1. ) Loh Wei Kiang (MC-83-450-06/2024)

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ANG KONG TEA TEY CHING AIK (HEARD TOGETHER WITH) IN THE MAGISTRATES’ COURT AT ALOR GAJAH IN THE STATE OF MELAKA CASE NO: MC-83-162-04/2023 BETWEEN

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HEN KAI YANG EE SIAU LI GROUNDS OF JUDGMENT

This judgment is addressing the issue of whether an order of forfeiture should be made regarding the monies seized from all 9 accused, amounting to RM104,578.00, under section 16(2) of the Common Gaming Houses Act 1953 (“CGHA”). Each accused was charged under section 7(1) of the CGHA for public gaming ("Pai Kow") and sentenced under section 7(2) of the same Act, read in conjunction with section 34 of the Penal Code. On 4.9.2024, all 9 accused pleaded guilty and each was sentenced to fine of RM2,200.00 or 2 months' imprisonment in default of the fine.

However, this court deferred making an order of forfeiture under section 16(2) of the CGHA. Upon reviewing the case, this court was not prepared to issue a forfeiture order at this stage on the same day (4.9.2024). This court granted the prosecution's application to call the raiding officer as a witness for the purpose of holding an inquiry on 14.10.2024, as directed. This court is of considered view that only when there is evidence of the true owner of the seized monies would an inquiry be necessary to determine ownership before any forfeiture order can be made.

Section 407 of the Criminal Procedure Code (“CPC”) is a general provision concerning the disposal of property involved in an offence. It allows the court to make an order for the custody or disposal of any property or document presented during an inquiry or trial. However, the seized monies in question may not fall under section 16(2) of the CGHA when they were not found within a common gaming house or on any person therein or fleeing f rom the premises. As such, this court applied section 407 of the CPC, holding an inquiry where the raiding officers could be called to explain on the seized monies before making the forfeiture order.

In the instant case, this court invoked section 407(2) of the CPC to conduct an inquiry to ascertain whether the seized monies were related to the gaming offence committed, referring to the cases of Tan Khing Hung v Public Prosecutor [1996] 4 MLJ 316 (HC) and Chia Ai Min & Ors v PP [2021] 1 LNS 2240 (HC). In Chia Ai Min’s case, the issue concerned the forfeiture of RM87,609.00 to the Malaysian Government, which was argued should have been done under section 16 of the CGHA rather than section 407 of the CPC. The court in Chia Ai Min’s case, applying the doctrine of generalia specialibus non derogant, held that the CGHA 1953 applied to the forfeiture of monies in that case. Thus, the learned Magistrate's order to forfeit the RM87,609.00 under section 407 of the CPC was amended to be under section 16 of the CGHA.

This court remains clear on whether the forfeiture order should be made under section 16(2) of the CGHA. Neverthless, this court also refers to section 407(2) to conduct an inquiry, as no specific provision under CGHA dictates how such an inquiry should be conducted and the express wording of section 16(2) does not negate the application of an inquiry. In the instant case, the defence counsel raised the objection that monies seized not found on the gaming table or handed over by the accused were not gambling funds and should be forfeitured to the government. In such circumstances, the general provisions of section 407(2) of the CPC would apply exclusively to govern the mode of inquiry (Kedai Pajak Fah Ngien & Ors v Public Prosecutor [2002] 5 MLJ 613, HC). Accordingly, this court proceeded with an inquiry to determine the true ownership of the seized monies before deciding on the forfeiture.

The statement of the facts of the case (P1) was tendered by the prosecution, and an admission was made by every accused in response. This court subsequently found all the accused guilty. I now present a brief summary (P1) as follows, for ease of reference, before addressing the inquiry regarding the forfeiture. On 6.2.2022, at approximately 9:30 pm, ASP Wan Mohd Firdaus (PW1) led a police team from the D7 branch of IPK Melaka, which included Insp Sahiri, Insp Saliman, other officers, and a photographer from D6 JSJ IPD Alor Gajah. They proceeded to an oil palm plantation at Kampung Man Lok, 78200 Kuala Sungai Baru, Melaka. Upon approaching the location, they observed a group of people gathered around a table, suspected of gambling. Upon observing them, PW1 identified himself as a police officer and rushed toward the group, causing them to scatter and flee. However, PW1 and the team eventually managed to apprehend eight Chinese men and one Chinese woman, all of whom are among the nine accused charged before this court.

At the conclusion of the inquiry on 14.10.2024, this court ordered that the monies seized be refunded to them respectively and my reasons are set out as follows. These monies were, as testified by PW1 (the raiding officer), confirmed to have been kept at the following location where they were seized by PW1 and his team:

RM91,340.00 that inside the black bag belonged to the accused

RM2,000 that inside wallet belonged to the accused Ang Kong

RM323 that inside shirt and pants belonged to the accused Yeo

RM1,174 that inside pocket belonged to the accused Tey Ching

RM809 that inside pocket belonged to the accused Chiew Chin

RM5,390 that inside wallet belonged to the accused Ong Tian

RM342 that inside wallet belonged to the accused Ee Siau Li;

RM200 that inside pocket belonged to the accused Hen Kai

RM3,000 that inside pocket belonged to the accused E Kim Lam.

(A) The search list (P4)

Undoubtedly, the largest sum of money i.e. RM91,340, was alleged to belong to the accused Loh Wei Kiang, and was found inside the black bag marked F171. This court took note of the defence counsel's emphasis, which PW1 (the raiding officer) agreed to, that the search list (P4) clearly recorded the item seized from Loh Wei Kiang. In particular, under the column "place found," it was noted that the monies inside the black bag was handed over by Loh Wei Kiang himself to PW1.

Importantly, in order for the forfeiture of the seized monies to be granted, it must be shown that the money found in the accused persons' pockets, wallets, and bag was either used or intended to be used for gaming purpose. This fact is critical to the instant case, as it forms the basis upon which this court can determine whether forfeiture is justified. It was this essential consideration that prompted this court to conduct an inquiry for further determination.

Referring back to the crime scene photograph i.e. P6(9), which showed a RM10 note and a RM50 note, totalling RM60, on the table, however PW1 agreed with the defence counsel's suggestion regarding other photographs, P6(5) and P6(6) which showed the nine accused gathered around the table to gamble, that no visible money on the table.

At this juncture, this court sought clarification from PW1, and he confirmed that RM60 was indeed present, as seen in the photograph but he did not record it in the search list. According to the documentation, PW1 agreed that the said RM60 was never seized at any point.

(B) The restructuring of the scene for the purpose of taking the crime scene photographs (P6)

Regarding the photographs of the crime scene documented in Exhibit P6, PW1 stated that during the raid, all nine accused were in a state of panic, each attempting to flee and secure their belongings. As a result, the table had fallen due to the chaos. The photographs were taken after everyone had been gathered and the table was lifted back up.

The defence counsel objected, arguing that during cross-examination, PW1 had agreed that the photographs were taken immediately after the raid. However, during re-examination, this court recorded the prosecution’s clarification, where PW1 agreed that the items had been collected and the table was lifted back up after the raid for the photographs. This appeared to suggest that the accused had been directed to recreate the gambling scene of the gaming “Pai Kow” at the table under PW1's instruction.

This court found this problematic, as it is prejudicial to the accused persons, who were directed and forced to stage the conduct. At this point, it clearly infringes on the principle of the right of the accused against self-incrimination and violates the due process of search. In the considered view of this court, the liberty of an accused cannot be interfered with except through due process of law. The expression "due process of law" must be understood to include fairness in search, arrest and trial (Shamim Reza bin Abdul Samad v Public Prosecutor [2011] 1 MLJ 471, FC).

The constitutional mandate and statutory rights afforded to the accused impose an implied obligation on the prosecution to ensure fairness during the raid and search, especially when seizing monies from the accused's possession. The court must adhere to Article 5(1) of the Federal Constitution, which guarantees the right to life and personal liberty. These rights can only be deprived "in accordance with law," and this phrase encompasses the right to a fair process that affects the accused’s interests both procedurally and substantively. It is well established that Article 5(1) of the Federal Constitution guarantees the fundamental right that a person’s life, in its broadest sense, or personal liberty may not be deprived except through state action that is fair in both p rocedure and substance (Yahya Hussein Mohsen Abdulrab v PP [2021] MLJU

(C) The witness's (PW1) opinion 16. During the examination of PW1, he frequently gave his own opinions. It was evidence of PW1 that the main purpose of all 9 accused present at the oil palm plantation was for gathering to gamble. He added that there were no other individuals in the area, which was so isolated that, considering the large sum of money involved, it made no sense to bring such an amount to the scene for safety reasons. Therefore, PW1 assumed that the monies seized was meant to be used for gambling.

This court found that this is purely opinion formed by PW1, unsupported by any evidence showing that the monies were used or intended to be used for gambling. Upon scrutinizing PW1's testimony, this court found that there were doubts to the PW1’s evidence. Firstly, PW1 stated that the area was isolated, but according to the crime scene photographs (P6(1)), it is clear that the parking area was located in front of a neighbourhood. PW1 also mentioned that the distance from the main road to the scene was about 25 meters and that one could reach it by car or motorcycle. However, from the road to the location or the tent where the gambling activity took place, the distance was about 10-15 meters. According to PW1, cars and motorcycles had to be parked by the roadside, and the team members had to walk approximately 15 meters from the parking area to the tent.

Thus, the court found that the area was not as isolated as alleged, as there was a neighbourhood nearby where vehicles could be parked as seen clearly in the photograph of P6(1). There was also a temple next to the tent that shared an electricity supply, referring to the photograph of P6(2). This court took judicial notice that the location with a temple, a place of worship, cannot be considered isolated, especially since many people would visit to pray, particularly during the Chinese New Year festivital. As highlighted by the defence counsel and PW1 himself, the incident occurred during the festival of Chinese New Year (6.2.2022).

(D) Various sums of monies found in the black bag, wallets and pockets of 9 accused persons 19. This court found that, at this stage, it is not necessary to address the issue of liability as all the accused have pleaded guilty. The matter now purely concerns the defence’s request for the return of the monies that were seized from the accused persons. During cross-examination, the defence counsel suggested to PW1 that the monies belonged to the accused and were their salaries, particularly for the accused Loh Wei Kiang, who had a large sum of RM91,340, allegedly intended to pay the wages and bonuses of his employees.

Hence, this brings me to the precedents that dealt with similar issues, where it was held that there was no evidence proving that the monies seized by the police was used in the commission of the offence of gaming, as seen in the following cases: - a) Hoo Kung Hock v PP [1941] 1 MLJ 26, ACJ; b) Ooi Beng Choon & Ors v PP [1994] MLJU 18, HC; c) Lim Seng Choon & Ors v PP [1966] 2 MLJ 272, ARCJ; and d) Tan Ah Bah & Ors v PP [1983] 2 MLJ 411, OCRJ.

Premised on the principle enunciated in the authorities cited in the above, this court found that the evidence in the instant fact did not establish that the sums of monies the accused had in their possession which were in their black bag, wallets, and pockets, were necessarily used for the commission of the offence of gaming. If anything, the inference seems at least as strongly, to suggest against any conclusion. This court is therefore convinced by the possibility that, due to the Chinese New Year celebration and the proximity of the temple with the neighbourhood area for parking the vehicles, the monies might be used to pay wages or celebration.

In other words, this court accepted the inference that the monies found on their persons could indeed have been their own expenditure or salaries received or used to pay others’ salaries. It is a well-established principle that when two or more inferences can be drawn from a set of facts against an accused person, the court should adopt the one most favourable to the accused (Akliansyah v Public Prosecutor [2014] 3 MLJ 392).

In this regard, I would like to offer an analogy for easier interpretation. For instance, if an individual brings RM90,000 to a shopping mall which is a privately-owned public space, does that person have to spend all RM90,000 shopping in the mall? Unless there is a transaction receipt or purchased items from the mall proving that the money was indeed used for shopping, there is no assumption that all the monies were intended for that purpose. It is equally to apply same concept here. Therefore, it does not necessarily follow that all the monies found in the black bag, wallets and pockets of the accused was intended for gambling in the public place under section 7(1) of CGHA. This has not been proven by the prosecution, except when only RM60 was found on the gambling table which was neither seized nor recorded by PW1 in the search list.

That being said, with respect, it is important to distinguish the case of Wong Chee Fong & Ors v Public Prosecutor [1994] MLJU 94. In Wong Chee Fong’s case (supra), the High Court held that, first, the building was a common gaming house as defined under section 6(1) and section 2(1)(a) of the Act; second, the raid was conducted with a search warrant; third, the learned magistrate made a specific finding of fact and was of the opinion that the gaming implements, along with the sum of money, were used or intended to be used for the game of "pasar malam."

In contrast, the facts of the instant case differ. The 9 accused persons were arrested in a public space, with the monies in their possession found in their black bag, wallets and pockets. The crime scene photographs i.e. P6(9) showed the notes of RM60 on the table, but this money was neither seized nor recorded by PW1 in the search list. It would be a different matter if this had occurred in a closed building, not a public space, where there was restricted entry, as in the case of Wong Chee Fong (supra) where the police had to shout for the occupants inside to gain entry.

It is true that in the case of Wong Chee Fong (supra), the private location was designated for gambling, and the money was brought for that specific purpose. In contrast, the current case involves a public space accessible to many, including those visiting the temple or passing by the neighbourhood around the temple. This court had evaluated the issue and found that there was a possible reason for bringing large sums of money, especially during the Chinese New Year festival, as all of the accused are Chinese.

Furthermore, it is not logical that, if the purpose were for gambling, one individual would bring over RM90,000, while other individuals brought only thousands or even hundreds. The large disparity in amounts makes it unlikely that they were gathering to gamble, as it would put those bringing larger sums at a significant disadvantage. Other than that, it would be unreasonable for someone to bring such a large amount of money purely for gambling without considering their preparations for Chinese New Year during that season.

Given the aforesaid, this court found no merit in the prosecution's evidence, as the prosecution failed to demonstrate that the monies seized from all 9 accused was used or intended to be used for gambling. Furthermore, none of the accused admitted that the monies in their possession was for gambling, which led to the defence counsel’s objection and the subsequent inquiry held by this court for determination.

In the upshot, this court has ordered the return of the total sum of RM104,578.00 found on their persons to the respective accused as set out in the above, and the said sum of monies cannot be declared forfeited to the government. Dated this 16 October 2024 SGD ----------------------------------- (TEOH SHU YEE) MAGISTRATE MAGISTRATES’ COURT AT ALOR GAJAH PROSECUTION : DPP Puan Sharina Farhana ALL 9 ACCUSED : Represented by COUNSEL Mr. FB Ng, Tetuan Ng Fun Boon & Co., Jasin.