Common Gaming Houses Act
Amended Act
Comment
The Common Gaming Houses Act 1953, regulating the suppression of gaming activities in Malaysia, has been amended by the Common Gaming Houses (Amendment) Act 2001. The amendments are intended to expand the scope and application of the original act, but have yet to come into force at the time of writing.
Before the amendments, application of the Common Gaming Houses Act 1953 was limited to gaming activities held in 'common gaming houses', the definition of which emphasized the requirement of a physical place. This emphasis was further reiterated by the definition of 'place', which included "any house, office, room or building and any place or spot, whether open or enclosed and including a ship, boat or other vessel, whether afloat or not, and any vehicle".
With the advent of the Internet, gaming can be conducted remotely through the use of interactive computer programs or real-time multi-player games from within the confines of private residences. When the original act was drafted, the ability to conduct gambling remotely was not contemplated. Thus, new technology may have been the catalyst for the amendments.
The new act is intended to extend the scope of the original act to cover not only gaming operators but also vendors of gaming machines. The new act prohibits the dealing in instruments of gaming, in contrast to the original act which focused on the prohibition of gaming itself.
The new Section 4b makes it an offence for any person to:
"deal with, or in any manner whatsoever transact in, any gaming machine or any part of any gaming machine or any interest of any kind in any gaming machine or any replacement part of any gaming machine; or import, manufacture, assemble, supply, sell, assign, charge, lease, hire, service, repair, adapt or modify or carry out any combination of these activities in relation to a gaming machine or any part of any gaming machine or any replacement part for any gaming machine."
'Gaming machine' has been defined as:
"any mechanical, electrical or electronic machine or device (including any computer program used in such machine or device), whether wholly or partly mechanically, electrically or electronically operated, that is so designed or that has been so adapted that it may be used for the purpose of playing a game of chance or a game mixed of chance and skill, and as a result of the playing or operation of the machine or device, winnings in money or money's worth may become payable".
Given the broadest meaning, these could include electronic games machines (since they are designed for games of chance) or mixed chance and skill, where winnings in money or money's worth may be payable. Judicial interpretation is awaited as to whether the purpose must be a primary or sole one.
The new prohibition appears to include a range of other activities that support the primary activity, including online gaming software developers who may not be operating the gaming activities themselves but merely developing software games under licence for gaming operators. Does the term 'gaming machine' also inadvertently include the personal computers from which users access gaming web sites? Would data centres that host gaming web sites be construed as a 'common gaming house'? What about the provision of spares and maintenance services for this equipment? Potentially, the second limb of Section 4(b) could limit the financing for these gaming machines, as assignments, charges, leases and hires are also prohibited.
It is curious that the new amendments in Section 2 include a definition for the 'operator of a gaming machine', which includes "any person who owns, manages, maintains, has in his custody, controls or in any manner assists in the management or maintenance of a gaming machine". This new definition appears not to be referred to again in either act and may have been included inadvertently.
The amendments may have been intended to combat the vices associated with gambling. The question remains whether the new act addresses adequately the government's desire to curtail online gaming activity. The prohibition of dealing with gaming machines is rather all-encompassing and the net may have been inadvertently cast too wide.
For further information on this topic please contact Sharon Suyin Tan or Pooi Yuee Wong at Zaid Ibrahim & Co by telephone (+603 257 9999) or by fax (+603 254 4888) or by e-mail ([email protected] or [email protected]om).
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