1. ) Wong Seik Teik (AB-83-827-11/2025)

WONG SEIK TEIK

TAN KHOON HEANG

PHUN MEI CHAN

NG SENG WAH

ONG AH HOCK

TOH CHIN ANN (IC NO.: 700629085011) GROUNDS Introduction [1] This is my full grounds in dismissing the application by learned counsel for the accused. The defence applied for all six accused persons AB-83-827-11/2025 2 of 9 to be discharged not amounting to an acquittal (‘DNAA’) under section 173(g) of the Criminal Procedure Code (‘CPC’). [2] Briefly, all the accused are charged that on 21 March 2024, at about 12.45 a.m., at Tokong Persatuan Penganut-Penganut Tong Chu Ya, No. 46, Kampung Boyan Baru, Taiping, Perak, they were found gaming by playing Mahjong in a public place, thereby committing an offence punishable under section 7(2) of the Common Gaming Houses Act 1953 (‘Act 289’) read together with section 34 of the Penal Code. [3] The application to DNAA the case was made on the ground that the game of Mahjong is a traditional Chinese game and is not listed in the First or Second Schedules of the Act 289. The learned counsel submitted that as Mahjong is not listed, the alleged offence is unknown to law and consequently no charge can be sustained against the accused, thereby rendering the charge groundless under section 173(g) of the CPC. [4] After considering the submissions, I dismissed the application. These are my reasons. The relevant provisions [5] Section 7 of the Act 289 reads as follows: “Gaming in public

(1) A police officer may arrest without warrant any person found gaming in any public place and may seize all instruments or appliances for gaming found in such public place or on the persons of those arrested under this section.

Any person gaming in any public place shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding six months or to both and all instruments or appliances for gaming seized under this section may be declared by the court before which the conviction is had to be forfeited to the Government and shall be dealt with accordingly.

Where any money or other valuable thing is used in the playing of any game of chance or of mixed chance and skill or in the playing or operation of any gaming machine in any public place, the players shall be presumed, until the contrary is proved, to be or to have been gaming. Interpretation

In this section the expression “public place” includes public streets, roadways, lanes, and open spaces, and any place to which the public has or may have access.”. [6] Subsection 7(2) of the Act 289 criminalises the act of gaming in any public place. The subsection does not restrict the offence to any particular named game. While subsection 7(4) defines the term “public place”, the word “gaming” is not defined in section 7 itself. The meaning of that word must therefore be ascertained from section 2 of the Act 289 which is the interpretation provision. [7] Section 2 of Act 289 defines “gaming” as follows: “Interpretation

(1) In this Act, unless the context otherwise requires- AB-83-827-11/2025 4 of 9 “gaming” with its grammatical variations and cognate expressions means the playing of any game of chance or of mixed chance and skill for money or money’s worth and includes the playing of any game specified in Column 1 of the First and Second Schedules and the playing or operation of any gaming machine.”. [8] The First and Second Schedules list various games. It is not disputed that Mahjong is not listed in either Schedule. Defence argument [9] In essence, learned defence counsel submitted as follows:

Mahjong is not listed in the First or Second Schedules of the Act 289 and therefore it does not fall within the scope of the offence under section 7 of the Act 289.

(ii) Under sections 15 and 69 of the Interpretation Acts 1948 and 1967 (Act 388), the Schedules must be read as part of the Act and therefore only the games listed in the Schedules can constitute gaming.

(iii) As a result, the alleged offence is unknown to law and the charge against the accused is groundless.

(iv) Penal statutes must be strictly construed and any ambiguity should be resolved in favour of the accused.

Mahjong is a traditional and cultural game of the Chinese community.

(vi) It is commonly played as a social activity particularly among elderly persons.

(vii) The game was played in a temple and not in a gambling house or gaming premises.

(viii) Mahjong is said to have mental and social benefits including helping to keep the mind sharp especially for the elderly persons. Analysis and findings [10] I agree with learned counsel only to the extent that Mahjong is not listed in the First or Second Schedules of the Act 289. However, I respectfully disagree that this alone makes the charge groundless under section 173(g) of the CPC. [11] The key issue is the scope of the definition of “gaming” under section 2 of the Act 289. [12] In my view, the definition of “gaming” under section 2 of the Act 289 is framed in wide terms. It is not confined only to games listed in the Schedules. The structure of the definition shows that it contains three distinct limbs as follows:

The playing of any game of chance or of mixed chance and skill for money or money’s worth; or

(ii) The playing of games specifically listed in the First and Second Schedules; or

(iii) The playing or operation of a gaming machine.1 [13] These limbs are alternative and not restrictive. The word “includes” in the definition of the word “gaming” in section 2 is important. Legal authorities make it clear that the word “includes” is a word of extension and not limitation. It enlarges the meaning of the term rather than restricting it only to the items listed (see: Public Prosecutor v Hun Peng Khai & Ors [1984] 2 MLJ 318 at 324 per Edgar Joseph Jr J and Ee Lye Poh v PP & Other Appeals [2021] 5 CLJ 231). [14] Therefore, the games listed in the First and Second Schedules to Act 289 do not constitute an exhaustive list of all games that may amount to “gaming”. Any game that falls within any of the three limbs stated at paragraph [12] may still constitute “gaming” under section 2 of Act 289 and by virtue of section 7 of the Act 289, the playing of such a game in a public place may amount to an offence. [15] I agree that the Schedules form part of the Act 289 by virtue of sections 15 and 69 of the Interpretation Acts 1948 and 1967 (Act 388). However, they do not operate as an exhaustive list of all games that constitute “gaming” under the Act 289. The absence of a particular game 1 Gaming machine was defined under section 2 of the Act 289 as follows: “"gaming machine" means any mechanical, electrical or electronic machine or device (including any computer program used in such machine or device), whether wholly or partly mechanically, electrically or electronically operated, that is so designed or that has been so adapted that-

it may be used for the purpose of playing a game of chance or a game of mixed chance and skill; and

as a result of the playing or operation of the machine or device, winnings in money or money’s worth may become payable;”. AB-83-827-11/2025 7 of 9 from the Schedules does not automatically exclude it from the definition of “gaming” under section 2 of Act 289. Any game that otherwise falls within the statutory definition (whether a game of chance or of mixed chance and skill, a scheduled game, or played on a gaming machine) still constitutes “gaming”. [16] To accept the defence argument would mean that any unlisted or new game, even if it involves chance and money would fall outside the Act 289. Such an interpretation would defeat the intention of Parliament. [17] As for Mahjong, it is not disputed that Mahjong is not listed in the Schedules. However, the important question is not whether Mahjong is listed or not but whether it falls within the first limb of the definition namely:

whether it is a game of chance or mixed chance and skill; and

(ii) whether it is played for money or money’s worth. [18] These are questions of fact that can only be properly determined after hearing evidence from the prosecution witnesses. [19] At this stage, it is premature and inappropriate for the Court to conclude that Mahjong cannot, in law, amount to “gaming” under section 2 of the Act 289. Conclusion [20] For the reasons above, I find that:

The charge against the accused is not unknown to law;

(ii) The definition of “gaming” under section 2 of the Act 289 is wide and inclusive;

(iii) The absence of Mahjong from the First or Second Schedules of the Act 289 does not render the charge groundless; and

(iv) The issues raised by the defence are matters for trial and not for a DNAA at this stage. [21] Accordingly, the defence application under section 173(g) CPC is dismissed and the case is fixed for trial. Dated: 15th December 2025 Signed (PRABAKARAN RAJOO) Magistrate Magistrate Court Taiping Perak Darul Ridzuan AB-83-827-11/2025 9 of 9 List of Counsel: For the prosecution: Puan Farihah Adilah binti Fazial [Pejabat Timbalan Pendakwa Raya Taiping] Lido Business Center, No. 10/21 & 12/21 Tingkat Atas, Jalan Manecksha, 34000 Taiping, Perak Darul Ridzuan. For the accused: Mr. Ng Chii Fa [Messrs. CF Ng & Co.] No. 8, Tingkat Satu, Jalan Berek, 34000 Taiping Perak Darul Ridzuan.