Published on: Wednesday, July 06, 2005 |
Kota Kinabalu: The High Court here dismissed an application by two foreign casinos to register in the High Court in Sabah and Sarawak, a Judgement obtained in the English High Court to recover RM7 million in gambling debt owed to them by former Sabah Chief Minister Datuk Seri Osu Haji Sukam.
Ritz Hotel Casino Limited and R.H.C Limited, as the Creditors, applied for the registration pursuant to the Reciprocal Enforcement of Judgement Act 1958.
They were claiming a sum equivalent to RM7,142,859.98, from Osu, who was also a former Federal Land and Cooperatives Development Minister.
Justice Datuk Ian H.C. Chin centred his ruling delivered by Senior Assistant Registrar Amran Jantan Tuesday on two of various reasons why the English Court Judgement should not or could not be registered.
One of the reasons, the judge held, was actually sufficient to dispose of the matter. The other was also dealt with to highlight the difficulty a High Court judge faces where there are pending appeals against his decision.
The Debtor, represented by counsel Sugumar Balakrishnan had, among others, contended that the registration would contravene Order 65 of the Rules of the High Court 1980 since the foreign process was served by a private agent in Malaysia.
He relied on a decision by Justice Chin in United Overseas Bank Ltd v Wong Hai Ong [1999] 1 MLJ 474 in which the judge held that the service of a Singapore High Court writ by a private agent in Kuching, Sarawak, was not permissible.
On this, Justice Chin disclosed, "Unbeknown to both counsel, this case was reversed by the Court of Appeal on Jan. 26, 2004. But thus far the grounds of decision of the Court of Appeal are still being awaited as there is a pending application for leave to appeal against the decision of the Court of Appeal to the Federal Court. This application on April 11, 2005 was adjourned indefinitely to await the grounds of decision of the Court of Appeal.
"In the meantime, I either postpone (1) indefinitely all cases that may crop up concerning the same issues until the grounds of decision of the Court of Appeal are known or until the matter of the appeal is dealt with by the Federal Court or (2) proceed to hear the matters relying on the ruling of the Court of Appeal though not knowing its reasons.
Justice Ian said he chose the latter course to avoid a pile up of cases. "As for the overturning of the said decision by the Court of Appeal, it may well be the end of reciprocity to Malaysia's disadvantage because while we now allow the service of a foreign process by a private agent in Malaysia we do not know how many foreign countries allow the service of a Malaysian process by a private agent in that country.
"Worse still, we may open Malaysia to a foreign country to exercise extra-territorial jurisdiction by allowing a foreigner to sue in his own country a Malaysian in respect of, say, a contract made in Malaysia between a Malaysian and a foreigner.
"Imagine the expense a Malaysian would be put to in having to travel to a distant country to defend himself," the judge said.
"Be that as it may, I have to conclude relying on the said decision of the Court of Appeal that there is no merit in the argument that a foreign process cannot be served by a private agent in Malaysia."
On the Debtor's contention that the enforcement of the judgement would be contrary to public policy in Malaysia, Justice Chin referred to Pollock & Mulla on Indian Contract and Specific Relief Act, 10th edn., on the definition of public policy.
"Now the judgement in the English Court was for a gambling debt incurred by the Debtor after he was allowed by the Creditors to gamble on credit as opposed to cash in a casino in London.
"The principle of public policy is this: ex dolo malo non oritur action. Lord Brougham defines public policy as the principle which declares that no man can lawfully do that which has a tendency to be injurious to the public welfare.
"There is no doubt that gambling is injurious to the public welfare or else there would not have been a law from time immemorial that gambling debts are irrecoverable."
Justice Chin added: "Not only thatÉtwo of the principles of Malaysia's national philosophy called the Rukun Negara that is Belief in God and Good Social Behaviour, would mean that gambling is injurious to the public welfare as being against the Rukun Negara. The complete principles of the Rukun Negara that guide Malaysians are these:
Belief in God; Loyalty to King and Country; Supremacy of the Constitution
The Rule of Law; Mutual respect and good social behaviour. "It is recognised that gambling and prostitution are two twin vices that we should avoid and therefore, it cannot be good social behaviour to indulge in them.
"It is also universally recognised in Malaysia that gambling is evil and against the teaching of our religion and not the least of all that gambling appeals to greed, that is getting rich without having to work.
"Belief in God, one of the principles of our national philosophy, must surely mean believing and following the teachings of the religion. It was mentioned that gambling is allowed under licence in Malaysia but that was because it was to prevent it from being run by the underworld and it was not that it was something that was good.
"It is my view that any profit to be made from gambling (and from prostitution) can fairly be said to be profit from vice. In this regard, I do not see how a casino can be likened to a bank, which the judgement creditors appear to argue," he contended.
Justice Chin said a foreign bank lending money to a Malaysian in a foreign country would not face the problem of public policy even though the foreign bank is not licensed in Malaysia.
"But it is a different proposition if a prostitute who legally practised her trade (as it is allowed in certain countries) and had obtained a foreign judgement for services to a Malaysian. The prostitute would face the same impediment as that of casino, that is of it being against public policy since it is one of the twin vices and which is against our religious belief even though it is legal in the foreign country.
"Therefore it would be accurate to equate a casino business with that of prostitution (both being legal in many foreign countries) but whose activities are against public policy.
"It was totally inappropriate to liken a casino with a bank to argue that since it has a licence, there should be no objection to the registering of the foreign judgement because banking business is not a vice unlike prostitution and gambling.
The judge said "what is offensive and totally unfair is for the casino to allow someone to gamble on credit in order to make him lose not only his pants but the livelihood of his wife and children as in this case."
"It may be forgivable that the casino is able to entice someone to enter the casino and lose everything that he has on his body but not otherwise.
"Malaysians are a God-fearing people, at least that is what the Rukun Negara wants us to be and to allow a foreign judgement which had enticed a person to gamble on credit and to gamble away the welfare of the family and leaving the State to pick up the pieces and thus lead one away from the path God has shown us would surely be against the principle of Belief in God and believing in God means eschewing gambling since it is a form of covetousness, that is to desire to be rich quickly without working.
"In other words, it is against the Rukun Negara. Anything that seeks to go against the Rukun Negara must surely be regarded as against public policy.
"As for the argument that gambling debt incurred in Malaysia would suffer the same fact in a foreign country if I do not allow the registration of the foreign judgement, my short answer would be that the world would be so much better for it and makes for a better public policy.
"The world would be a much nicer place if no country would allow the recovery of a judgement for a gambling debt which debt was the result, invariably, of the debtor being enticed to gamble on credit and beyond his means.
"In fact, I would suggest that a law be enacted to allow a gambler to sue a casino for having enticed him to gamble beyond his means if that is not already a common law. Malaysia may soon have casinos at its doorsteps giving access to Malaysians.
"Its populace must be protected from being enticed to gamble on credit and the only way to discourage this entrapment is to prevent such foreign judgement founded on gambling on credit from being registered and from being enforceable in Malaysia."
Justice Chin also dismissed costs to the debtor saying he (Osu) "is not deserving as he had engaged in an activity that his religion frowns upon and which it would be against public policy to assist him by way of awarding him costs."
