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LUDOVICI v. NICHOLAS APPU.
M. C., Colombo, 1,435.
Gaming Ordinance, No. 17 of 1889—Common gaming house—Place to whichthe public have access—Evidence of keeping or using—Meaning of“ include ” in a definition clause.
A common gaming house is a house in which a large number ofpersons are invited habitually to congregate for the purpose of gaming.It makes no difference that the house was not open to all persons whomight be desirous of using the same.
It is a house kept or used for playing therein any game of chance orany mixed game of chance and skill, in which (1) a bank is kept by oneor more of the players, exclusively of the others, or (2) in which any gameis played the chances of which are not alike favourable to all the players,including among the players the bankers or other persons by whom thegame is managed, or against whom the other players stake, play, or bet.
Where twenty or thirty persons belonging to different nationalitiesassembled in a house day after day for the purpose of gambling, andthe proprietor of the house collected commission from such personsevery time the dice were thrown, held it was a common gaming house.
Where a man, in such a house, held a croupier’s rake and directed byit the dice box holder to throw the dice, and then raked in thecommission paid by the players, held this was sufficient evidence ofassisting in the management of the gaming house.
Jayawardana v. Thomas (1 N. L. R. 216) disapproved.
The word “ include ” in a definition clause means “ has the meaninggiven to the word in the Ordinance in addition to its popular meaning;”
npHE accused in this case was charged with having at No. 68,Messenger street, assisted in the management of a placekept and used as a common gaming place, and thereby havingcommitted an offence punishable under section 5, sub-section (o),of the Ordinance No. 17 of 1S89.
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As regards (he place being a common gaming place, the com-plainant, an Inspector of Police, deposed that he went with thewarrant of the Police Magistrate to search premises No. 68 inMessenger street, and found the big gate and the premises closedand barred from inside: “ The small door was not ajar, it couldadmit one man at a time. It was also closed. We entered and sawabout thirty men gaming in one of the rooms. We arrested twenty,and about ten escaped. I saw in the room a black cloth spread onthe floor, a brass box or till with twocompartments,and two
sticks on the lidwhichwas locked withChubb’s patentlock. It
contained money, Rs. 22. There was also a sum of money on thefloor (Rs. 34.89)and aleather rattle ordice box and a stick, a
croupier’s stick,calledby the nativesthong stick.”O’Dowd,
Police Sergeant, deposed:—*’ 1 have watched these premisesbefore, and have seen from time to time people of differentnationalities going in and out. I have often heard them talkingwhile coming out as to their winnings and losses. On thepresent occasion I saw about thirty people seated in a circleinside. As soon as we entered some of the people pushed me andescaped. We arrested twenty.” William Perera, a fruit-seller,deposed that “ he had been to house No. 68 for gambling nine orten times, in the night as well as in the day, and saw gamblinggoing on whenever he went. He received no notice of gamblingbeing carried on any particular day. On the day of the arresthe was with the gamblers. And Pabliano Naide, a watcher onthe premises No. 68, deposed:—“ At the entrance there is onelarge gate and a small door in the middle of it. The largegate is always bolted- By the small door inside there is abench, and this door is also closed. When the watcher outsidetells me to open the little door I do so, and people enter oneby one, or by twos, at a time. I have also gambled about fifteentimes.”
As to the defendant assisting in the management of thiscommon gaming place, it was proved that he was in the circle ofthe gamblers receiving commission, or thong, every time thedice were thrown, at the rate of 4 cents per rupee; that he tookthe commission and put it with the other money in front of him,which was different from the stake which the winners got; thatthe place was kept by one Neina Marikar; that the accused was hismanager, and as such the accused was always present; that on the8th of April, when the entry of the Police occurred, as also onprevious days, he supervised the games and collected the commis-sion at the rate of 4 cents per rupee; and the accused used totake the thong money to Neina Marikar.
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The Magistrate held the charge proved, and found the accusedguilty, and Sentenced him to three months’ rigorous imprison-ment.
The accused appealed.
H. J. C. Pereira, for appellant.—The evidence led shows thatgambling took place at house No. 68, but there is nothing to showthat the public had access to it. “ Common gaming place,” asdefined by section 3 of Ordinance No. 17 of 1889, means a place towhich the public had access. [Bonser, C.J.—Do you then meanto say that this was a gambling club?,] Yes. The facts provedpermit me to say so. [Bonser, C.J.—But that will not help you,since a club formed for gambling will come under the Ordinance,Stephen’s Criminal Law, pp. 122-123.] Section 23 of our Ordi-nance excludes clubs. [Bonser, C.J.—But what is there in theOrdinance to limit the meaning of the term “ common gamingplace ” to a place to which the public have access so as to excludeits ordinary meaning as known to the English Law?] I believeit ha? been so understood here. 1 N. L. R. 216, and 2 ib. 79.[Bonser, C.J.—Then you contend that “ common gaming places ”in the ordinary acceptation of the term are not common gamingplaces under the Ordinance? In English “ common ” meanshabitual, not public. This definition is not excluded by theOrdinance, which provides that “ common gaming place ” shallinclude any place kept or used for the playing of games forstakes, and to which the public may.have access. Here, “ include ”is more comprehensive than ” mean.” “ Include ” means “ extendto and include ”] There is no evidence that accused assisted inthe management on the 8th April. [Bonser, C.J.—Yes, thereis. But why did not the accused go into the box to explainaway the facts proved against him?] I do not know, my Lord.[Bonser, C.J.—I do not want to hear counsel for respondent.The judgment seems to me to be quite right.]
Ramanathan, S.-G., for the Crown, not called upon.
loth L^ne, 1900. Bonser, C.J.—
In this case the appelant was convicted of assisting in themanagement of a place kept or used as a common gaming place.He has appealed against that conviction. It appears that onthe 8th April last, Inspector Ludovici went armed with awarrant, accompanied by Sergeant O’Dowd and other police con-stables, to certain premises in Messenger street which werereported to be the scene of habitual gambling. On entering the
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house they saw some thirty people seated in a circle around ablack cloth on which was a dice box and a money box and a thongstick, which I am told is a sort of croupier’s rake used for thepurpose of raking in the commission paid to the keeper of theestablishment. On seeing the police the assembly broke uphurriedly. Twenty of them were arrested and some ten escaped,among them this appellant. The sergeant says that at the timethey went in this accused was sitting next to the man who heldthe dice box. When the appellant took up the fhong stick thedice were thrown. He saw that. It is suggested that his handlingthis implement does not prove that he was engaged in assisting inthe operations of gambling. Perhaps not taken by itself, for hemight have taken up the stick to strike one of his fellow players.But there is the evidence of other witnesses who have been in thehabit of attending this place, and they speak of this man as one ofthe managers, whose business it was to collect the commissionand to wield the thong stick, so that their evidence leaves nodoubt in the mind of any reasonable man that, on the night thisplace was entered, the appellant was using this thong stick as onprevious occasions. I may mention that the appellant did not gointo the witness box and deny any of the facts alleged againsthim. Mr. Pereira argued strenuously that, although he mighthave been assisting in the management of the gambling, yet thisplace was not a common gaming place within the Ordinance,and that therefore he was not guilty of any offence. Now theevidence, which, as I said before, is uncontradicted, is thattwenty or thirty people used to assemble in this house dayafter day, people of all nationalities (Sinhalese, Moors, Malays,Tamils), and gamble there, and that the proprietor of theestablishment collected commission from persons who playedthere. Mr. Pereira, however, argued that there was no evidencethat this was a public gaming house, and that the general publichad access to it. He said it might have been a private gamblingclub, where people who had a common taste for gambling mettogether for gratifying that taste. But it seems to me that, if so,the place is none the less a common gaming place. The Ordi-nance says in the definition clause: “Common gaming place“ shall include any place kept or used for betting or the playing of“ games for stakes, and to which the public may have access with“ or without payment.’’ Now, as I had occasion to remark before,the words “ shall include ” in a definition clause mean shall havethe following meaning in addition to their popular meaning.That was held to be the meaning of those words by Lord Esher,late Master of the Rolls, and Lord Justice Baggallay, in the case of
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1900. the Corporation of Portsmouth v. Smith, 13 Q. B. D. 195, a^d thatJune 15.disposes of the argument of Mr. Pereira that the definition was
Bosses, C.J.meant to be exhaustive, and that no place could be a common
gaming place which did not come within these words in thedefinition clause. There is no foundation whatever for thatargument.
Now a common gaming place has been variously defined. Inthe case of Jenks v. Turpin, the question was exhaustively con-sidered (13 Q. B. D. 505). That was a case where a proprietoryclub was used for the purpose of playing baccarat, and it wasthere argued that, as the gaming was limited to subscribers andmembers of the club, the club was not a common gaming house.Mr. Justice Hawkins dealB with that contention in this way:“I do not think it makes any difference that the use of the“ house and the gaming therein was limited to the subscribers“ and members of the club, and that it was not open to all“ persons who might be desirous of using the same. If this“ could be set up as a defence to an indictment, any indictment“ for keeping a common gaming house might be defeated. To“ no gaming house is the public at large invited to go without“ restriction of some sort or other. The keeper of such a house“ has always the right to permit or refuse admission to any“ one he pleases, or to make such rules as he may think fit for" the regulation of such permission. Here he placed himself in“ the hands of the committee to elect whom they would, provided‘‘ only the number of members did not exceed 500. If the“ admission of 500 persons to a gaming house does not make it acommon gaming house, it might equally be said that the admis-“ sion of 5,000 would not. The law does not require that it shall“ be a public gaming house; a common gaming house is that which“ is forbidden, that is, a house in which a large number of persons“ are invited habitually to congregate for the purpose of gaming.”Mr. Pereira called my attention to case of Jayewardena v. DonThomas (1 N. L. R. 216), in which it seems to have been heldby my brother Withers that publicity was the essence of theoffence of keeping a common gaming place. It does not appear,however, that any cases were cited to him, and I- am sure that, hadhis attention been called to the English decisions, he could nothave expressed the opinion he did.
Quite apart from the question of the admission of the public,there is another ground on which this house must be determinedto be a common gaming place. In the case to which I havealluded Mr. Justice Smith adopted another definition of a commongaming house, which I think was the definition of Mr. Justice
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Fitz James Stephen, and that was this: “ A common gaming“ house has been defined to be a house kept or used for playingtherein any game of chance or any mixed game of chance and“ skill in which (1) a bank is kept by one or more of the players*' exclusively of the others, or (2) in which any game is played the“ chances of which are not alike favourable to all the players,“ including among the players the bankers, or other persons by“ whom the game is managed, or against whom the other players“ stake, play, or bet. That constitutes a common'gaming house.”In this case there is evidence that a bank was kept by one of theplayers, exclusively of the others. So that, whichever way welook at the question, this place must be held to be a commongaming place. I am not at all satisfied that it was also not apublic gaming place. I think the evidence is sufficient to establishthat fact. But whether it was a public gaming place or not, I amsatisfied that it was a common gaming place, and that the appellantwas assisting in the management. The appeal consequently fails,and the conviction must be affirmed.
LUDOVICI v. NICHOLAS APPU