UK casinos get nod to recover RM7m debts
Published on: Wednesday, February 07, 2007
Kota Kinabalu: Two London-based casinos won their bid to recover gambling debts owed them by former Sabah Chief Minister Datuk Osu Hj Sukam amounting to an equivalent of RM7.1 million. In an unanimous decision, the Court of Appeal allowed their appeal, with costs. Ritz Hotel Casino Limited and R.H.C Limited represented by counsel Colin Lau had, on Sept. 13, 2004, applied to register an English High Court judgement as a Judgement of the High Court in Sabah and Sarawak in pursuant to Section 5(1)(a)(v) of the Reciprocal Enforcement of Judgement Act 1958.
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But on July 5, 2005, the High Court in an inter parte hearing dismissed the application. Justice Datuk Ian H.C. Chin centred his ruling on two of various reasons submitted by the debtor on why the English Court Judgement should not or could not be registered. Firstly, that gambling is injurious and against public policy. Secondly, that gambling is evil, leading to greed and against the teachings of religion, as acknowledged in Malaysia and universally.The creditors subsequently appealed against the decision. Justice Datuk James Foong sitting with Justice Datuk Abdul Hamid Embong and Justice Datuk Mohamad Raus Sharrif held that the High Court judge had erred in concluding that it was contrary to public policy in Malaysia to register. "We do not agree with the reasoning stated in his grounds of judgement," they held. They also dismissed a cross-appeal instituted by the respondent, with costs, finding no merits on the recited ground.
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Osu is at liberty to appeal to the Federal Court against the Court of Appeal decision. His counsel Sugumar Balakrishnan intends to do so.During the appeal hearing, Sugumar submitted that the material point was that the appellant had enticed the respondent to gamble on credit.
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"That is a crucial fact to be considered as opposed to public policy. Since it is the appellant themselves who put in so much of the facts voluntarily they can't now come and say the judge cannot look at these facts. "If the respondent had no money to gamble he would not. But because he was extended the credit he continued. The judge was correct in looking at it adversely. As far as the 1958 enforcement is concerned public policy with respect to what prevails in Malaysia, the judge has taken judicial notice of matters, which he is entitled to."Further referring to Enforcement 1958, Sugumar submitted there were laws to insist gambling debts are not recoverable. "Parliament has seen it fit to enact such laws. Can we ignore the fact there is statutory provision?" he argued invoking Section 26 of the Civil Law Act.In his cross appeal, he contended that the creditors had contravened applicable rules when they failed to obtain service permission with regard to the claim form served on the debtor. He contended there was nothing to indicate permission has been granted to serve the certificates out of jurisdiction. "Only the amended one - in the notes of proceedings in the English Court. There was none mentioned about the claim form."The creditors obtained an order on Sept. 4, 2003, by "judgement in default" to recover the amount from Osu. Subsequently the claim was amended, on June 17, 2004, after the debtor's solicitors pointed out that he had repaid the equivalent of RM300,000."My argument is that they have contravened applicable rules. They served the original claim form in London and the amended one in Malaysia. There is a discrepancy. "To enforce it here would be against public policy. In the absence of such permission, hence such service is a nullity. In the first place they should not have served out of jurisdiction on the ground they did not obtain leave of court to serve it on the respondent. "In the first place, they should not have obtained the default judgement.The default judgement is a fraud perpetrated against Malaysia's court and the respondent. Secondly, they did not obtain leave to serve it on the respondent out of jurisdiction."Meanwhile, Lau questioned why the respondent's counsel only brought up the issue of leave to claim the amount in his cross appeal. Sugumar countered that he had raised in the affidavit in opposition. "They had every opportunity to reply." However, when asked by the judge, he admitted he had not raised it verbally.One of the points raised by the Court of Appeal judges was that the trial judge may feel gambling is immoral and against public policy, that it is against all religious values. "It may be the view of the trial judge, but does it represent the views of other judges?" Stay up-to-date by following Daily Express’s Telegram channel.
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