality. Certain common law offenses will no longer apply to them but to what the doctrine calls “abusive functional offenses”, that is to say offenses which, although similar to certain common law offenses, are specifically intended to public service with harsher penalties. Imagine the case of a croupier who illegitimately appropriates casino chips for his benefit. Once assimilation is established, the behavior is punishable as embezzlement by a public official, a functional offense (i.e. applicable only to those who are public officials) punishable by imprisonment for 1 to 8 years and not, depending on the circumstances, as a criminal offence. breach of trust or theft, two offenses (of common law) punishable by imprisonment of up to 3 years or a fine.
Secondly, assimilation to civil servants means that certain behaviors of employees of casino gaming operators can be criminally punished, which would not happen if there was no assimilation. There are crimes (called “proper functional crimes”) that apply only to those who are public officials. This is the case of the offense of abandonment of functions, which applies, for example, to a director who illegitimately abandons his functions or neglects to exercise them in order to prevent or interrupt, in this case, the activity of the operator. of casino games.
Third, and no less important, is the (delicate) possibility of “contagion” of the quality of civil servants. As a general rule, in the situations of co-perpetrators of acts whose illegality or degree of illegality depends on the status of civil servant, it is enough for one of them to hold it for the applicable penalty to extend to all others (section 27 of the Criminal Code). Thus, if a croupier incites a player to illegitimately take casino gaming chips to defraud the casino, the official status of the instigator-croupier (the “intraneus”) is communicated to the player-perpetrator (the “extraneus “), and they will be punished with the penalty provided for the functional offense of embezzlement by a civil servant.
Moreover, it is a hot topic.
As stated by its president, the Supreme Court of Appeal will issue (“in due course”) a binding unification judgment.
The unification judgment with binding effect stems from an appeal against the opposition of judgments in the absence of binding case law. In other words, it results from an appeal lodged against a judicial decision which opposes (by adopting the opposite solution) another decision of the same court or of a higher court “on the same fundamental question of law and in the absence of a substantial decision”. modification of the legal framework. The unification judgment with binding effect is published in the Official Gazette and, from that moment, constitutes binding case law for the courts of Macao.
Notwithstanding the lack of unanimity sometimes observed within the college of judges of the Court of Second Instance, which is apparent from the dissenting opinions in some of the judgments delivered on the matter, the consistent case law of the Court of Second Instance has been to consider the operators of casino games as “exclusively operating companies” and, therefore, “[t]members of management, supervisory and other boards and employees assimilated to civil servants.
The Court ruled that the number of concessions is not the decisive factor and that “‘exclusivity’ should not be confused with monopoly” because “a plurality of casino concessionaires does not imply that there is a liberalization of this sector of the economy. In other words, the granting of concessions to various entities does not mean that the operation of casino games of chance has been transformed into a freely accessible activity. Exclusivity is maintained if there is a limitation on the number of entities that can carry out the activity.
Regardless of the merits of this reasoning and the criterion used to equate it, given the (essential) weight that casino gaming revenue represents in Macau’s public accounts, it is believed that equating to civil servants should always be apply to casino game operators. It dictates the nature of the casino gaming license and the special collaborative relationship between the licensor (the Macau SAR) and the licensees.
The operation of casino games of chance is, by law, a reserve of the Macao SAR. The concessions for these operations are public concessions (granted by administrative contract) where, as stated by Freitas do Amaral (O Caso do Tamariz [The Tamariz Case], O Direito, year 96, 1964), there is not a “right of the individual which is exercised with the authorization of the State, but rather a right of the State which the individual exercises through a concession “. Moreover, and as specified in the Reasoned Report drawn up by the Commission des Marches Publics in 2002, a concession for the operation of gambling casinos involves “the exercise of an activity which is the reserve of a legal entity public grantor, legally subtracted from private initiative, by another person, so that the latter executes it himself and at his own risk and peril, although in the general interest”.