6
Jan

Daily facts and the law applicable

If you love gaming or gambling, it is your guaranteed right under the Malaysian law. You usually do the common gaming or gambling for example Poker, Blackjack, Roulette, Tau Ngau, and Ewok.

In the common gaming or gambling, you use the gaming or gambling machines, tools, materials, instruments, or appliances such as slot machines, poker table, tokens, decks of poker cards, stash of poker chips, and moneys or tokens for money.

You are allowed to game or gamble only in the places licensed by the authority i.e. Ministry of Finance. The licensed places in Malaysia are Casinos in the Genting Resorts or Genting Highlands, Toto, Magnum, Damacai, and a Clubhouse in Ipoh called Han Chin Pet Soo.

You are also allowed to do online gaming or gambling as the most sites used for it are housed or hosted in other countries.

Other than these licensed places or houses, and other than the online gaming or gambling, you are not allowed to game or gamble especially in public, and in a place or a house unlicensed but used or kept for habitual gaming or gambling, or used or kept for gaming or gambling to which the public may have access. If you do, you go against the law namely the Common Gaming Houses Act 1953 and may be sentenced to a fine not exceeding RM5000.00 or to an imprisonment not more than 6 moths, or to both under Section 6 (1) and Section 7 (1) of the Act.

To prove that you have gambled in public or in a house or in a place unlicensed for it, there is no need for the authority to show what type of gambling you did, Poker, Blackjack, Roulette and so on of the other types for as long as the authority had proven that you were found gambling always and normally gathered from the materials, appliances, instruments, or tools used for gambling such as machine slots, chips, tokens, moneys, and other materials. Even peanuts have already been identified by the Police as tokens to represent moneys.

Recently the authorities have been cracking down on the unlicensed gambling dens or houses used for common gaming. The government has also started with some preventive measures to be imposed on online gaming since 2017.

However, if you are Muslims, you are not allowed to game or gamble. Each state in the Federation of Malaysia has its own Syariah Criminal Offences Enactment which will sentence you to a fine up to RM3000.00, or to an imprisonment up to 2 years, or to both if you are caught for gambling. Even in the state of Pahang, the Enactment doesn’t allow you to be present in any place used or kept for gambling, for it is already a punishable offence.

The Defences available for you under the Law

Now that it’s the Chinese New Year celebration everywhere, what if the Police Officers raid your place, arrest you, and seize your belongings for being accused of committing gaming or gambling?

If your gather at a public place like a park, they do not need to show you a Warrant of Arrest as it is a public place. The arrest can be made straightaway.

If it is at home or your private property or the other domains, the raid must be with a Warrant of Arrest normally following an already investigated complaint lodged beforehand. You co-operate with the Police Officers anyway. You can help tell the Police Officers all the defences available under the law for you:-

1. That it is your home with other family members. It is your private domain and never is open for public.
2. That your gather for the celebration of the New Lunar Year and not for other purposes contrary to it such as committing vices and breaching any laws.
3. That your home is never used or kept for gaming or gambling and never it is kept or used for habitual gaming or gambling.
4. That there is never any promotion or any advertisement or any notice or any exposure of knowledge to public that your house is a gaming house or a common gaming house, as it is your home for living or as a shelter to live your life with your other family members.
5. That there are no materials, instruments, appliances and any other tools used for gaming or gambling.
6. That your other belongings such as a phone, a watch, a computer, a laptop, an iPhone, an iPad, an earphone or a headphone, a phone charger, cash money, any smartphone and any other belongings are your personal belongings that are necessary and essential not only in your house but also in everybody’s house, nowadays.
7. If there are your belongings seized, they can’t be forfeited under the Court’s order unless proven they were used for gambling whether or not the prosecution has secured conviction. In this case you are entitled to the return of your belongings.
8. In a case where the Police Officers did not proceed with prosecuting you in Court, you were entitled to the return of your belongings within 14 days after a Notice for their return was served on you.

If you choose to plead guilty in Court or you do not claim trial, or the prosecution is discontinued, or you are discharged not amounting to acquittal, you can immediately claim or apply for the return of your belongings. The Common Gaming Houses Act 1953 states that only the materials used for gambling shall be forfeited.

If you claim trial and pending trial you find that your belongings seized are all very essential in your daily life for example for work or business purposes, you may also apply for their return pending trial under the law provided in the Criminal Procedure Code.

Finally you must know what is gaming or gambling under the law specifically under the Common Gaming Houses Act 1953. The end result is always for money. It is also by chance or by skill as against a usual or normal hardwork for money or a mixed chance and skill for money.

If you are arrested and you are Muslims under the Syariah Criminal Offences Enactment of each state, your defence can never be a gaming or gambling at a licensed place or done at a private domain as gambling is strictly prohibited for Muslims. So if you are caught gambling at Toto or Magnum or at the Genting Casinos or at your private domain of your house, all these are accordingly not your defences. Your defence available is always about playing cards for fun or as a pastime and not for money.

In countries renowned for gaming or gambling such as Saudi Arabia and the other Gulf Countries, they have many big buildings with huge halls open for gaming or gambling in public as they claim the end result is not for money albeit there are tens or hundreds of thousands of poker tables provided at a time, for which it’s been always not easy to keep under watch. A date that is used as a token for money can always go unnoticed in such the large crowds of people or it may simply be hidden under the white gowns (jubah) or it may be disguised as food brought in for breakfast, lunch or dinner while playing the poker cards.

In Malaysia where laws are updated and advanced, you can’t use even a peanut to represent money. The authorities always take note of the many tokens used to represent money. Always go to the licensed houses or places to fulfil your love for gaming or gambling for this is the only way for your right to game or gamble to be guaranteed or protected under the law of Malaysia, the multi-racial, multi-religious country.

Prepared by:-
Rosmizan
Senior Criminal Litigator
Criminal Litigation Department
Tiong Woon & Khusyri
Advocates & Solicitors
Kuala Lumpur