Wynn Resorts (Macau) S.A. v. Mong Henry
Read the full judgment text of HCA 192/2009 on BabelCite. This High Court CFI judgment was delivered on 12 February 2010.
1. This is the plaintiff’s application for summary judgment.
Cited by 1 case
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HCA192/2009 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 192 OF 2009 ----------------------- BETWEEN
----------------------- Before : Hon Chu J in chambers Date of Hearing : 8 September 2009 Date of Judgment : 12 February 2010 ---------------------------- J U D G M E N T ---------------------------- 1.This is the plaintiff’s application for summary judgment. The facts 2.The relevant facts are not in dispute. Briefly stated, the plaintiff is the owner and operator of a casino and gaming resort in the Macau SAR. The defendant was a patron of the casino. 3.In October 2006, the defendant entered into an undated credit agreement (“the Credit Agreement”) with the plaintiff whereby the plaintiff agreed to lend to the defendant by way of advancing a credit line on the terms and conditions contained therein. 4.For the present purpose, the following terms and conditions of the Credit Agreement are relevant:
5.On or about 3 August 2008, the defendant received from the plaintiff credit in the sum of HK$30,000,000 for gambling at the plaintiff’s casino. When he obtained the credit, the defendant had signed a credit instrument commonly known as a Marker in the same amount. 6.The defendant made partial repayments to the plaintiff in the total sum of HK$1,058,363. In August 2008, the defendant gave the plaintiff a cheque in the sum of HK$28,941,637, but it was dishonoured upon presentation for payment. The claim 7.The plaintiff’s claim against the defendant is for the outstanding balance of HK$28,941,637 together with interest at 18% p.a. from 3 August 2008 until judgment and thereafter at judgment rate. The plaintiff’s case is that the money was advanced to the defendant pursuant to the Credit Agreement and represents a debt evidenced by the defendant’s signature on the Marker. In this summary judgment application, the other pleaded claim on the basis of the Marker as a promissory note is not pursued. The defence 8.The principal defence raised by the defendant is that the Credit Agreement is null and void and unenforceable. The defendant’s case is that Article 8.2 of Ordinance No. 5 of 2004 of Macau SAR (“Ordinance No. 5/2004”) requires the plaintiff to submit a sample or pro forma credit agreement to the Macau SAR Government for approval. As the plaintiff has failed to do so, the Credit Agreement is rendered null and void by section 287 of the Macau Civil Code. 9.In reply, the plaintiff says that Article 8.2 of Ordinance No. 5/2004 only governs Promoter Contracts and Agency Contracts (as defined below) and has no application to the Credit Agreement, which is an agreement between the casino and a gambler. The issue 10.Accordingly, the core issue in this application is the construction of Article 8.2 of Ordinance No. 5/2004. On this issue, both parties have put in expert evidence on Macanese law with specific reference to the interpretation of Article 8.2 of Ordinance No. 5/2004. For the defendant, he relies on the legal opinions of Mr Henrique Miguel Cravo, a Macau lawyer. The plaintiff, on the other hand, relies on the opinions given by two lawyers practising in Macau, Mr Miguel de Pedro Saldanha and Mr Rui Luis Cabral Sousa. Ordinance No. 5/2004 11.Ordinance No. 5/2004 was passed on 31 May 2004 and took effect on 1 July 2004. Prior to its enactment, the law of Macau did not permit credit for gaming and it was a criminal offence to grant gaming credit. The effect of Ordinance No.5/2004 is the decriminalisation of the extension of credit for gaming in casino. 12.The statute contains 18 Articles. For the present application, it will suffice to consider Articles 1 to 8. The English translation of these Articles is set out in the Annexure to this Judgment. 13.Article 1 describes the object of the Ordinance, which is the regulation of gaming and credit betting in casinos in Macau. Article 2 defines gaming credit. 14.Article 3 defines credit entities, being entities allowed by law to grant gaming credit. Under Article 3.1, Concessionaire and Sub-Concessionaire are permitted to provide gaming credit. The plaintiff is one of the three Concessionaires in Macau. Under Article 3.2, a Gaming Promoter may also grant gaming credit if he contracts with a Concessionaire or Sub-Concessionaire. Article 3.6 further makes it clear that a credit relationship can only arise between: (i) a Concessionaire or Sub-Concessionaire and a gambler or punter; (ii) a Gaming Promoter and a gambler or punter; and (iii) a Concessionaire or Sub-Concessionaire and a Gaming Promoter. The relationship between the plaintiff and the defendant comes within the first credit relationship. 15.Under Article 5.3, a Gaming Promoter or a management company of a Concessionaire may by means of an authorisation or agency contract, do legal acts or execute contracts in the name of and for the benefit of a credit entity. Other than this, Article 5 prohibits the transfer of the qualification of the credit entity to a third party. 16.Article 4 provides that the credits advanced shall have the effect of legal debts. Articles 6 and 7 deal with the obligations of a credit entity to cooperate with the Macau Government and to comply with the relevant laws and regulations. 17.Article 8 is entitled “contract”. Article 8.1 expressly relates to two types of contracts: (i) contracts referred to under Article 3.2, namely, contracts made between Gaming Promoters and Concessionaires or Sub-Concessionaires (“Promoter Contracts”); and (ii) contracts referred to in Article 5.3, namely, authorisation or agency contracts made between Gaming Promoters or management companies and Concessionaires or Sub-Concessionaires (“Agency Contracts”). Article 8.1 requires these two types of contracts to be executed in written form and in three original copies, with the signatures being verified at the scene. 18.Article 8.2, with which this case is directly concerned, deals with the requirement of government approval. It reads:
19.Articles 8.3 and 8.4 require Concessionaires and Sub-Concessionaires to submit to the Gaming Inspection and Coordination Bureau (“DICJ”) an original copy of the contract and the supplemental documents after they have been executed and also the amended copies if there is any amendment. Articles 8.5 and 8.6 relate to the declaration and provision on governing law and jurisdiction that are required to be included in the contracts. Article 8.7, which is the last clause in Article 8, provides that any provision in the contracts, supplemental documents and amendments that are inconsistent with the drafts as approved by the Government shall be ineffective. The defendant’s expert evidence 20.The basic tenet of the legal opinion given by the defendant’s expert, Mr Cravo, is that Article 8.2 as well as the remainder of the clauses in Article 8 (except clause 1) can apply to contracts made between the parties referred to in Article 3.6, including contracts between a Concessionaire and a gambler such as the Credit Agreement. His reasons are several. First, although Article 8.1 specifically refers to Promoter Contracts and Agency Contracts, it does not necessarily follow that the scope of the remaining clauses in Article 8 are limited to these two types of contracts. Second, Article 8.2 and the other clauses in Article 8 do not contain words that limit their scope of application to Promoter Contracts and Agency Contracts. Third, the purpose and object of Ordinance No. 5/2004 is the regulation of the business of gaming and credit betting as a whole and not only the non-credit contracts referred to in Article 8.1. Five contractual relationships are covered by the Ordinance, namely, Promoter Contracts under Article 3.2, Agency Contracts under Article 5.3 and also the three credit relationships under Article 3.6. There is no reason to exclude the credit contracts between the parties referred to in Article 3.6 from the application of Articles 8.2 to 8.7. Further, the exclusion of such credit contracts will hamper the ability of the DICJ to supervise the credit business and frustrate the primary intent and object of the Ordinance. 21.In support of his opinion, Mr Cravo refers to two documents issued by the DICJ. The first is a Certification dated 8 April 2009 issued upon a request from the defendant’s solicitors. The English translation of the relevant part of the Certification states: “it is hereby certified that, as of today, no draft contracts or documents supplemental thereto referred to in Article 8.2 of Law No. 5/2004 that governs credit concession for betting in games of chance in casino in the Macau SAR, have been approved and therefore we are not able to issue to [the plaintiff] a certificate of the draft of the credit agreement approved by the Government of the Macau SAR.” The second is DICJ’s Reply given on 15 May 2009 to the written Interpellation of a member of the Macau Legislative Assembly. The English translation of paragraph 8 of the Reply reads: “Nevertheless, a casino gaming contract or a credit agreement must be made in accordance with the sample contract as approved by the Government of Macau Special Administrative Region, otherwise the provisions of the contract are null and void. This also applies to the documents supplemental to the credit agreement. (See Section 2 and Section 7 of Article 8)”. 22.In Mr Cravo’s opinion, these documents show that the DICJ also holds the view that Article 8.2 applies to a credit agreement. It is said that DICJ’s views and understanding of Ordinance No. 5/2004 and, in particular, Article 8.2 should carry significant weight, having regard to its role in the supervision and monitoring of the activities of Concessionaires. The plaintiff’s expert evidence 23.The opinion of the plaintiff’s experts, on the other hand, is that the entire Article 8 only applies to the two types of contracts referred to in Article 8.1 (i.e. Promoter Contracts and Agency Contracts). The reasoning of Mr Saldanha is that in the absence of express provision to the contrary, the other clauses in Article 8, which follow on from clause 1, should be construed as applying to the two types of contracts referred to in Article 8.1. He draws support from Article 8.3, which requires a Concessionaire or Sub-Concessionaire to submit an original copy of the contract to the DICJ. He points out that if this Article also applies to a credit agreement (in addition to Promoter Contracts and Agency Contracts), it will create an oddity in that there is no concurrent obligation to submit an original copy of a contract between a Gambling Promoter and a gambler. 24.In addition to agreeing with the reasoning of Mr Saldanha, Mr Sousa says that as a matter of structure and logical sequence of Article 8, Article 8.2 should be read as having the same scope as Article 8.1. This is because if the legislator had intended a wider scope for the other clauses in Article 8, the best solution would be to state so expressly. And if the legislator does not distinguish between the clauses, then Article 8.2 should be construed as maintaining the same scope as Article 1, instead of extending or widening its scope. 25.With regard to the intent and object of Ordinance No. 5/2004, Mr Sousa says that they are best ascertained by looking at two documents that introduced and explained the bill. They are: (i) the Foreword of the bill upon its first presentation to the Legislative Assembly; and (ii) Opinion no. 1/II/2004 issued by the 3rd Permanent Commission of the Legislative Assembly on 25 May 2004. 26.In respect of the Foreword, it is said that it makes clear that the legislative intent is not to regulate and control each and every detail of gambling credit activities and gambling contracts. When referring to what is now Articles 5 to 8 of the Ordinance, the Foreword states that management companies and Gaming Promoters are permitted to enter into credit agreements in the name of and for the benefit of the credit grantors (i.e. the Concessionaires and Sub-Concessionaires) through the adoption of authorisation or agency agreements. The Foreword goes on to indicate that such authorisation is subject to government approval and the agreements are required to be in writing with the Government being given notice of their execution and any amendments thereto. Mr Sousa observes that in the context of Articles 5 to 8, the Foreword has made no reference to credit agreement between a Concessionaire or Sub-Concessionaire and a gambler. This, he says, shows that Article 8 is not intended to extend to credit agreement between a Concessionaire or Sub-Concessionaire and a gambler. 27.As for Opinion 1/II/2004, it is in the nature of a report of the 3rd Permanent Commission, which was entrusted with the task of scrutinizing the bill. Section 3 of the Opinion contains a detailed account and explanations of the changes made to each of the Articles in the final version of the law. When dealing with Article 8, the Opinion states that while Promoter Contracts (under Article 3.2) and Agency Contracts (under Article 5.3) are subject to government regulation after they come into existence, the insertion of Article 8.2 serves to perfect the regulatory mechanism by enabling the exercise of government control before or during the creation of the contracts. In explaining Articles 8.3 and 8.4, the Opinion states that the statutory obligations (to submit contract, supplemental document or amendment) should be carried out by the Concessionaires or Sub-Concessionaires who enter into Promoter Contracts under Article 3.2 or Agency Contracts under Article 5.3. 28.Mr Sousa’s opinion is that the Opinion is a clear illustration that the legislature only intends Article 8 to apply to Promoter Contracts and Agency Contracts and that Article 8.2 is not applicable to credit agreement between Concessionaire or Sub-Concessionaire and gambler. 29.In addition, Mr Sousa also refers to the principle of the unity of the legal system, which is a principle of legislative interpretation under Macanese law. The principle requires that when interpreting a statutory provision, regard should be made to the complete structure, wording and system of the statute. Applying the principle and noting that Ordinance No. 5/2004 is structured according to topics and Article 8 contains no reference to gaming credit activity, Mr Sousa concludes that Article 8 should not be read as setting out to regulate gaming credit activity. 30.In relation to the role of DICJ, Mr Sousa refers to Administrative Regulations 34/2003 dated 3 November 2003, under which the role and duties of DICJ are set out. He points out that interpretation of legislations is not part of DICJ’s legal role and responsibilities and that the power of legislative interpretation lies with the Legislative Assembly. As such, the views expressed by DICJ on the meaning and scope of Article 8.2 are not officially binding. It is also Mr Sousa’s opinion that the view of the DICJ in the Reply dated 15 May 2009 that a credit agreement must conform to the draft previously approved by the Government is incorrect. Interpretation of Article 8.2 31.It is plain from the evidence adduced by the parties on the issue that there is as yet in Macau no conclusive or binding interpretation of the general scope of Article 8 or the particular meaning and scope of Article 8.2. It is therefore for this court to come to a view as to whether Article 8.2 covers a credit agreement made between a Concessionaire or Sub-Concessionaire and a gambler or whether it only governs the two types of contracts referred to in Article 8.1. 32.Before dealing with the point, I will first deal with Mr Lau’s submission that this court cannot and should not resolve the differences in opinions between the experts without hearing their evidence and subjecting them to cross-examination. It is also Mr Lau’s submission that there is a need to call evidence from the DICJ. The expertise and credibility of the experts is not in issue. Each of them has given detailed and extensive reasons for their opinions. Having regard to the nature of the dispute and the contents of their affidavits, I agree with Mr Hunsworth that oral evidence or cross-examinations of the experts or witnesses from the DICJ will not take the matter any further. The bulk of the relevant evidence is already before the court. This court is therefore in as good a position as it is at trial to decide on the dispute between the parties. 33.I now turn to the issue that underlies this case. In my view, in ascertaining the meaning and scope of the Article 8.2, the starting point must be its language and its context in the light of Article 8 and Ordinance No. 5/2004 as a whole. It is true that when read alone, Article 8.2 contains no express word that limits its scope to Promoter Contracts and Agency Contracts. However, it is equally true that Article 8.2 is one of a series of clauses within an Article dealing with contracts. Accordingly, Article 8.2 cannot be read in isolation in establishing what contracts are covered by it. It is common ground that Article 8.1, being the first clause in Article 8, makes specific reference to only two types of contracts. It is also not in dispute that the remaining six clauses in Article 8 when referring to “contract” or “document”, do not define or specify what contract or document is being covered. Having regard to the layout and arrangement of Article 8, I am of the view that the clauses in it should receive a consistent construction. Hence, the references to “contract” in Articles 8.2 to 8.7 should bear the same meaning as that in Article 8.1 and references to “document” are references to documents supplemental to the two types of contracts referred to in Article 8.1. 34.Such a construction is also consistent with the general structure of Ordinance No. 5/2004. The articles in the Ordinance are structured by topics and follow a logical sequence. The legal framework for the conduct of gaming credit business is set out between Articles 2 to 8, with each article dealing with a specific aspect of it. Article 8 is the provision dealing specifically with the formalities and requirements of contracts. This lends support to the conclusion that each Article should receive a consistent and coherent interpretation. Further, throughout the Ordinance, only two types of contracts (Promoter Contracts and Agency Contracts) are being specified. Mr Cravo has referred to Article 3.6, but it is only dealing with credit relationships and the legislature has chosen not to describe them as credit contracts or make specific reference to contracts between a Concessionaire or Sub-Concessionaire and a gambler or punter and contacts between a gaming Promoter and a gambler or punter. Considering the principle of the unity of the legal system referred to by Mr Sousa, the applicability of which does not appear to be disputed by Mr Cravo, it will show that the contracts intended to be covered by Article 8.2 and Article 8 as a whole are the Promoter Contracts and Agency Contracts. 35.As to the views expressed by the DICJ in the two documents they had issued, they are one piece of evidence to be considered by this court when deciding on what should be the proper construction of Article 8.2. The DICJ’s views are not binding or conclusive on the point. Similarly, the Foreword and Opinion 1/II/2004 provide other pieces of relevant evidence for consideration by this court on the issue of interpretation. 36.In my view, Opinion 1/II/2004 gives a direct and helpful indication of the legislative intent underlying the enactment of Article 8.2, and in turn the types of contracts that it sets out to govern. It offers support to the conclusion that Article 8.2 should receive the same construction as Article 8.1 in terms of what types of contracts are required to be approved by the Government. By contrast, the DICJ had given no indication as to the reasons or basis for its view that Article 8.2 requires a credit agreement to be approved by the Government. Conclusion 37.For the above reasons, I prefer the opinion of Mr Saldanha and Mr Sousa to that of Mr Cravo. Article 8.2 of Ordinance No. 5/2004 has no application to a credit agreement made between a Concessionaire or Sub-Concessionaire and a gambler. I do not consider the defence that the Credit Agreement is null and void and unenforceable by reason of non-compliance with Article 8.2 gives rise to any triable issue. The plaintiff is therefore entitled to summary judgment as claimed. 38.Accordingly, I enter summary judgment for the plaintiff against the defendant for the sum of HK$28,941,637 together with interest thereon at 18% p.a. from 3 August 2008 to the date of this Judgment and thereafter at judgment rate until full payment. 39.Applying the normal rule of costs follow event, there is also an order that the defendant pays the plaintiff the costs of this action, including the costs of this application and all costs reserved, to be taxed if not agreed.
Mr Nicholas Hunsworth of Messrs JSM for the plaintiff. Mr Eric Y N Lau instructed by Messrs Livasiri & Co for the defendant. Annexure Articles 1 to 8 of Ordinance No. 5 of 2004 of the Macau SAR Article 1—Object This law regulates the business of gaming or credit betting within the casino gaming areas in Macao Special Administrative Region (‘credit’). Article 2—Credit 1. Credit shall be established only where a credit entity transfers its ownership rights of the chips used for casino gaming to a third person, but there is no immediate payment of ready money in relation to such transfer. 2. For the purposes of the above Clause, the following shall be considered as ready money:
3. For the purposes of Sub-clause (ix) of the Clause above, the following shall be considered as electronic payment devices;
4. If any creditor’s rights created pursuant to a transfer as referred to in Clause 1 are embodied in debt instruments, such debt instruments can be bearer securities, or order instruments, including order instruments issued in series. Article 3—Credit Entity 1. The following entities are conferred the qualification to engage in credit business :
2. A casino gaming promoter (‘Gaming Promoter’) is also conferred the qualification to, via contracting with a Concessionaire or Sub-Concessionaire, engage in credit business. 3. If a credit entity is in material breach of the laws or regulations applicable to credit business, or if it has displayed an apparent want of technical capability to engage in credit business, the Government of Macao Special Administrative Region (‘Government’) may order that credit entity to suspend or terminate its engagement in credit business, or may impose conditions for its engagement in credit business, without prejudice to any proceedings in relation to administrative illegalities that should be initiated or any civil or criminal liabilities that should be borne. 4. If a credit entity is ordered to terminate its engagement in credit business pursuant to the above Clause, it shall lose its qualification to engage in credit business. 5. If a person who has been ordered to suspend or terminate its engagement in credit business under Clause 3 is a Gaming Promoter, then, depending on whether he is ordered to suspend or to terminate its engagement in credit business, the relevant Gaming Promoter shall be forbidden temporarily or absolutely to carry out any legal activity or to execute any contract in respect of credit business pursuant to Clause 3 of Article 5. 6. A credit relationship can only arise:
Article 4—Effect Credits advanced under this law shall have the effect of creating legal debts. Article 5—Non-transferability 1. A credit entity shall not engage in credit business through another party or entity. 2. Any conduct or contract the object of which is to transfer the qualification of the credit entity to a third person in any form or any name shall be ineffective. 3. A management company with the right to manage a casino gaming operation or any other form of gaming operation of a Concessionaire (‘Management Company’), or a Gaming Promoter, may, by means of an authorisation contract or an agency contract, do legal acts or execute contracts in the name and for the interest of a credit entity as stated in Clause 1 of Article 3, but without prejudice to the applicability of the two Clauses above. 4. If a Management Company or a Gaming Promoter is in material breach of the laws or regulations applicable to credit business, or if it has displayed an apparent want of technical capability to engage in credit business, the Government may order the relevant Management Company or Gaming Promoter to suspend, temporarily or absolutely, from doing any legal act or executing any contract in respect of credit business in accordance with the Clause above, without prejudice to the applicability of Clause 3 of Article 3; in the case of a Gaming Promoter, the Government may additionally order the relevant Gaming Promoter to suspend or terminate its engagement in credit business which it is otherwise qualified to engage in pursuant to Clause 2 of Article 3. 5. Where the circumstances as referred to in Clause 3 arise, Articles 6 and 7 shall be applicable to a Management Company or a Gaming Promoter after necessary adaptation. Article 6—Obligation to cooperate A credit entity shall have a special obligation to cooperate with the Government. Accordingly, upon the request of the Government, a credit entity shall produce all documents, information or evidence, and shall give any permission. Article 7—General principle A credit entity shall comply with all the laws and regulations applicable to credit business; any violation of such regulations shall be taken into account in determining whether or not it has the suitable qualifications to be a Concessionaire, Sub-Concessionaire or Gaming Promoter, without prejudice to the applicability of Clause 3 of Article 3. Article 8—Contract 1. The contract as stated in Clause 2 of Article 3 and Clause 3 of Article 5 must be executed in written form and in three original identical copies, and all the relevant signatures shall be verified at the scene by a notary public. 2. Any contract, documents supplemental to the contract, and drafts amending those documents shall be approved by the Government. The Government may order any provisions in the aforesaid drafts to be amended on the ground of principles of legality or public interest. 3. Concessionaire or Sub-Concessionaire shall, within fifteen days after execution of contract, submit one original copy of the contract and copies of all the supplemental documents to the Gaming Inspection and Coordination Bureau of Macau (‘DICJ’). 4. If there is any amendment to the contract or the supplemental documents, the Concessionaire or Sub-Concessionaire shall submit the amended copies to DICJ within fifteen days. 5. The supplemental documents as referred to in Clause 3 and Clause 4 shall enclose a declaration which is signed by the legal delegate of the Concessionaire or Sub-Concessionaire and is binding on the Concessionaire or Sub-Concessionaire. The signature and identity shall be verified by a notary public. The declaration shall provide that the legal delegate shall with his honour undertake and declare that the information as contained in the relevant documents are accurate and up-to-date, and declare that those documents are copies of the originals. 6. The contract shall include relevant provisions stating that the parties to the contract have agreed to surrender to be governed by any jurisdiction outside Macao Special Administrative Region, and shall be bound by the laws of Macao Special Administrative Region as currently applicable. If it is a contract as stated in Clause 3 of Article 5, it shall include a provision stating that it has surrendered to appoint a delegate or an agent, depending on whether it is an authorisation contract or an agency contract. 7. Any provision as contained in the contract, documents supplemental to the contract and any provision amending those documents which are inconsistent with the relevant drafts as approved by the Government shall be considered as ineffective. |
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