SOERTSZ J.—Wittensleger v. Appuhamy.
1937Present: Soertsz J.
WITTENSLEGER v. APPUHAMY et al.
158-159—P. C. Avissawella, 14,137.
Unlawful gaming—Common gaming place—Access to public—Plea of guiltby some accused—No necessity to acquit them in appeal—GamingOrdinance, No. 19 of 1889, s. 3 (2) (c).
The Supreme Court is not bound in the exercise of its powers ofrevision to acquit accused, who pleaded guilty in the Court below merelybecause the case against the accused who pleaded not guilty succeededin appeal.
Where a person is charged with unlawful gaming under section 3 (2) (c)of the Gaming Ordinance, it must be established that the gaming wascarried on in a place to which the public had access.
Weerakoon v. Appuhamy (.23 N. L. R. 5) followed.
y^PPEAL from a conviction by the Police Magistrate of Avissawella.
R. G. C. Pereira, for accused, appellant-
Pulle, C.C., for respondent*
Cur. adv. vult.
May 19, 1937- Soertsz J.—
The learned Magistrate concludes his judgment in this case with acitation from the case of Wamakulasuriya v. Meerasha1 in which Bertram
J., in speaking of the Gaming Ordinance, 1889, said, “ It is important,however, that this Ordinance should not be allowed to be encrustedwith technicalities. It is a strict Ordinance, and must be strictly andjealously construed. But that does not mean that it must be construedin a meticulous or technical spirit”- But, on this appeal the appellants’complaint is not a matter of technicalities, but that the essentials for aconviction under the Ordinance are lacking. I agree that that is thecase. I find that the prosecution has not proved that the gaming thattook place on this occasion was unlawful gaming. I doubt not that thelearned Magistrate appreciates the fact that the Ordinance penalizes
> 24 N. L. It. 33.
SOERTSZ J.—Wittensleger v. Appuhamy.
not gaming, but unlawful gaming. Now unlawful gaming bag beendefined in the Ordinance. It is of four kinds* It means (I) cock fightingwhether for a stake or not, and whether practised publicly or privately;(2) the act of betting or playing a game for a stake when practised—(a)in or upon any path, street, road, or place to which the public haveaccess, whether as of right or not; or (b) in any premises in respect ofwhich a licence has been granted to distil, manufacture, sell or possessarrack, rum, toddy or any intoxicating liquor ; or (c) in or at a commongaming place as hereinafter defined. And the definition is in these terms :
“ common gaming place shall include any place kept or used for bettingor the playing of games for stakes, and to which the public may haveaccess with or without payment The defining clause goes on to say,
“ and a place shall be deemed to be kept or used, for the playing of gamesfor stakes even if it is so used even on one occasion only”. The case forthe prosecution is that one K. Don William informed Sub-InspectorWittensleger on January 15, at about 10.30 p.m. “ that one Arnolis Appuwas carrying on an unlawful gaming called “ Baby ” for money stakesin a vacant room of a house upstairs situated on a land looked after byArnolis Appu Sub-Inspector Wittensleger accompanied William tothe house and “ through a window upstairs watched the unlawful gamingfor some time ”. He saw one of the accused deal the cards and twoothers place coins on the mat and call for the Jack. There wereothers seated in the circle. Arnolis Appu was moving from place toplace among the gamblers. The door of the room was closed and theInspector and his party after watching the gaming for about ten minutesinvaded the room through the window- William testifies to the factthat Arnolis Appu collected “ Thon ”. The Inspector and his constablesarrested a number of men. Others escaped. These are the facts deposedto by the witnesses and accepted by the Magistrate. I accept themmyself, but I reach the conclusion- without any hesitation that on thesefacts it is impossible to hold that there was unlawful gaming. It wasnot unlawful gaming in the sense that it took place “ in or upon anypath, street, or road ”• (See section 3 (2) (o).) Was it then unlawfulgaming in the sense that it was practised in a “ place to which the publichad access as of right or not ”? (See again section 3 (2) (a).) The doorof the room was shut. Don William had kept the place under observationfor some time. Inspector Wittensleger had watched it for ten minutesbefore raiding it. Neither of them speaks to a single man having beenadmitted to the room while the gambling was going on- It was one andthe same group that took part in the gambling during the whole periodof their observation. The learned Magistrate says, “ in the presentcase the place where the unlawful gaming was carried on was a vacantroom in a house situated on a land looked after by the ninth accusedwho, according to the evidence, was the person who managed andsupervised the gambling and collected ‘ Thon ’. The fact that the doorsof the room were, locked at the time of the raid does not prove that the publiccould not have had access to it”. The only comment I need make inregard to this last observation is that, if the fact of closed doors doesnot prove that the public had no access to the room, it certainlydoes not prove that the public had access to it. And it is for the
SOERTSZ J.—Wittensleger v. Appuhamy.
prosecution to prove that members of the public had access to it. TheMagistrate continues : "The doors could quite easily have been openedby the ninth accused or anyone else and people admitted No doubt.But it was quite as easy for the ninth accused or any one else not to openthe doors and admit anyone. The point is that there is no evidencethat the doors were opened and anyone admitted. The Magistratecontinues : “ In fact the presence of people in different status of lifeand of different castes establishes beyond any doubt that such was thecase and that anyone could have repaired to this spot and indulged inunlawful gaming on payment of ‘ Thon ’ or commission to the accused ”•In my opinion, it would be most dangerous to draw the inference thata place is being used as a common gaming place from the single factthat there are present men of different castes or even communitiesamong the gamblers. These are days in which people mingle veryfreely, and a man’s circle of friends and acquaintances may well includemembers of different castes and communities. In this case the Magis-trate lays stress on the fact that one of the gamblers was a lawyer’sclerk suggesting thereby that he could not be said to be a friend of theothers present. But I think it is notorious that a lawyer’s clerk isjust such a person as would come in contact with all sorts and conditionsof men. But quite apart from that view of the matter, in my opinion,a man may go into the streets and by-ways of a town and collect a numberof men and form a gaming party playing for stakes without renderingthemselves liable under the Ordinance, so long as the gaming is confinedto the members of the group so brought together. For in that event itcannot be properly said that the public have access to that party in orderto take part in the gaming themselves. That was the view taken in thecase of Weerakoon v. Appuhamy Schneider J. said, “ on this point theevidence is that people of different ‘ nationalities ’ or castes were foundin the place …. and the Police Inspector procured the openingof the closed door by the pretence that he had come from the GrandHotel for gambling. If people from the Grand Hotel alone were admitted… I fail to see how this evidence can be regarded as proving
that the public had access.” The same view was taken in the case ofWeerakoon v. Cumarus a case in which the facts were much strongerthan those in this case. Then it is said that Arnolis Appu collected“ Thon ”. But on the facts of this case no adverse inference can safelybe drawn from that fact. In the Queen’s Cottage case too there wasevidence that “ Thon ” was collected but the essential element wasmissing as it is in this case, that the public had access. I thereforereach the conclusion that the unlawful gaming, in the sense attachedto it by section 3 (2) (a) has not been established. It is obvious thatthere was no unlawful gaming within the meaning of section 3 (2) (b).The only other ground of liability is under section 3 (2)(c). But
there is no evidence whatever to show that the room in whichthe gaming took place was a “ common gaming place ” in the mean-ing given to that phrase in the interpretation clause, for asI have already observed there is no evidence' to show that the public* 23 AT. h. R. 5.* 24 X. L. R. 29.
96SOERTSZ J.—Wittensleger v. Appuhamy.
had access to the room. Indeed the evidence is that the public hadno access. The doors were closed and the Police had to find theirunwelcome way through the window. They had no freer access to theroom than burglars would have had. I set aside the convictions of theaccused-appellants and acquit them. I do not elect to interfere withthe convictions of the other accused, who were convicted on their ownpleas of guilty. I am aware that in the case of Weerakoon v- Cumaru(supra) Schneider J., acting in revision, set aside the convictions of theaccused, who had not appealed, but I do not find myself compelledto follow that precedent at any rate in this case. The accused whopleaded guilty must be assumed to have known better than the Policewere able to prove and to have made their pleas with a full con-sciousness of their guilt. By their pleas they exempted the Policefrom the necessity of proving the case against them- Their pleassupplied all the deficiencies. But' in regard to those accused who didnot plead guilty, the Police were bound to prove the case and theyhave failed to do so. No adverse inference can be drawn against themfrom the fact that the other accused had pleaded guilty. In fact that isnot admissible evidence against them. At first sight this may appear asurprising result, but in reality it is not so. It is inevitable that some-times surprising results should flow from the application of rigid legalrules and principles. As Lord Birkenhead remarked in the case ofRutherford v. Richardson “ it is of course a commonplace that thedecision of legal issues must depend on rigid rules of evidence, necessarilygeneral in their scope and very likely, therefore, in individual applicationsto present an appearance of artificiality and even of inconsistency ”.
I would have affirmed the conviction of the eighth accused-appellanttoo. He had pleaded guilty at one stage of the case, but later he askedto be allowed to withdraw that plea, and the Magistrate acceded to thatapplication- So that in his case, the prosecution had to prove his guilt,and as I have already observed, the evidence falls short of establishingit. The case of King v. Siddas shows that the Magistrate was entitledto base his finding in regard to the eighth accused on his admission ofguilt although that plea was later retracted. But the Magistrate has notdone so and I am not aware of the circumstances in which the pleawas tendered and then retracted.
Set aside- 1
1 39 Times L. R. 42.
* 20 N. L. R. 190.
WITTENSLEGER v. APPUHAMY et al