Agreements by way of wager are void; and no suit shall be brought for recovering anything alleged to be won on any wager, or entrusted to any person to abide the result of any game or other uncertain event on which any wager is made. 18 September 2021 ……………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………. 5 [9] With regard to the contention that a triable issue arose out of the submission that gambling was against public policy, the learned SCJ was correct in rejecting this argument based on a plethora of cases including Wynn Resorts (Macau) S A v. Poh Yang Hong [2019] 1 LNS 2323, Lee Chao Yang v. Star Cruise Services Limited (Kuala Lumpur High Court Civil Appeal No. WA-12ANCC-2-0ll2017), Marina Bay Sands Pte Ltd v. Ng Kong Seong [2016] 1 LNS 1007. The case of Wynn Resorts (Macau) S A v. Poh Yang Hong [2019] 1 LNS 2323 had already settled the issue when S Nantha Balan J (as he then was) held that a credit agreement is not a gaming one; that such an agreement is valid, enforceable and not against public policy; and a debt under such agreement is actionable and recoverable in Malaysia. [10] It was further held in Wynn Resorts (Macau) S A v. Poh Yang Hong [2019] 1 LNS 2323 that section 26 of the Civil Law Act and section 31 of the Contracts Act do not prohibit the filing of an action in Malaysia to recover such credit. [11] Although the Defendant had relied on cases such as Jupiters Limited v. Gan Kok Beng & Anor [2007] 1 LNS 240 and Jupiters Limited v. Lim Kin Tong [2005] 1 LNS 223, in my view Wynn Resorts (Macau) S A v. Poh Yang Hong [2019] 1 LNS 2323, which was affirmed by both the Court of Appeal and Federal Court, is the more authoritative case in this matter, and as such, the Defendant’s contention remained untenable. The learned SCJ was, therefore, correct in concluding that it is now settled that actions filed in Malaysia to recover gaming credit governed by foreign law are maintainable and not prohibited. 18 September 2021 ……………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………. 6 Whether the issue had been raised in the affidavit [12] In this Appeal, the Defendant’s main contention revolved around the legality of the Credit Agreement pursuant to Macau’s Law No 5/ 2004, that is, whether such Credit Agreement was valid and enforceable under Macau’s Law No 5/ 2004. [13] In raising the issue of the validity of Macau’s Law No 5/ 2004, the Defendant submitted that he had no knowledge of such law and insisted that expert opinion should be given with regard to the applicability of the same. [14] The Defendant also disputed the qualifications of the deponent of the Plaintiff’s affidavits, one Lau Wing Chung Vincent (“LWCV”) (a Hong Kong solicitor, practising law in the legal firm of Mayer Brown, Hong Kong), and further averred that he was not the proper and competent person who had the authority and expertise on the laws of Macau, and as such, viva voce evidence on the legality, validity, and applicability of the same was required to determine the validity and enforceability of the Credit Agreement. [15] I was unable to accept the Defendant’s contention, for the main reason that this was not raised at all in his affidavit in reply, and it is trite law that the Court had to be satisfied on affidavit evidence that the Defendant had raised a triable issue. ‘To raise triable issues by way of submission on a point not raised in a defence or an affidavit would not meet the requirements of procedural fairness and hence must be rejected’: per Gopal Sri Ram JCA (as he then was) in Ribaru Bina Sdn Bhd v Bukti Kausar Development Sdn Bhd & Anor [2007] 2 MLJ 221. 18 September 2021 ……………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………. 7 Reference was made also to Wynn Resorts (Macau) SA v. Wang Yen Liang [2017] 8 CLJ 93. [16] In the present case, the Defendant had not even filed a defence, and filed only one affidavit. As such, the issue that the Defendant now claimed to be triable was a non-starter. [17] The fact that this was a rehearing did not stretch far enough to allow the Defendant to introduce issues not raised in his affidavit in reply, as that would tantamount to making submissions from the Bar, which was unacceptable, and cannot be countenanced, as described by Gopal Sri Ram JCA (as he then was) in Ng Hee Thoong & Anor v Public Bank Berhad [1995] 1 CLJ 609: I have carefully perused the affidavit filed by the respondent in support of its summons for judgment (which is the only affidavit delivered by it) but have been unable to discover any such explanation as that alluded to by the learned Judicial Commissioner. The only reference to the delay point is to be found in the address of Counsel for the respondent in the Court below and the explanation is in reality that of Counsel and not of his client under oath. It is a principle fundamental to our system of adversarial litigation that evidence upon a matter must be given on oath. The practice of Counsel giving evidence from the Bar, as was done in this case, is to be deprecated. To act, as the learned Judicial Commissioner did in this case is to ignore the very basic tenets of the law of evidence that is applied by our Courts. Here was a positive assertion on oath by the appellants that there had been inordinate delay. The proper way in which that was to be met was by way of an affidavit in answer, explaining the delay. Once this is done, then it is up to the judicial arbiter to accept or reject the explanation proffered. But to ride roughshod over such an important point, as was done here, does little to advance the course of justice according to the law. [Emphasis added.] 18 September 2021 ……………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………. 8 [18] The fact that the issue was raised at the eleventh hour also gave rise to the inference that it was nothing more than an afterthought, as it smacks of a recent invention, and arouses suspicion. This was compounded by the fact that the Defendant had never responded to the letter of demand issued by the Plaintiff. Such omission had compromised the Defendant’s contention that there was a triable issue and bona fide defence, as expounded in several cases including David Wong Hon Leong v. Noorazman bin Adnan [1995] 4 CLJ 155, Jetara Sdn Bhd v. Maju Holdings Sdn Bhd [2007] 3 CLJ 41, and Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd [2007] 6 CLJ 741. In Jetara Sdn Bhd v. Maju Holdings Sdn Bhd, it was stated by Gopal Sri Ram JCA (as he then was) in the following passage: In David Wong Hon Leong v. Noorazman bin Adnan [1995] 4 CLJ 155 at p. 159 Gopal Sri Ram JCA said: During argument, we registered our surprise at the learned judge's reluctance to enter judgment for this sum of RM100,000. After all, the appellant had failed to respond to the letter of 17 December 1991. If there had never been an agreement as alleged, it is reasonable to expect a prompt and vigorous denial. But, as we have pointed out, there was no response whatsoever from the appellant. [Emphasis added.] [19] The same views were expressed in Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd by Zainun Ali JCA (as she then was) in the following passage: It is of course banal to state that any denial, objection or challenge, should there be any, ought to be made promptly. 18 September 2021 ……………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………. 9 As Lord Esher MR, in Wiedeman v. Walpole [1891] 2 QB 534 tersely observed: ... if one man of business states in a letter to another that he has agreed to do certain things, the person who receives that letter must answer it if he means to dispute the fact that he did so agree. Clearly the appellant's lack of promptness in objecting to the contents of the respondent's letters as to the date and vacant possession and date of completion, now works against the appellant. More importantly, the appellant's clear acceptance of the contents of the respondent's letters did not reconcile with the appellant's later and subsequent position denying them. [Emphasis added.] [20] I found instructive the words of Ackner L.J. in Banque de Paris v de Naray [1984] 1 Lloyd's Rep 23 which was adopted in Syarikat Kerjasama Serbaguna Tunas Muda Sungai Ara v. Ghazali Bin Ibrahim [1985] 1 LNS 33, in the following passage: It is of course trite law that 0.14 proceedings are not decided by weighing the two affidavits. It is also trite that the mere assertion in an affidavit of a given situation which is to be the basis of a defence does not, ipso facto, provide leave to defend; the Court must look at the whole situation and ask itself whether the defendant has satisfied the Court that there is a fair or reasonable probability of the defendant's having a real or bona fide defence. [Emphasis added.] [21] In the same way, I found that there was no bona fide defence and no triable issue in this case, and that the Defendant was merely clutching at straws. 18 September 2021 ……………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………. 10 [22] The Defendant had contended that the reason he had not raised the issue of Macau’s Law No 5/ 2004 was because this was raised only in the Plaintiff’s affidavit in reply which was filed on 2 December 2020, that is, after the Defendant had filed his affidavit in reply on 17 November 2020. In my view, this argument was bereft of merit as the Credit Agreement had already made reference to the laws of Macau, which means that the Defendant could have raised it in his affidavit in reply. Furthermore, if the Defendant genuinely intended to, he could have filed a further affidavit pursuant to Order 32 rule 13(2)(c) of the Rules of Court, or with the leave of Court, which he had failed to do. The provision reads: Order 32 – Applications and proceedings in chambers Rule 13 – Service or use of affidavit …