Star City Pty Ltd (formerly known as Sydney Harbour Casino Pty Ltd) v Tan Hong Woon

JurisdictionSingapore
JudgeTan Lee Meng J
Judgment Date21 May 2001
Neutral Citation[2001] SGHC 100
Date21 May 2001
Subject MatterCheques issued to exchange for gambling chips,s 5(2) Civil Law Act (Cap 43),Contract,Gaming contract,Recovery of loan,Whether claim on gaming contract,Claim on dishonoured cheques,Claim on money had and received,Illegality and public policy,Claim prohibited by statute
Docket NumberSuit No 837 of 2000
Published date19 September 2003
Defendant CounselTan Kay Khai (Michael Khoo & Partners)
CourtHigh Court (Singapore)
Plaintiff CounselFoo Maw Shen and Keoy Soo Khim (Ang & Partners)

JUDGMENT:

Cur Adv Vult

1. The plaintiffs (hereinafter referred to as "SC"), who operate a licensed casino in Sydney, instituted the present action to recover from the defendant, Mr Tan Hong Woon, what they alleged were, inter alia, unpaid loans to the latter to enable him to gamble at their casino. Mr Tan contended that section 5 of the Civil Law Act (Cap 43) did not permit SC to sue for what was, in effect, the amount that they won from him when he gambled at their casino in Sydney.

A. BACKGROUND

2. SCs casino in Sydney is licensed under the New South Wales Casino Control Act 1992. Mr Tan, a seasoned gambler at many casinos, was a regular patron of SCs casino. Apparently, he was present at SCs casino on at least 28 occasions between February 1996 to March 1998.

3. SCs claim is founded on a facility, known as a "Cheque Cashing Facility" (hereinafter referred to as "CCF"), which was granted by them to Mr Tan in February 1996. A patron who has such a facility hands over a cheque to the casino in exchange for a chip purchase voucher of equivalent value. Such a voucher is then exchanged for chips, which are used by the patron to gamble at the casino. Without the CCF, Mr Tan would have not been able to gamble at SCs casino unless he had enough cash to pay for chip purchase vouchers or unless he had a cash deposit account at the casino, with enough money in it to pay for chip purchase vouchers. It is necessary to note that it is a term of the CCF that disputes relating to it or to cheques presented or cashed under the said facility are subject to the laws in force in New South Wales.

4. If a patron does not have his own cheques with him, he may request SC to provide him with counter cheques, known as "house cheques", for his signature. House cheques, which are printed in accordance with a format pre-approved by the Casino Control Authority, are recognised by many banks in Australia. The relevant information printed on house cheques, including the patrons name, bank and account number, are generated from SCs computer system, which has a record of such information.

5. In March 1998, SC provided Mr Tan and his wife with two complimentary air tickets to Sydney and a complimentary suite at their hotel for a few days. Between 26 and 28 March 1998, Mr Tan utilised the CCF at SCs casino. He signed and handed over to SC five house cheques, each for the sum of AUD 50,000, in exchange for chip purchase vouchers. In those three days, he gambled and lost AUD 250,000. When the house cheques were presented to Mr Tans bank, they were not honoured as there were insufficient funds in his account. Mr Tan has since paid SC the sum of AUD 55,160. When he refused to pay the balance of AUD 194,840, SC instituted the present proceedings to claim that sum.

6. Apart from the cause of action founded on a loan under the CCF, SC also claimed the sum of AUD 194,840 from Mr Tan on the ground that all the five cheques issued by him were dishonoured. In addition, SC also sought to recover the said sum of AUD 194,840 from Mr Tan as money had and received.

7. Mr Tans defence is as follows:

(a) There was no loan.

(b) The five cheques signed by him and the underlying transactions are within the scope of section 5 of the Civil Law Act.

(c) SC are prohibited from bringing or maintaining an action against him in Singapore because of the combined effect of sub-sections (2) and (6) of section 5 of the Civil Law Act.

8. Mr Tan tried to justify the application of Singapore law to his dispute with SC on the basis of an alleged agreement with a Mr Tom Venga, SCs former representative in Singapore. No proof of the alleged agreement was furnished during the trial. There is thus no doubt that the proper law of the gaming contract and the transactions relating to Mr Tans utilisation of the CCF is the law of New South Wales.

B. THE CIVIL LAW ACT

9. SCs right to the amount claimed depends on whether or not section 5 of the Civil Law Act has any effect on what they claimed was a "loan" extended in Sydney to Mr Tan to enable him to gamble at their casino. It would thus be appropriate at this juncture to consider the relevant provisions of section 5 of the Civil Law Act.

Section 5(1) of the Civil Law Act

10. Section 5(1) of the Civil Law Act, which corresponds to the first limb of section 18 of the English Gaming Act 1845, provides as follows:

(1) All contracts of agreements, whether by parol or in writing, by way of gaming or wagering shall be null and void.

11. Section 5(1) of the Civil Law Act, which renders all contracts of gaming or wagering void, has no extra-territorial effect. As such, this sub-section, without more, applies only to contracts governed by Singapore law.

Section 5(2) of the Civil Law Act

12. Section 5(2) of the Civil Law Act, which corresponds to the second limb of section 18 of the English Gaming Act 1845, provides as follows:

(2) No action shall be brought or maintained in the court for recovering any sum of money or valuable thing alleged to be won upon any wager or which has been deposited in the hands of any person to abide the event on which any wager has been made.

13. Section 5(2) casts a larger shadow on gambling transactions than section 5(1). It is a procedural section which bars from the courts in Singapore any action to recover, inter alia, any sum of money alleged to have been won upon a wager, regardless of whether or not the wager was concluded in Singapore or elsewhere and whether or not the wagering contract, if made abroad, was lawful at the place at which it was made.

14. When explaining the effect of the corresponding English provision, namely the second limb of section 18 of English Gaming Act 1845, Lord Radcliffe said in Hill v William Hill (Park Lane) Ltd [1949] AC 530, 579, as follows:

The second part, being lex fori, might well apply to relieve our courts of the duty of adjudicating on foreign wagering contracts which by the ordinary rules of private international law would escape invalidation by the first part.

15. It is also pertinent to note that Halsburys Laws of England (4th ed, 1996, Conflict of Laws, para 1081) states the position as follows:

In so far as the Gaming Act 1845 enacts that no suit is to be brought or maintained to recover any sum of money or valuable thing alleged to have been won upon any wager, it is a statute affecting procedure and therefore no action lies in England for money upon a wager in a foreign country, even though the wager is lawful by its proper law.

16. It follows that if SC is making a claim for money alleged to be won upon a wager, such a claim will not be allowed by section 5(2) of the Civil Law Act.

Section 5(6) of the Civil Law Act

17. As for section 5(6) of the Civil Law Act, which corresponds to section 1 of the English Gaming Act 1892, it provides as follows:

(6) 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.

18. Section 5(6) of the Civil Law Act refers to contracts which are rendered null and void by sub-sections (1) and (2) of section 5. However, as has been mentioned, only section 5(1) of the Act renders a contract of gaming null and void. Section 5(2) is merely a procedural section which bars claims within its ambit.

C. CHARACTERISATION OF SCS CLAIM

19. As has been mentioned, if SC is claiming from Mr Tan money won upon a wager, the claim would be barred from our courts by section 5(2) of the Civil Law Act, which being part of the lex fori of Singapore, applies to all attempts to recover money alleged to be won upon any wager, regardless of whether the gambling took place in Singapore or abroad. Counsel for SC, Mr Foo Maw Shen, stressed that this is not what SC is claiming from Mr Tan and that SC is merely claiming a refund of the "loan" given to him to gamble in their casino. The "loan" is based on the fact that Mr Tan gave them cheques in return for chip purchase vouchers to acquire chips to gamble at the casino. Mr Foo pointed out that in Las Vegas Hilton Corporation t/a Las Vegas Hilton v Khoo Teng Hock Sunny [1997] 1 SLR 341, Chao Hick Tin J, as he then was, followed the English rule that loans made abroad for the purpose of betting upon games taking place abroad, and there lawful, are recoverable. He added that this position had also been adopted in an older case, DAlmeida v DMenzie (1886) 5 Kyshe 126.

20. The question of applying the Las Vegas Hilton case will only arise if Mr Tan had been given a loan by SC. Unlike the defendant in the Las Vegas Hilton case, who admitted that he had taken a loan, Mr Tan denied having taken any loan from SC. His counsel, Mr Tan Kay Khai, stated as follows in pp 19-20 of his written submissions:

The plaintiffs have labelled the transaction a loan/credit transaction. However the underlying transaction was to allow the defendant to gamble on credit and the transaction is a contract by way of gaming. The cheques were not given for cash and indeed, no money changed hands.

In the present case, a debt was incurred because the defendant was a losing player and the plaintiffs are claiming the recovery of his gambling losses. In other words, the plaintiffs claim owe[s] its origin to the fact that gaming bets were made by the defendant and the sum of AUD 194,840 represents the unpaid monies so won by the plaintiffs.

Section 5 of the CLA...

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7 cases
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    • High Court (Singapore)
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    ...submissions which she tendered before me. 15 As I recall, the gravamen of the respondent’s case was Star City Pty Ltd v Tan Hong Woon [2001] 3 SLR 206 which decision was affirmed on appeal (see report at [2002] 2 SLR 22). In that case, the plaintiffs operated a licensed casino in Sydney. Th......
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6 books & journal articles
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