Justice Datuk Ian H.C. Chin

Osu Sukam's RM7.1m gambling debt
Daily Express

Kota Kinabalu: The High Court here dismissed an application by two foreign
casinos to register in the High Court in Sabah and Sarawak, a Judgement
obtained in the English High Court to recover RM7.142 million in gambling
debt owed to them by former Sabah Chief Minister Datuk Seri Osu Haji
Sukam.

Ritz Hotel Casino Limited and R.H.C Limited, as the Creditors, applied for
the registration pursuant to the Reciprocal Enforcement of Judgement Act
1958.

They were claiming a sum equivalent to RM7,142,859.98, from Osu, who was
also a former Federal Land and Cooperatives Development Minister.

Justice Datuk Ian H.C. Chin centred his ruling delivered by Senior
Assistant Registrar Amran Jantan Tuesday on two of various reasons why
the English
Court Judgement should not or could not be registered.

One of the reasons, the judge held, was actually sufficient to dispose of
the matter. The other was also dealt with to highlight the difficulty a
High Court judge faces where there are pending appeals against his
decision.

The Debtor, represented by counsel Sugumar Balakrishnan had, among others,
contended that the registration would contravene Order 65 of the Rules of
the High Court 1980 since the foreign process was served by a private
agent in Malaysia.

He relied on a decision by Justice Chin in United Overseas Bank Ltd v Wong
Hai Ong [1999] 1 MLJ 474 in which the judge held that the service of a
Singapore High Court writ by a private agent in Kuching, Sarawak, was not
permissible.

On this, Justice Chin disclosed, "Unbeknown to both counsel, this case was
reversed by the Court of Appeal on Jan. 26, 2004. But thus far the grounds
of decision of the Court of Appeal are still being awaited as there is a
pending application for leave to appeal against the decision of the Court
of Appeal to the Federal Court. This application on April 11, 2005 was
adjourned indefinitely to await the grounds of decision of the Court of
Appeal.

"In the meantime, I either postpone (1) indefinitely all cases that may
crop up concerning the same issues until the grounds of decision of the
Court of Appeal are known or until the matter of the appeal is dealt with
by the Federal Court or (2) proceed to hear the matters relying on the
ruling of the Court of Appeal though not knowing its reasons.

Justice Ian said he chose the latter course to avoid a pile up of cases.
"As for the overturning of the said decision by the Court of Appeal, it
may well be the end of reciprocity to Malaysia's disadvantage because
while we now allow the service of a foreign process by a private agent in
Malaysia we do not know how many foreign countries allow the service of a
Malaysian process by a private agent in that country.

"Worse still, we may open Malaysia to a foreign country to exercise
extra-territorial jurisdiction by allowing a foreigner to sue in his own
country a Malaysian in respect of, say, a contract made in Malaysia
between a Malaysian and a foreigner.

"Imagine the expense a Malaysian would be put to in having to travel to a
distant country to defend himself," the judge said.

"Be that as it may, I have to conclude relying on the said decision of the
Court of Appeal that there is no merit in the argument that a foreign
process cannot be served by a private agent in Malaysia."

On the Debtor's contention that the enforcement of the judgement would be
contrary to public policy in Malaysia, Justice Chin referred to Pollock &
Mulla on Indian Contract and Specific Relief Act, 10th edn., on the
definition of public policy.

"Now the judgement in the English Court was for a gambling debt incurred
by the Debtor after he was allowed by the Creditors to gamble on credit
as opposed to cash in a casino in London.

"The principle of public policy is this: ex dolo malo non oritur action.
Lord Brougham defines public policy as the principle which declares that
no man can lawfully do that which has a tendency to be injurious to the
public welfare.

"There is no doubt that gambling is injurious to the public welfare or
else there would not have been a law from time immemorial that gambling
debts are irrecoverable."

Justice Chin added: "Not only thatÉtwo of the principles of Malaysia's
national philosophy called the Rukun Negara that is Belief in God and
Good Social Behaviour, would mean that gambling is injurious to the
public welfare as being against the Rukun Negara. The complete principles
of the Rukun Negara that guide Malaysians are these:

Belief in God; Loyalty to King and Country; Supremacy of the Constitution

The Rule of Law; Mutual respect and good social behaviour. "It is
recognised that gambling and prostitution are two twin vices that we
should avoid and therefore, it cannot be good social behaviour to indulge
in them.

"It is also universally recognised in Malaysia that gambling is evil and
against the teaching of our religion and not the least of all that
gambling appeals to greed, that is getting rich without having to work.

"Belief in God, one of the principles of our national philosophy, must
surely mean believing and following the teachings of the religion. It was
mentioned that gambling is allowed under licence in Malaysia but that was
because it was to prevent it from being run by the underworld and it was
not that it was something that was good.

"It is my view that any profit to be made from gambling (and from
prostitution) can fairly be said to be profit from vice. In this regard,
I do not see how a casino can be likened to a bank, which the judgement
creditors appear to argue," he contended.

Justice Chin said a foreign bank lending money to a Malaysian in a foreign
country would not face the problem of public policy even though the
foreign bank is not licensed in Malaysia.

"But it is a different proposition if a prostitute who legally practised
her trade (as it is allowed in certain countries) and had obtained a
foreign judgement for services to a Malaysian. The prostitute
would face the same impediment as that of casino, that is of it being
against public policy since it is one of the twin vices and which is
against our religious
belief even though it is legal in the foreign country.

"Therefore it would be accurate to equate a casino business with that of
prostitution (both being legal in many foreign countries) but whose
activities are against public policy.

"It was totally inappropriate to liken a casino with a bank to argue that
since it has a licence, there should be no objection to the registering
of the
foreign judgement because banking business is not a vice unlike
prostitution and gambling.

The judge said "what is offensive and totally unfair is for the casino to
allow someone to gamble on credit in order to make him lose not only his
pants but the livelihood of his wife and children as in this case."

"It may be forgivable that the casino is able to entice someone to enter
the casino and lose everything that he has on his body but not otherwise.

"Malaysians are a God-fearing people, at least that is what the Rukun
Negara wants us to be and to allow a foreign judgement which had enticed
a person to gamble on credit and to gamble away the welfare of the family
and leaving the State to pick up the pieces and thus lead one away from
the path God has shown us would surely be against the principle of Belief
in God and believing in God means eschewing gambling since it is a form of
covetousness, that is to desire to be rich quickly without working.

"In other words, it is against the Rukun Negara. Anything that seeks to go
against the Rukun Negara must surely be regarded as against public policy.

"As for the argument that gambling debt incurred in Malaysia would suffer
the same fact in a foreign country if I do not allow the registration of
the foreign judgement, my short answer would be that the world would be
so much better for it and makes for a better public policy.

"The world would be a much nicer place if no country would allow the
recovery of a judgement for a gambling debt which debt was the result,
invariably, of the debtor being enticed to gamble on credit and beyond
his means.

"In fact, I would suggest that a law be enacted to allow a gambler to sue
a casino for having enticed him to gamble beyond his means if that is not
already a common law. Malaysia may soon have casinos at its doorsteps
giving access to Malaysians.

"Its populace must be protected from being enticed to gamble on credit and
the only way to discourage this entrapment is to prevent such foreign
judgement founded on gambling on credit from being registered and from
being enforceable in Malaysia."

Justice Chin also dismissed costs to the debtor saying he (Osu) "is not
deserving as he had engaged in an activity that his religion frowns upon
and which it would be against public policy to assist him by way of
awarding him costs."

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