Wynn Wins – Federal Court Dismisses Punter’s Application for Leave to Appeal
08 January 2021
In the case of Wynn Resorts (Macau) S.A. v Poh Yang Hong
 MLJU 2003 (“Poh Yang Hong Case
”), the Malaysian High Court allowed a Macau-based casino’s claim against its patron in the sum of HK$33,186,554 (equivalent to RM17,257,000), with interest thereon, being the amount owing under a gaming credit facility.
In coming to its decision, the High Court distinguished a wagering agreement (i.e. where the obligation to pay depends on the outcome of the wager, thus having an element of chance or uncertainty) from a gaming credit agreement (i.e. where credit is granted to a person for purposes of gaming). While a wagering agreement is unenforceable in Malaysia, the High Court held emphatically that enforcement of a debt owing under a credit facility, albeit for gaming, is not contrary to public policy. A summary of the High Court’s decision is available here
Following the Court of Appeal’s dismissal of the Defendant’s appeal on 21 July 2020, the Defendant applied for leave to appeal to the Federal Court. On 12 November 2020, the Federal Court dismissed the Defendant’s application as the threshold to appeal the matter under Section 96(a) of the Courts of Judicature Act 1964 was not met, namely:-
- The appeal did not involve a question of general principle decided for the first time; or
- The appeal did not involve a question of importance upon which further argument and a decision of the Federal Court would be to public advantage.
This necessarily means that the High Court’s decision which was affirmed by the Court of Appeal now stands as a landmark precedent with regards recovery of debts pursuant to credit agreements between foreign casinos and Malaysians who avail themselves to gaming or casino credit to gamble in these casinos.
Gaming or casino credit is commonly offered by foreign casinos to creditworthy patrons for the sole purpose of gaming / gambling in such places. Credit agreements of such nature are lawful in, amongst others, Macau and Singapore. Whilst there may be sentiment that granting such credit encourages or promotes gaming / gambling and thus is against Malaysian values and public policy, punters who voluntarily and knowingly obtain such credit must take responsibility and be accountable for repayment of such credit. As Justice Noorin Badaruddin once stated in Wynn Resorts (Macau) S.A. v Wang Yen Liang  8 CLJ 93:
“… there is no doubt that the facility was not and is not intended to be given gratuitously and the defendant never denied that he had taken the benefit of the plaintiff’s facility. Further, the plaintiff’s submission that the fact the defendant went to Macau, obtained a huge facility, gambled away and comes back to Malaysia and cloaks himself by saying “no you can’t touch me, I am in the safe haven of Malaysia” is the kind of inequitable conduct which equity would prevent…”
In the Poh Yang Hong Case, Justice S. Nantha Balan (as His Lordship then was) had, after a detailed analysis, drawn a clear distinction between an action to recover monies owed under gaming credit and an action to recover monies won on a wagering agreement. Whilst previous Malaysian cases illustrate the trend or practice of foreign casinos obtaining judgment in the country where they are based for unpaid debts under the gaming credit before registering the said judgment in Malaysia and pursuing enforcement proceedings thereafter, the Poh Yang Hong Case now affords some certainty in the more direct avenue of suing to recover the monies owed under a gaming credit facility in Malaysia.
Alert prepared by Siew Ka Yan (Associate) of Skrine.