CHINESE GAMING CASES

New Zealand Times, Volume LXXII, Issue 4632, 10 April 1902, Page 7

CHINESE GAMING CASES

APPEAL TO THE'SUPREME COURT. WHEN DOES A MAN PLAY PAK-A-PU ? The recent convictions of Chinese in regard to the playing of pak-a-pu ami fin-tan carno before the Chief Justice at a stiting of the (Supreme Court in Banco yesterday, when Mr Jellicoo appealed, on questions of law, against the conviction, and also moved for a writ of certiorari. Mr Gully, who appeared for the Crown, objected that an application for certiorari could not bo granted while an appeal was ponding. Mr Jellicoo contended that the fact that an appeal was pending was no answer to a motion for a writ of certiorari to quash a conviction. Ho urged that the conviction against Low Shckc and Ah Low for assisting to conduct a common gaming-house was bad on its face. There was no ground for convicting a person of having been found in a common gaming-houso when the house had not been so proved to bo a gaming-house. Tho keeper, hanker, or conductor must first have been convicted. Upon the nncontradioted evidence before his Honor, it bad not been shown that any person had been convicted under section 4 of tho Act. With regard to Joe Quick’s conviction, under section 10 of the Gaming and Lotteries Act, for keeping a pak-a-pu house, the Chief Justice pointed out that tho notes of tho evidence from the Court below merely used tho word “occupier/' whilst tho Magistrate, in stating the case, had put in tho word “keeper." These words, however, might nob mean the same thing. Mr Gully, in answer to his Honor, agreed that the statement of the Magistrate should be treated as an inference instead of an admission, and that the Magistrate had accordingly only inferred that Joe Quick was tho keeper of the house. • Mr Jellicoo said that if it were necessary he would ask that tho case should bo sent back to the lower Court to have this point cleared up; and ho formally moved to that effect. The reserved this point. Mr Jellicoo, addressing himself to Joe Quick’s case, submitted that three conditions were necessary to sustain jurisdiction to convict—l, That there is jurisdiction to enter upon the inquiry; 2, that there is evidence to warrant the conclusion of tho Magistrate; and 3, that the proceedings are regular in form. If Magistrates acted in a certain direction when there was no evidence of a stated fact which authorised them to act, they exceeded their jurisdiction. Mr Gully did not contest these points. Mr Jelliooe claimed that sections 5 to 7 of the Act, or section 8, could not be invoked to support a charge laid under section 10 of tho Act, _ and that tho proof required under section 7 that the game had been played could not bo deduced from the mere fact that the instruments of the game had been found in the house. It was no offence to play pak-a-pu, or any other, Chinese game, elsewhere than in any , house kept for the purpose, or as a game of _ chance within tho moaning of tho Gaming and Lotteries Act. If he, being the holder of a ticket entitling him to a prize, went to a house to receive payment r.f that prize, or wont to pay another a prize, ho could not bo liable for any offence struck at under section 10; because there had been no play. Tho Chief Justice asked what evidence there was in this case that the game had been played? Mr Jellicoo: Nothing at all. They say they found some money—a couple of pounds, or something of the sort.

The Chief Justice did not think that a man who had gone to a house to get a prize could be considered v.to have taken a part in the game unless he had been there when the drawing took place. Mr Jelliooo argued that no evidence had been given to the Court below of the disposal of tickets, or that money had passed for any ticket, or that the cancelled numbers had been marked off on corresponding tickets, or that there Were any purchasers of tickets, or that any corresponding tickets had been carried to this house, or , that any drawing had been done, or any payment made from winnings. The Magistrate, in his statement of the case, had stated that when the police had gone into the house, the game} of pak-a-pu was being played, whereas the only piece of evidence they had, that of Detective Cos, showed tMt when the police entered the house the men were running away. This was not playing pak-a-pu.

• The Chief Justice said ho had not been able to find any evidence of “assisting in conducting.” A man who kept a gaming-house would need half a dozen people to assist him, and any one of those would be assisting in conducting ; but be did not think that if a man, having bought a ticket, wont into the honso to see the result, he could be deemed to be assisting in conducting. Mr Jollicoe, concluding his argument, claimed that section 10 of the Act required nothing short of actual proof, and that section 7 could not bo called into aid section 10. Therefore, he maintained that Quick’s conviction must fail.

Mr Gully, in his argument for the Crown, churned that Mr Jellicoe could not proceed in his motion for a writ of certiorari unless he were able to show that there was no evidence to prove an offence under the statute. If there was some evidence, the Magistrate had jurisdiction to convict. The Chief Justice: You admit that if there is no evidence under section 10 against Joe Quick, the conviction cannot stand?

■ Mr Gully said ho did, hub ho submitted that there wag evidence from which the Magistrate might have inferred, and did infer, that the accused came within section 10. All that was necessary was : for the Magistrate to infer that the man was keeping a place for playing pak-a-pu. Sir R. Stout: No, it must be proved that the game was played there. Mr Gully said ho relied on sections 5, 6 and 7. Sir R. Stout: And if these sections do not apply, can you say that there is evil once?

Mi Gully said that it would not bo said that thero was actual evidence, but ho claimed that sections 5, 6 and 7 were intended to apply in a case of this kind. It .was evidence from which inference might fairly.be drawn that the men tried to make their escape, and that the instruments of gaming were found in the place. The Chief Justice suggested that the, instruments were ready for use, and were about to he used when the police entered the house. If Mr Gully could show that section 7 could bo invoked to support section, 10, ho would agree with him unless evidence could be shown to the contrary. Mr Gully submitted that the statute must he read as a whole, and that section 10 must bo read into the interpretation clause, section 2. Ho asked whether, even if section 7 did nob apply, was nob entitled to draw

an inference from tho fact that tho men wore escaping from tho room— Tho Chief Justice replied that the Magistrate must have some evidence to support this inference. Tho mere fact that tickets were found in tho nouse was nob evidence that play was going on.

Mr Gully: Tho instruments could not have been used for anything else. Tho Chief Justice: Tho inference I should draw was that tho game had nob commenced. His Honor asked whether, if a man were found with a euchre pack in his pocket, that would ho considered evidence that ho had been playing euchre? Mr Gully: But if a euchre pack were found on tho table, and three or four men who had been in tho room were trying to get over tho fence— Sir R. Stout remarked that tho Chinese wore different from Europeans, and would bo likely to bo thrown into commotion by seeing constables coming into tho house. Tho evidence, ho said, was consistent with tho conclusion that tho game had been played, but it was also consistent with tho conclusion that tho gamo had not boon played. Was it then, evidence? Mr Gully thought it was circumstantial evidence of play, and that the Magistrate was justified in drawing the inference from this evidence that pak-a-pu was being played. As to the evidence against others than Quick of “ assisting in conducting,” Mr Gully thought that this was also a reasonable inference which tho Magistrate was entitled to draw from tho facts generally. Ho submitted that there was some evidence which warranted Mr Haseldca in coming to tho conclusion ho did. If tho evidence was not sufficient to warrant the conclusion, the proper remedy was an appeal upon the facts. This was not an appeal upon the facts, and therefore there was no further question of law to answer. Mr Jellicoo and thoii pro needed to argue tho question of the affidavit ho had filed, in tne case rf Joo Chong and another appealing against tho decision of the Magistrate in convicting thorn of keeping a fa.itan house,whilst a charge against them in regard to pak-a-pu was still undetermined. He contended lhat tho Magistrate had acted without jurisdiction in convicting upon a series of facts which wore the subject of a second batch if informations at tho time when he was trying the defendants upon the same facts for an offence under the same statute. Mr Jellicoe said, in passing, that though the first cases on which judgment had been reserved had been hoard on tho 10th March, judgment had not yet been given by tho Magistrate. Tho argument of counsel on this affidavit had not concluded when tho Court adjourned, and the case is to be resumed this morning.