050-NLR-NLR-V-15-MODDER-v.-SILVA.pdf
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Preterit: Wood Benton J.1M8.
MODDEB v. SILVA.94—P. C. Kurunegala, 11,935.
Unlawful gaming—Playing a game of pure skill for stake—OrdinanceNo. 17 of 1889, s. 5 (a).
Playing a game* for stake, though the game be one of skill alone,is an affence under section 5 of Ordinance No. 17 of 1889.
Chance is not a necessary element of unlawful gaming.
fJlHE facts are set out in the judgment.
Balasingham, for the accused, appellant.—The playing of a puregame of skill for a stake is not unlawful. See judgment of Cock-burn C.J. in Bew v. Hurston1 and Bamamthan’s Reports {1877) 83.
In this case money was not staked. The accused only offered topay a certain sum if the thrower succeeded in throwing the ring ona certain place. This is playing on credit: It has been held byLawrie J. that playing even a game of chance is not an offenceunless money was actually staked. Playing on credit is not- anoffence. Puhaitamby v. Karolis,* Perera v. Siddirappu.*
Akbar, C.C., for the respondent.—The case cited from Bama-nathan's Reports {1877) 83 was decided under Ordinance No. 4 of1841. Under that Ordinance only games of chance were prohibited.
Our present Ordinance prohibits all games if played for a stake.
Even games of pure skill fall within the definition of “ Game.”
See Lockwood v. Cooper* Dyson v. Mason,* Jenks v. Turpin.•
There were 50-cent and 10-cen.t pieces on the table, and the throwerwas entitled to 50 or 10 cents as the ring, covered one or the other.
That is not playing on credit.
Tambyah, as amicus curice, referred the Court to Indian author-ities, which were submitted on a later day.
Cur. adv. vult.
February 26, 1912. Wood Benton J.—
The accused-appellant was convicted in the Police Court of Kuru-negala of having kept a room, of which he was the occupier, as
* Playing billiards ' or bagatelle or any game, which is also an athleticexercise, is not an offence. See section 18.
(1878) 8g.B.D.455.*(1903)3 K. B. 428.
(1893) 2S.C.B.62.*(1889)2 Q. B. D. 353.
» (1893) 2S.C.B.75.•(1884)13 Q. B. D. 565.
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1912. a common gaming place, and of having thereby committed anWood offence punishable under section 5 (o) of Ordinance 'No. 17 of 1889.
Rbntoh J. The Police- Magistrate has sentenced him to pay a fine of Bs. 25.
JUoddir t>. 1* is not disputed that the appellant was the occupier of the houseSilva in question, or that, if the game alleged to have been allowed to beplayed on the premises is one of a class against which -the Ordinanceite directed, the room so used was a common gaming house. Thegame was thus described in effect by the appellant himself in hisevidence at the trial. The principle of play was to throw ringson a slanting table, to which 153 10-cent pieces and 4 50-centpieces were affixed. One cent was payable for each throw. If thering enclosed a coin, the thrower became the winner of the coinenclosed. The learned Police Magistrate held that this was a puregame of skill, and I will decide the present appeal on the footing:that that finding is correct, although I find in the case of AhamadKhan v. Emperor,1 to which I have been kindly referred by Mr.Tambyah as amicus curiae, that two Judges of. the High Court ofAllahabad held that the element of chance in a game consisting ofthrowing a ring over a pin is so strong that the game cannot be heldto be a mere game of skill. The question for decision is whether thelearned Police Magistrate’s interpretation of the law in the presentcase, is correct. It was held in P. C. Jaffna, 2,838,2 that for thepurpose of section 4 of Ordinance No. 4 of 1841, a game is notunlawful where it is one of skill alone. I do not think, however,that that decision can be made to apply to a prosecution undersection 5 of Ordinance No. 17 of 1889. The language of section4 (4) of Ordinance No. 4 of 1841 by clear implication makes chancea necessary element of an unlawful game. There is no provision tothat .effect in Ordinance No. 17 of 1889. The essence of the offenceof gaming, as defined by that Ordinance, is the existence of a stake,for which the parties play (see Puhaitamby v. Karolis3 and Perera v.Svddirappu*). On the showing of the appellant himself a stake wasclearly played for in the present case. The view of the law that Iam taking here is confirmed by English decisions. It was held byLord Campbell C. J. and Coleridge, Wightman, and Erie JJ., as farback as 1852, in Regina v. Ashton,5 that the object of the analogousEnglish statute, 9 George IV., c. 61, section 21, was to prevent thecontracting of bad Eabifs by the practice of games where moneywas staked in public houses. “ If money were staked, ” said LordCampbell, “ that would be gaming. •” This decision was followed byMellor J. in Bew v. Harston,* although Sir Alexander Cockburn C.J.in the same case doubted its correctness. In Dyson v. MasonTHuddleston B. and Wills J. said that Cockburn C.J.’s view wasunsupported by any other authority, and held that playing any game
(1911) 12 Crim. Law Journal ofIndia 612.* (1893) 2S.C. R. 75.
(1877) Ram. 83.J (1854) 1E.<t B. 286.
(1898) 2 S. C. R. 62.‘ (1878) 3Q.B. D. 455.
7 (1889) 2 Q. B. D, '358.
-for a stake is unlawful. The only authority in support of a contrary■view that I am aware of is the case of Hari Sing v. Emperor,l towhich Mr. Tambyah has also referred me, where it was held thatif a game is one of skill, the playing of it is not an offence under theIndian Gaming Act of 1867. The judgment is a short one. None-of the WngliaVi cases to which I have referred are mentioned in it,And I not prepared to follow it. The appeal is dismissed.
1912.
Mfo obRenton J.
Modder v.Silva
Appeal dismissed.