Any promise, express or implied, to pay any person any sum of money paid by him under or in respect of any contract or agreement rendered null and void by subsections (1) and (2), or to pay any sum of money by way of commission, fee, reward or otherwise in respect of any such contract or of any services in relation thereto or in connection therewith, shall be null and void, and no action shall be brought or maintained to recover any such sum of money.” [29] However, this does not apply in cases where the claimant is seeking to recover facilities extended to the Defendant rather than money won through gambling. In the case of Wynn Resorts (Macau) S A v Poh Yang Hong [2019] 1 LNS 2323, the plaintiff, a licensed casino operator in Macau, seeking to recover a debt of HK$33,186,554 from the defendant, a Malaysian citizen, arising from a credit facility granted to the defendant to gamble at the plaintiff's casino. The defendant having obtained HK$40 million in gaming S/N 8L1aJmukukKhzxvUiS/BHw credit from the plaintiff pursuant to a Credit Agreement, played baccarat at the plaintiff's casino in Macau, lost heavily, and failed to repay the full outstanding amount, leaving a balance of HK$33,186,554 due. The defendant resisting the claim on grounds that it is an unenforceable gambling debt, relying on Malaysian laws like Section 26 of the Civil Law Act 1956 and Section 31 of the Contracts Act 1950, as well as public policy, to argue that the plaintiff's claim which originates from Macau gambling activity cannot be allowed under Malaysian law. The court having to determine the nature of the transaction - whether it is indeed an unenforceable gambling debt or whether it is a legally valid credit facility extended to the defendant, whether Macau law or Malaysian law governs its legality and enforceability, if allowing such a foreign claim violates Malaysian public policy, and consequently whether the debt is recoverable. The court ultimately found that this is a legally valid credit facility governed by Macau law which is not contrary to Malaysian public policy, distinguishing it from a gambling debt, allowing the plaintiff's claim against the defendant. Nantha Balan J (as he then was) held: “[113] According to the plaintiff, regardless of the fortune or misfortune of the customer at the gambling table, the amount that was given on credit must be repaid. Counsel said that taking the example in the present case, if the customer takes the gaming chips on credit and gives it to someone else or destroys them, he is still liable to repay the plaintiff for the amount that was given as gaming credit. Based on the plain wording of the Credit Agreement and the legal definition as may be culled from the two cases mentioned earlier, I find that it is not a disguised loan or a S/N 8L1aJmukukKhzxvUiS/BHw sham. Plainly, this is an action to recover a credit facility which was extended by the plaintiff to the defendant like any other loan. [114] Hence, I agree with counsel’s submission that credit-whether it is called gaming credit or otherwise makes no difference - is given in the nature of a loan which has been drawn down and has to be repaid whether or not the borrower has won or lost at the gaming table. Indeed, there is no wager or bet at any time prior to the placing of chips on the gaming table. ….. [135] In my view, based on cases such as Harrah, Marina Bay Sands and Lee Chao Yong the enforcement of a debt which arises under a credit facility such as (in the present case) the Credit Agreement to enable the defendant to gamble at the plaintiff’s casino is not contrary to Malaysian public policy. As such, the claim is not precluded by virtue of Section 24(e) of the Contracts Act 1950. in amplification, I should add that since Malaysia allows for legalized betting gaming and gambling activities to take place and collects tax revenue from these activity, it cannot be said that legal action for recovery of amounts outstanding under gaming credit facilities which relates to gambling activity is frowned upon in Malaysia.” [30] The authorities cited by the Defendant on this point are inapplicable or no longer good law in Malaysia. Jupiters Ltd v Gan Kok Beng & Anor [supra] was disapproved of by the High Court in Wynn Resorts, which held that the law of the gaming credit agreement (or CCF) applies and not Malaysian law. Jupiters Ltd concerns a licensed casino operator in Australia seeking to recover gambling losses incurred in its casino through legal action in Malaysia, with the High Court deciding that allowing such a claim would be contrary to public policy under Malaysian law. Justice S/N 8L1aJmukukKhzxvUiS/BHw Nantha Balan in Wynn Resorts disagreed with the proposition in Jupiters Ltd, states “I do not subscribe to the proposition (per GP Selvam J in Star Cruise and followed in other cases) that Sections 26(1)(2) of the Civil Law Act 1956 and Section 31(1) of the Contracts Act 1950...are mandatory “procedural” provisions which fall within the lex fori concept.” Ultimately, the court ruled in favor of allowing the plaintiff's claim in this case and distinguished it from gambling debts, departing from the position adopted in Jupiters Ltd. [31] The High Court decision in Wynn Resorts was upheld by the Court of Appeal and the Federal Court. [32] In Lee Chao Yong v Star Cruise Services Limited & New Reward Holdings Limited (Kuala Lumpur High Court Civil Appeal No. WA-12ANCC-2-01 /2017) a decision of Noorin Baharuddin J, which was followed by Wynn Resorts, the court established a distinction between credit facility agreements (CCF) and gambling contracts. This case concerns a Malaysian gambler who obtained credit facilities from a licensed casino operator to gamble at its casino in the Philippines, lost and failed to repay the outstanding credit facility sum. Under this credit facility, the casino operator provides gaming chips upfront to patrons on credit to enable gambling at the casino, creating a debtor-creditor relationship where the patron is obligated to repay the credit irrespective of whether he wins or loses when gambling with those chips. The gambler issued cheques issued as S/N 8L1aJmukukKhzxvUiS/BHw payment for gaming chips which were later dishonored. The casino operator sued to recover the debt and the gambler defended the claim by arguing that it is an unenforceable gambling debt under Malaysian law. Noorin Baharuddin J held: “[28] It is of the considered view that those sections do not apply in this present case as the Agreement is not governed by Malaysia law. As theAgreement is governed by foreign law, Section 26(1) of the CLA does not operate to nullify the contract. As such, section 26(2) of the CLA will not apply to prevent an action on that contract. Section 26(1) and (2) have to be read together. In any event, the claim in this case does not involve the recovery of monies “won upon any wager” or “deposited in hands of any is person to await the outcome of the wager”, it is to recover sums lent to the Respondent. Therefore, section 26 of the CLA does not apply.” [33] The elements in Lee Chao Yong are similar to this instant case as both pertain to licensed casino operators granting CCFs to gamblers to enable participation in gaming activities at overseas casinos, which were then used by the gamblers leading to losses and outstanding debts owed under the CCFs. In both cases, the casinos have filed legal action in Malaysia to recover the CCF sums, which the gamblers are resisting by arguing that these are unenforceable gambling debts under Malaysian law, citing provisions like Section 26 of the Civil Law Act 1956. Additionally, in both cases, the terms of the CCF signed by the gamblers specify a foreign governing law and require the gamblers' submission to the jurisdiction of overseas courts in legal suits to recover sums owed under the CCF. S/N 8L1aJmukukKhzxvUiS/BHw Hence, I have no qualms in applying the ratio in Lee Chao Yong to this instant case. [34] The CCF itself is valid and enforceable under Philippine law. The court accepts the evidence of PW3, who gave his opinion that the terms and conditions of a CCF offered by the casino were valid and enforceable under Philippine law. This opinion is based on the fact that the casino was a licensed operator under Presidential Decree No. 1869, which was later amended by the Republic Act 9487 and empowered the Philippine Amusement and Gaming Corporation (PACGOR) to license gambling casinos. The earlier error in PW3’s legal opinion regarding the amending act was corrected in re-examination which the court accepts. [35] The Defendant did not provide any evidence to refute the Plaintiff’s expert's testimony or opinion. The court accepts the opinion as it is not clearly indefensible and there is no opposing expert testimony or evidence to contradict the expert's opinion. [36] In this regard, the court accepts that PW3 is qualified to give expert testimony on the legality of the CCF in the Philippine despite the Defendant’s challenge on PW3's qualifications because he did not specialise in gaming or gambling law. The specialisation is not necessary for PW3 to give expert testimony on the issue at hand, which is a civil law issue involving contracts and their validity. PW3 has already S/N 8L1aJmukukKhzxvUiS/BHw established his credentials in this respect as he is a Senior Partner in the law firm ACCRALAW and has 34 years of experience practicing law in the Philippines, including specialising in alternative dispute resolution and litigation. [37] In a number of instances, the courts have accepted the evidence of expert witnesses despite the seemingly lack of specialisation in the field which is the subject matter of the dispute. [38] In PP v Forster Frank Edald Heinrich [1987] CLJ Rep 872, the High Court ruled that a pupil in chambers was qualified to give expert testimony on German law, even though he only held a degree in law from Exeter University and had previously worked for the Public Prosecutor in West Germany for a period of four months. The court determined that the witness was competent to testify on foreign law and admitted his evidence. [39] In Wynn Resorts (Macau) S A v Poh Yang Hong [supra], the counsel for the Defendant argued that the expert witness on Macau law was not qualified to testify on the loan at issue in the claim because his expertise related to the Hong Kong Stock exchange, not the loan. However, the High Court accepted the expert's opinion and noted that the Defendant did not provide a counter-expert opinion. [40] In Aldar for Construction and Architecture v Majlis Agama Islam Negeri Johor [2019] MLJU 1502, a foreign law expert S/N 8L1aJmukukKhzxvUiS/BHw testified on whether a beneficial owner can sell property even when he is not the registered owner. The counsel for the Plaintiff argued that the expert was not qualified to give an opinion because he relied on a case from the Cassation Court of Jordan that he did not produce. However, the High Court applied the ruling in PP v Forster Frank Edald Heinrich, in which it was determined that a pupil in a legal firm's chambers was qualified to give expert testimony on German law, and concluded that there was no reason why the expert in this case, a qualified lawyer from Jordan, should not be able to give his opinion based on his expertise in Jordanian law. The court found that the expert had provided evidence of his qualifications and expertise and that the appropriate procedure for establishing his expertise as an expert witness had been followed. The expert's testimony was not challenged during cross-examination, and the court saw no reason to disregard it. [41] In Dato' Mokhtar Hashim & Anor v Public Prosecutor [1983] CLJ Rep 101, the Federal Court in Malaysia emphasised that there is no rule requiring a witness to have previously testified as an expert in court in order to be accepted as an expert. The court stated that while previous testimony as an expert witness is an added consideration, it is not necessarily the primary consideration for determining whether an otherwise qualified person can be accepted as an expert. S/N 8L1aJmukukKhzxvUiS/BHw [42] In Al-Ambia Sdn Bhd v Foremost Prospect Sdn Bhd & Anor [2019] MLJU 1246, the High Court in Malaysia held that despite the Plaintiff's expert's lacking qualifications, it would still give him the benefit of the doubt due to his experience in the field of designing and installing facade glass. [43] The Defendant submitted that PW3 is not a neutral and independent witness and will only give evidence that is favorable to the Plaintiff and therefore his testimony should be rejected by the court. This is based on PW3 having provided legal services to the Plaintiff in the past and is paid by the Plaintiff. [44] I do not accept the Defendant’s submission and find that PW3 has demonstrated that he is an independent witness. This is based on the following: a) PW3’s evidence in cross-examination and re-examination was that he was there to assist the court, not the Plaintiff; and b) PW3, in his Legal Opinion, highlighted cases in the Philippines where the Court found that rates of interest were iniquitous and void, but then went on to explain and justify why he believes the stipulated interest rates under the CCF are valid and enforceable under Philippine laws. His disclosure of case law adverse to the Plaintiff demonstrates his credibility as an independent witness. S/N 8L1aJmukukKhzxvUiS/BHw [45] In any event, any lack of independence of PW3 is not a valid reason to reject expert evidence. The court can still accord proper weight to the evidence of an interested party. See Spind Malaysia Sdn Bhd v Justrade Marketing Sdn Bhd & Anor [2018] 4 MLJ 34 (Federal Court) and Kingtime International Limited & Anor v Petrofac E&C Sdn Bhd. [2018] 1 LNS 1658 (High Court). The court accepts PW3’s expert evidence as it is reliable and relevant to this case and is not affected by PW3’s lack of independence, if any. Contracting party [46] The Defendant’s position is that the actual contracting parties to the CCF were the Plaintiff and Wui Foo Leisure Sdn Bhd and therefore the Defendant was not a party privy to the CCF and the Plaintiff has no cause of action against the Defendant pursuant to the CCF. In this regard, the Defendant contended as submitted: a) The CCF was given to one Wui Foo Leisure which operates as junket at the Plaintiff’s casino; b) The Defendant was only acting as a legal representative of Wui Foo Leisure; and c) The contemporaneous documents show that the Defendant is not the contracting party as some form of the name “Wui Foo Leisure” appears in documents the “Banker” responsible for payment in S/N 8L1aJmukukKhzxvUiS/BHw the CCF application, “player name” in Settlement Reports, “player name” in the Commission Payment Advice and Overall Performance Reports. [47] I do not accept the Defendant’s position. [48] The Plaintiff has satisfied the court that the Defendant is the recipient of the CCF and is therefore bound by its terms and conditions. This is supported by oral and documentary evidence showing that the Defendant is the recipient of the CCF and has agreed to be bound by its terms and conditions. The evidence presented by the Plaintiff, both oral and documentary, is critical in substantiating this claim. PW1’s testimony, in particular, provides a clear depiction of the Defendant's involvement and acceptance of the CCF terms. This is evidenced by several key documents: a) The Application for Junket / Group Casino Rebate License distinctly features the Defendant's name and his personal, passport, and employment details. This same document also includes the Defendant's banking information. b) The “Declaration and Indemnity” section of the application bears the Defendant's signature. c) In the CCF Application Form, titled “Personal Cheque Cashing Facility Requested”, the Defendant's personal data is explicitly provided, S/N 8L1aJmukukKhzxvUiS/BHw alongside the details of his employer/company, Wui Foo Leisure Sdn Bhd. d) Crucially, the Defendant is the signatory on the final page of the CCF, agreeing to the terms therein. [49] The Defendant’s counsel attempted to refute this position by emphasising the presence of “Wui Foo Leisure” in various documents, suggesting an implication that the Defendant was not the party to the CCF. However, as clarified by PW1 in his testimony, “Wui Foo Leisure” is merely a reference to the Defendant’s group, not a legal entity, a distinction explicitly made in his re-examination. [50] PW1’s testimony also negates the possibility of corporate applicants for either junket operator applications or CCFs. This is clearly articulated in the Application for Junket / Group CRP License and the Application for CCF, where the focus is consistently on the individual, namely the Defendant. This suggests that the applicant for the CCF was indeed the Defendant and not Wui Foo Leisure Sdn Bhd. [51] In addressing the Defendant's submission regarding the issue of personal knowledge, it is crucial to examine the nature and relevance of PW1's knowledge concerning the documents involved in this case. S/N 8L1aJmukukKhzxvUiS/BHw [52] The Defendant contends that PW1 lacks personal knowledge as he did not personally attend to or witness the execution of the documents under consideration. However, this argument is fundamentally misconceived. The essence of personal knowledge in a legal context extends beyond the mere witnessing or direct involvement in the execution of documents. It encompasses an understanding and familiarity with the content and significance of these documents. In this regard, PW1's ability to comprehend and explain the contents and implications of the documents is of paramount importance and suffices to establish his personal knowledge. [53] Moreover, the Defendant's counsel did not challenge PW1 on the ground of lacking personal knowledge during the proceedings. The absence of such a challenge is critical, as established in Aik Ming (M) Sdn Bhd & Ors v Chang Ching Chuen & Ors and another appeal [1995] 2 MLJ 770. In this precedent, it was elucidated that points not raised during cross-examination cannot be later relied upon in submissions, indicating that the Defendant's current argument is an afterthought and, thus, lacks procedural validity. [54] Furthermore, the Defendant’s counsel, during cross-examination, acknowledged the role of Samantha Wong (PW2) in witnessing the documents. This acknowledgment implies an understanding that PW1's role did not necessitate direct witnessing of the document's execution. It S/N 8L1aJmukukKhzxvUiS/BHw is notable that PW2 was available for testimony and was identified in court as the witness to the documents. Yet, the Defendant’s counsel did not utilise the opportunity to challenge or contradict PW1’s account through PW2, thereby implicitly accepting PW1's testimony. This abstention precludes the Defendant from later disputing PW1’s evidence on the grounds of probative value. [55] Finally, PW1’s own testimony clearly asserts his familiarity and understanding of the documents. In cross examination, PW1 explicitly confirmed his knowledge of the documents, thereby fulfilling the requisite criteria for personal knowledge in this context. [56] In light of these considerations, the court finds that PW1 possessed sufficient personal knowledge of the documents to provide reliable and probative evidence. Consequently, the Defendant's submission challenging PW1’s personal knowledge is not substantiated and does not detract from the credibility or relevance of PW1’s testimony. [57] The Defendant's submission posits that the reference to Wui Foo Leisure Sdn Bhd in various documents suggests that Wui Foo Leisure Sdn is the applicant for the CCF. However, the material provided offers compelling evidence to the contrary, decisively indicating that the Defendant is indeed the recipient of the CCF and is thus subject to its stipulations. S/N 8L1aJmukukKhzxvUiS/BHw [58] The argument presented by the Defendant focuses on the reference to Wui Foo Leisure Sdn Bhd in the ‘Junket / Group CRP License’. However, this singular mention does not substantiate the Defendant’s claim that the CCF application pertains to Wui Foo Leisure Sdn Bhd and not the Defendant himself. The pivotal evidence lies in the comprehensive understanding of the application process and the nature of the applicant as elucidated by PW1 during the trial. [59] PW1’s testimony in re-examination clearly states that the Plaintiff does not accept corporate applicants for junket licenses or for CCFs. This is a crucial point, as it directly contradicts the Defendant's contention. The evidence is further corroborated by a letter issued by the Plaintiff to the Defendant dated 5.1.2015, explicitly approving the Defendant’s application to become a junket operator. This direct communication with the Defendant, as opposed to a corporate entity, underscores the individual nature of the application. [60] Moreover, the Defendant's submission that he was not given the opportunity to fill in corporate details is, in fact, consistent with PW1's assertion that the applications were intended for individuals, not corporations. This is substantiated in the PW1’s re-examination. PW1 explicitly states that the applications, both for the Junket license and the CCF, are individual applications, thereby necessitating personal details of the applicant, the Defendant, and not a S/N 8L1aJmukukKhzxvUiS/BHw corporation. This clarification is pivotal in understanding the nature of the application process and the identity of the applicant. [61] The Defendant challenges the assertion that the Defendant is the recipient of the CCF provided by the Plaintiff by referencing various documents that mention “Wui Foo Leisure” or “WFL” instead of the Defendant's name. These documents range from the junket application to settlement reports and waivers. However, the explanations provided by PW1 during the re-examination are critical in clarifying these references. [62] PW1’s testimony in his re-examination consistently and convincingly illustrates that the references to “Wui Foo Leisure” or “WFL” in the documents are not indicative of a corporate entity, but rather a designation for the junket or group operated by the Defendant. PW1 explicates that “Wui Foo Leisure” is merely the chosen name for the junket by the Defendant, and not a reference to a legal entity or corporation. This is evident in PW1's responses where he clarifies that in every instance where “Wui Foo Leisure” or “WFL” appears, it refers to the name of the junket group operated by the Defendant. This distinction is crucial, as it directly challenges the Defendant's claim that the CCF application pertains to Wui Foo Leisure Sdn Bhd and not him as an individual. S/N 8L1aJmukukKhzxvUiS/BHw [63] Furthermore, PW1's explanations during the re-examination effectively demonstrate that the name “Wui Foo Leisure” or “WFL” used in various documents is not indicative of the contracting party for the CCF. Instead, it is a procedural reference for internal record-keeping and identification within the Plaintiff's systems. The reference to “Wui Foo Leisure” or “WFL” in the documents, as explained by PW1, is consistently linked to the Defendant's personal operation of the junket group and not to any corporate entity. [64] The Defendant’s contention, as part of his broader argument, is that the “Your Banker” details on the CCF form, which relate to Wui Foo Leisure Sdn Bhd and the issuance of a cheque by Wui Foo Leisure Sdn Bhd imply that the application is corporate in nature. However, the testimony provided by PW1 effectively counters this assertion. [65] PW1 in his re-examination clarified the context and significance of the banking details present in the CCF application. He explicitly stated that the application for the CCF was made by the Defendant as an individual, not as a corporate entity. The reference to the banking details of Wui Foo Leisure Sdn Bhd is related to the Defendant's employment with the company. This distinction is pivotal; it demonstrates that while the company's banking information was used, it was in the context of the Defendant's employment and personal application for the CCF. The critical aspect, as explained by PW1, is that the application S/N 8L1aJmukukKhzxvUiS/BHw and the liability rest with the Defendant, not with Wui Foo Leisure Sdn Bhd as a corporate entity. [66] The Defendant's attempt to portray the CCF application as a corporate undertaking is thus not substantiated by the evidence. The material provided and PW1’s testimony clearly indicate that the CCF was extended to the Defendant in his personal capacity. The use of corporate banking details does not alter this fact but rather serves as a supplementary detail linked to the Defendant's employment. [67] PW1's testimony, as recorded on 21.9.2022, provides critical insight into the use of “Wui Foo Leisure” in the cage receipts. He explained that the mention of “Wui Foo Leisure” in the cage receipts is a procedural element employed by the cashier to identify the junket name to which the payment is applied. This procedure is part of the audit process and is used for internal record-keeping within the Plaintiff's systems. PW1 clarified that “Wui Foo Leisure” is the name registered in the casino system for the junket group operated by the Defendant. The use of this name in the cage receipts and other documents, therefore, does not indicate a corporate entity but is a reference to the junket group associated with the Defendant. [68] The Defendant's contention that the presence of “Wui Foo Leisure” in these documents implies a corporate application or liability is not supported by the evidence. Instead, PW1's S/N 8L1aJmukukKhzxvUiS/BHw explanation demonstrates that the references to “Wui Foo Leisure” are consistent with the Plaintiff's procedural norms and are directly linked to the Defendant's operation of the junket group, rather than indicating a corporate entity separate from the Defendant. [69] The Defendant’s decision not to present evidence in his defence is pivotal. Following the principle set out in Tan Kim Khuan v Tan Kee Kiat [1998] 1 MLJ 697, the burden of proof rests throughout the trial on the party on whom it initially lies. The court held, “[It] is settled law that the burden of proof rests throughout the trial on the party on whom the burden lies... When the burden shifts to the other party, it can be discharged by cross-examination of witnesses of the party on whom the burden of proof lies or by calling witnesses or by giving evidence himself or by a combination of the different methods.” [70] In failing to produce counter-evidence or testimony, the Defendant has not discharged the evidential burden of proof. This is in line with the Court of Appeal's ruling in Mohd Nor Afandi Mohamed Junus v Rahman Shah Alang Ibrahim & Anor [2008] 3 MLJ 81, where it was held, “[It] must be understood that once a defendant elects not to call for evidence, apart from him being bound by that election, the effect is also that all the evidence led by the plaintiff must be assumed to be true.” S/N 8L1aJmukukKhzxvUiS/BHw [71] In light of the evidence presented and the Defendant's failure to contest this evidence, this court concludes that the Plaintiff has successfully discharged its burden of proof. [72] The Defendant submitted that PW1 gave conflicting and evasive testimony about who was the contracting party in the CCF. In summary: a) PW1 denied agreements or statements made on forms regarding the identity of the contracting party as an incorporated company called Wui Foo Leisure; b) The Forms identified the contracting party as Wui Foo Leisure but PW1 gave multiple “no” responses to questions about the forms and the contracting party being Wui Foo Leisure; c) The court questioned PW1 whether he had properly read the documents before answering; and d) PW1 repeatedly refused to confirm that a letter of demand was sent to the registered and business addresses of Wui Foo Leisure Sdn Bhd, despite being shown a search from the Companies Commission of Malaysia. [73] The Defendant submitted that the intended recipient of letter of demand dated 22.1.2020 (the date referred to was in error and should be 29.1.2020 as will be addressed below) S/N 8L1aJmukukKhzxvUiS/BHw from the Plaintiff's solicitors was to Wui Foo Leisure Sdn Bhd, whose addresses are listed on the Companies Commission of Malaysia. The Defendant also argues that evidence given by PW1 stating that the intended recipient was the Defendant's company, rather than the Defendant himself, is not consistent with the fact that the letter was addressed to and sent to the registered and business addresses of the company and not to the Defendant personally. [74] The Defendant also submitted that the letter of demand references a CCF that Wui Foo Leisure had applied for in 2014, further supporting the claim that the intended recipient of the letter was the company and not the Defendant individually. Further, the letter of demand references the CCF that Wui Foo Leisure Sdn Bhd the company applied for in 2014 as the words “your” and “you” in the letter refer to Wui Foo Leisure Sdn Bhd, not the Defendant. [75] I do not agree that PW1 had an “evasive demeanour”. I find that PW1 was consistent in his answers and able to extensively explain his answers during cross examination. The fact that PW1 was able to quickly answer questions demonstrates his familiarity with the relevant documents and procedures. [76] I do not accept that PW1 was being evasive when he refused to confirm that the letter of demand was sent to the S/N 8L1aJmukukKhzxvUiS/BHw registered and business addresses of Wui Foo Leisure Sdn Bhd. From the Notes of Proceedings it appears that he could not confirm that the address in the SSM search and the letter of demand were the same because the address in the SSM search contained “Wilayah Persekutuan” while the letter of demand did not. This is understandable as PW1, as a non-Malaysian citizen will find it difficult to confirm the addresses are the same as he would be unfamiliar with how addresses are written in Malaysia. [77] In the submissions, the Defendant seemingly referred to a letter of demand dated 22.1.2020 which was addressed to Wui Foo Leisure Sdn Bhd only. The Defendant submitted that as this letter was addressed only to Wui Foo Leisure Sdn Bhd., the contracting party in the CCF was not the Defendant but Wui Foo Leisure Sdn Bhd. [78] However, this is factually incorrect because such a letter is dated 29.1.2020 (at pages 47 to 48 of Bundle B1). There is a letter dated 22.1.2020 (at pages 45 to 46 of Bundle B1) which was actually sent earlier and this was addressed to both the Defendant and Wui Foo Leisure Sdn Bhd. The Plaintiff refers to this letter in its submission to highlight the fact that there is another correspondence where the Plaintiff made a demand to the Defendant personally. [79] The issue with this letter is that it was not referred to by any of the Plaintiff’s witnesses. Notwithstanding, I admit the letter of demand dated 22.1.2020 (at pages 45 to 46 of S/N 8L1aJmukukKhzxvUiS/BHw Bundle B1) as evidence although it was not referred to by any of the Plaintiff’s witnesses as it is already a Part B document, following the High Court decision of Datuk Seri Dr Mohammad Salleh bin Ismail & Anor v Mohd Rafizi bin Ramli & Anor [2017] 7 MLJ 150. In this case, the defence sought to refer to news reports that were categorised as Part B documents showing that the publisher had previously presented both sides of related stories involving the plaintiffs. However, these Part B documents were not specifically referred to in any witness statements. The issue then arose as to whether such Part B news reports would still be admissible as evidence despite the lack of reference by witnesses. The court held that Part B documents that have been categorised as such during pre-trial case management are admissible as evidence even without specific reference by a witness, after the introduction of the Rules of Court 2012 which allows parties, pursuant to directions in case management to agree on documents to be included in Part B - documents which are not disputed as to their authenticity and existence. [80] In addition, the Defendant has acknowledged receiving the letter as pleaded in para 17 of the Amended Defence. [81] Because there is another demand from the Plaintiff that is also sent to the Defendant, no conclusions can be drawn from the 22.1.2020 letter (“the 1st Letter”) and the 29.1.2020 letter (“the 2nd Letter”), save to say that the Plaintiff’s solicitors did in fact, send the 1st Letter to the S/N 8L1aJmukukKhzxvUiS/BHw Defendant at the addresses the Defendant had expressly filled in on the CCF Application Form and the 2nd Letter to the registered and business address of Wui Foo Leisure Sdn Bhd (the company at which the Defendant works at as a managing director). In any event, the issuance of the 2nd Letter to Wui Foo Leisure Sdn Bhd does not change the nature of the contractual relationship established by the CCF application and subsequent interactions. [82] Thus, I do not accept that because the 2nd Letter dated 29.1.2020 was addressed to Wui Foo Leisure Sdn Bhd, this conclusively proves that the party to the CCF is the Defendant. Without the Defendant’s own evidence in support of his challenges, including that he was not the party to the CCF and that the CCF repayment was the obligation of Wui Foo Leisure Sdn Bhd, the Defendant cannot rebut the Plaintiff’s evidence the Defendant is the party to the CCF and is responsible for making good the CCF sums due. Cheque not deposited or presented for encashment [83] The Defendant’s position is the Plaintiff has no cause of action against the Defendant as the Defendant issued him a Maybank cheque no. 164186 but the Plaintiff failed to deposit or present it for encashment, contrary to section 45 and 55(1)(a) of the Bills of Exchange Act 1949 which requires the cheque to be presented for payment for the liability of the drawer of the cheque to arise when S/N 8L1aJmukukKhzxvUiS/BHw dishonoured on due presentment. The Defendant submitted that the Plaintiff breached the warranty in Clause 8(VIII) of the CCF application form that the check given to the Plaintiff would be presented for encashment immediately and that it was valid and enforceable. [84] I do not accept the Defendant’s position. [85] The Plaintiff's claim is for the outstanding sum utilised under the CCF based on Clause 8(V) of the CCF, which states that the entire amount of the CCF is immediately due and demandable if the Defendant defaults on payment, which has occured. It reads: “Should I default in any payment which is legally due and owing to the Company: (a) the entire amount of the cheque cashing facility, including the aforesaidmentioned interest and surcharge, shall be due and demandable without need of prior notice... “ [86] This clause forms the crux of the contractual relationship between the parties and sets the groundwork for determining the obligations of the Defendant. Notably, this provision is distinct from the breach of warranty provision, suggesting a clear contractual intention to render the sum due upon default, irrespective of other conditions. [87] Prior to this, the Defendant’s obligation to repay arises immediately as soon as the Defendant received monies’ worth by drawing down the CCF. The principle established S/N 8L1aJmukukKhzxvUiS/BHw in Wynn Resorts (Macau) S A v Poh Yang Hong [supra] is particularly pertinent. This case elucidates that under a gaming credit agreement, the obligation to repay is immediate upon the availability of the credit, regardless of the use of the credit. This precedent aligns with the terms of the CCF in the present case, suggesting that the Defendant's obligation to repay was triggered upon receipt of the credit facility. It was held: “[105] And so for example, the outcome of the card game of Baccarat is always uncertain as it depended on the skill and experience of the player. And some might even say (rightly I suppose) that the outcome of the game also depends on a huge dose of “luck”. But on the other hand under a gaming credit, the obligation to repay arises immediately once the casino chips are made available to the casino player (punter) on credit regardless of whether the player engages in a gaming activity or not...” [88] The conduct of the Defendant further substantiates the Plaintiff’s claim. The partial repayments made by the Defendant demonstrate an acknowledgment of the debt. This acknowledgment is crucial, as it implies an acceptance of the terms under which the debt was incurred. The principle of estoppel becomes relevant here. The Defendant, by his actions of acknowledging and partially repaying the debt, is estopped from claiming that the Plaintiff's action is premature. This position is supported by the Federal Court in Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank [1995] 3 MLJ 331, where it was held that a party is estopped from changing its position S/N 8L1aJmukukKhzxvUiS/BHw if it has, through its conduct, acknowledged a particular state of affairs. [89] Furthermore, the court notes the explanation given by PW1 regarding the non-encashment of the Defendant’s Maybank Cheque. The cheque, being incompatible with the Plaintiff's financial operations due to its currency denomination, could not be processed. There was also non-cooperation from the Defendant to present a replacement cheque for encashment as the earlier cheque was filled wrongly. The Defendant's failure to engage with the Plaintiff to rectify the issue or provide an alternative means of repayment further weakens his position that the claim is premature. [90] The Defendant’s decision not to testify in this matter leaves the Plaintiff’s version of events unchallenged. The court must, therefore, accept the Plaintiff's evidence as true, in the absence of any contrary evidence from the Defendant. The failure to encash the Maybank Cheque, in this context, does not diminish the Defendant's contractual obligation to repay the outstanding sum. To conclude otherwise would indeed be absurd, allowing procedural technicalities to override substantive contractual obligations. [91] Further, the applicable law in this case is not Malaysian law but Philippines law, as it pertains to the CCF and its enforceability. The Defendant has not provided any evidence to suggest that under Philippines law, the Plaintiff's cause of action under the CCF arises only upon S/N 8L1aJmukukKhzxvUiS/BHw the dishonour of cheques or that there exists a provision similar to the Bills of Exchange Act 1949 in the Philippines. [92] More importantly, that the Plaintiff’s cause of action is not predicated on dishonoured cheques but on a breach of the CCF and the concept of unjust enrichment. The Plaintiff’s cause of action in unjust enrichment against the Defendant which is independent from the terms and conditions of the CCF. [93] It is necessary to examine the legal principles underpinning the doctrine of unjust enrichment and apply them to the facts at hand. Section 66 of the Contracts Act 1950 provides a foundational basis for addressing situations where an agreement is found to be void, mandating that any person who has received an advantage under such an agreement is bound to restore it or make compensation. [94] The Federal Court in Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441 elucidated the doctrine of unjust enrichment. It established that for a claim of unjust enrichment to succeed, the plaintiff must demonstrate that he has been enriched, the enrichment was at the defendant’s expense, the retention of the benefit by the plaintiff was unjust, and no defence is available to the plaintiff to extinguish or reduce his liability to make restitution. In this case, despite the nullification of the sale and purchase agreement, the vendor was found to have been unjustly enriched due to the purchaser’s substantial S/N 8L1aJmukukKhzxvUiS/BHw expenditure on construction works, leading to a monetary award in favor of the purchaser. [95] Similarly, in Lee Chao Yong v Star Cruise Services Limited & New Reward Holdings Limited, a case analogous to the instant case, the High Court recognised the remedy of restitution under section 66 of the Contracts Act 1950, even where a contract is void or becomes void, affirming the availability of a remedy in unjust enrichment. [96] In the current case, the Defendant received the benefit of a loan extended by the Plaintiff under the CCF. There was no challenge by the Defendant's counsel to the outstanding sum claimed by the Plaintiff, representing the sums due and payable by the Defendant to the Plaintiff pursuant to the utilisation of the CCF. Furthermore, it is undisputed that the Defendant has not made repayment of this outstanding sum. [97] The Defendant's conduct, particularly in not repaying the sums borrowed under the CCF despite having previously won a significant sum from the Plaintiff (HK$153,732.00 as stated in paragraph 13A(d) of the Amended Defence), illustrates the unjust retention of the outstanding sum. The Defendant, having benefitted from the loan under the CCF at the expense of the Plaintiff, is now retaining these sums without repayment, despite the existence of a legal collateral agreement. The retention of the outstanding sum S/N 8L1aJmukukKhzxvUiS/BHw by the Defendant is unjust as he has not made repayment despite having a valid collateral agreement in place. [98] In this context, the applicability of the Bills of Exchange Act 1949 is further diminished, even if Malaysian law were to apply. [99] The Plaintiff's cause of action is based on a breach of the CCF under Philippines law and unjust enrichment, and therefore the non-fulfilment of the requirements of the Bills of Exchange Act 1949 does not preclude the Plaintiff from pursuing this claim against the Defendant. Further the Defendant did not present a replacement cheque for encashment as the earlier cheque was filled wrongly, despite requests by the Plaintiff, and it is therefore mala fide for the Defendant to now argue that the action is “premature” due to the cheque not being encashed. Unreasonable Surcharge and Interest [100] The Plaintiff is claiming surcharge and interest at the rate of 2% per month each on the sums owed by the Defendant to the Plaintiff. This is based on Clause 8(V) of the CCF Application Form which provides: “If I am in breach of any of the above warranties, I shall be liable to compensate Travellers International Hotel Group, Inc. for liquidated damages amounting to the entire amount of the cheque cashing facility, subject to two percent (2%) interest per month and two percent (2°%) S/N 8L1aJmukukKhzxvUiS/BHw surcharge per month from the date of default until the complete satisfaction of the obligation. Should I default in any payment which is legally due and owing to the Company: (a) the entire amount of the cheque cashing facility, including the aforementioned interest and surcharge, shall be due and demandable without need of prior notice...” [101] The surcharge and interest at the rate of 2% per month each amount to 24% per annum. [102] The Plaintiff’s position is that under Philippine law the interest and surcharge imposed on the Defendant under a CCF are legal, valid, and enforceable. The expert testimony of PW3, who provided a legal opinion on the legality, validity, and enforceability of the stipulated interest rates under Philippine law, is particularly instructive. PW3's legal opinion outlines that under Philippine law, the interest rate must be reasonable and cites precedents where an interest rate of 24% per annum was upheld as valid and not excessive. PW3 further explained that the rate of 2 + 2% per month in the context of a luxury activity such as gaming, involving sophisticated individuals, may not be deemed unconscionable or inequitable. [103] Even if the court were to find the surcharge and interest imposed as inequitable or unconscionable, PW3's testimony indicates that this would not render the CCF illegal or void. Instead, the interest would be subject to modification or reduction by a Philippine court. This approach aligns with the ruling in MCMP Construction and Corp. v Monark Equipment Corp G.R. No. 201001, 10 November 2014, 739 S/N 8L1aJmukukKhzxvUiS/BHw SCRA, where the Supreme Court of the Philippines reduced an interest rate of 24% per annum to 12% per annum. PW3’s opinion on this is: “Similarly, in MCMP Construction and Corp. v. Monark Equipment Corp., the Supreme Court, after finding the rates as void for being unconscionable and iniquitous, did not remove petitioner's liability to pay the interest and penalty charges, but merely reduced the rates. The Supreme Court held that “[t]he interest and penalty charges imposed upon MCMP must also be considered as iniquitous, unconscionable and, therefore, void. As such, the rates may validly be reduced. Thus, the interest rate of 24% per annum is hereby reduced to 12% per annum. Moreover, the interest shall start to accrue thirty (30) days after receipt of the second set of invoices on January 21, 2001, or March 1, 2001 in accordance with the provisions in the invoices themselves. Additionally, the penalty and collection charge of 3% per month, or 36% per annum, is also reduced to 6% per annum.” [104] Under Malaysian law, the Federal Court in Cubic Electronics Sdn Bhd (in liquidation) v Mars Telecommunications Sdn Bhd [2019] 6 MLJ 15 has clarified the position on proof of loss and the enforcement of a damages clause. It holds that in cases of dispute over reasonable compensation, the burden falls on the defaulting party to show that the damages clause is unreasonable. The Defendant in this case has not adduced evidence to demonstrate that the surcharge and interest rates are unreasonable within the gaming industry. The accrued interest and surcharge are a result of the Defendant's failure to repay the debt over an extended period, exceeding five years from the date of drawing down the CCF. S/N 8L1aJmukukKhzxvUiS/BHw [105] Furthermore, the High Court in Malaysia has consistently rejected the defendants' contentions that late payment interest claimed is unreasonable in the absence of supporting evidence. This principle was applied in several cases, including Pyo Travel (MY) Sdn Bhd & Anor v Modalku Ventures Sdn Bhd [2020] MLJU 575 and RHB Bank Berhad v Pyo Travel (MY) Sdn Bhd & Ors [2019] MLJU 1904. [106] Notwithstanding the Malaysian position, the applicable law for this action is Philippines law and the freedom of parties to stipulate interest rate is allowed pursuant to Article 1306 of the Civil Code of the Philippines, Republic Act No. 386