Suriyadi JCA (delivering judgment of the court):

This appeal was heard with another appeal, ie S-02-987 of 2005 (‘the second appeal’) whereupon all parties had agreed that the decision of this appeal would bind that second appeal. At the end of this appeal we had unanimously allowed this appeals with costs whereupon the High Court's order in this case and the order in the second appeal were set aside. Deposits were ordered returned to the appellants.

Since parties had agreed to be bound by the decision of this appeal I need only reproduce the facts of this appeal, and as agreed, equally applicable for the second appeal. The plaintiff (‘the appellant’) had brought an action to recover a loan granted to the defendant (‘the respondent’) amounting to US180,000. This sum owed came about in this manner.

The respondent had affirmed that she had been contacted by one Niki Wong, a Singaporean, to gamble at the appellant's premises at Nevada, in the United States of America. Upon arrival at the appellant's casino she was granted certain facilities, under which arrangement the respondent was given tokens to place her bets. These tokens could not be used anywhere else. To be entitled to those tokens the respondent had to sign certain documents or colloquially known as markers.

The respondent lost subsequently in the gambling session. The appellant thereafter attempted to recover the said full sum of US180,000 as a debt with the above markers as evidence. Instead of taking up the recovery action in Nevada the action was commenced at Kota Kinabalu, Sabah. The respondent thereafter took up a stay action on the ground that the Malaysian court was not the proper forum. When filing that application the respondent had stated that the claim would be tried with less expense and inconvenience in Las Vegas, with Kota Kinabalu not being the appropriate forum for trial of this matter.

In her affidavit in reply, the respondent had knowingly agreed to the advancement for purposes of gambling and knew that she would be required to sign the documentation for the credit line. She merely claimed that she did not know the exact nature and terms of the gaming agreement. She further asserted that the recovery action by the appellant was recovery of an alleged gaming debt pursuant to gaming agreements which were void and against public policy in Malaysia.

In reply, the appellant had contended that what was sought to be enforced was a claim for monies lent and not the enforcement of a gaming debt. The appellant in its affidavit in opposition, despite the assertion that the claim merely relates to recovery of a debt, saw it fit to make certain clarification when addressing the charges of the respondent. It asserted that gaming was legal in Nevada, America whilst the appellant was a duly licensed casino hotel and had the right to seek the enforcement of credit instruments which they represent. The appellant's assertion was that the credit instrument which represented a debt was valid and enforceable by legal process.

To arrive at this credit instrument stage the scenario will be as follows: The patron who wishes to make bets but wishes credit will have to submit his credit application first. Assuming that approval is granted the casino will provide chips or money usually upon the patron signing a counter-cheque or marker. The latter, which is computer generated, is used in place of a personal cheque. Each marker bears the following printed words:

For value received, I represent that the above amount is on deposit in said bank subject to this check and is hereby assigned payee, and/ guarantee payment with exchange. I authorize completion, if necessary, by the payee, of any missing amount, my bank account number, and the name, address and branch of my bank. I waive any right to stop payment and waive presentment, protest, and notice of dishonor. I further agree to pay all costs of collection including attorney's fees and that in any matter relating to this instrument, Nevad