António Lobo Vilela is a lawyer based in Macau

and the author of the Macau Gaming Law Book

(www.macaugaminglaw.com)

Although not original, the idea of ‘incentivising’ Macau’s casino gaming concessionaires to attract international gamblers is interesting.

This idea was introduced in the 2022 amendments to Macau’s gaming laws, emphasising the need for concessionaires to broaden the base of foreign customers, understood as those who “enter the Macau SAR for tourism and commercial purposes and who hold a travel document issued by a country or region outside the People’s Republic of China.” The “descriptive memo” outlining the plans for the “expansion of foreign customer markets” has become a criterion in selecting and evaluating proposals for awarding concessions to operate casino games of chance. In addition, the “origin of international visitors” was deemed of public interest and listed in the Investment Plans attached to the concession contracts as the first of the nine areas to be covered by the investment projects. Furthermore, a clause on the “expansion of foreign customer markets” is now mandatory in concession contracts. The one included requires concessionaires to implement these plans per the content and criteria of the awarding proposals submitted.

Unlike the tax exemption on the profits from operating casino games of chance (and their distribution to shareholders), which was granted by the Chief Executive without any (known) consideration to support the “expansion of foreign customer markets,” concessionaires can benefit from a reduction or exemption of up to 5 per cent of gross gaming revenues (which corresponded to USD 1.14 billion in 2023).

The implementation of plans for the “expansion of foreign customer markets” began on January 1, 2023, but has not been successful thus far. Official figures show that in 2023, only 5.17 per cent of total arrivals (approximately 1.46 million people) were foreign passport holders, representing 48 per cent of the number of foreign visitors that Macau had in 2019, before the pandemic.

Several reasons can be cited for this failure.

Firstly, the inertia of the concessionaires derived from the lack of need to expand their existing player base, especially when the number of gamblers from mainland China is on an upward curve. Secondly, the (natural) lack of ability of concessionaires to promote casino games of chance on a large scale, a role previously carried out by gaming promoters replaced by the so-called “money changers” who simply ‘make funds available’ to gamblers in Macau while snaking around casinos. Thirdly, after a cost-benefit analysis, some concessionaires may not see the justification in the “expansion of foreign customers markets,” even if they use the (generous) percentage of the investment obligation totalling MOP 142.65 billion for the ten years of the concessions (the execution of which is not yet known) earmarked for ‘operating expenses.’

The adoption of the same idea had a different fate in Singapore. When the city-state decided to legalise gambling, it did so with the main political objective of establishing itself as a true tourist destination. It used the excess Return on Invested Capital (ROIC) and the profits generated by a quasi-monopolistic casino industry as a driving force to reinforce its status as a tourist destination for visitors from afar, rather than as a destination for overnight stays or a casino market for locals.

Creating barriers to market entry, especially in the case of monopolies or quasi-monopolies, allows a jurisdiction to charge a higher economic rent. Singapore, however, has opted for a different approach, preferring the long-term economic benefits of attracting tourists from far and wide. Despite only allowing two licences to operate casino gaming, Singapore’s current tiered gaming tax rate structure is 8 or 12% for VIP gaming and 18 or 22% for non-VIP gaming. This differentiation aims to incentivise Singaporean casino operators to focus on attracting VIP gamblers while also creating a competitive advantage for their casinos over other jurisdictions, particularly Macau, where the overall tax rate on gaming is five times higher than the lowest rate applied in Singapore.

To this extent, it is not surprising that, for example, Venetian, which also operates in Singapore, is not primarily motivated to implement any plan to attract international gamblers to Macau in exchange for a tax reduction or exemption of up to 5 per cent of the 40 per cent overall tax rate on gaming, when in Singapore it only pays 8 or 12 per cent. The same applies to Melco about the jurisdictions where it operates and where the gaming tax is significantly lower. The same is true for MGM and Wynn, which also operate in Nevada, where the tax rate is 6.75 per cent.

On the other hand, international gamblers generally have a less gambling-centred attitude than gamblers from mainland China. They are also less likely to participate in excursions and let people decide when and where to gamble. This means that a concessionaire may incur costs to bring players to Macau who end up (also) playing in competing casinos, perhaps looking for the hustle and bustle that can’t be found in the isolated foreigner-only gaming rooms.

In addition, the introduction of chips and gaming tables with radio frequency identification (RFID) functionality may, for privacy reasons, not be conducive to attracting international gamblers, who prefer to remain anonymous during their forays into casinos.

Finally, emerging new gaming jurisdictions in Southeast Asia, notably Thailand, could be another factor in international gamblers’ deviation.

All that remains for Macau is to eventually shuffle the cards and use pragmatism to recognise that the bet was international, but the result is regional.

Moreover, the bet was not just lost on the “expansion of foreign customer markets.” The same can be said for Air Macau, Macau Airport, the University of Macau, Macau Union Hospital, Macau Jockey Club, taxis, Uber, outdoor seating areas, ‘modern finance’… and, most recently, the Macau Grand Prix Formula 3, replaced by a simple ‘Macau Prix’ Formula Regional.

António Lobo Vilela is a lawyer based in Macau and the author of the Macau Gaming Law Book

(www.macaugaminglaw.com)

By António Lobo Vilela

At a friend’s kind invitation, I had the pleasure of experiencing a trial stay with my wife at the iconic and recently renovated Hotel Central before it opened to the public.

The Hotel Central is situated on Avenida de Almeida Ribeiro, Macau’s main shopping area, and is easily spotted by the “新中央” (New Central) neon billboard on its rooftop. The hotel (then with 80 rooms) was inaugurated on July 22, 1928, as “President Hotel” by Governor Tamagnini Barbosa. Later, on October 31, 1930, it was renovated and renamed “Grand Hotel Central” by the Iun Iun Company. The Macau government had granted Iun Iun a concession to operate casino games of chance for the first time on a monopoly basis to enhance tax revenues and stimulate economic growth.

In 1937, a new era began as the Tai Heng Company, the new monopolistic casino gaming concessionaire linked to Fu Tak Iam and Kou Ho Neng, took over and transformed the hotel, reopening on May 18, 1937, as “Hotel Central.” For 24 years, seven months, and 13 days (from May 18, 1937, to December 31, 1961), and after three consecutive three-year casino gaming concession contracts (1937-1946), followed by another seven successive two-year contracts (1946-1961), the Hotel Central stood as a symbol of luxury and elegance, and the stage par excellence for casino gaming in Macau.

Hotel Central was the first destination in Macau to offer casino gaming along with other attractions, foreshadowing what is now known as an “integrated resort” or “IR.”

The casino had a luxurious and classic design with avant-garde management, operating on the fourth and seventh floors. Its unique feature was the small reed baskets sent down by cord from the surrounding balconies. These balconies were reserved for members of the Chinese haute monde, mandarins, and other high-ranking officials who wanted to enjoy the game without being noticed by the commoners below. They used the baskets to place their bets, then quickly whisked them off to the croupier. The casino employees donned green and white uniforms, colours that favoured the casino, as Fu Tak Iam, superstitiously, believed red brought bad luck and forbade it from being worn.

The casino offered its patrons (mainly from Hong Kong and mainland China) a variety of games, including fantan, cussec, and p’ai kao. It provided free cigarettes, fruit, food, and Chinese opera performances. The hotel had lavish rooms and boasted ten dining rooms (with chefs from Guangdong), a roof garden, a cinematograph room (comparable to those in Hong Kong or Shanghai), a bar with billiards, a hairdresser, live concerts, nightclubs with dance ballrooms (where dancers were always ready to dance by the hour or by the song), and cabaret shows, including the renowned Grand Central Cabaret. It was also the first building in Macau to have lifts: two, with a capacity for nine people each, used by crowds who went up to see the astounding view from the rooftop. Additionally, it was the first hotel to house a refrigerator, a novelty in Macau at the time. In the late 1940s and 1950s, the hotel’s sixth floor was home to the Golden City restaurant, considered one of the best in town.

The Hotel Central was Macau’s first skyscraper and the tallest building in the Portuguese Empire, a fact used by the hotel to promote itself. Initially, the building only had seven floors, but four more were added. One was in 1937, and the other three were decided in 1941 due to the ongoing construction of the International Hotel (an Art Deco building a few blocks down the road, in Inner Harbour, also recently revamped and reopened as “Grande Hotel Macau”), projected to have nine floors. However, the Macau government rejected the extension project on safety grounds, and only after an appeal to the Portuguese Supreme Court of Justice was it allowed to move forward.

The Hotel Central has a rich history, with many stories of intrigue and danger, particularly during the Second Sino-Japanese War (1937-1945) when many refugees flooded Macau. Spies have been known to frequent its hallways (and gamble). The hotel was also a popular spot for gangsters, leading to occasional bomb attacks. While these attacks have only caused minor damage and no injuries, there have been several suicides by desperate gamblers and a few murders within the hotel.

During the 1940s and 1950s, the Hotel Central was the setting for multiple cinema movies, including “Macau,” starring famous actors Jane Russell and Robert Mitchum. Clark Gable, William Holden, and Ian Fleming were among the celebrities who stayed at the hotel.

Commissioned by the Sunday Times in 1959 to explore and write about fourteen exotic cities, including Macau, Ian Fleming wrote about Hotel Central:

“[t]he Central Hotel is not precisely a hotel. It is a nine-storey skyscraper, by far the largest building in Macao, and it is devoted solely to the human so-called vices. It has one more original feature. The higher up the building you go, the more beautiful and expensive are the girls, the higher the stakes at the gambling tables, and the better the music. Thus, on the ground floor, the honest coolie can choose a girl of his own class and gamble for pennies by lowering his bet on a fishing-rod contraption through a hole in the floor on to the gaming tables below. Those with longer pockets can progress upwards through various heavens until they reach the earthly paradise on the sixth floor. Above this are the bedrooms. In the pursuit of information which would be in accordance with the readership of the Sunday Times, it was a matter of course that, very soon after our arrival at the Central Hotel, Dick Hughes and I should take the lift to the sixth floor.”

In 1962, the casino gaming concession was awarded to another entity, STDM, causing Hotel Central to decay slowly after the closure of its casino. In 2016, in a bold move, the Lek Hang Group purchased it for around MOP$1.5 billion (USD$187.5 million) and restored it according to the principle of’restoring the old to the old.’ They renovated it while maintaining its historical charm, creating a whole new thing. Even before opening to the public, it had already won the ‘Annual Designer’s Boutique Hotel’ prize for 2024 at the 19th China Tourism and Culture Starlight Awards.

The Hotel Central is reopening, with 114 rooms themed to specific eras in the hotel’s history. The fifth and sixth floors are dedicated to the 1920s, focusing on comfortable and relaxed decor. The seventh and eighth floors depict the 1930s and provide historical imprints, recreating Macau’s historic landmarks a century ago. The ninth and tenth floors pay homage to the 1940s, building a bridge between the historic and contemporary Hotel Central. The 360-degree panoramic view from the open-air rooftop promenade remains breathtaking.

The Hotel Central is part of Macau’s collective memory and is a shining example of the innovative initiatives the Macau government should nurture, develop, and even sponsor. These initiatives are crucial in giving Macau uniqueness and cultural identity, setting it apart from becoming an extension of Zhuhai or an appendage of Hengqin. Notably, while it is still unknown what the MOP$142.65 billion (USD$17.8 billion) investment plan of the’six major integrated tourism and leisure companies’ for ten years starting in January 2023 entails, initiatives such as Hotel Central are key to the desired path to diversification and go the extra mile to achieve the goal of making Macau into a truly world centre of tourism and leisure.

The renovated Hotel Central is a testament to the magic and wonder that can be achieved through dedication to excellence.

Best wishes to Hotel Central!

[Note: Most of the facts mentioned are from an article co-authored with Pedro Cortés, entitled “Uncle Stanley, The Dancing King of Gambling Who Promised and Delivered the Moon,” published in the journal Gaming Law Review, vol. 23, no. 3, April 2022].

António Lobo Vilela is a lawyer based in Macau and the author of the Macau Gaming Law Book

(www.macaugaminglaw.com)

The 2022 amendments to Macau’s gaming laws have established clear boundaries for the players in the thriving Macanese casino gaming industry. While there is some unnecessary rigidity, this is a notable achievement. This is what a report in which I participated concluded.

The ban on sub-concessions, which were once authorised to resolve a one-time tender issue and avoid political embarrassment, is a significant development.

Additionally, management companies of casino gaming concessionaires have been eliminated as they proved worthless during the reign of the previous casino gaming concessions/sub-concessions. Casino gaming concessionaires are now prohibited from entering into agreements that allow another entity to assume management powers over them. Any such agreement is null and void.

Furthermore, the Macau government has finally and specifically addressed the issue of ‘satellite casinos’– those run on premises not owned by casino gaming concessionaires or leased from the Macau SAR and named in clause 10/2 of the concession contracts (named in the past by the legal advisors to the former Macau Gaming Commission as the ‘fourth legal entitlement’). For those’satellite casinos’ currently operating, a three-year grace period has been granted from January 1, 2023, during which they can continue to operate as before. This grace period is intended to allow for a transition from revenue-sharing entities to casino management companies – a new player in the gaming industry – in case an agreement is reached with the respective casino gaming concessionaire. Casino management companies are entitled to a specific management fee and nothing else. Still, ‘satellite casinos’ must close if no deal is reached. This is a likely scenario for the 17 currently operating ‘satellite casinos’ (casinos Landmark, Grandview, Kam Pek Paradise, Casa Real, Fortuna, Emperor Palace, Pier 16, Le Royal Arc, Legend Palace, Waldo, and Grand Dragon, and Mocha’s six slot machine parlours), and a concern for those shareholders listed in stock exchanges.

The 2022 amendments have also introduced strict rules against sharing ‘casino revenues,’ a broad expression that shall be construed as including any revenue generated at the casinos, gross or net. The prohibition on sharing casino revenues is inflexible as it does not allow exceptions save for the ‘satellite casinos’ during the three-year grace period. No third parties, including casino gaming promoters and casino management companies, can actively or passively participate in the profits and losses generated by casino gaming tables and machines. Conversely, no casino gaming concessionaire can legally share any revenues its casinos generate.

The prohibition is a corollary of the principle of a public tender, which mandates that the Macau SAR can only award casino gaming concessions to private companies through an administrative concession contract following a public tender. Additionally, preventing the Macau government from waking up in bed with someone else is a logical outcome of the assessment of suitability implemented,.

This prohibition is also a critical regulatory measure implemented by the Macau government to ensure the casino gaming industry’s transparency, integrity, and stability. Therefore, it must be strictly enforced. Macau’s gaming laws and regulations must contain best practices for regulating games of chance, but upholding the highest regulatory oversight and governance standards is equally crucial. To achieve this, it is essential to give the casino gaming regulator all the necessary means to investigate and pursue any potential violation.

The harsh punishments that can be imposed highlight the seriousness of misconduct. These penalties may be legal or contractual and may include additional consequences, such as shutting down casinos for one month to one year and publicising the decision in the press by extract.

Violating the prohibition on sharing casino revenues could result in the revocation of the casino gaming concession due to failure to fulfil legal or contractual obligations. Additionally, it is considered a grave administrative offence subject to a fine ranging from 2 to 5 million patacas.

The sharing of casino revenues also constitutes the assignment or encumbrance of the right to operate a casino in part or in whole, requiring the payment of a penalty clause to the Macau SAR of either 600 million, 1 billion, or 2 billion patacas, depending on the circumstances. This situation is outlined in clause 78 of the concession contracts.

According to the current law, the Macau government is barred from approving or authorising contracts that involve casino revenue sharing. Such agreements were previously used to operate ‘satellite casinos,’ also known as “Provision of Services and Licence for the Occupation and Use of Spaces.” The existing ‘satellite casinos’ contracts will expire after the three-year grace period and cannot be renewed.

In simpler terms, any agreement or arrangement in which a casino gaming concessionaire shares its casino (gross or net) revenues with a third party or makes or promises to make payments based on such revenues is strictly illegal.

Any attempt to pursue such practices or maintain them defies gravity!

António Lobo Vilela is a lawyer based in Macau and the author of the Macau Gaming Law Book

(www.macaugaminglaw.com)

The Macau Legislative Assembly has recently voted on the admission of a draft law proposal to combat illegal gambling. According to the proposal’s Statement of Reasons, the Macau government believes the draft law will create a “legal regime of excellence to investigate and combat the various criminal acts related to illegal gambling.”

In essence, the draft law proposal is a mere rejig of the current Law No. 8/96/M of July 22, 1996, on illegal gambling (which in turn had rejigged Law No. 9/77/M of August 27, 1977, on the same subject) and the repeal of Law No. 9/96/M of July 22, 1996, on criminal offences related to animal racing. Nevertheless, it adds a vast number of criminal procedural precepts that, it is hoped, can help better respond to the needs of combating gambling-related crimes that it provides.

The draft law proposal is also used to include in the amendment it makes to the Code of Criminal Procedure (on the time limits for pre-trial detention) the crimes of Treason, Secession, and Subversion provided for in the Law on Safeguarding National Security (of China, where Gambling is against public policy), which have nothing to do with it.

As far as criminal types are concerned, which is the very essence of criminal law, the proposal merely creates the crime of illegal online exploitation of games of chance or mutual betting and does not transpose (partially) the crime of illicit gambling exploitation in authorised venues or the crimes explicitly related to animal racing. For the criminal types it retains, it grafts mutual betting onto some, re-words others (not always for the better), and increases the existing penalties in almost all cases.

A notable absence from the draft law proposal is the crime of illicit gambling exploitation in authorised venues (introduced into Macau’s criminal legal system by Article 7 of Law No. 8/96/M, of July 22, 1996) in the section related to the exploitation of games of chance or any betting that does not comply with the respective rules of execution.

Punished with imprisonment for up to 3 years or a fine, this crime is the only one that gaming concessionaires (of games of chance, mutual betting, and operations offered to the public) can commit and serves as a sword of Damocles hanging over their heads. The need to prevent this type of conduct is acknowledged in the 2022 amendment to the Gaming Law when failure to comply with the rules of execution for the practice of games of chance (approved and published in the Official Gazette) is labelled a very serious administrative offence, punishable by a fine of between 2 and 5 million patacas.

Gambling regulation is a complex process that involves a delicate balance between economic considerations, public health, social impact, and ethical concerns. It requires a comprehensive approach that addresses the unique characteristics of gambling as an industry and its potential effects on individuals and communities. It is distinct from typical economic regulation, presenting unique challenges and considerations, as it involves elements of risk and chance that can have significant social and moral implications.

Historically, gambling has been illegal and enforced by criminal laws. The regulatory response can differ once the government changes its historical policy and allows licenced gambling. Government protection and player protection are the two central public policies toward regulated gambling. With the possible exception of South Korea, whose gambling regulation aims to protect the player, all other gambling regulations reconcile these general policies.

Indeed, governments regulate gambling, on the one hand, to protect their interests in the gaming industry, create jobs, promote tourism, revitalise urban areas, stimulate economic growth, generate new taxes, etc. On the other hand, to minimise problem gambling and promote responsible gambling by addressing concerns related to addiction, social harm, and the potential for exploitation of vulnerable individuals.

Gambling regulation is also aimed at preventing fraud, guaranteeing the integrity of games, securing players’ privacy, and protecting people from the adverse effects of an activity that is inherently designed to put the player at an economic disadvantage. This warrants fair gaming, transparency, and responsible business practices.

To ensure effective regulation, it is crucial to align it with government goals, which cannot fail to include maintaining the public’s perception that games are fair and honest and that players’ deposits, payments, and winnings are safe and secure. The Macau Gaming Law upholds this principle by stating amongst its objectives the exploitation and operation of casino games of chance fairly and honestly.

Decriminalising illegal gambling exploitation by the concessionaires could send out the wrong signal. Any change, however small, to the rules of execution of the games (approved and published) directly influences the odds, making them more favourable to the concessionaire (who changes them) and, consequently, worse for the players. Criminal law serves not only to repress unlawful behaviour but to prevent its occurrence. Although whether a particular conduct should be (or no longer be) subject to a specific criminal type is a legislative policy choice, there seems to be no reason for the decriminalisation in question, which represents a step backwards and an attitude out of step with the importance that Macau’s gambling sector has and deserves.

Sometimes, it is key to get back to basics!

António Lobo Vilela is a lawyer based in Macau and the author of the Macau Gaming Law Book

(www.macaugaminglaw.com)

The termination by mutual agreement of the concession contract for the exclusive operation of horse racing (allegedly at the request of the concessionaire, Macau Horse Racing Company Limited (MHRC), and on a date kept in the dark, somewhere “in the middle of last year”), and the consequent definitive closure of the Macau Jockey Club (following the announcement by the Secretary for Administration and Justice – who does not hold the gambling policy – that there will be no public tender for the award of a new concession), marks the end of a very long period in Macau’s history.

It is not widely known that horse racing has been a part of Macau’s history since the early days of Portuguese presence. In his travel diary, Peter Mundy, a British merchant trader, reported having witnessed a horse race in the central area of Macau in November 1634. The race occurred on a Sunday at an improvised racecourse “on a large artificially levelled ground” in front of São Domingos church.

Few people know that the Hong Kong Jockey Club (HKJC), a non-profit organisation and one of the oldest institutions in Hong Kong, established in 1844, has been as profitable as some Macau casino operators. In the financial year 2022-2023, HKJC’s proceeds amounted to HK$43.6 billion (US$5.57 billion), paying a total of HK$28.6 billion (US$3.65 billion) in taxes (betting duty, profit tax, and Lottery Fund contributions). This amount accounted for more than 4% of Hong Kong’s HK$700 billion (US$89.53 billion) budget for that financial year.

The termination of the concession contract (regardless of the form used, but never that of a “rescission of the public deed of the concession contract,” as it is referred to five times in the public deed titling the rescission of the concession contract) was not a bolt from the blue. It was expected in some circles and had already been suggested by the press last year, especially after the episode of the Macau government’s ban on horse imports.

The termination of the concession contract rekindles some mysteries. It continues puzzling that MHRC operated and insisted on operating the concession despite running at a (colossal) loss for years. During at least 20 years (1996–2016), MHRC was authorised to publish the balance sheet as a synopsis. In 2018, the concession period was (out of the blue) extended for 24 and a half years, keeping the annual rent of MOP$15 million (US$1.86 million) and with a (meagre) investment plan of MOP$1.5 billion (US$186 million) for the duration of the concession (i.e., until August 2042). When divided by the concession period granted, this investment plan represents only MOP$61.2 million (US$7.6 million) annually. In contrast, the HKJC donated almost five times the total value of that investment plan to charity in the financial year 2022-2023 alone (HK$7.3 billion/US$933.75 million).

It’s not the news of a dead-as-a-dodo MHRC that had “neither the art nor the ingenuity” to take advantage of a long-lasting concession on a plot of more than 404,000 square metres (according to the concession contract) that matters. What’s important is to understand the extent of the “in-depth study” (allegedly) carried out on the Macau government’s decision not to open a new concession for the operation of horse racing. Were the “six large integrated tourism and leisure companies” asked about their interest in developing a project for the Taipa Racecourse (which is delimited as a tourist and entertainment zone in the Macau SAR Master Plan 2020-2040), where maintaining horse meetings would genuinely help with economic diversification and the creation of the longed-for “world tourism and leisure centre”? And what about the HKJC, which, anchored in the National Equine Industry Development Plan (2020-2025) (jointly published by the PRC’s Ministry of Agriculture and Rural Affairs and General Administration of Sports), is developing a plan for world-class racing in the Greater Bay Area under the banner of the HKJC?

Although Macau is not the only jurisdiction to end horse racing (the Singapore Turf Club will hold its final race meeting on October 5, 2024, featuring the 100th Grand Singapore Gold Cup), in mainland China, the trend seems to be the opposite (hence, the horses already have a destination…). On the side of the angels, the HKJC signed a Framework Cooperation Agreement with the Guangzhou Municipal Government in 2021 to jointly develop the Guangzhou-Hong Kong Racing Economic Cluster. As part of this agreement, racing at the Conghua Racecourse in Guangzhou, Guangdong Province, is expected to commence in the 2025–26 season.

To be in the race and ride high, the path to diversification shouldn’t involve eliminating Macau’s (fading) cultural identity that makes it unique and different in the context of greater China. That would be backing the wrong horse!

António Lobo Vilela

Lawyer based in Macau

and the author of the Macau Gaming Law Book

(www.macaugaminglaw.com)

The presence of illegal so-called “money changers” in and around Macau’s casinos has become a significant issue, impossible to ignore.

These “money changers” have devised an intricate and sophisticated scheme to move funds across different jurisdictions without crossing any border. The system, which involves exchanging Hong Kong dollars (made available in Macau) for the renminbi (handed over in China) in consideration of a commission, is currently the primary unofficial channel for providing funds to gamblers in Macau.

This activity replicates what is known as the “Vancouver Model,” created to circumvent restrictions imposed on capital outflow from certain countries, including China. According to a 2021 report by the Asian Racing Federation, cross-border illegal betting is causing a staggering CNY$1 trillion (USD$145 billion) to flow out of China to offshore websites and casinos every year.

Recent reports on crime in Macau have highlighted a notable increase in the number of “money changers.” This surge can be attributed to the lift of COVID-19-related travel restrictions, which has led to an (expected) increase in gamblers. Additionally, traditional mechanisms for making funds available to patrons have been failing, such as the putative “purchases” in pawnshops, affected by the annual limit of CNY$100,000 (USD$14,500) imposed by China’s State Administration of Foreign Exchange on overseas withdrawals from bank accounts in China. Also, the “domestic” purchases illegally made via UnionPay mobile POS terminals located in Macau and connected to servers in China are more strictly controlled.

However, the primary cause of this exponential increase in “money changers” is the – natural – need to fill the void left by the “disappearance” of casino gaming promoters. Before the pandemic, the casino gaming promotion activity was valued at around USD$17 billion in 2019 and moved an estimated USD$ 600 billion per year (or USD$1.14 million per minute).

The concern of local authorities has been growing over the last few years, and the release of the “Public Prosecutor’s Work Report for 2019” has only added to their worries. The report states that there is no “effective solution for combating such activities” and urges the “public services responsible for justice matters” to study how to strengthen “through legislative initiative, the regulation of such activities and even their possible criminalisation, to find a balance between upholding the freedom to exchange money and combating illegal profitable exchange.”

It is a legitimate concern given the rise in crime statistics in Macau, particularly the crime associated with the type of activity carried out by the “money changers” (money laundering, fraud, counterfeit gaming chips, passing counterfeit currency, loan sharking and in some cases, murder) and the fact that almost all of them are non-Macau residents. All this poses a potential threat to public safety and – not least – to the image of the Macau SAR as a “world centre for tourism and leisure” and beyond.

The recent amendment to the Gaming Law, in line with the amendment to the Criminal Law of the PRC, reflects this concern. Greater emphasis has been placed on the objective of ensuring that casino operations are carried out free from criminal influence by expressly adding the need for compatibility with the Macau SAR’s policies and mechanisms aimed at preventing money laundering and terrorism.

The concern is also echoed in the recent discussion around the possible ban on gaming promoters extending credit for casino gaming.

The Macau authorities have conducted several “scientific studies” since 2019. The results so far suggest that while the activity should not be penalised criminally (and therefore has no place in the law proposal to repeal the Illicit Gambling Law to be presented to the Legislative Assembly), it can be administratively within the framework of the financial system (whose primary law was approved in August last year and made no provision for it). The studies also seem to highlight the tremendous challenge of ending with the “money changers” plague (certainly worse than the bedbugs (allegedly) “coming from Europe” that are plaguing Macau).

This is a complex topic because of the disadvantages that the absence of “money changers” entails, especially for the “six large integrated tourism and leisure companies.“

However, some measures within spitting distance – intuitive, not creative – can be implemented to mitigate the proliferation of “money changers” or at least moderate the volumes involved. One effective measure would be to restrict the cash transaction amounts allowed (one of the first measures to curb the “Vancouver Model” was prohibiting cash transactions in British Columbia casinos). Another one is to make identification compulsory when entering casinos, as in other jurisdictions like Singapore. Combining this latter measure with customer/player loyalty programmes and the facial recognition functionality made possible by surveillance systems installed in casinos would help maintain the regular and orderly flow of entries while banning and effectively preventing those operating outside the legal limits from re-entering casinos. Where there’s a will, there’s a way!

溫令韜

澳門律師，《澳門博彩法》一書作者(www.macaugaminglaw.com)

11月15日，行政長官向立法會提交《二○二三年財政年度施政報告》。該份《施政報告》的發表可謂特區政壇的巔峰之作，根據經濟指標和最新統計數據，我們看到年輕的澳門特別行政區正身處一個前所未有且極具挑戰性的經濟時代。

2022年首十個月錄得的博彩總收入（澳門幣357億元/折合約45億美元）回落至接近2004年水平（澳門幣341億元/折合約43億美元）。猶記得2004年5月18日金沙娛樂場正式開幕，同時啟動了真正的市場競爭。該數額（博企須向特區政府繳納39%博彩稅）僅有2021年同期博彩總收入的一半（49.5%）左右，是2019年的14.5%，亦低於當局2022年預期的澳門幣1,300億元（折合約163億美元）。從長遠來看，2019年首35天的賭收就已比得上今年1月至10月的博彩總收入。也正是這個多事之秋，澳門錄得了自博彩業2002年開放以來的最低月度收入（7月收入為澳門幣3.98億元/折合約4,980萬美元），且首次出現了月度收入不達7億元（折合約8,750萬美元）門檻的情況。

今年第三季度，本地博企EBITDA整體下跌了約5.58億美元（折合約澳門幣45億元）。行業債務飆升至233億美元（折合約澳門幣1,875億元），遠高於2019年底的 48億美元（折合約澳門幣386億元）。

今年第三季度錄得本地失業率為5.2%，2019年和2021年同期的失業率分別為2.5%和3.9%。總體就業人口月工作收入中位數亦呈下降趨勢，今年第三季度錄得的數據為澳門幣14,000元（折合約1,750美元），與2014年第四季度的記錄一致，2019年和2021年同期的就業人口月工作收入中位數分別為澳門幣17,000元（折合約2,125美元）和澳門幣16,000元（折合約2,000美元）。

自去年以來，本地城市生產總值始終呈負增長趨勢，第三季更錄得負33.4個百分點。經濟及技術發展局解釋，“博彩服務出口”減弱是造成下跌的部分原因。

今年首9個月共錄得75宗自殺案件（2019年全年共67宗，2020年共74宗，2021年共60宗）。綜合官方公佈的總人口數字（671,900人），澳門自殺率為每十萬人有11.16人。然而，按照世界衛生組織的標準，13%的自殺率已經算是高了。

今年1月至9月間，澳門特區財政儲備共減少了12.5%（澳門幣803億元/折合約100 億美元）至澳門幣5,629億元（折合約697億美元）。2021年2月，政府庫房總值澳門幣6,630億元（折合約820億美元）。

截至10月31日，澳門接待了入境旅客490萬人次。2019年和2021年同期分別為3,340萬人次和600萬人次。日均旅客量方面，今年數據為平均每天16,800人次，較2019年和2021年分別減少85%（每天113,600人次）和19%（每天20,700人次）。

今年10月，澳門國際機場進港商業航班共786架次，與2019年（5,972架次）和2021年（1,062架次）相比，跌幅分別為86.8%和26%。

為振興澳門經濟，政府於11月1日恢復辦理內地居民赴澳電子簽注，至今仍未見成效。Morgan Stanley報告指，根據百度指數（跟踪內地用戶使用百度引擎搜索關鍵詞的趨勢），廣東省用戶搜索“澳門自由行”的次數不但沒有上漲，反而略有下降。

與此同時，中國內地爆發新一輪疫情。反觀澳門，儘管政府提出接種第四劑疫苗，接種率卻繼續緩慢增長。僅約九成人口接種了兩劑（即所謂完成接種），接種了三劑或以上疫苗的比例僅五成左右。

這正是當局發表《2023年財政年度施政報告》（題為“齊心合力，穩中求進”）時的實際狀況。

從形式上看，2023《施政報告》的篇幅較以往短（115頁，約一半）且更簡潔，內容未見太多重複。從材料的角度來看，文件未有描繪黑暗盡頭存在明燈的畫面。大部分現行措施的成功則預示著澳門能夠（迅速）擺脫“零經濟”階段。

與往年的《施政報告》一樣，“博彩”業務被描述成一項無關痛癢的經濟活動。在葡文版本出現的44,141個詞彙中，“博彩”（僅）出現41次。若排除與承批公司、法律、博彩機或博彩中介相關的內容，該詞出現的次數則減少至17次，當中9次用於“非博彩元素”。“娛樂場”一詞（僅）被提及14次（撇除了有關承批公司和法律的內容後，則只剩下4次）。即使是“旅遊”一詞也只出現了51次。

除了“施政主要工作時間表”提出兩項與經濟和金融領域相關的行動計劃外，整份報告被精簡至只餘下第一部分（“二○二二年施政工作回顧與總結”）和第二部分（“二○二三年施政總體方向和施政重點”）的少許內容。僅此而已！

澳門政府希望，隨著“博彩經營批給重新競投工作順利完成，澳門綜合旅遊休閒業進入新的發展機遇期”。當局相信，博彩業修法及博彩經營的重新批給將“正本清源，促進本澳博彩業長遠健康規範有序持續發展，並加強開拓國際客源，推動會議展覽、娛樂表演、體育盛事、文化藝術、健康養生、主題遊樂、美食之都、社區旅遊、海上旅遊等非博彩元素逐步豐富” 。

另一方面，澳門政府奢望能夠一蹴而就，成功在短期內扭轉澳門的經濟結構，明確提出“爭取未來非博彩業佔本地生產總值約六成的比重”的目標，決心“切實推動博彩業帶動非博彩業發展” 。

最後，作為一項“惠民”措施，澳門政府承諾“保障本地居民優先就業”，“確保博彩經營批給落實後博彩職員就業的穩定，維持本地僱員在綜合旅遊休閒企業（這或許是當局為博企專門創造的又一新稱謂）任職中、高層管理人員比例不低於 85%” 。 

“施政主要工作時間表”列出的經濟財政範疇工作計劃共38項，當中只有兩項與博彩業有關。

首先，第21項工作計劃為“確保博彩業依法規範有序健康發展”，內容分為三部分。第一部分是“監管經營娛樂場幸運博彩的承批公司履行法律及批給合同義務的情況”，包括“……社會非博彩元素投入”，以及“嚴格審視及督促，以及審批博彩桌及博彩機數量的申請等”；第二部分工作為“持續實地監察娛樂場營運”；最後，對“個人或實體……履行法定義務及批給合同義務的情況”進行持續監察和審查。

第二項與博彩業相關的工作內容為第22項“推動負責任博彩”，即“要求娛樂場幸運博彩承批公司落實《負責任博彩推行措施》”（當局或將根據新《博彩法》的規定重新定向博企的行動計劃）。

最後，澳門政府擬於2023年向立法會提交的16項法案中，唯一一項涉及博彩領域的是《打擊不法賭博犯罪》（大概是為了取代26年前通過的8/96/M號法律，要知道這部監管非法賭博活動框架不曾被修改過且早已過時）。奇怪的是，文件未提出修訂《娛樂場博彩或投注信貸法律制度》(第5/2004號法律)的計劃，但特區政府去年4月卻確實以書面形式向立法會提出了修訂該部法規“以加強對娛樂場博彩或投注信貸的監管標準”。

考慮到當局對待城市核心產業的方式，這似乎是本地一項遭到嫌棄的產業！

António Lobo Vilela is a lawyer based in Macau and the author of the Macau Gaming Law Book

(www.macaugaminglaw.com)

On November 15, the Chief Executive presented the Policy Address (LAG) for 2023 to the Legislative Assembly.

The presentation of the LAG is the pinnacle of the SAR’s political life. This time was carried out against the background of unprecedented challenging economic times that the (still young) Macau SAR is going through, well evidenced by the economic indicators and most recent statistical data.

Gross gaming revenue (GGR) generated in the first ten months of the year (MOP 35.7 billion / USD 4.5 billion) fell back to near 2004 levels (MOP 34.1 billion / USD 4.3 billion) when the actual competition started with the opening of Casino Sands on 18 May. That amount (on which the Macau SAR collects 39% as special gaming tax) is about half (49.5%) of the GGR in the same period of 2021 (and 14.5% of that of 2019) and is short of the MOP 130 billion (USD 16.3 billion) forecasted in the MSAR’s budget for 2022. Put into perspective, between January and October, Macau casinos generated the same as in the first 35 days of 2019. The annus horribilis of 2022 registered the lowest monthly GGR ever recorded since market liberalisation in 2002 (MOP 398 million / USD 49.8 million in July) and the first time a monthly threshold of MOP 700 million (USD 87.5 million) was not met.

Macau casino operators’ combined EBITDA fell in the third quarter of the year by about USD 558 million (MOP 4.5 billion). The local gaming industry’s debt stood at around USD 23.3 billion (MOP 187.5 billion), well above the USD 4.8 billion (MOP 38.6 billion) recorded at the end of 2019.

The unemployment rate was 5.2% in the third quarter. It was 2.5% and 3.9% in the same quarters of 2019 and 2021, respectively. The median monthly income of the employed population has been gradually falling. In the third quarter of the year, it was MOP 14,000 (USD 1,750), the exact figure recorded in the fourth quarter of 2014. In the same quarter of 2019 and 2021, the medium was MOP 17,000 (USD 2.125) and MOP 16,000 (USD 2,000), respectively.

The real GDP growth rate has remained negative since last year. In the third quarter, it was negative by 33.4 percentage points, partly due, according to the Economic and Technological Development Bureau, to the drop in “gaming services exports.”

In the first nine months of the year, 75 suicides were recorded (in the entire year of 2019, there were 67, in 2020, 74, and in 2021, 60). Considering the official figure of Macau’s total population (671,900 people), the suicide rate per 100,000 population is 11.16% (i.e. 11.16 suicides per 100,000 population). According to the standards of the World Health Organization, a suicide rate of 13% is considered high.

Not counting the pennies, the Macau SAR’s fiscal reserve shrank 12.5% (or MOP 80.3 billion / USD 10 billion) between January and September to MOP 562.9 billion (USD 69.7 billion). In February 2021, it stood at MOP 663 billion (USD 82 billion).

As of October 31, Macau had 4.9 million visitors. They were 33.4 and 6 million in the same period of 2019 and 2021, respectively. The average daily visitor arrivals – 16,800 people represent a decrease of 85% (113,600 people/day) and 19% (20,700 people/day) compared with 2019 and 2021, respectively.

In October this year, 786 commercial flights arrived in Macau. In 2019, there were 5,972, and in 2021, 1,062, a decrease of 86.8% and 26%, respectively.

The online visa system for mainland residents to travel to Macau, which restarted on November 1 to revive Macau’s economy, has had no effect. According to Morgan Stanley, the Baidu Search Index (which tracks the incidence of keywords in the Baidu search engines by Chinese users) shows that the search volume for ‘Macau IVS’ did not increase and, in the case of Guangdong province, decreased.

At the same time, a new COVID-19 outbreak erupted in mainland China. In Macau, where the fourth dose is available, the COVID-19 vaccination rate continues to grow slowly. Only around 90% of the population is inoculated with two doses (complete vaccination) (and about 50% with three or more doses).

This was the “cocktail” when the LAG 2023 (with the motto ‘Joining forces,  Advance with stability’) were presented.

From a formal point of view, the 2023 Policy Address report is shorter (147 pages in the Portuguese version, roughly half) than previous reports, more succinct, and without much repetition. From a material point of view, it does not show any light at the end of the tunnel. And the success of most of the measures announced presupposes a (quick) exit from the ‘zero-economy’ stage into which Macau was plunged.

Like in previous years’ LAG, gaming is treated as a fait divers, an irrelevant economic activity. Among the 44,141 words in the Portuguese version of the report, “gaming” appears (only) 41 times. If one excludes its use in the name of concessionaires, laws, machines or promoters, the count drops to 17, of which nine refer to “non-gaming elements.” The word “casino” is mentioned (just) 14 times (4 if its use in the names of concessionaires and laws is not considered). Even the word “tourism” only appears 51 times.

Except for the (two) projects included in the “calendar of major governmental actions” in the area of economy and finance, the report dedicates explicitly to the gaming industry one paragraph in part I (on the “[r]eview and assessment of the governmental action for the year 2022”) and a few more in part II (about the “[o]rientation and relevant points of the governmental action for the year 2023”). And that’s it!

Extracting as much juice as possible, the Macau government anticipates that with “the successful completion of the public tender for casino gaming concessions, Macau’s integrated tourism and leisure industry will enter a new period of development with opportunities.” It believes that the amendment to the Gaming Law and the granting of the new concessions will result in “an improvement of the gaming industry,” the promotion of its “healthy, regulated, orderly and sustainable long-term development,” as well as the opening up of “new markets of foreign visitors,” boosting “the enrichment of non-gaming elements, namely in the areas of conventions and exhibitions, entertainment and shows, sporting events, culture and art, health care, thematic entertainment, gastronomic city, community tourism and maritime tourism.”

On the other hand, the Macau government, keen as mustard to change the economic fabric of Macau overnight, jumped the gun and outlined a target to attain “60% of GDP from non-gaming industries,” as the “gaming sector will be oriented to promote, in a more pragmatic way, the synergistic development between gaming and non-gaming industries.”

Finally, as a measure “for the benefit of the population,” a “guarantee of priority access to employment for residents” is given, with the Macau government ensuring “the stability of employment of workers in the gaming sector after the new award of concessions for the operation of the gaming industry and the maintenance of the number of local workers in the middle or senior management positions of tourism and leisure enterprises [probably the new fancy name casino operators will be known as] at a percentage of not less than 85%.”

On the “calendar of major governmental measures” in the area of economy and finance, 38 projects are listed. Only two are gaming related.

The first gaming related – which ranks 21 on the list – is entitled “Ensuring the orderly and healthy development of the gaming sector under the law” and is divided into three parts. The first part comprises the supervision of compliance with legal and contractual obligations by casino operators, “namely regarding (…) the investment of non-gaming elements in the community,” and the “rigorous appreciation, supervision and approval of requests for the allocation of gaming tables and machines.” The second part provides for “continued on-site supervision of casino operations.” Lastly, the third part refers to the monitoring and supervision of the suitability of “persons or entities and compliance with legal and contractual obligations, carrying out specific assessments if necessary.”

The second project (22nd in the list) concerns the “promotion of responsible gambling,” referring that casino operators will be required to “implement measures to promote responsible gambling” (probably to redirect their action plans to what the Gaming Law, as amended, dictates).

Finally, among the 16 bills that the Macau government intends to submit to the Legislative Assembly in 2023, only one relates to the gaming area: “fighting the crime of illegal gambling” (presumably a legislative initiative to replace the obsolete and never amended Law 8/96/M, which approved the illegal gambling framework 26 years ago). Curiously, it does not include the amendment to the legal framework for granting credit for casino gaming or betting (Law 5/2004), which the Macau government announced last April (in writing) to the Legislative Assembly that it intended to revise “to enhance the regulatory standards regarding the granting of credit for casino gaming or betting.”

Considering the way authorities address the city’s core industry, Macau has a business that it seems not to like!

溫令韜 (António Lobo Vilela)

澳門律師，《澳門博彩法》一書作者

(www.macaugaminglaw.com)

終審法院院長在2022/2023年司法年度開幕典禮上宣佈：“接下來，終審法院將就六家博彩企業是否屬於以專營制度經營業務之公司，從而確定為著《刑法典》規定之效力，該等企業的五萬多名員工是否等同於公務員作出統一司法見解……以便決定他們是否處以以公務員為犯罪主體的罪名”。

有別於1886年頒佈的《刑法典》，（現行）1995年實施的《刑法典》（出於刑事目的）將某些實體等同於公務員，包括“公營企業、公共資本企業、公共資本佔多數出資額之企業，以及公共事業之特許企業、公共財產之特許企業或以專營制度經營業務之公司等之行政管理機關、監察機關或其他性質之機關之據位人，以及該等企業或公司之工作人員”（第336條第2款c項）。在當時，將這一條款納入法律的決定曾受到質疑。根據1995年《關於未來澳門刑法典的非正式工作會議的報告》，立法會認為該條文“過分概括”，將“明顯應被排除在外的實體工作人員涵蓋在內了，例如公共企業和特許企業內者” 。

關鍵在於了解娛樂場博彩運營商是否屬於“以專營制度經營業務之公司”的範疇。

當年《刑法典》獲得通過之時，澳門每一種合法的博彩活動（娛樂場幸運博彩、互相博彩和向公眾提供之博彩活動）都是在行業完全壟斷體制下獲批的。因此，澳門旅遊娛樂公司（STDM）作為當時娛樂場幸運博彩專營批給承批公司的定位是毋容置疑。同樣地，自2001年推行娛樂場博彩業“自由化”後，行業發展至寡頭壟斷，對於現時本地業界“六雄”來說，這同樣不適用。

然而，問題本身具相關性且至少在三個不同的層面上產生影響。

首先，鑒於等同於公務員成為具強制性之司法見解，幸運博彩運營商的員工將受到較其他不列入此列者更嚴厲的懲罰。某些一般罪行將不再適用，被歸類到“不正當職務犯罪”的範疇，即儘管行為與某些一般罪行相似，卻被判定為專為公務員設計的犯罪，處罰更嚴厲。試想一下，若一名荷官非法挪用娛樂場籌碼以謀取利潤，一旦罪名成立，則將被視為公務上之侵占，屬職務犯罪（即僅適用於公務員），可根據具體情況判處一年至八年徒刑，例如信任之濫用或竊用，這兩種（常見）罪行均可被判處最高三年徒刑或科罰金。

其次，等同於公務員意味著幸運博彩運營商員工的某些行為可構成刑事犯罪，但若沒有等同性就不會發生這種情況。有些罪行（稱為“正當職務犯罪”）僅適用於公務員。例如，“棄職”罪行就是這樣的情況。該罪適用於意圖阻止娛樂場幸運博彩經營承批公司或獲轉批給人的業務或使之中斷，而不正當放棄其職務或玩忽職守的董事會成員。

第三，同樣重要的是公務員素質“傳染”的（微妙）可能性。作為一般規則，如事實之不法性或其不法性之程度取決於行為人之特定身分或特別關係，則只要任一共同犯罪人有該等身分或關係，即足以使有關刑罰科處於所有共同犯罪人（《刑法典》第二十七條）。因此，若一名荷官教唆賭徒非法拿取娛樂場籌碼以詐騙賭場，則教唆者——這位身為公務員的荷官（“內在”）的素質會傳染給這名賭徒（“外在”），他們將被處以公務上之侵占的刑罰。

此外，這是一個熱門話題。正如院長所說，終審法院將（“在適當時候”）發表統一司法見解之裁判。

統一司法見解之裁判源於在無具強制性之司法見解之情況下反對判決的上訴。換句話說，針對一項司法決定提出上訴，（通過採用相反的解決方案）反對同一法院或上級法院的另一決定，“就同一法律基本問題且在法律規範未有實質變更”。 統一司法見解之裁判須公佈於《政府公報》，且自公佈時起構成對澳門法院具強制性之司法見解。

儘管中級法院的法官專案組有時無法統一意見，從與此相關的某些判決的表決聲明中就能明顯看到，然而中級法院的一貫判例是考慮幸運博彩運營商是否“以專營制度經營業務之公司”，因此，“行政管理機關、監察機關或其他性質之機關之據位人及工作人員”等同於公務員。

法院認為，博彩經營牌照的數目並非釐定博彩公司是否專營性質的決定因素，“‘排他性’不應與壟斷相混淆”，因“發出牌照的數量多不等於博彩業就已進入了真正的自由化”。換言之，向不同實體發出博彩經營牌照，並不意味著幸運博彩已成為一個可自由參與的領域。既然能夠經營有關業務的實體數量受到限制，那麼還是保留了專營的性質。

不管這一推理的合理性和用於等同的標準如何，考慮到幸運博彩業務收入在澳門政府財政收入中所佔的（重要）權重，我們認為等同於公務員應該始終適用於幸運博彩運營商。它規定了娛樂場幸運博彩經營批給的性質，以及批給人（即澳門特別行政區）與承批人之間的特殊合作關係。

根據法律，澳門特別行政區保有幸運博彩之經營權。此類業務的專營權屬公共特許權（由行政合同授予），正如 Freitas do Amaral 所說，不存在“一項由國家許可行使的私人權利，而是存在一項由私人透過批給而行使的國家權利”。此外，正如招標委員會在2002年起草的具說明理由的報告書中所表明的那樣，幸運博彩之經營權批給意味著“透過法律轉變為私人從事的活動，並將之交由另一人從事，以便該人以自負盈虧的方式在謀求整體利益的範圍內從事” 。

António Lobo Vilela is a lawyer based in Macau and the author of the Macau Gaming Law Book

(www.macaugaminglaw.com)

The president of the Court of Final Appeal announced, in his speech at the formal opening session of the judicial year 2022/2023, that “in due course, the Court of Final Instance will issue (…) a unification judgment with binding effect on the issue of 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 equated to “public servant” for the provisions of the Criminal Code (…), to decide whether they should be convicted as perpetrators of crimes whose subject is a public servant.”

With no parallel in the 1886 Criminal Code, the (current) 1995 Criminal Code equates (for criminal purposes) some entities to public servants, including “[t]he members of managing, oversight, and other boards and the employees of state-owned companies, companies whose share capital is whole or majority-owned by the state, as well as concessionaires of public services or assets or companies operating on an exclusive basis” (Article 336(2)(c)). The inclusion of this provision was not, at the time, free of criticism. According to the 1995 Report of the working sessions dedicated to the future Criminal Code of Macau, the Legislative Assembly considered that the provision was “too broad” by including “workers who clearly should be excluded, such as those of state-owned companies and concessionaires.”

At stake is knowing whether or not the casino gaming operators fall within the scope of “companies operating on an exclusive basis.”

When the Criminal Code was approved, each type of gambling permitted in Macau (casino games of chance, mutual betting, and operations offered to the public) was granted under a monopoly regime. Thus, there were no doubts regarding STDM, the previous concessionaire of the exclusive for the operation of casino games of chance. The same does not apply to the current casino gaming operators in the framework of the closed oligopoly resulting from the “liberalisation” of the casino gaming sector that started in 2001.

The issue is pertinent and has consequences on at least three different levels.

Firstly, as equating to public servants becomes binding case law, the employees of the casino gaming operators will be punished more severely than if they did not have that quality. Some common crimes will no longer apply to them but to what the doctrine calls “improper functional crimes,” i.e., crimes that, although similar to certain common crimes, are specifically designed for the civil service with more severe penalties. Imagine the case of a dealer who illegitimately appropriates casino gaming chips for his profit. Once the equating is established, the conduct is punishable as embezzlement by a public servant, a functional crime (i.e., applicable only to those who are public servants) punishable by imprisonment of 1 to 8 years and not, depending on the circumstances, as criminal breach of trust or theft, both (common) crimes punishable by imprisonment of up to 3 years or a fine.

Secondly, equating to public servants means that certain conduct of the employees of casino gaming operators can be criminally punished, which would not happen if there was no equating. There are crimes (called “proper functional crimes”) that only apply to those who are public servants. This is the case of the crime of abandonment of functions, which applies, for example, to a board member who illegitimately abandons his duties or neglects to perform them to prevent or interrupt, in this case, the activity of the casino gaming operator.

Thirdly, and no less important, is the (delicate) possibility of “contagion” of the quality of public servants. As a general rule, in situations of joint authorship in facts whose unlawfulness or degree of unlawfulness depends on the quality of public servant, it is enough for one of them to hold it for the applicable penalty to extend to all the others (article 27 of the Criminal Code). Thus, if a dealer instigates a gambler to take casino gaming chips illegitimately to defraud the casino, the quality of public servant of the instigator-dealer (the “intraneus”) communicates to the gambler-author (the “extraneus”), and they will be punished with the penalty provided for the functional crime of embezzlement by a public servant.

Moreover, it is a topical issue.

As stated by its president, the Court of Final Appeal will (“in due course”) issue a unification judgment with binding effect.

The unification judgment with binding effect derives 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 that is in opposition (by adopting the opposite solution) to another decision of the same or a higher court “on the same fundamental question of law and in the absence of a substantial change in the legal framework.” The unification judgment with binding effect is published in the Official Gazette and, from that moment onwards, constitutes binding case law for the courts in Macau.

Notwithstanding the lack of unanimity sometimes observed among the panel of judges of the Court of Second Instance, which is evident in the dissenting opinions in some of the judgments rendered on the matter, it has been a constant jurisprudence of the Court of Second Instance to consider the casino gaming operators as “companies operating on an exclusive basis” and, consequently, “[t]he members of managing, oversight, and other boards and the employees” as equated to public servants.

The Court has held 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 liberalisation of that sector of the economy.” In other words, granting 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 may exercise the activity.

Regardless of the soundness of this reasoning and the criterion used for equating, given the (vital) weight that casino gaming revenues represent in the public accounts of Macau, it is believed that equating to public servants should always apply to the casino gaming operators. It dictates the nature of the casino gaming concession and the special collaboration relationship between the grantor (the Macau SAR) and the concessionaires.

The operation of casino games of chance is, by law, a reserve of the Macau SAR. The concessions for such operations are public concessions (granted by administrative contract) where, as Freitas do Amaral stated (O Caso do Tamariz [The Tamariz Case], O Direito, year 96, 1964), there is not a “right of the private individual that is exercised with the State’s authorisation, but rather a right of the State which the private individual exercises through a concession.” Furthermore, and as the Substantiated Report drawn up by the Public Tender Commission in 2002 makes clear, a concession for the operation of casino games of chance implies “the exercising of an activity that is the reserve of a granting public legal person, legally subtracted from private initiative, by another person, in order for the latter to perform this itself and at its own risk, albeit in the general interest.”

在是次娛樂場幸運博彩經營批給公開競投出現第七間參與競投公司實在令人有點意外。

温令韜（António Lobo Vilela），澳門大律師，

《Macau Gaming Law Book（澳門博彩法）》作者(www.macaugaminglaw.com)

是次公開競投對擬進入澳門市場的新玩家頗欠吸引力（新的博彩經營批給令人興味索然）確有種種原因，其中值得強調的包括供競投的批給數目與現有娛樂場營運商的數目相同、新批給的期效偏短，而澳門博彩業自去年開始萎縮、競投要求偏高、對短中期經濟向好發展的信心不足、澳門政府聲明不會向未來承批公司批出新土地，等等。

出現第七間參與競投公司會令競投過程重新洗牌。

澳門政府須對從未在澳經營博彩的參與競投公司進行（全新和完整的）初始適當資格審查程序，並可能因而拖長政府原本預計會（過於）迅速完成的競投過程，這亦令是次公開競投的程序和步驟（進一步）變得更為嚴謹。

在競投中落選的參與競投公司針對判給行為向中級法院提起司法上訴不再是遙不可及的事；當然，假如參與競投的僅為現有的娛樂場營運商，這情況便不會出現。由於不可能出現參與競投公司的組合（因法律未有規定），尤其考慮到參與競投公司的管理人對其公司和公司股東負有忠誠和熱心的信托責任，而該等責任主要受“普通法”國家採用的方式規管，這便可能衍生出後果嚴重的可能情況。

法律規定，娛樂場博彩經營批給是判給在經營及操作娛樂場幸運博彩方面被認為具 備適當資格及財力，且提供最有利於澳門特別行政區的條件的參與競投公司。

為明確何謂“最有利條件”，法律列明了判給批給的標準，允許作為競投評審者的競投委員會在評標和評價期間對各參與競投公司遞交的標書進行比較。

在最近修改規範公開競投的行政法規時，澳門政府適當調整了判給批給的標準，制定了切合對澳門龍頭產業發展預期的（新）標準（在行政法規中卻不恰當地稱之為“因素”）。事實上，除了關於溢價金、經營經驗和投資的判給標準外，其餘標準均屬新增，是2001年公開競投時沒有採用的標準。

所有這些判給標準（列出的標準純屬例舉）被（原文）轉錄到競投方案（儘管其亦說明屬例舉性質，但總不可將之視為非明文規定的標準……）。

因此，競投方案規定“在甄選參與競投公司及進行評標時，尤應考慮下列因素：

（一）所建議的溢價金可變動部分的金額；

（二）開拓外國客源巿場的計劃；

（三）經營娛樂場幸運博彩或相關方面的經驗；

（四）博彩項目及非博彩項目的投資對澳門特別行政區所帶來的利益；

（五）管理娛樂場的計劃；

（六）監察及預防娛樂場內不法活動的方案；

（七）擬承擔的社會責任。”

然而，競投方案並未訂明在衡量參與競投公司提出的“最有利條件”時，上述每一標準所占的相對權重，即未訂明評標、甄選參與競投公司和確定其排名所需的加權因素。

這一事實導致參與競投公司（至少）兩次要求競投委員會作出解釋，而競投委員會在其114項解釋中的兩項作出了回應（2001年僅作出過14項解釋……）。

根據2022年8月26日的第74號和第86號解釋（葡文版），“在遵守公平、公正、無私等原則的前提下、評標應考慮因素的加權系數及計算機制將適時訂定，因此，該等資料不向參與競投公司提供”（中文版卻不含“因此”一詞，故應理解為在任何情況下均不會提供“該等資料”）。

根據競投方案，本次公開競投“包括最少兩個競投階段，首先是提交標書階段，然後是為了對已提交的標書進行評審（……）而與參與競投公司連續進行的一個或多個諮詢階段”。

競投委員會已展開第一輪連續諮詢階段，並於9月最後一周與所有參與競投公司舉行會議。委員會亦已開啟和閱知參與競投公司遞交的標書，並與彼等就標書進行商討。然而，澳門政府認為不適宜在此之前訂定“加權系數及計算機制”。

不留穢名是不夠的，幹實事吧。

由於沒有事先訂定“加權系數及計算機制”，判給標準的次序可被任意重排，每一標準的相對權重可被評高或評低，從而讓評審者可按其想法選出中標標書或參與競投公司。情況就像大家玩牌時，先攤牌後決定遊戲規則一樣兒戲。

這或將令澳門新一輪娛樂場幸運博彩經營批給公開競投蒙上陰影，並迫使當局重新洗牌。

老兄，祝你好運！

António Lobo Vilela is a lawyer based in Macau and the author of the Macau Gaming Law Book

(www.macaugaminglaw.com)

Surprisingly, a seventh bidder appeared in the public tender for the award of casino gaming concessions.

Several reasons made the public tender somewhat unattractive (and the new gaming concessions uninteresting) to new players in the Macanese market. Among these reasons are the fact that the number of concessions put out to tender is equal to the current number of casino operators; the short term of the concessions to be awarded coupled with the downsizing of the gaming industry in the last year; the tender requirements; and the absence of (great) short- and medium-term economic expectations; or the Macau government’s statements about not awarding future concessionaires new land.

The existence of a seventh bidder determines a new shuffling of the cards.

In addition to requiring an initial (new and complete) suitability assessment process for the bidder that had never operated in Macau and, therefore, being able to prolong a tender that the Macau government anticipated would be (too) swift, it makes the processual and procedural conduction of the public tender itself (even) more demanding.

The application for judicial review to the Court of Second Instance against the act of award by the unsuccessful bidder is no longer a remote possibility, which would not arise if the current casino operators were the only bidders. It may even become a serious possibility given that there can be no association of bidders (because it is not regulated) and, especially considering directors’ fiduciary duties of loyalty and care to the company and its stockholders, primarily as regulated by common law countries.

According to the law, the casino concessions are awarded to bidders deemed suitable and with financial capacity who present the most advantageous conditions for the Macau SAR in the proper operation of casino games of chance.

To specify the “most advantageous conditions,” the law establishes criteria for awarding the concessions that allow the comparison of the proposals submitted by the bidders during the evaluation and assessment carried out by the tender commission as the bidding jury.

In the recent amendment to the administrative regulation governing the public tender, the Macau government – rightly – changed the criteria for awarding the concessions, establishing (new) criteria (which it inappropriately calls “factors”) in line with the stage of development it anticipates and aspires for Macau’s primary industry. In fact, except for the criteria relating to premium, experience, and investment, all the other awarding criteria are new to the criteria used in the public tender opened in 2001.

All these awarding criteria (the list of which is merely illustrative) were transposed (as such) to the tender program (which also mentions that they are illustrative, although criteria not expressly provided for may not be considered…).

Thus, the tender program establishes that “in selecting the bidders and evaluating the proposals, the following factors shall be considered, among others:

1) The amount of the variable portion of the proposed premium;

2) The plans aimed at expanding the markets of clients from foreign countries;

3) Experience in operating casino games of chance or related areas;

4) The interest to the Macau SAR from investments in gaming and non-gaming related projects;

5) The casino management plan;

6) The proposed supervision and prevention of illicit activities in casinos;

7) The social responsibilities they intend to assume.”

However, the tender program is silent as to the relative weight that each of these criteria has in ascertaining the “most advantageous conditions” presented by the bidders, i.e., the weighting factors necessary for assessing the awarding proposals and the selection and ranking of the bidders.

This fact led to (at least) two requests for clarification to the tender commission by the bidders, who responded through two of the 114 clarifications it provided (in 2001, only 14 clarifications were provided…).

Clarifications nos. 74 and 86, both dated 26 August 2022, state (in the Portuguese language version) that “[s]ubject to respect for the principles of justice and impartiality, the weighting coefficient and the calculation mechanism, as factors to be considered when evaluating the bids, will be defined in due course so that the respective information will not be provided to the bidders” (the Chinese language version does not contain the phrase “so that,” inculcating that the “respective information” will not be provided at all).

According to the tender program, the public tender “comprises a minimum of two phases: the first phase is for the submission of awarding proposals, followed by one or more consecutive consultation phases with the bidders, aimed at evaluating the awarding proposals submitted (…)”.

The tender commission has already started the first round of the consecutive consultation phases, having met with all bidders in the last week of September. It has already opened the enclosures containing the awarding proposals submitted, taking note of them. It has already sat with the bidders at the table to negotiate the proposals. However, the Macau government did not consider it appropriate to define the “weighting coefficient and the calculation mechanism” before that time.

It is not enough to be; one must appear to be, just like Caesar’s wife.

The lack of prior definition of the “weighting coefficient and the calculation mechanism” makes it possible to arbitrarily reorder the criteria, valuing or devaluing the relative importance of each one of them, thus allowing the jury to select the proposals or choose the bidders as it sees fit. It is like playing a game where the rules are set after the cards are face up.

This can cast a shadow over the public tender to award casino gaming concessions in Macau and force a new shuffling of the cards.

Best of British!

溫令韜 (António Lobo Vilela)

澳門律師，《澳門博彩法》一書作者

 (www.macaugaminglaw.com)

是次修改澳門《博彩法》刪除了與娛樂場營運商所營事業有關的原則，根據該原則，娛樂場營運商的所營事業僅為“經營娛樂場幸運博彩或其他方式的博彩”。隨著法律的修改，未來的娛樂場營運商的所營事業必須包括但不僅限於“經營娛樂場幸運博彩”。

2001年制定《博彩法》時，立法者認為娛樂場營運商應當專注於經營娛樂場幸運博彩業務，即他們真正熟識且具專業技能成功拓展的業務。

該法律同時規定，經澳門政府預先許可，娛樂場營運商的所營事業亦可涵蓋與娛樂場幸運博彩經營相關的業務，即那些與幸運博彩經營相互依存的業務，以及對幸運博彩經營起互補作用，並有助實現《博彩法》所指“促進澳門特區旅遊”和在一定程度上“促進澳門特區經濟發展”的目標的業務，包括酒店、零售、餐飲、會展、娛樂活動等。正如作為2002年判給經營娛樂場博彩批給理據的具說明理由的報告書寫道：“在競投公司堤交的建議書中，絕大多數均以將澳門變成一個具質素的區域旅遊及娛樂中心為目標，力求增加能吸引遊客的旅遊產品供應，吸引更多來澳娛樂消遣的遊客，並增加屬舉家旅遊的遊客數目，以及整體上改善澳門作為一個旅遊目的地的形象。”

另一方面，立法者於2001年終止了直至當時澳門旅遊娛樂股份有限公司（澳娛）按專營合同必須履行的實物義務（但疏濬及其他必需的海上工作的義務除外），改為規定承批公司須撥出博彩經營毛收入的2.4%（澳博則為1.4%，因澳娛提供疏濬及其他必需的海上工作），用以發展城市建設、推廣旅遊和提供社會保障。

澳門政府希望在將澳門建設成“世界旅遊休閒中心”的過程中當主角，運用向娛樂場營運商徵收高稅收所得收入，掌控這項夢寐以求的建設。

然而，基於不同原因，過去二十年間的歷屆澳門政府，在制定相應舉措以建設世界旅遊休閒（真正意義的）中心方面，均表現出異常的無能（尤其考慮到所徵收入）。以部分已經付諸實踐的舉措為例，有（貧乏不堪的）美食節，又或（筆墨難以形容的）澳門旅遊吉祥物（具代表性的可見形象）麥麥。

無疑是這種無能導致政府現在決定未來的娛樂場營運商須面對一個全新局面。

由一群超凡脫俗的人撰寫的這部分競投方案，要求未來的娛樂場營運商多管閒事地承擔一系列令人眼界大開的與博彩無關的義務。這些義務中，大部分對幸運博彩經營批給的競投毫無意義，尤其當批給的最長期限只有十年。有部分義務屬於應由澳門政府執行的、真正意義上的公共事務。另有部分義務須由具特定經驗或知識者履行，而博彩營運商既不具備有關經驗或知識，亦無履行或開展該等義務的專業技能。此外，在零經濟階段，當社會對博彩業發展的期望降低時，這些義務是不合時宜的，從行政長官數天前就博彩桌及博彩機訂定的（極低的）年度毛收入下限便可見一斑。特別對於所要求推行的項目數量而言，這些義務同樣毫無意義。這例子說明了澳門政府不應不切實際，而應明智行動。

“美食節”的標準是什麼？是讓米芝蓮星級大廚在旅遊塔前搭建的帳篷裡烹調澳門美食嗎？“主題博物館”的標準呢？是仿效新近開幕、造價36億澳門元的香港故宮文化博物館嗎？當缺乏必要基礎設施，澳門又能開展什麼“水上運動比賽”？

對此，澳門政府似在茫茫大海上漫無目的地航行。正如所料，看來當局未有一個為將澳門建設成世界旅遊休閒中心而謹慎、細密、有層次地描繪的具條理和長遠願景的計畫，而選擇了將娛樂場營運商視作砧板上的肉，將建設責任推到他們身上，管他們願不願意。競投者會被將提交的標書綁架，各標書內容必然出現相互重疊的情況，由相互之間沒有關聯、與花了兩年多時間起草的《澳門旅遊業發展總體規劃》（2017-2032）提出的倡議亦毫不相干的倡議拼湊而成。此外，要求遵循的是強加之路，而非致力調和各利害關係方利益的團結之道，無疑後者才是各方熱切渴望提供協助的做法。

推行必要改革是澳門政府―而非博彩營運商―的職責，其應創造條件，建設一座具備與區域內其他旅遊休閒中心競爭所需基礎設施的現代化且充滿活力的城市。

但願厄運走開，好運齊來。避免進一步動搖澳門長久以來作為博彩司法管轄區（今略顯模糊）的形象和（偏低的）信譽。時間會證明一切！

António Lobo Vilela is a lawyer based in Macau and the author of the Macau Gaming Law Book

(www.macaugaminglaw.com)

The amendment to the Macau Gaming Law eliminated the principle of the exclusive business purpose, according to which the business purpose of casino operators must be exclusively the “operation of games of chance or other casino games.” With the amendment, the business purpose of future casino operators must necessarily, but not exclusively, include the “operation of casino games of chance.”

When the Gaming Law was enacted in 2001, the legislator understood that casino operators should be exclusively dedicated to the operation of casino games of chance, an activity they know well and for which they are exceptionally skilled and apt to thrive.

It was also provided that a casino operator’s business scope could include correlated activities to the operation of casino games of chance upon authorization from the Macau government. I.e., activities interdependent with the operation of casino games of chance, as well as activities that are supplemental to such operation and that may achieve the goals of the Gaming Law related to ensuring the promotion of tourism and, to a certain extent, the economic development in the Macau SAR, including hotel, retail, food, and beverage, MICE, entertainment, etc. As stated in the Substantiated Report that formed the basis for the award of the casino gaming concessions in 2002, “the vast majority of awarding proposals submitted by bidders have the assumed goal of transforming Macau into a regional hub of high-quality entertainment and tourism, increasing the supply of enticing products for visitors, attracting a higher number of leisure visitors, bringing more tourists traveling as families and generally improving Macau’s image as a tourist destination.”

On the other hand, the 2001 legislator ended the in-kind obligations binding on STDM under the exclusive concession contract (exception made to dredging and other works of a maritime nature), aggregating them into the contribution to urban development, the promotion of tourism, and social security, set at 2.4% of the gross revenue from gaming exploitation (1.4% for SJM, due to the dredging and other works of a maritime nature at the time provided by STDM).

The Macau government wanted to be the leading player in the transformation of Macau into what was later called a “world centre of tourism and leisure,” using the revenue derived from the high tax burden imposed on the casino operators to take the reins of this desired project.

However, for different reasons, the successive Macau governments of the last 20 years have shown an unusual inability (especially considering the amount of revenue collected) to design initiatives to build Macau as a world centre (in the true sense of the word) of tourism and leisure. For example, among some of the initiatives that have been put into practice are the (pitiful) Gastronomy Festival and Mak Mak, the (indescribable) mascot (and visible face of an image that is supposed to be credible) of Macau’s tourism.

Undoubtedly, this inability presided over the decision to now impose a whole new ball game on future casino operators.

The public tender program, written in this part by the unworldly, requires future casino operators to have an impressive array of non-gaming obligations, which presuppose that they have a finger in every pie. Most of these obligations make no sense in a tender for the award of casino gaming concessions, especially when the concessions are to be granted for a maximum term of 10 years. Some are true public tasks that the Macau government must perform. Others require experience or specific knowledge that the gaming operators do not have, nor do they have any vocation to fulfil or develop. Moreover, they are unreasonable at a zero-economy stage, where expectations about the development of the gaming industry are low if we look at the (shallow) annual minimum gross revenue limits for gaming tables and machines set by the Chief Executive a few days ago. Nor do they make sense, especially for the number of projects required. Here is a case where the Macau government should not think big but wise.

What is the standard for “gastronomic festivals”? Chefs with Michelin stars interpreting Macanese cuisine in tents set up in front of the Macau Tower? And for “thematic museums”? The newly opened MOP3.6 billion Hong Kong Palace Museum? What “maritime sports competitions” are expected when Macau lacks the basic infrastructure to support them?

The Macau government seems to be sailing aimlessly in this matter. As one would expect, it does not have an articulated plan drawn up in a careful, diligent, structured, and long-term vision for the transformation of Macau into a world centre of tourism and leisure. It opted to go straight for the jugular of the casino operators, transferring to them, like it or not, the responsibility for this transformation. It will be kept hostage by the awarding proposals that will be presented, which, necessarily, will partially overlap each other, becoming a patchwork of initiatives without interconnection, not even with the initiatives provided for in the (2017-2032) Macau Tourism Industry Development Master Plan of the Macau Government Tourism Office, which, by the way, took more than two years to be drafted. Moreover, it has gone down the path of imposition instead of teaming up, trying to reconcile the interests of all interested parties, indeed all hot to trot.

It is up to the Macau government – not the gaming operators – to set the house in order, creating the necessary conditions to transform Macau into a modern and dynamic city with the infrastructure needed to compete regionally with other tourism and leisure centres.

Let’s touch wood and hope for the best. If for no other reason, to avoid further shaking the (already somewhat clouded) image and the (tiny) credibility that Macau, as a gaming jurisdiction, has earned since the beginning of this process. Time will tell!

温令韜

温令韜（António Lobo Vilela），澳門大律師，

《Macau Gaming Law Book（澳門博彩法）》作者(www.macaugaminglaw.com)

眾所周知，太陽城集團行政總裁周焯華（及集團另外20名中、高級管理人員）因涉嫌觸犯黑社會、不法經營賭博、欺詐、清洗黑錢等多項罪行被（正式）起訴。

如“動態清零”（又或屆時的“修正清零”或“清零非零”）狀態容許的話，案件將於9月2日開審。

案件本就存在先天缺憾（澳門警方是在溫州市有關當局對周焯華發出逮捕令一事公開後，旋即於週日以涉嫌從事跨境賭博活動為由拘捕周焯華），甚至有可能因公開“處決”眾人皆知的博彩中介人而演變成另一宗塔沃拉家族事件*。有留意規範博彩推廣活動和博彩中介人的新制度者，定能看到這一明顯趨勢。政府已決定扮演魔鬼角色，將博彩中介人弄得焦頭爛額。

起訴書中最引人注目的內容是澳門當局“發現”有人涉嫌進行“賭枱底”活動，這從其所占篇幅之長（占了起訴書859個條目中的575條）可見一斑。這“發現”可演繹為澳門當局明顯缺乏監督（能力），而在某程度上，太陽城集團旗下貴賓廳所處的博彩運營商亦然。

先不談過去15年所進行的適當資格審查程序，就連博彩監察協調局自2016年2月起開展的內部審計、實地進行的評估工作，又或透過2015年10月的指令對博彩中介人實施的會計準則，都從來未能發現太陽城集團被指僅在2014年至2021年3月期間已進行的62,588次“賭枱底”活動的任何一次。甚至數以百計24小時駐守娛樂場的督察也“看不到”任何“賭枱底”活動。

應指出的是，澳門政府必須每隔三年或每隔六年（視乎博彩中介人屬個人或企業而定）對博彩中介人進行一次適當資格審查。此外，正如2016年政府施政報告所述，博彩監察協調局自2016年年初開展的內部審計旨在“更全面地評估博彩中介人的營運和守法合規情況”，而據當時的媒體報導，政府將以此“作為博彩中介人准照續期程序的參考因素之一”。

經推算的“賭枱底”活動規模是如此龐大——8,237億港元（折合約1,026 億美元）兌換成籌碼，產生了215億港元（折合約27.4億美元）的利潤——博彩監察協調局估計政府庫房損失了82.6億港元（折合約10.5億美元）的博彩特別稅收入。而起訴書僅處理2013年之後至2021年3月期間發生的事實，且僅得一名（儘管是最大的）博彩中介人涉案。

在澳門，“賭枱底”並非新鮮事物。早在2008年10月，Lee U-wen已在《商業時報》發表文章，將“賭枱底”稱為在澳門的一種猖獗做法，“經常在娛樂場的眼皮底下進行”，並指“據行業估計，過去5年（2004年至2008年）‘賭枱底’活動……已令澳門娛樂場的獲利損失超過1,000億港元（折合約127.4 億美元）……特區政府亦因而損失400億港元（折合約50.9億美元）稅收。”

2016年的《中期檢討報告》亦指出該問題，稱“賭枱底”是“常見的利用合法商業博彩進行非法博彩活動的方式”。

“賭枱底”是博彩中介人和賭客就投注金額訂定的協議。雙方同意將下注籌碼的金額以某一倍數乘大，又或以有別於下注籌碼所代表貨幣的其他貨幣進行投注。“賭枱底”源於實際需要，關係到博彩中介人的信用額度、在內地追債所產生的問題（內地法律不准許追討賭債），以及無法追討的賭債在澳門不允許被抵銷的事實。“賭枱底”活動演變了，而隨著時間推移，“賭枱底”活動亦因其可帶來的利潤而（必然）變得越來越複雜。

根據起訴書，娛樂場運營商疑因此損失了22.8億港元（折合約2.9 億美元）。基於博彩特別稅的性質，一旦“賭枱底”活動及澳門特區因而蒙受損失成為既證事實，且看娛樂場運營商會否被要求就“賭枱底”活動繳納博彩特別稅，因為他們既有責任繳納有關稅項，且須對博彩中介人在彼等的娛樂場進行的活動向政府負連帶責任。冷血如斯?

*塔沃拉家族事件是18世紀葡萄牙宮廷的政治醜聞。1758年，葡萄牙國王若澤一世遭暗殺未遂，引發的一系列事件以1759年整個塔沃拉家族及其近親被公開處決而告終。一些歷史學家解釋，這一事件是葡萄牙王國內政國務大臣塞巴斯蒂安·德·梅洛，也就是後來的蓬巴爾侯爵試圖遏制舊貴族家族不斷增長的權力。（維基百科）

António Lobo Vilela

António Lobo Vilela is a lawyer based in Macau and the author of the Macau Gaming Law Book

(www.macaugaminglaw.com)

The (official) indictment against Suncity’s CEO, Alvin Chau Cheok Wa (and twenty other Suncity middle and senior management) for allegedly committing various crimes, ranging from criminal association to illicit gambling, fraud, and money laundering, is now known.

The trial is scheduled to begin on September 2 if the “dynamic zero” (or, at the time, perhaps the “modified zero” or the “zero that is not zero”) allows it.

The case, which was born crooked (Macau police authorities arrested Alvin Chau on a Sunday, immediately after it was made public that the Wenzhou city authorities had issued a warrant for his arrest, allegedly for cross-border gambling activities), threatens to turn into a Távoras Affair(*) with the ‘execution’, this time public, of the gaming promoters as we know them. The trend seems clear if we pay particular attention to the content of the new draft regime that will discipline the gaming promotion activity and the gaming promoters. The government decided to play the devil, tearing the gaming promoters to ribbons.

It stands out from the indictment, namely due to its length (575 articles from a total of 859 indictment articles), the “discovery” by the Macau authorities of alleged side-betting activity, which (no less) translates into an apparent lack (of capacity) of supervision by the Macau authorities and, to a certain extent, by the gaming operators where Suncity’s VIP rooms were located. 

Not to mention the suitability verification processes completed over the past 15 years, never have the internal audits that the Gaming Inspection and Coordination Bureau (DICJ) has been launching since February 2016, nor the on-site evaluations conducted or the standards for accounting it has imposed on gaming promoters by an October 2015 instruction managed to detect any of the 62.588 times that Suncity alone, from 2014 until March 2021, allegedly practiced side-betting.

It should be noted that the Macau government mandatorily checks the suitability of gaming promoters every three years or every six years depending on whether the gaming promoter is an individual or a commercial company. In addition, the internal audits DICJ has been launching since early 2016 were aimed at “facilitating a more comprehensive evaluation of the operational situation of these professionals and their compliance with the legal rules,” as stated in the Government Public Policy Address for 2016, and to “serve as a reference, among other things, for the procedure of renewing gaming promotion licenses,” according to the news at the time.

Not even the hundreds of gaming inspectors stationed 24-hours at the casinos “saw” any side-betting activity.

The scale of the alleged side-betting is so large – HKD 823.7 billion (USD 102.6 billion) converted into gambling chips that generated an illicit profit of HKD 21.5 billion (USD 2.74 billion) – that the DICJ estimates HKD 8.26 billion (USD 1.05 billion) did not enter the public coffers as the special gaming tax. And the indictment only deals with events that occurred after 2013 and until March 2021 and only refers to one – albeit the biggest – gaming promoter.

Side-betting is not new in Macau. Already in October 2008, an article by Lee U-wen published in The Business Times referred to it as a rampant practice in Macau “often carried out right under the nose of the casinos,” stating that “[i]ndustry estimates have suggested that side-betting (…) has cost Macau casinos over HK$100 billion [USD 12.74 billion] (…) in winnings and HK$ 40 billion [USD 5.09 billion] in tax revenue over the past five years [2004-2008].” 

The issue is also touched upon in the 2016 Mid-term Review Report, stating that side-betting is the “most frequent mode of illicit gambling at an authorized venue.”

Side-betting is an agreement between the gaming promoter and a player governing the bet amount. The parties agree that the amount of the chips played is to be multiplied by a certain number or that bets are placed in a different currency than the chips played. It was born of a practical necessity, linked to the gaming promoter’s credit limits, the problems associated with debt collection in Mainland China (a jurisdiction where one cannot lawfully collect a gaming debt), and the fact that Macau does not allow any offset of uncollectible gaming debts. Side-betting evolved and became more and more sophisticated over time (indeed) for its profits.

According to the indictment, the alleged loss to casino operators amounts to HKD 2.28 billion (USD 290 million). Given the nature of the special gaming tax, it remains to be seen whether, once side-betting and the resulting loss to the Macau SAR are proven, casino operators will not be called upon to pay the special gaming tax due for under-the-table gambling activities because they are the ones responsible for its payment and of the joint and several liabilities to the government for the activities carried out in casinos by gaming promoters. In cold blood!

(*) The Távoras Affair was a political scandal in the 18th-century Portuguese court. The events triggered by the alleged assassination attempt of King Joseph of Portugal in 1758 ended with the public execution of the entire Távora family and its closest relatives in 1759. Some historians interpret the incident as an attempt by then prime minister Sebastião de Melo (later Marquis of Pombal) to curb the growing power of old aristocratic families (Wikipedia).

《博彩法》修正案終獲通過，結束了長達九個月的爭議過程，其源於澳門特區政府在未事先諮詢博彩運營商意見的情況下，開展了具爭議性的公開諮詢。

新博彩法引入的諸多改變中，新承批公司未來須履行的財務義務（稅務和準稅務）範圍擴大最引人注目。在正常的經濟環境下，這些要求或許不無道理；然而，面對目前特區經濟內（“零經濟”）外（尤其是內地對有意出外“博彩旅遊”的公民施加限制）交困，這些舉措無疑對本地娛樂場運營商帶來不利影響。

除了維持以博彩毛收入35%作為博彩特別稅外，承批公司尚須履行下列財務義務：

• 每年撥出其博彩毛收入2%的款項予一個以促進、發展或研究文化、社會、經濟、教育、科學、學術及慈善活動為宗旨的公共基金。與2002年法律規定的博彩毛收入1.6%相比，直接稅務負擔增加了0.4個百分點。
• 每年撥出其博彩毛收入3%的款項，用以發展城市建設、推廣旅遊及提供社會保障。與2002年法律規定的博彩毛收入2.4%（澳博為 1.4%）相比，直接稅務負擔增加了0.6個百分點（澳博為 1.6個百分點）。
• 在批給期間，承批公司的公司資本及其公司資產淨值不得少於澳門元50億元。新規定的最低公司資本是當前法律要求（澳門幣2億元）的25倍，且不影響關於公司資產淨值的商法規定的適用。為了理解（或不理解）該制度的邏輯，我們可以看看，新規定的最低公司資本比開設一家銀行所需的澳門幣1億元高出50倍。
• 保證金作為履行法律和合同義務的擔保。2002年法律規定，批給首三年的保證金為7億元，剩餘期間為3億元，預料澳門特區政府將上調有關金額，因為這畢竟已是20多年前的要求了。
• 繳納獲派利潤和股息的所得補充稅。自2002年以來，澳門特區政府給予娛樂場運營商非常慷慨的稅收減免待遇，豁免其博彩經營業務所產生利潤的所得補充稅，同時，允許娛樂場運營商一次性支付股東獲派股息的所得補充稅。在多次回覆立法會議員書面質詢時，澳門政府始終為稅收減免一事辯護，稱這是為了防止同一收入被重複徵稅。奇怪的是，在對法律進行修訂時，並沒有就此作出任何修改。這情況是否可以理解為範式轉變，所得補充稅的正常徵稅原則現已完全適用？假若真的如此，澳門政府有否意識到這情況會將最終稅務負擔推高至50%以上？
• 承批公司因使用於批給和轉批給終止時應歸還予澳門特別行政區的娛樂場連同其全部設備及用具而應支付的費用（一旦歸還，澳門特別行政區就不能出售該等娛樂場）。這包括且必須包括因使用依法無須歸還予澳門特別行政區的娛樂場而應支付的費用，但承批公司和獲轉批給人心甘情願地無償將該等娛樂場“讓與”澳門特別行政區。然而，有關費用將根據什麼標準釐定？市場價？
• 溢價金（作為獲批給娛樂場幸運博彩經營的回報）分為固定部分（2002年規定為澳門幣3,000萬元）和根據營運的博彩桌類型計算的可變部分（2002年規定為每張貴賓博彩桌澳門幣30萬元，每張非貴賓博彩桌澳門幣15萬元），以及每台博彩機澳門幣1,000元，且每年不低於澳門幣4,500萬元。如採用與確定延長批給合同和轉批給合同期限所收取的（特別）溢價金相同的準則，新的固定部分每年不應低於澳門幣9,500萬元；至於溢價金的可變部分，我們將從中看到承批公司的期待，希望澳門特區政府做足功課、吸取教訓，並認識到​將該項要求保留在判給批給標準中並沒有意義，因為當中已包括參與競投公司所建議的溢價金。
• 特別溢價金，對應於因博彩桌及博彩機產生的毛收入與行政長官設定的最低限額之間的差異而徵收的博彩特別稅。當局將根據什麼標準確定一張博彩桌或一台博彩機所產生的博彩毛收入是一個謎。例如，當可能被用作參考的數據指向不復存在的現實，無論是博彩中介人業務，抑或是內地對博彩活動施加限制之前的狀況，從何確定在葡京娛樂場運營的博彩桌或博彩機所產生的博彩毛收入應高於/低於在任何其他娛樂場運營的博彩桌或博彩機所產生的博彩毛收入。
• 投資計劃，根據2002年的規定，對於為期二十年的批給，投資金額最少為澳門幣40億元。可預期的是，對於為期十年的批給（預期見諸新競投之中），投資金額最少為50億元。澳門特區政府過去曾表示，針對公司資本提出新要求的原因是希望未來的承批公司擁有足夠的資金執行投資計劃（卻懵然不知公司資本並非用於此目的，而是作為債權人的一般擔保，以及作為股東的責任限度）。由於興建新的大型建設不太可能成為競投的要求，娛樂場運營商將會“被迫”開展的投資類型仍需拭目以待。
• 銀行擔保，用以保證勞動債務按僱員人數得以履行。根據批給合同和轉批給合同的規定，澳博的銀行擔保為35億、威尼斯人為23.1億、銀河為16.3億、永利為12.1億，以及美高梅和新濠為8.2億。
• 已流通籌碼的兌現，以及當批給被解除時，主要股東（擁有5%或以上公司資本的股東），須對已流通籌碼負連帶責任。現時尚未知悉澳門特區政府曾否下令為已流通籌碼制定備付金、採用償付能力比率或適用其他審慎機制。新措施終結了娛樂場運營商（幾乎為零成本）的重要融資來源。
• 承批公司應承擔的企業社會責任。從法律可見，澳門特區政府似乎期望由承批公司滿足原應由政府以公帑促致或關切的公共需求。如不作精確界定，這項義務有可能變成大白象。

除了減免繳納所得補充稅和其他應繳稅捐外，立法者（在可以及應當制定的情況下）未制定在經濟困難時期啟動的保障機制。剛性的法律實無法應付現時面對的、困頓的經濟周期。制定保障機制是一回事，如何運用這些保障機制又完全是另一回事。

一例證是，基於公共利益，行政長官可引“拓展外國客源市場”為由“減免承批公司繳納撥款”這一規定似乎沒有意義。事實上，根據負責審議博彩法修正案的立法會第二常設委員會的意見書，澳門政府似乎沒有打算將稅費下調超過1個百分點，“未來行政長官在作出減免的決定時，會在確保目前承批公司的撥款比例不低於現有水平（即4%）的前提下，充分評估承批公司對澳門帶來的各方面效益，對承批公司拓展的外國遊客所帶來的收益作出減免”。澳門特區政府憑什麼認為承批公司對那1%的減免感興趣？正如過去20多年來，沒有一家承批公司願意如澳博般提供河道疏浚服務以換取那1%的稅務優惠！承批公司需要投入多少才能從該百分比中受益？

哪些客觀標準能用？更恰當的說，哪些標準能符合內地針對博彩活動推行的（新）政策？當中包括限制有意出外“博彩旅遊”的公民的行動，又或向外國發出停止吸引及向中國公民宣傳博彩活動的“公告”？將實施哪些機制？我們會與第三方國家建立空中橋樑嗎？零成本航空？追蹤博彩者，找出將他們帶來的娛樂場運營商是誰？他們有否博彩，用了多少錢博彩？博彩者希望被追踪嗎？如果博彩者到不同的娛樂場博彩，誰才是受益者？屬澳航專營但其僅營運一部分的航線會否被重新審視？娛樂場運營商最終能否在澳門機場的發展和澳門打造區域航空樞紐的過程中擁有發言權嗎？澳門特區政府多年來透過旅遊局在亞洲，包括印度、印度尼西亞、泰國、韓國、日本和馬來西亞等地派駐代表努力推廣澳門，澳門特區政府憑什麼認為娛樂場運營商能取得更大成功？

無論採用何種標準，必定對在不同的稅務/準稅務負擔下作出完全平等的批給造成巨大的（由澳門特區政府促致的）劣勢局面，這將成為中長期問題的根源。

幸運的是，澳門特區政府此番未有對印花稅的規定作出調整。因此，作為（至今仍為）澳門龍頭產業的經營承批者將如2002年一樣，在簽訂批給合同時只需支付澳門幣50元的印花稅……

無論是否一廂情願，在沒有適當保障機制下，所有財務義務加疊起來將削弱娛樂場運營商的經濟實力，在經濟下行的形勢下施加該等義務，將意味著對博彩業的凌遲。

The amendment to the Gaming Law has finally been approved, ending a troubled process that began nine months earlier with the launch of a controversial public consultation and without prior consultation with casino operators.

Among the changes introduced, the broadening of the range of financial obligations (fiscal and parafiscal) of future concessionaires stands out.

Although in a normal economic situation, they may make sense, in the current domestic (“zero-economy”) and external environment (with particular focus on the restrictions imposed by Mainland China on citizens wishing to travel for “gambling activities”), they will certainly adversely impact Macanese casino operator’s lives.

The financial obligations are, in addition to the special gaming tax, which remains at 35% of gross gaming revenue, as follows:

– “Contribution” in the amount of 2% of gross gaming revenues to a public fund (not necessarily the Macau Foundation) whose purpose is the promotion, development, or study of actions of a cultural, social, economic, educational, scientific, academic and philanthropic nature. Set in 2002 at 1.6% of gross gaming revenue, the new percentage represents an increase of 0.4% in the direct tax burden. 

– “Contribution” in the amount of 3% of gross gaming revenues to urban development, tourism promotion, and social security. Set in 2002 at 2.4% of gross gaming revenues (1.4% for SJM), the new percentage represents an additional 0.6% (1.6% for SJM) in the direct tax burden.

– Minimum of 5 billion patacas of share capital and net stand during the concession term. The new minimum share capital is 25 times the share capital currently set (200 million patacas), and no distortions to commercial law rules regarding net stand exist. To understand (or not) the system’s logic, the new minimum share capital is 50 times higher than that required to open a bank (100 million patacas).

– Bond as a guarantee of performance of legal and contractual obligations. Fixed in 2002 at 700 million for the first five years of the concession and 300 million for the remaining period, it is expected that the Macau government will revise the values upwards since they represent values from more than 20 years ago.

– Payment of complementary income tax on profits and dividends. Since 2002, the Macau government has granted casino operators (very) generous tax exemptions, exempting from this tax the whole profits from gaming activities. And allowed a lump sum payment in lieu of the complementary income tax on dividends distributed to shareholders. In several replies to written interpellations from the Macau Legislative Assembly members, the Macau government has always justified the tax breaks to prevent the same income from being taxed twice. Curiously, no amendment to the Gaming Law was made in this regard. Could this be understood as a paradigm shift, with the principle of normal taxation of complementary income tax now fully applicable? Is the Macau government aware that this fact pushes the final tax burden above the 50% mark?

– Remuneration due for the use of the casinos and gaming equipment and utensils, which will revert to the Macau SAR at the end of the concessions and subconcessions (as once the reversion occurs, the casinos cannot be sold by the Macau SAR). It includes, as could not be otherwise, remuneration for the use of casinos that, although legally not required to revert to the Macau SAR, were, kindly and certainly without coercion, “ceded” free of charge by the concessionaires and subconcessionaires for reversion. What criteria will be used to determine the remuneration for the use? Market price?

– Premium (as compensation for the concession award), divided into a fixed part (set in 2002 at 30 million patacas) and a variable part, according to the type of tables operated (established in 2002 at 300,000 patacas/year for each VIP table and 150,000 patacas/year for each non-VIP table) and 1,000 patacas/year for each gaming machine, with a minimum guarantee of no less than 45 million patacas/year. Using the same criteria to determine the (special) premium charged for the extension of the concessions and subconcession, the new fixed part of the premium should not be less than 95 million patacas/year. As for the variable part of the premium, we will see what awaits the concessionaires, hoping that the Macau government has done its homework and learned its lesson, realizing that it makes no sense to keep it among the criteria for the awarding of concessions, where it appears as the value to be proposed by the concessionaires.

– Special premium, corresponding to the special gaming tax due to the difference between the gross revenue generated by gaming tables and gaming machines and the minimum threshold set by the Chief Executive. It is a mystery what criteria will be selected to determine whether the gross gaming revenue of a gaming table or machine located, for example, at Casino Lisboa, should be higher/lower than that found in any other casino when the data that could serve as a reference refer to a reality that no longer exists, either because it is based on the junket operation, or before the restrictions imposed by Mainland China towards gambling.

– Investment plan, whose value was set in 2002 at a minimum of 4 billion patacas for the 20 years concessions. The investment amount for the 10-year concession period (expected to be put out to tender) should be 5 billion patacas. The Macau government has stated in the past that the requirement for the new share capital was because it wanted future concessionaires to have sufficient funds to execute the investment plan (unaware that share capital does not serve this purpose but as a general guarantee for creditors and as a means of limiting the liability of shareholders). Since new brick and mortar developments will most likely not be required, what kind of investment casino operators will be “forced” to make remains to be seen.

– Bank guarantee to ensure compliance with labor debts. Varying on the number of employees, it was set under the concession and sub-concession agreements at 3.5 billion (SJM), 2.31 billion (Venetian), 1.63 billion (Galaxy), and 1.21 billion (Wynn), and 820 million (MGM and Melco).

– Full coverage of outstanding gaming chips and joint and several liabilities of qualifying shareholders (5% or more) for the outstanding gaming chips upon the termination of the concession. It is unknown whether the Macau government has previously ordered the creation of provisions, the adoption of solvency ratios, or the application of other prudential rules on the chips in circulation. The new measure ends a casino operator’s significant funding source (at almost zero cost).

– Corporate social responsibilities that concessionaires must assume. Given the legal framework, the Macau government expects the concessionaries to meet public needs that they should develop or take care of using public money.Without the determination of precise limits, this obligation can turn into a white elephant.

Except for the exemption or reduction provided for the payment of complementary income tax and the exemption or reduction in the percentage of the contributions due, the legislator did not create – where could and should – safeguard mechanisms to be activated in economically troubled times. The rigidity of the law is not compatible with disturbed economic cycles such as the current one. It is one thing to provide safeguard mechanisms. It is quite another to use these safeguard mechanisms. 

And the example of the “expansion of foreign country’s customer markets” as a justification of the public interest required for the Chief Executive to “grant a reduction or exemption to concessionaires in the payment of contributions” does not seem to make sense. As a matter of fact, in the Opinion of the 2nd Standing Committee of the Legislative Assembly on the draft law proposal amending the Gaming Law, it seems that the intention of the Macau government is not to reduce contributions by more than 1% when it states that “when deciding on the reduction or exemption, the Chief Executive, on the assumption that he will ensure that the percentage of the current concessionaire’s contributions does not fall below the current level [4%], will fully assess the benefits that the concessionaire will bring to Macau at all levels, with the reduction focusing on the revenue generated by foreign tourists with the expansion of markets”. What makes the Macau government think that the concessionaires will be interested in benefiting from the 1% reduction when, for example, for more than 20 years, they have not shown any interest in providing dredging services to benefit from 1% less in the payment of the contributions that SJM has always benefited from? How much will they need to spend to benefit from such a percentage?

What objective criteria could be used? Better yet, what criteria are consistent with Mainland China’s (new) policy towards gambling, reflected, among others, in the restriction of movement of citizens wishing to travel for “gambling activities” or the ‘warnings’ given to foreign countries to stop soliciting and promoting gambling to their citizens? What mechanisms will be implemented? Are we going to have air bridges with third countries? Zero-cost air travel? Tracking of players to find out which casino operator brought them if they played, and how much they spent? Do players want to be tracked? And if they play at a different casino operator, who benefits? And will the route monopolies that Air Macau only operates part of being reviewed? Will casino operators finally have a say in the development of Macau airport and Macau as a regional airport hub? What makes the Macau government think that casino operators will be more successful in the efforts it has been pushing for years to promote Macau throughout Asia through the companies representing the Macau Tourism Office, namely in India, Indonesia, Thailand, Korea, Japan, and Malaysia? 

Whatever criteria are used, they will always have the enormous disadvantage (promoted by the Macau government itself) of making exactly equal concessions operating under different fiscal/parafiscal burdens, which will constitute a source of problems in the medium-long run. 

Fortunately, the Macau government did not change the stamp duty so that the concessionaires of the (still) most crucial industry in Macau will pay, as in 2002, only 50 patacas as stamp duty for the signing of the concession contracts…

Wishful thinking or not, all financial obligations without proper safeguard mechanisms make casino operators more economically vulnerable and, in the adverse economic situation in which they will be implemented, may represent death by a thousand cuts for the gaming industry.

溫令韜 (António Lobo Vilela)

澳門律師，《澳門博彩法》一書作者。(www.macaugaminglaw.com)

由於本人曾參與（現行）澳門博彩法，以及批給合同和轉批給合同的草擬工作，被問及關於存在由第三人經營的娛樂場（又稱“衛星場”）的法律依據，以及“衛星場”需否請求政府許可他們永久關閉的問題。

1. “衛星場”存在的法律依據

假如相信“衛星場”多年來一直在法律外緣營運，這想法是荒誕的（若干“衛星場”自澳門旅遊娛樂股份有限公司獲得批給起已開始運作至今，部分更（間接地）在香港交易所上市）。假如“衛星場”屬非法營運，但澳門政府又容許他們繼續營運而無任何後果，這是可笑的。儘管有些人會相信事實如此，但澳門的博彩業絕非活在蠻夷之地。

喜歡也好，不喜歡也罷，“衛星場”正在且一直合法運作。澳門博彩法無需明文提及“衛星場”，因為，從法律本身的定義而言，法律（至今仍然）就是具有一般性和抽象性。

澳門博彩法容許 – 作為例外情況 – 經政府預先許可，可以以任何名義將娛樂場幸運博彩經營作轉移或讓與第三人。儘管上述規定載於博彩法第十七條之中，但確實存在（批給合同和轉批給合同亦將有關法律要求複製和加以補充（見合同第七十四條），並賦予該法定義務以合同性質，且訂明違反有關規定者須繳納最高達澳門幣十億元的違約金）。

澳門政府知悉存在這一法律依據，因而據此正式和明示許可現有的每家“衛星場”營運。

在回覆2008年由李從正議員提出的書面質詢時，澳門政府透過博彩監察協調局局長寫道，大部分“提供服務以及地方之佔用及使用合同”（對規管承批公司/獲轉批給人與博彩中介人之間關係的合同的稱謂）“都具以下目的：制定承批公司/獲轉批給人佔用及使用設置娛樂場的地方的合同制度，以及訂定規範因該等地方的所有人或管理人提供服務而應向承批公司/獲轉批給人作出的給付。一般而言，所謂服務包括市場、推廣、宣傳、管理及招攬客人的服務。上述合同經由特區政府根據第16/2001號法律（……）第十七條第九款（……）按個別情況逐一發出許可，為此博彩經營者及娛樂場所在之地方的所有人或管理人必須履行有關義務作為獲許可的條件”。

決定將娛樂場幸運博彩經營作轉移或讓與第三人這一例外情況從博彩法刪除，是一個立法技術拙劣的例子，效果可能適得其反。較佳做法是保留有關規定：規定一個例外情況是一回事，用不用是另外一回事。

2. “衛星場”永久關閉需否政府批准

正如博彩法已開宗明義說明其主要目標之一是確保“澳門特別行政區從娛樂場運作收取稅項之利益受到應有保障”，在法律上，澳門特別行政區被認定為一個“持續博彩區域”。意即，幸運博彩應以接連、持續、不間斷的方式營運，“娛樂場應全年每日運作”。

與過往博彩法律的規定有所不同，澳門政府現在無權決定中止某一娛樂場的營運（1961年博彩法生效期間，只可“於國喪日又或在明顯不能進行博彩或進行博彩引起合理之公憤時”決定中止娛樂場的運作，而在1982年博彩法生效期間，只可“基於內部秩序或國際秩序的重大原因”決定中止娛樂場的營運）。根據現行博彩法的規定，只可由承批公司/獲轉批給人在“例外情況下”，經澳門政府許可，決定中止娛樂場的運作，但在緊急情況下除外（即在發生嚴重事故、災禍或自然災難等嚴重威脅個人生命安全時除外）。然而，自2004年起，在《傳染病防治法》嚴格規定的情況下（爆發、流行傳染病，又或面臨爆發、流行傳染病的危險），政府/行政長官可決定中止任何場所的運作或活動；自2020年起，根據《民防法律制度》的規定，政府/行政長官可決定中止在“受突發公共事件影響的指定地點或設施內進行”的娛樂場幸運博彩。

拉丁語“a maiori, ad minus”（容大納小，禁小止大）是法律推論的最基本方法之一。意即，“誰能為多，自能為少”，也可以理解為“有效於大者者，自當優於小者”。這一法律推論適用於法律的擴張解釋，也就是說，即使是法律沒有直接規定的情況，只要運用這一推論，便可推斷出該等情況。

與中止某娛樂場運作（一日或多日）的情況相反，博彩法例沒有規定關閉某娛樂場須經政府批准。相反的推論，即“誰能為少，自能為多”是法律所不容的。此外，澳門政府並非“提供服務以及地方之佔用及使用合同”的立約方。該等合同（依法）須訂定租賃終止的日期，這日期（極）可能與批給和轉批給的期限（2022年6月26日）相關。

假設澳門政府沒有規定有關條件，則無需取得任何批准。不過，部分“衛星場”還是非常禮貌地通知政府他們擬關閉的決定！

誠然，法律解釋並非人人所能掌握。但千萬不要“搞渾水”，也不要“捉錯用神”。

António Lobo Vilela

António Lobo Vilela is a lawyer based in Macau and the author of the Macau Gaming Law Book (www.macaugaminglaw.com)

Having participated in the drafting of the Macau Gaming Law (currently in force) and the concession and subconcession contracts, I was asked about the legal basis for the existence of third-party promoted casinos (also known as “satellite casinos”) and about the need for “satellite casinos” to request permission/authorization from the government to close their doors permanently.

1. Legal basis for the existence of “satellite casinos”

It would be bizarre to believe that “satellite casinos” have been operating in legal limbo for so many years (some have been in operation since STDM’s concession, and several of them are (indirectly) listed on the Hong Kong Stock Exchange). It would be grotesque if the Macau government allowed “satellite casinos” to continue to operate without consequences if they were illegal. While some people may believe this, Macau is still far from being the Wild West of gambling.

Like it or not, “satellite casinos” operate (and have operated) legally. And the Macau Gaming Law does not need to explicitly mention them because laws are, by definition, (still) general and abstract.

The Macau Gaming Law allows – as an exception – the transfer or assignment, to third parties, in any way, of the operation of casino games of chance uponprior authorization from the government. Although the provision is in the middle of Article 17, it exists (and the concession and subconcession contracts reproduce and complement the legal requirement (in Clause 74), giving contractual nature to the legal obligation and establishing penalties up to one billion patacas applicable in case of violation).

The Macau government is aware of this legal basis, as it has used it to formally and expressly authorize each of the existing “satellite casinos.”

In response to a 2008 written interpellation from legislator Lee Chong Cheng, the Macau government, through the Gaming Inspection and Coordination Bureau Director, noted that the vast majority of the ‘Service Provision and License for Occupancy and Use of Space’ (the name given to the contract governing the relationship between the casino operator and the casino promoter) “are intended to define the contractual arrangements for the occupancy and use of space by the concessionaire/ subconcessionaire to install a casino and to define and regulate the payments by said concessionaire/subconcessionaire for the services to be provided by the owner or manager of the space. These are marketing, promotion, advertising, management, and customer acquisition services. The Macau SAR government authorized these contracts on a case-by-case basis under Article 17(9) of Law No. 16/2001(…), [and the] authorization was conditional upon the gaming operator and the space owner or manager where the casino is installed meeting various requirements.”

The decision to remove from the Gaming Law the necessary exception for the transfer or assignment of the operation to a third party of the operation of casino games of chance is an example of a poor legislative technique, which may prove to be counterproductive. Best practices would advise retaining it: one thing is to provide for an exception; another is to use it.

2. Need for government approval for a “satellite casino” to close permanently

As acorollary of the objective set out by the Gaming Law “that the interests of the Macau Special Administrative Region in collecting taxes from casino operations are duly protected,” the Macau SAR is legally considered a ‘continuous gaming zone.’ This means that games of chance must be operated consecutively, continuously, and sequentially, “with casinos required to operate on every day of the year.”

Unlike previous gaming laws, the Macau government does not have the power to determine the suspension of a casino’s operation under the current law (under the 1961 Gaming Law, the suspension could only be ordered “in the event of national mourning or in others in which there is clear incapacity or justified public outrage,”and under the 1982 Gaming Law, based on“fundamental grounds of domestic or international order”). 

Under the current Gaming Law, the decision to suspend may only be made by the casino operators in ‘exceptional circumstances’ and, except in urgent situations (“resulting from a serious accident, catastrophe or natural disaster, which may pose a serious risk to the safety of people”), is subject to authorization by the Macau government. Nevertheless, the government/Chief Executive can always order the suspension of any establishment or activity in the restrictive situations provided for (since 2004) in the Law for the Prevention, Control, and Treatment of Infectious Diseases (“outbreak or prevalence, or risk of an outbreak or prevalence, of an infectiousdisease”), and (since 2020) by the Law on Civil Protection (“[suspension of casino games of chance] in certain places or within facilities vulnerable to sudden incidents of a public nature”).

The Latin expression “a maiori, ad minus” is one of the most basic forms of legal argumentation. It means ‘whoever can the more, can the less’ or, if preferable, ‘what is valid for the more, must necessarily prevail for the less,’ and is used for the extensive interpretation of the law, i.e., for cases not directly contemplated in the law but that can be inferred using this reasoning.

Unlike the suspension of a casino (for one or more days), the casino’s closure is not provided for in the gaming laws and regulations as requiring government authorization. And the opposite ‘whoever can the less, can the more’ argument is not legally admissible. Furthermore, the Macau government is not a party to the ‘Service Provision and License for Occupancy and Use of Space’ contracts. And all these contracts need to (legally) provide for the lease expiration date, which is (most) probably linked to the deadline of the concessions and subconcessions (June 26, 2022).

Thus, assuming that the Macau government did not impose this as a condition, no authorization is required. However, it was a polite gesture from some “satellite casinos” to communicate their decision!

Legal interpretation is not within everyone’s reach. To muddy the waters is not advised, and barking up the wrong tree isn’t either.

文：温令韜

(António Lobo Vilela)

温令韜 (António Lobo Vilela)，澳門律師，《澳門博彩法》一書作者。

(www.macaugaminglaw.com)

澳門法律規定，批給（和轉批給）一旦撤銷，娛樂場（連同博彩設備、用具和其他“按合同條款應歸屬澳門特區所有的其他財產或權利”）歸屬澳門特區所有/轉移予澳門特區。

根據批給合同和轉批給合同，（部分）娛樂場將於2022年6月26日歸屬澳門特區〔澳博（SJM）和美高梅（MGM）的娛樂場原本應於2020年3月30日歸屬澳門特區，但經2019年對合同進行修改，歸屬時間延後至2022年6月26日〕。土地工務運輸局（DSSOPT）已公開表示，“對於相關財產的歸屬有明確規定，土地工務運輸局將嚴格履行每幅土地的批給合同”。

歸屬是撤銷行政批給的一個典型效果。就娛樂場而言，歸屬澳門特區是貫徹娛樂場幸運博彩持續運作原則之所需，也就是說，歸屬是—以自動、即時和不間斷的方式—確保娛樂場運作的連續性和規律性之所需。

早於2001年，立法會為審議博彩法法案成立了一個臨時委員會，在該委員會提出關切後，本來擬規定的歸屬範圍（因批給而獲提供的所有財產和權利）限縮至娛樂場、博彩設備、用具和其他“按合同條款應歸屬澳門特區所有的其他財產或權利”。

由於澳門旅遊娛樂股份有限公司（STDM）的多家娛樂場（於2001年已轉入澳博的批給範圍）歷來都在屬於第三人的物業內營運，澳門政府在澳博的批給合同中，就娛樂場應設於承批公司擁有的物業內這一一般規則，創設了一項例外規定。如事先獲得澳門政府的適當許可，娛樂場可設於第三人擁有的物業內。其後，在永利（Wynn）和銀河（Galaxy）的批給合同的磋商過程中，引入了相關行文（並將之引入了首次修改的澳博的批給合同及所有轉批給合同中），當中明確規定，為使娛樂場可歸屬澳門特區，在政府事先給予的適當許可中可特別規定一項條件，就是承批公司（或獲轉批給人）須最遲於批給（或轉批給）撤銷前180天取得娛樂場所在建築物的某一（某些）單位。修改《博彩法》的法案（已獲立法會一般性通過，並在審議中）刪除了上述例外規定。如法案獲通過，在為期三年的暫緩期屆滿後，娛樂場幸運博彩只能在設於承批公司直接和完全擁有的物業內的娛樂場中經營。

然而，除了附於批給合同和轉批給合同的投資計劃所述的度假村—酒店—娛樂場之外，當由娛樂場經營者以外的第三人（獲批給土地者）施行投資計劃時，澳門政府從未規定上述條件。這使得並非所有娛樂場均須歸屬澳門特區。

當時，澳門政府期望每一娛樂場經營者興建一個單一的度假村—酒店—娛樂場。在磋商批給合同期間，出現了就設於投資計劃所述項目以外的娛樂場的歸屬問題表示的擔憂，因此，澳門政府透過澳門博彩委員會草擬並於2005年5月向“非正式法律專家組”（由行政長官設立，作為澳門政府與承批公司和獲轉批給人代表之間的溝通渠道，共同以非正式的方式分析和討論將付諸通過的關於娛樂場博彩的法例草案）遞交了一份處理上述問題的行政法規草案。

上述行政法規草案擬規定一項原則，就是承批公司和獲轉批給人只須歸還一所娛樂場，即屬投資計劃所述主要投資項目的娛樂場。然而，該行政法規從未頒佈。

那麼，哪些娛樂場應歸屬澳門特區？

根據批給合同和轉批給合同，所有娛樂場均應歸屬澳門特區，但已獲許可設於不屬娛樂場經營者擁有的物業內的娛樂場除外，澳門政府在合同中同意不以娛樂場經營者須取得該等娛樂場所處的某一（某些）單位（俾能予以歸屬澳門特區）為條件。

此外，還存在若干實質問題。娛樂場位處的某些建築物(i)沒有辦理物業登記，(ii)有辦理物業登記，但不是分層所有權登記，或(iii)有辦理分層所有權登記，但登記的娛樂場面積與運作中的娛樂場的實際面積並不相符。

歸屬（正如現行法律規定）是自動的，是依法進行的，不需要任何手續（修改《博彩法》的法案規定採用適用於都市建築的勒遷制度，此舉令歸屬變成非自動的，且需要履行一定手續……）。根據可歸屬澳門特區的財產的強制性財產清冊和運作中娛樂場的現有地籍圖，澳門政府知悉（或應當知悉）各娛樂場的確實位置，包括其附屬設施和相關實際面積，這應該足以讓澳門政府立即對須歸屬澳門特區的娛樂場實施行政占有，並辦理登記或其他手續。

由於欠缺登記或分層所有權的登記，使得歸屬僅限於物業本身和其所處土地的假想部分。澳門政府對處理這些問題已有經驗。儘管葡京娛樂場在2002年3月因澳門旅遊娛樂股份有限公司的博彩經營權批給撤銷而歸屬澳門特區，但葡京娛樂場－酒店綜合體從來未作分層所有權登記。直至2007年7月，澳門政府才得以完成所有必要手續。至於運作中的娛樂場面積與土地批給合同規定的娛樂場面積（在某些個案中，土地批給合同規定的面積小得離譜）之間存在差距的問題，修改土地批給合同似乎是唯一的解決方法。《博彩法》對於什麼應歸屬澳門特區有非常明確的規定。

修改《博彩法》的法案設定了為期三年的暫緩期，讓所有娛樂場均設於娛樂場經營者直接擁有的物業內，此舉給予娛樂場經營者足夠的時間來決定在暫緩期屆滿後是否（真正）想繼續經營該等娛樂場。

強迫娛樂場經營者—鏈條中最弱勢的一環—在獲得新批給之前接受就不應歸屬澳門特區的娛樂場作出的任何決定，將引發軒然大波。

且看澳門政府如何“收科”。

António Lobo Vilela

António Lobo Vilela is a lawyer based in Macau and the author of the Macau Gaming Law Book (www.macaugaminglaw.com)

The Macau law stipulates the reversion-transfer to the Macau SAR of casinos upon the extinction of the concessions (and subconcessions) (along with the gaming equipment, utensils, and other “assets or rights that must revert under a contractual clause”).  

Under the concession and subconcession contracts, (some) casinos will revert to the Macau SAR on June 26, 2022, (SJM and MGM casinos were initially due to revert on March 30, 2020, but the reversion was postponed to June 26, 2022, with the 2019 contractual amendments). The Land, Public Works and Transport Bureau (“DSSOPT”) stated publicly that “the reversion of the respective properties is clearly defined, and DSSOPT will strictly comply with the concession contract for each unit of land.”

The reversion is a typical effect of the extinction of administrative concessions. In the case of the casinos, they are required to fulfil the principle of the continued operation of games of chance, i.e., to ensure the continuity and regularity – in an automatic, immediate, and uninterrupted manner – of casino operations.    

Back in 2001, following concerns raised by the Legislative Assembly’s Ad Hoc Committee set up to assess the gaming law draft proposal, the initially intended reversion scope (all assets and rights allocated to the concession) was restricted to the casinos, gaming equipment, utensils, and other “assets or rights that must revert under a contractual clause.”                

Because several STDM casinos (in 2001 transferred to SJM’s concession) historically operated in third-party properties, the Macau government created in SJM’s concession contract an exception to the general rule that casinos must be located on property owned by the concessionaire. With proper prior authorization by the Macau government, the casinos could be located at properties owned by a third party. The draft was then complemented by Wynn and Galaxy concession contract negotiations (and inserted in the first amendment to SJM’s concession contract, as in all subconcession contracts), specifying that the proper prior authorization could, in particular, impose the condition to allow the casinos to revert to the Macau SAR, that the concessionaire (or subconcessionaires) purchase the building unit(s) in which the casino was located by 180 days before the extinction of the concession (or subconcession). The draft law proposal amending the Gaming Law – which has been approved at first reading and is undergoing panel review at the Legislative Assembly – ends with this exception. If approved, the operation of casino games of chance can only occur in casinos located in properties wholly owned directly by the concessionaires after a given three-year moratorium.   

However, except in the case of the Resort-Hotel-Casino referred to in the Investments Plan, annexed to the concession and subconcession contracts, when carried out by a third party to the casino operator (to whom the land was granted), the Macau government never imposed such a condition. This causes not all casinos to revert to the Macau SAR.  

At the time, the Macau government expected each casino operator to build a single Resort-Hotel-Casino. Concerns raised during the concession contract negotiations about the reversion of casinos to be operated outside the scope of the projects referred to in the Investment Plan led the Macau government, through the Macau Gaming Commission, to prepare and present to the “Informal Jurist Group” (created by the Chief Executive as a meeting point between the Macau government and representatives of the concessionaires and subconcessionaire) to informally analyse and discuss the draft legislation on casino gaming to be approved) in May 2005 an administrative regulation draft to address the issue.

The proposed regulation stipulated the principle of the reversion of a casino only by concessionaire and subconcessionaire, corresponding to the one located at the main investment referred to in the Investment Plan. However this administrative regulation was never enacted. 

So, which casinos revert?   

According to the concession and subconcession contracts, all casinos revert except those authorized to be located on properties not owned by the casino operators to which the Macau government contractually agreed not to impose the acquisition of the casino unit(s) (to allow its reversion) as a condition.  

Aside, some practical problems exist. Some of the buildings hosting casinos (i) are not registered with the Property Registry, (ii) are registered with the Property Registry but not under strata title, or (iii) are registered under strata title but with a specified casino area different from the actual existing area of the casino in operation.  

The reversion (as currently designed) is automatic, operating ipso iuri, independently of any formality (the draft law proposal amending the Gaming Law determines the application of the eviction regime applicable to urban construction, which turns the reversion not automatic and needed of formalities to be fulfilled…). Based on the mandatory inventory of reversible assets and the existing blueprints of all casinos in operation, the Macau government knows (or should know) the exact location of the current casino areas, including their dependencies and respective physical areas. That knowledge should suffice for the Macau government to take immediate administrative possession of the casinos to revert and handle the registration or other formalities. 

The lack of registration or registration under strata title makes the reversion rest over an aliquot part of the property and the land itself. The Macau government already has experience in handling these matters. Although the Casino Lisboa reverted in March 2002 upon the extinction of STDM’s casino gaming concession, the complex Casino-Hotel Lisboa was never registered under strata title. Only in July 2007 was the Macau government able to complete all formalities needed. As to the disparity between the existing area of the casino in operation and the casino area as provided by the land concession contracts (in some cases ridiculously less), a revision to the land concession contract seems the only possible option. The Gaming Law is crystal clear on what should revert. 

The three-year moratorium set by the draft law proposal amending the Gaming Law for all casinos to be located in properties wholly owned directly by the casino operators provides enough time for them to decide if they (really) want to continue to operate them after that moment.  

To force the casino operators – the weakest link of the chain – to any decision on the casinos that do not revert to the Macau SAR before they secure a new concession would be putting the cat among the pigeons.   

Let’s see how the Macau government will sow the dragon’s teeth.

By António Lobo Viela

The government has recognized the obvious. The Chief Executive will have to exceptionally extend the casino concessions (and authorize the concessionaires to extend the respective casino sub-concessions).

The Executive has had (almost) twenty years to have an arrow in the quiver. The Public Policy Address Report for 2020, presented by the current government, already announced the amendment to the Gaming Law and the public tender preparation. However, it left all to the eleventh hour. Was the government convinced to have enough time after launching the public consultation by mid-September 2021 to amend the Gaming Law, open a public tender, and negotiate the concession contracts by June 26, 2022? Or did it trust that the newly elected and ‘patriots-only’ Legislative Assembly would serve merely as a rubber stamp for the bill on the amendments to the Gaming Law presented to it?

Although the delay cannot be blamed on the casino operators, the government announced it would require them to ask (read, beg) for an extension of their contracts, conditional on paying a premium (around 50 million patacas) as compensation. Is the three-month unilateral extension of STDM’s concession contract in 2000 to allow the conclusion of the public tender that awarded the current casino concessions something the government is aware of?

Assuming the promise to pass the amended gaming law before June 26 is fulfilled, little time remains to prepare, open, conduct, and conclude the (nonsense) public tender and negotiate the concession contracts. In the 2001 public tender, where no application for judicial review was filed, a period of almost eight months elapsed (nine if we consider the approval date of the Macau Gaming Law – September 24, 2001) between the opening of the public tender (November 1, 2001) and the signing of the last two concession contracts (June 26, 2002). It may take less time (five months was the time between the opening of the tender and the signing of the SJM concession contract – March 31, 2002), but it does not seem likely.

The government decided to confer suitability (as a condition to awarding a casino concession), importance never before recognized. It has always given a tinker’s curse about it. For instance, it never issued the orders of the Secretary for Economy and Finance on “relevant functions,” needed to determine which casino operators and gaming promoters employees were subject to suitability assessment processes.

Following the 2016 Mid-term Review Report, which states that the “mechanism for the suitability assessment(…) is relatively straightforward” as, “[e]ssentially, it requires (…) the submission of completed forms (…) which are reviewed and checked by lawyers and other relevant departments,” the 2021 Final Report on the public consultation on the amendment to the Gaming Law refers that “the verification mechanisms (…) are an important component in the process of overseeing the gaming sector in an impartial, honest and free from criminal influences environment“, having the government “a high regard for the suitability assessment process (…), believing that it is necessary to establish a comprehensive and effective prevention mechanism to ensure the healthy and orderly development of the sector strictly.“

The bill on the amendment to the Gaming Law addresses suitability on different levels. On the one hand, it considers its ‘lack’ (not ‘loss’…) a cause for “annulment” of the concession (whatever this means…). On the other hand, it adds five (to the current four) criteria to be considered for its assessment. These new criteria presuppose an increase in the investigatory work given the need to determine, namely, if “propensity for excessive risk-taking” exists, the “lawfulness of the origin of the funds (…) or the true identity of the holder of those funds,” or any “inappropriate transactions with organized criminal groups.” In addition, the (new) definition of key employee considerably increases the number of those subject to suitability assessment processes. All this is laborious and time-consuming, requires access to various intel sources and interaction with other jurisdictions/regulators, and, above all, demands skilled and trained personnel.

During my externship with the Nevada Gaming Control Board (GCB), I learned that suitability assessment processes, which are meant for scrutinizing both “tigers and flies” (see the recent case of Barry Diller’s gambling license application that was delayed amid an inside trading probe), take, on average, six to ten months to be concluded. And let’s not forget that GCB’s Investigations Division (one of its six divisions) has a staff of 79, where the investigative agents “generally have college degrees in business or financial disciplines, criminal justice, or extensive law enforcement experience.” To put it in perspective, deducting from DICJ’s staff (459) all gaming inspectors (324), and the director, deputy directors, and heads of the divisions and subdivisions (22), it leaves only 113 people, who are divided among all its (six) divisions and (thirteen) subdivisions.

The way the crow flies is not, in this case, the right direction to be armed at all points. Thus, it is, therefore, nothing but natural – or highly probable – that the government will have (need), once again, to announce a further extension beyond December 31, 2022.

David Dunning and Justin Kruger explain this phenomenon.

António Lobo Vilela

António Lobo Vilela is a Macau-based laywer and author of the Macau Gaming Law Book

(www.macaugaminglaw.com)

Macau Business | March 2022

The draft law proposal on the amendment to the Gaming Law submitted to the Legislative Assembly reaffirms the principle of the operation of games of chance confined to casinos (directly) owned by the casino operators, established in the casino concession and sub-concession contracts. 

The only novelty is that no exception to this principle is admissible. The draft law proposal provides that in the event the current casino operators are “awarded rights to operate casino games of chance,” they may continue to operate such games on a property not owned by them for a (maximum) period of three years from the entry into force of the law amending the Gaming Law, and provided that the Chief Executive grants authorizations. 

This rule is consistent with, among other things, the (newly announced) public policy of (1) downsizing Macau’s gaming market, as stated in the proposed Article 1/2, subpar. 5 of the Gaming Law, and (2) prohibiting the sub-concessions, i.e., the “transfer, or assignment, in whole or in part, to a third party, of the right to operate casino games of chance, or the transfer, or assignment, in whole or in part, to a third party, of the concessionaire’s legal rights and obligations related to gaming, or their contractual position as concessionaire,” as per the proposed Article 7/3.

This measure will most certainly impact the already sluggish gaming gross revenues and have a materially adverse effect on the operation of some casino operators.

Firstly, it directly hits the so-called “satellite casinos” i.e., the “third party promoted casinos,” according to SJM’s annual reports, or the “collaborative entities,” in the wording of Article 5/4 of the draft law proposal. Out of the existing 42 casinos, 20 are “satellite casinos” (of which two are currently closed) operating under the umbrella of SJM, Galaxy, and Melco. 

Although the draft law proposal allows casino operators to enter into agreements with third parties concerning the management of “all or some of the concessionaire’s casinos,” it bans the possibility of gaming-revenue-sharing. This fact alone will sound the death knell of the “satellite casinos,” at least as they currently operate. As a consequence, it will increase the already high unemployment rate with the employees hired by the “collaborative entities.” (Despite the Secretary for Economy and Finance mentioning that all are employees of the concessionaire/sub-concessionaires, in a December 2016 response to a legislator’s written interpellation, the former Gaming Inspection and Coordination Bureau (DICJ) Director says otherwise, acknowledging “there is no legal provision, in effect, that requires that the hiring of all casino employees be done solely by the respective concessionaire/sub-concessionaire”.) Let’s see if – and how – legal engineering will manage to overcome the legal command, thus creating an implementation failure of the Gaming Law, with enforcement mechanisms failing to accomplish the policy goals due to ineffective oversight.

The announced death of the “satellite casinos” will at least put an end to new embarrassments to the government, as was the case with the last one to open. Ending a moratorium imposed by the government in 2008, the opening of Casino Royal Dragon in September 2017 was surrounded by controversy due to statements made by the then DICJ director, who realized no request for opening that casino had been received, and the day before the opening said that there still was no authorization despite the inauguration being scheduled for noon the following day. 

Secondly, it affects the “self-promoted casinos”, i.e., the casinos operated directly by a casino operator but located on properties owned by third parties (within their group of companies in the vast majority of the cases). Allied to the casino reversion mechanism and the intention to create a “special premium” in case the artificially set minimum gaming gross revenue to be generated by the gaming tables and machines is not met (which most probably will result in a considerable shrinkage of the number of the gaming tables and machines in operation), it will be exciting to see the casino operators concluding that no commercial sense exists in buying the property where the casino is located to then revert to the Macau SAR after a couple of years.

Lastly, the measure also clashes with the (current 5) gaming machine halls located outside casinos, i.e., the “satellite gaming machine halls” in the wording of the 2016 Mid-term Review Report. I wonder if we will ever see STDM selling to Melco the Macau Tower’s unit where the Mocha Macau Tower operates. As no changes to the principle of the location of gaming machines inside casinos are envisaged, the rules set by the Gaming Machines Regulation to allow these halls to open outside casinos continue to be irreconcilable with the Gaming Law, and thus illegal. Moreover, it may finally allow the government to enforce the long overdue “main government action in the area of Economy and Finance” announced in the Policy Address for 2015, “to prevent problem gambling and the problem of the spread of gaming to residential zones, proactively removing gaming machine halls from residential zones.”

Macau’s first Chief Executive once said that “gambling is a significant factor in the context of Macau’s economic development.” Despite the merit that some measures have or may have, the current government, certainly continuing to “strengthen governance based on scientific principles” (whatever these are…), proposes several amendments to the Gaming Law that will strangle Macau’s golden goose, the one that represents almost 80 per cent (2019) of the Macau SAR revenues. 

Is this the correct path for a city that claims to be international but where no Fortune 500 company has headquarters or offices, or that doesn’t appear in the (global) Startup Ranking, where the six poorest countries in the world are ranked with 47 startups together?

As a friend put it, unfortunately, Macau has a business that it seems not to like! Popcorn time!

By António Lobo Vilela

Macau-based lawyer and the author of the Macau Gaming Law Book (www.macaugaminglaw.com)

Macau Business | February 2022

The Gaming Law, as in force, establishes the principle of delegation to a Managing Director (“MD”), whereby the management of the casino gaming operators is compulsory delegated to an MD. 

Several qualifying conditions apply to the MD: be a Macau permanent resident, hold at least 10 per cent of the respective casino operator’s share capital, be considered suitable (and remain suitable during his tenure), and not be impeded by not being, in particular, a worker of the Macau Special Administrative Region’s Public Administration or a member of the Executive Council.

The delegation and its terms are subject to prior authorization from the government under penalty of nullity.

According to the Explanatory Note to the gaming law draft proposal submitted in 2001 to the Legislative Assembly, the alternative to the principle of delegation to an MD was to provide for a “restriction on the percentage of the share capital of the concessionaires operating casino games of chance to be held by shareholders, not resident in the Region.”

During the presentation of the said proposal, the then Secretary for Economy and Finance stated at the Legislative Assembly that the government was “convinced that introducing a Managing Director who is a permanent resident will help to master the real and concrete situation of Macau gaming operators, and we [the government] can also be more convinced about the matter of management. In this way, we can provide greater support for the stability of this sector. (…) The 10 per cent share capital the Managing Director owns in the concessionaire (…), in addition to the right to manage the concessionaire, should also influence the operation of the concessionaire. I believe that if s/he owns 10 per cent or more of the concessionaire’s shares, the influence s/he has on the concessionaire is relatively tangible.”

The last 19 years showed the role of the MD was a flop since day one. Engaging a Macau permanent resident in the operation of the casino operators combining the “right to manage” with “an influence on the operation of the concessionaire (…) relatively tangible” by the 10 per cent of share capital owned was a goal never accomplished. 

The casino operators appointed an MD for the only reason that it is a legal requirement. All their by-laws (but one) create a special class of shares for the MD entitling MOP$1 as a maximum dividend (in one of the cases, to 0,0000000000000000001per cent of the profits distributed).

Aside from being deprived of any economic interest in the company, MD voting rights are insufficient to influence the Board of directors’ decisions.

The recent draft law proposal on the amendments to the Gaming Law submitted to the Legislative Assembly keeps the figure of the MD precisely as is in existence, except for the increase – from 10 to 15 per cent – in the minimum participation in the share capital it must hold.

According to the Public Consultation Final Report, the increase in the share capital aims “to encourage concessionaires to take root in Macau.”

We expect – and believe – the Macau government did its homework. Knowing the figure of the MD is a dead letter and not considering erasing it or allowing an MD to be a legal entity, the Macau government craves to rehabilitate such a figure. Otherwise, why bother to increase the share capital percentage if the MD will continue in name only?

And here is where the issue lies. At what price will the MD buy the minimum 15 per cent stake of the coming casino operator’s share capital? What will serve as a price determination base? The casino operator’s share capital or book value?

According to the draft law proposal, the new minimum casino operator’s share capital requirement is MOP 5 billion (fifty times the minimum share capital required for banks!). Let’s assume the current casino operators will not decide to increase their share capital way beyond that figure by incorporating reserves, a realistic and sensible possibility.

Based on a MOP 5 billion share capital, 15 per cent corresponds to a modest amount of MOP$750 million. Who in Macau has that kind of money? Is there anyone willing to buy alone a minority stake in a casino operator when a downsize of the gaming industry is on the horizon? Or, having that kind of money, to be interested in playing MD when its voting rights are insufficient to influence the Board of directors’ decisions?

Or to be surprised at the end of the concession period with another aberrant amendment proposal to the Gaming Law providing s/he is jointly and severally liable for all company debts, including the gaming chips in circulation if the casino operator cannot secure a new concession? And is a purchase based on the casino operator’s share capital consistent with the public listing and exchange requirements from the exchanges where the casino operator’s dominant shareholders are listed?

Taking the casino operator’s book value as the base, no individual in Macau would probably have that kind of money. To serve as an illustration, just find 15 per cent from MOP$53.5 billion, which is the amount of investment recognized by the government in the Mid-term Review as spent until 2016 by the sub-concessionaire Venetian Macau, and one will understand the amounts at stake.

By António Lobo Vilela

Lawyer based in Macau and the author of the Macau Gaming Law Book (www.macaugaminglaw.com)

Macau Business | January 2022

As I explain in my book, “the gaming promoters, also known as “junkets”, appeared in Macau in the 1980s, when the most significant marketing policy of the STDM consisted of making travel arrangements for high-rollers to come to play at their casinos.

To benefit, in particular, from the right to travel to and from Macau and stay in Macau, the high-rollers acquired special gaming chips (called ‘junket chips’ or ‘dead chips’) that were characterized by not being directly redeemable in cash, that is, they were intended to be used for playing and prizes paid in regular gaming chips or directly refundable in cash. These special gaming chips were purchased through agents who organized the trips, who were paid through commissions on the number of gaming chips sold (averaging about 1.25%). 

To implement such a marketing policy, the STDM created a special room at the Casino Lisboa aimed at high-rollers, where the minimum limits of bets at the gaming tables were considerably higher, and chose a significant number of agents to organize those trips (mostly Thais, since it was from Thailand that most of the high-rollers came), to whom different color gaming chips were given to enable the calculation of the commissions due at the end. Most of these agents were businessmen who frequented Macau casinos and therefore enjoyed some credibility with the concessionaire.

The success of this initiative was considerable and led to an increase not only in agents but also gaming tables allocated to high-rollers (from 3 to 11) and, in 1988, the opening of two new special rooms at the Casino Lisboa (the Diamond Room and the Peacock Room), this time with the management of activity in each of them entrusted to two of the most outstanding agents. The results achieved with these new rooms led to the emergence of proposals from other agents for the allocation of rooms, which was followed by the opening of over 40 special rooms in various casinos in Macau during the 1990s.”

The activity of promoting casino games of chance is regulated, for the first time, by Administrative Regulation No. 6/2002, of 1 April. The regulatory option was intimately tied, on the one hand, to the importance of this activity to Macau’s economy (particularly in terms of turnover) which, until that time, has been done informally without regulations, with the complacency or tolerance of regulatory authorities. On the other hand, it is also tied to the goals of the Macau Gaming Law to ensure “[t]hat those involved in (…) operating casino games of chance are suitable to the performance of these functions and assumption of these responsibilities” and that “casino games of chance operate and function (…) free from criminal influence” (see Article 1(2), subparagraphs 2) and 3)). 

The boom of the Macau casino industry stems from the sophistication of the junket operation allied to the growth of visitors from Mainland China. In 2002, the VIP Baccarat accounted for 73.7 percent of the GGR, reached its peak in 2003 (77.4 percent), and started to decline from 2017, accounting for less than 50 percent for the first time in 2019.

The imbroglio that the gaming promotion finds itself in is pushing the gaming promoters out of the gaming ecosystem. Unless they explore new/old avenues to find wealthy players from other geographies, VIP gaming will barely survive. Premium mass-market gaming will likely follow the trend (who will be collecting the gaming debts?). The mass-market gaming will always continue to depend on the greater or lesser indulgence of the Mainland authorities in allowing a considerable number of its citizens to visit Macau. As a friend of mine put it smartly, Macau will cease to have gaming and only have children’s games.

The agonizing gaming promotion activity associated with to an increase in the unemployment rate almost on a daily basis, the unsustainable government’s persistence on the COVID-zero policy – when not accompanied by an effective vaccination campaign – and the Court of Final Appeal’s ruling confirming the Court of Second Instance’s decision that gaming operators are jointly and severally liable for the repayment of the funds on deposit with gaming promoters will have a snowball effect in sinking the fragile and governmental-subsidy-dependent, SMEs-based socio-economic fabric.”

A return to the 1970s is on the horizon!

But why worry?

As sagely stated by the Secretary for Economy and Finance, the local gaming sector is moving towards a “healthy and sustainable development” (whatever that means…). The government’s very sensible and no less Orwellian announced policy to attract talent to build a more diversified local economy by bringing loads of Nobel Prize laureates and Olympic-medal-winners may be the way to go. They will be eager to settle down in a city stepping back in time, probably not to help in the diversification work but to build an economy from scratch.

Indeed, when one doesn’t have or lose the sense of reality, the sky is the limit!

Macau Business | December 2021

By António Lobo Vilela

Like any other, Macau’s gaming ecosystem also has vulnerabilities, some internal, others external.
The recent ‘Dore case’ in which the Court of Final Appeal’s ruling confirmed the Court of Second Instance’s decision that gaming operators are jointly and severally liable for the repayment of the funds on deposit with gaming promoters uncovered an internal system flaw and opened a Pandora’s box.

We agree with the direction of the Court of Second Instance’s decision. To quote ourselves, casino operators are the “best positioned entities, for reasons of physical proximity, to, firstly, supervise the ‘activities carried out in casinos’ by gaming promoters.” Based on the system that applies to (horseracing) bookies, the current ‘exclusive (civil) imputability system’ for casino operators results from culpa in eligendo, entailing a poor choice related to the gaming promoter whose registry for the exercising of the activity was accepted, or from culpa in vigilando, for the failure to supervise the ‘activities carried out in casinos’ by the gaming promoter.”^[i] 
The decision is “crucial to the Macanese gaming ecosystem and the way it is structured,”^[ii] although the extent of the problem cannot be immediately identified, as no numbers exist on the funds on deposit with gaming promoters.
What lessons can be learned from the Court’s decision?
Firstly, the operation of independent cages by gaming promoters should be addressed and rethought by the Macau government, pondering whether all transactions conducted should be solely under the purview and control of the casino operator.

Secondly, the Gaming Inspection and Coordination Bureau (DICJ) should be (by far much more) proactive and imprint more stringency to the enforcement expected from the governmental agency “responsible for (…) the regulation, supervision, and coordination of gaming operations and gaming activities.” Several ‘gaming promoters heist’ happened and since at least 2014 that DICJ voiced that the reception of funds in deposit in the VIP rooms “is an activity carried out by those who are not specifically authorized to do so, and as such, it is illegal.”

Thirdly, the legal and regulatory framework should be a living structure that evolves and not something to keep crystallized. More than ever, the (several times) announced deep-drive review of the gaming promotion regulations is of utmost importance.
Lastly, a reshape in the relationship between casino operators and gaming promoters is needed, as latent financial risks may outweigh the perceived profitability of VIP gaming. Casino operators must be firmer in enforcing overseeing the gaming promoters registered with them, namely imposing minimum internal control rules or compliance policies. Moreover, contracts with the gaming promoters shall be more detailed to include indemnity clauses against illegal activities, and require specific types of guarantees or the creation of mandatory cash provisions.
The People’s Republic of China’s (PRC) in considering cracking down on capital flows by broadening restrictions on offshore gambling, which, in conjunction with the COVID-19 pandemic (aggravated by Macau authorities’ persistence with the COVID-zero policy), put and definitely will continue to put strain on the decadent (but still significant in terms of gross gaming revenue generated) VIP gaming segment. The recent arrest warrant issued to the founder and CEO of Suncity Group by PRC’s Wenzhou Prosecution’s Office over alleged cross-border gambling activities is a new setback whose proportions only time will tell. 
All these externalities mixed together make the perfect blend that can ultimately lead to the need to remake Macau’s gaming industry from scratch.
Considering the fewer than ever references in the 109.000-plus-word Policy Address for 2022 Report to the words ‘casino’ (14, not including the 4 times it was used in Gaming Law’s full name), and ‘gaming’ (50, not including the 7 times it was used in DICJ’s name), one may wonder if Macau’s gaming industry is really too big to fail and too important to be gambled with?

^[i]Macau Gaming Law, Annotated with Comments, Volume III, p. 274.

^[ii]SeeAntónio Lobo Vilela, The liability of Macau casino operators for the activity rendered inside casinos by gaming promoters (junkets) – An update on the current litigation, Gaming Law Review, March 2021, 66-75.