PUTRAJAYA (Feb 27): There is nothing good or beneficial for the public if gambling activities are to be encouraged, said Federal Court judge Datuk Nordin Hassan.

The Federal Court judge said this in his judgement for the bench's unanimous decision on Wednesday (Feb 26), allowing the appeal by Bintulu businessman Datuk Ting Ching Lee against promoter or junket tour agent Ting Siu Ha over the Court of Appeal’s (COA) decision that allowed Siu Ha’s counterclaim — to recover US$1.5 million credit and US$193,800 advance rolling rebate which had been given to Ching Lee for gambling sessions at Naga Casino, Cambodia.

Nordin said that was why the government took a clear stand when it voiced its view in Parliament to combat online or offline gambling.

“The intention of the legislature was also translated in the statutes by Section 31 (1) of the Contracts Act 1954 and Section 26 of the Civil Law Act 1956. Public perception of gambling is also without doubt that gambling activities are something bad and should be discouraged. Thus, gambling activities and their transactions are against public policy.

“I do not deny that gambling premises are operating in this country, but those premises are licensed and regulated under the relevant laws. That does not mean that gambling is not against public policy. The negative effect of gambling activities resulted in the government policy to curb gambling activities and enact laws that nullify any gaming contracts, and make any claim for recovery of gambling debts unenforceable,” he said.

Chief Judge of Sabah and Sarawak Tan Sri Abdul Rahman Sebli, who has recently had his tenure in the judiciary extended, chaired the bench and sat with Nordin and Federal Court judge Datuk Abdul Karim Abdul Jalil in the unanimous decision, where Siu Ha was also ordered to pay RM200,000 in costs.

Ching Lee’s trip to the casino with two others took place in 2015, where he and his group were granted a credit of US$1.5 million and a rolling rebate of US$193,800 from Siu Ha.

Upon returning from the gambling trip in January 2015, they alleged that Siu Ha caused the publication of defamatory statements against them in Sin Chew Daily and WeChat, that the three were allegedly required to pay the sum (the credit and the rolling rebate) within a week, or action would be taken against them.

Following that, the trio filed a defamation suit against Siu Ha, while Siu Ha filed a counterclaim at the High Court for the recovery of the monies that had been given.

The High Court dismissed the defamation suit, as it found no evidence was adduced that Siu Ha had published the purported defamatory statement, and the court also dismissed the counterclaim, as it found it to be an attempt to recover gambling debts, which is considered null, illegal, and void under Sections 24 and 31 of the Contracts Act 1950 and Section 26 of the Civil Law Act 1956.

The High Court found that the enforcement of the gambling debt was against public policy and forbidden by law. A gambling contract is considered an empty contract unenforceable under the law.

On appeal at the COA by both parties last year, the appellate court ruled that the High Court judge was right in dismissing the defamation suit, but allowed the counterclaim based on an oral agreement between Ching Lee and Siu Ha, and ordered the sum to be paid.

The appellate bench ruled that the nature of the credit is a loan or credit given to Ching Lee to enable him to cash them in exchange for gambling chips.

“The gambling debts, if any, would be between Ching Lee and the casino concerned,” the COA said.

Nordin in his judgement at the Federal Court said that Section 24 of the Contract Act stipulates that:

The consideration or object of an agreement is lawful unless:

(a)  It is forbidden by a law;

(d) It involves injury to the person or property of another, or opposed to public policy.

Section 31 of the same Act stipulates that agreements by way of a wager are void, and no suit shall be brought for recovering anything alleged to be won on any wager.

Section 26 of the Civil Law Act stipulates all contracts or agreements, whether by parol (expressed verbally) or in a written way, of gaming or wagering, shall be null and void.

Nordin said the law is plain and unambiguous, which needs no further interpretation.

“In a nutshell, any gaming and wagering contract is unlawful, and gambling debts are unenforceable under Malaysian law,” the top judge said.

He further said that it was undisputed that the credit lines and the rolling rebates were for Ching Lee to purchase gambling chips, so he could gamble at the casino and that was what he did.

Citing Home Minister Datuk Seri Saifuddin Nasution Ismail’s parliamentary statement on gaming activities, Nordin said the government is actively taking measures to combat it.

The judge said the credit facilities were meant for the sole purpose of gambling at Naga Casino.

“Without the credit facilities, Ching Lee obviously could not obtain the casino gambling chips,” he said.

“Our (Malaysia’s) position on gaming or waging contracts is almost similar to the earlier position in England. This court cannot accept the credit facilities granted to Ching Lee as pure loans and [as] legitimate transactions. The reality is that it was a gaming or wagering transaction, and without credit facilities, Ching Lee could not gamble.

“The term loans in reference to the credit facilities to Ching Lee is actually a gambling debt unenforceable under Malaysian law,” he said.

Nordin said Singaporean law, which is cited in the novel question posed before this apex court, is similar to Malaysian law, where any gaming or wagering contract is null and void and unenforceable.

The Federal Court judge said the reality of the transactions was that it was a gambling contract or composite gambling contract; when viewed in totality, the purpose was no other than for gaming or wagering.

He said based on the Civil Law and Contracts Act, the contract contravenes these sections from the beginning.

“No rights can arise from a void contract or be sued upon. The laws in Malaysia and Singapore on gaming contracts and their enforceability remain the same, without any amendment. The claim against Ching Lee, viewed in totality, was for the recovery of money upon gaming or wagering transactions in Naga Casino.

“It was a gambling debt. This claim is unenforceable under Malaysian law,” he said, adding that Singapore takes the same position as Malaysia that gambling is against public policy, and that was why Malaysia’s Parliament takes a clear stand to combat online or offline gambling.

As a result of this, Nordin said the apex court allowed Ching Lee’s appeal (to not have to pay the alleged debt) and overturned the COA’s decision to allow Siu Ha’s counterclaim. Thus, the High Court’s ruling was restored.