GEORGE TOWN: The High Court here has dismissed the government’s bid to forfeit money kept in various bank accounts, and properties from 45 individuals and companies alleged to have been involved in online gambling.
Judicial commissioner Radzi Abdul Hamid held that the government had failed to prove the case on the balance of probability, as the meaning of “online gambling” was not defined under the Common Gaming Houses Act.
“The government relied on Section 4B of the Common Gaming Houses Act to prove the predicate offence of online gaming offence but the court is constrained to state any less than the applicant (government) has failed to apply the correct law in proving the predicate offence,” he said in his 57-page judgment today.
“In interpreting and applying the laws as they stand, it is not the function and duty of the court to fill in the blanks in law when legislators (MPs) who have the power to do so have yet to rise to the task.
“There is no ambiguity to the meaning and application of Section 4B, that spoke on dealing with and transacting in gaming machines.
“There is no legal justification to read into Section 4B anything more to say that it can be used to establish the offence of online gambling.”
The government had filed an application under Section 56 of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act (Amla) to forfeit the funds in accounts owned by the 45 individuals and companies on grounds that the bank accounts were used to receive funds and make payment for online gambling.
Besides the bank accounts, the authorities also wanted to take ownership of a house in Country Heights, Kajang, as well as five vehicles.
Radzi said he took judicial notice of the “government’s abhorrence to online gambling as the new evil that Malaysians will have to constantly battle”.
“However, the law (Common Gaming Houses Act), as it stands currently, does not provide the authorities with the correct legislative tools to battle online gambling,” he said.
He pointed out that then home minister Ahmad Zahid Hamidi had promised to table amendments for the Act in 2017 but it did not materialise.
“Despite the government’s ongoing war against illegal gambling activities, laws such as Common Gaming Houses Act and Betting Act have not caught up with the times and they have not been updated to include express provisions for making online gambling illegal,” he said.
Can bank accounts be subjected to forfeiture?
The court also made a finding over the definition of “bank accounts” and whether they were part of a person or organisation’s property which can be forfeited through a court action.
“The account he or she operates is a mere facility accorded by the bank in conjunction with the relationship the bank has with the said customer.
“To put it simply, in exchange for the prospect of receiving funds from the customer in a deposit account, upon accepting the case, the bank provides the customer with a virtual storage facility where he deposits the funds and makes payments.
“The fact that the bank account is just a facility is reflected in the bank’s right to stop the operation of the account in the event that the customer has died, is declared bankrupt or the funds are seized by third parties,” Radzi said.
The judge was of the view that bank accounts were never intended to be the subject of forfeiture.
“The legislators must have recognised that a bank account is not a property in any legal sense that it can be seized or forfeited. Bank accounts are not a monetary instrument and neither is it a legal document.
“It is merely a storage facility where no possession attaches, let alone ownership,” he said. - FMT
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