Resorts World at Sentosa Pte Ltd v Mohd Fauzi Bin Yusuf (WA-24NCvC-1762-10/2017)

that the registration of the Judgment of the High Court of the Republic of Singapore obtained in Suit No. HC/S 566/2016 dated 30.11.2016 through the order of this Court dated 5.12.2017 be set aside;

that time for making this Application be extended, if necessary; and

that costs of or occasioned by this Application be paid by the Judgment Creditor to the Judgment Debtor. [2] Grounds for this application are as follows:-

The Defendant/Judgment Debtor was not served any Summons or cause papers leading to the Singapore Judgment at any material time;

The Defendant’s solicitor had requested from the Plaintiff/Judgment Creditor’s solicitor a copy of the Singapore 3 cause papers but was informed by the Judgment Creditor’s solicitor to file an application to the High Court of Singapore to obtain the same;

The registration of the Singapore Judgment is in contravention of the provisions in the Reciprocal Enforcement of Judgment

The Singapore Judgment concerns an alleged debt and/or contract which arose out of a gambling/wagering transaction in breach of section 26 of the Civil Law Act 1956 and/or section 31 of the Contract Act 1950 and is void, irrecoverable and unenforceable under Malaysian Law. BRIEF FACTS OF THE CASE [3] The Plaintiff is a company incorporated in Singapore and is in the business of inter alia operating a licensed casino whereby the Defendant is a businessman and a patron of the Plaintiff’s casino and having his last known address at No. 1, Jalan Hilir 2, Taman Gembira, 41100 Klang, Selangor. [4] The Plaintiff obtained a Judgment of the High Court of the Republic of Singapore issued by the High Court Case No. HC/S 566/2016 dated 4

30.11.2016 against the Defendant (refer Exhibit C of the Plaintiff’s Affidavit in Support) and as at the date of this application, the debt due and owing from the Defendant to the Plaintiff has not been satisfied. [5] The Plaintiff, subsequently filed an Originating Summons on 27.10.2017 pursuant to section 4 of the Reciprocal Enforcement of Judgments Act 1958 (Act 99) read together with Order 67 of the Rules of Court 2012 for an order that the Judgment of the High Court of the Republic of Singapore issued by the High Court Case No. HC/S 566/2016 dated 30.11.2016 against the Defendant be registered as a Judgment of the High Court of Malaya. [6] On 5.12.2017, the Court allowed the Plaintiff’s application. DECISION OF THE COURT [7] Having perused all the cause papers filed in this application and after considering the submissions by both the parties, the Court dismisses the Defendant’s application with costs of RM3,500.00 to be paid by the Defendant to the Plaintiff. The grounds for the decision are set down below. 5 [8] The Defendant’s application is premised on a question of whether the alleged debt and/or contract which arose out of a gambling/wagering transaction is enforceable under Malaysian Law. [9] The Defendant contends that the judgment debt arises out of a gambling/wagering transaction therefore the judgment debt is not enforceable under Malaysia Law and the Registration Order is liable to be set aside. [10] However, the Plaintiff submits that the Foreign Judgment is for the recovery of outstanding sums due from the Defendant to the Plaintiff pursuant to a Credit Agreement (refer Exhibit TYY-2 of the Plaintiff’s Affidavit in Reply) and the Credit Agreement does not amount to a wagering or gaming contracts under the Contract Act 1950 and/or Civil Law Act 1956 as the Credit Agreement merely provides a credit facility to the Defendant. [11] To support the Plaintiff’s contention, the Plaintiff refers to cases:

In the case of John Lo Thau Fah v FACB Resorts Bhd [2012] 1 CLJ 581, where the Court of Appeal held: “We observe that neither the Civil Law Act nor the Interpretation Acts 1948 and 1967, or the Contracts Act, 6 defines the term 'wagering contract'. However, in the landmark case of Carlill v. Carbolic Smoke Ball Co [1892] 2 QB 484 Hawkins J defined 'wagering contract' as (at p. 490): A wagering contract is one by which two persons professing to hold opposite views touching the issue of a future uncertain event, mutually agree that, dependent upon the determination of that event, one shall win from the other, and that other shall pay or hand over to him, a sum of money or other stake; neither of the contracting party having any other interest in that contract than the sum of stake he will win or lose, there being no other real consideration for the making of such contract by either of the parties…”

In the case of Pet Eastern (M) SB v Tay Young Huat & ors [1999] 5 MLJ 558 where the High Court held: “…A wager can be for the future event or a past event. In a contract of a wager, there must always be a winner and 7 a loser. In other words, a contract is not a wager if one party cannot win and if the other party cannot lose. In Carlill v The Carbolic Smoke Ball Co, the defendants made a promise to pay £100 to anyone who caught influenza after using a smoke-ball manufactured by them. The court held that this was not a wager as the user could not lose anything if he failed to catch influenza. Earl of Ellesmere v Wallace [1929] 2 Ch 1 at p 55 defined gaming to mean the playing of any game for money or money's worth, and a game for this purpose must, according to Applegarth v Colley (1842) 10 M & W 723; 152 ER 663, include horse-racing. I have in the early part of this judgment referred to s 2 of the CGH Act where the word 'gaming' has been defined to mean a 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. A wagering transaction is no better than a gaming contract…” (Emphasis added) 8 [12] The Plaintiff submits that even if the Credit Agreement is considered by the Court to be a wagering contract or gaming contract under either the Contract Act 1950 or Civil Law Act 1956, it is submitted that in Singapore where the Credit Agreement was formed, it is a legal contract as the Plaintiff is a licensed casino thus the debt is a valid debt in Singapore. [13] The Plaintiff in this case is not seeking to sue on the debt arising under the Credit Agreement but instead the Plaintiff is having recourse to the Foreign Judgment and has sought and obtained registration of the Foreign Judgment before the Court. [14] Relying on the authorities referred by the Plaintiff to support its application, and from the observation of the Court, it seems that the Courts in Malaysia have recognized that there is a distinction between suing on a gaming debt and the registration of a valid foreign judgment which the Malaysian Courts have recognized that the latter is allowed and entirely consistent with the public policy. [15] The High Court in the case of The Aspinall Curzon Ltd v Khoo Teng Hock [1991] 2 MLJ 484 said: 9 “…KH Chan for the plaintiff argued that even if the judgment was for a gambling debt, the gambling took place in The Aspinall Curzon which was a gambling casino licensed under the Gaming Act 1968 [UK]. In Malaysia too, the Finance Minister under s 27A of the Common Gaming Houses Act 1953 may by licence authorize the promotion and organization of gaming by a local company… I agree with KH Chan that, had the contract been entered in this country it had been so executed with lawful consideration, and s 24 of the Contracts Act 1950 cannot apply to make it void... In the case before me, the cheques were issued in exchange for cash and gaming chips for purposes of gaming at a licensed gaming casino. It is not for an unlawful purpose by the law of England. On the facts of the case, had such transaction occurred in this country, it is a lawful transaction provided that the gaming is done in gaming premises licensed by the Finance Minister under s 27A of the Common Gaming Houses Act 1953. The enforcement of the UK judgment cannot be considered as against the public policy of this country…” 10 [16] The Defendant in this case seems to be relying on the Sabah High Court decision in case of The Ritz Hotel Casino Ltd & Anor v Datuk Seri Osu Sukam [2005] 3 CLJ 390 which held that the registration of a foreign judgment for a gambling debt contravenes Malaysia’s public policy. However, that decision was reversed by the Court of Appeal and it can be seen from the very recent decision in Resorts World at Sentosa Pte Ltd v Lim Soo Kok [2017] 1 CLJ 363 where the High Court held : “[12] It is noted that the High Court in The Ritz Hotel Casino Ltd & Anor v. Datuk Seri Osu Haji Sukam [2005] 3 CLJ 390; [2005] 6 MLJ 760 set aside the registration of a foreign judgment for a gambling debt on the ground that the registration contradicted Malaysia's public policy. However the High Court's decision in the The Ritz Hotel has been set aside by the Court of Appeal. [13] In this present case, it seems to me that the judgment creditor is availing itself to the right of reciprocity of registering a valid and lawful judgment of a foreign court as expressly provided under REJA. 11 [14] As rightly pointed out by learned counsel for the judgment creditor, the judgment creditor is not in this case filing a civil suit to enforce the gaming debt. The distinction between suing on a gaming debt and the registration of a valid foreign judgment was succinctly put in the case of Jupiters Ltd (trading as Conrad International Treasury Casino) v. Gan Kok Beng & Anor [2008] 7 CLJ 715…” [17] The Defendant alleged that he was not served with the Singapore cause papers at any material time but the Plaintiff submits that the Singapore cause papers were served on the Defendant by way of substituted service by posting at the address of the Defendant provided in the Credit Agreement and also by advertisement in the Star newspaper. [18] Going through the facts of the case, the finds that the Defendant has not made any application to set aside the Foreign Judgment in the Singapore High Court, and therefore the Foreign Judgment remains unimpeached in Singapore and this position of law is clearly explained in the case of Marina Bay Sands Pte Ltd v Ng Kong Seng [2017] 7 MLJ 188 where the High Court held : 12 “…I also agreed with the JC submission that to date the JD has not applied to set aside the Singapore judgment despite disputing the service of the Singapore cause papers and the Singapore High Court’s jurisdiction. In fact, the proper forum to decide on the alleged issues of service of the Singapore cause papers and the Singapore Court’s jurisdiction is not this court but the Singapore High Court…” (Emphasis added) [20] Therefore, for the reasons stated above, the Defendant’s application is dismissed with costs. Dated 9th August 2018. …………………………………. (ROHANI BINTI ISMAIL) JUDICIAL COMMISSIONER CIVIL HIGH COURT (NCvC 8) KUALA LUMPUR 13 Ms. Nabila binti Kamarudin (counsel for the Appellant) Messrs S. L. Goon & Partners Advocates & Solicitors Mr. Lachman Kumar (counsel for the Respondent)