LAW REPORT.

New Zealand Police Gazette, Volume XXXII, Issue 12, 27 March 1907, Page 120

LAW REPORT.

(“New Zealand Law Reports,” Vol. xxv, p. 892.) Joe Ping v. McGkath. Gaming—Keeping a House where Chinese Game of Pa-ka-poo is played—Place where Game played —“ Drawing ” —Selling Tickets—Paying over Winnings —“ The Gaming and Lotteries Act, 1881,” Section 10.

To support a prosecution under section 10 of “ The Gaining and Lotteries Act, 1881,” for keeping a house in which the Chinese game known as pa-ka-poo is played it must be proved that the “ drawing ” took place in the house. It is not sufficient to show that lottery-tickets used in the game were sold and marked by purchasers and handed in in the house, or that money won at the game was paid ovor there. Gleason v. Yea Kee (18 V. L.R. 098) distinguished. Appeal from a conviction by the Stipendiary Magistrate at Wellington for keeping a house in which a Chinese game known as pa-ka-poo was played. The material evidence and the arguments of counsel sufficiently appear from the judgment. Jellicoe for the appellant. Myers for the respondent. Cur. adv. vult. Stout, C.J. : The appellant was convicted under section 10 of “ The Gaming and Lotteries Act, 1881,” which provides that any person “ keeping a house in which it shall he proved that any Chinese game known as fan-tan, pa-ka-poo, or any similar “game is played . . . . shall be liable on conviction “ to a penalty,” &c. The Magistrate convicted the appellant, and the question is whether there was any evidence to warrant the conviction. The evidence is that two detectives called at the house of the appellant—No. 9 Haining Street. He admitted to them that lie was the sole occupant. On the 25tli of August, when they visited him first, he was busy “ marking pa-ka-poo tickets into one of the books of bound tickets.” The detectives remained there about six minutes, and six Europeans and a Chinaman came in in that time. One European asked the appellant if the 7.30 bank was in yet. The appellant made no reply. That is all that occurred of any value as evidence on the 26tli of August. On the 13th of September the detectives were there again for fifteen minutes. Eight Europeans were there. One of the Europeans handed the apjlellan f a pa-ka-poo ticket which had been previously marked. The appellant compared it with the book and gave the man a shilling. A Chinaman came in and gave the appellant two documents. In answer to a European the appellant said it was the 7.30 bank. “ When the appellant received “ the two documents from the Chinaman ho checked off a “ number of entries with the record of tickets. Whon ho got the two documents he looked at the documents, and “then at the tickets and obliterated characters.” One of the detectives asked the appellant “ if he made 10s. a day at it, and he said, ‘ Oh no, not so much.’ ” That is really all that occurred on that date. On the loth of September another visit was paid to the place. There were four Europeans and the appellant in the room. The Europeans left after the detectives entered. The appellant was asked how many tickets ho sold in a day. He replied, “ Sixty or seventy, “ sometimes a hundred.” The next fact is that’a Chinaman came in shortly afterwards, and the appellant gave him I s. 3d. and a slip. “ The Chinaman returned shortly afterwards, and gave defendant two pa-ka-poo tickets marked.” Nothing else took place on that occasion except some conversations which do not seem to me to be relevant, and the fact that a European apparently wished to have a ticket, and the appellant would not give him one, replying, “ You are too “ late. On the 16th of September the detectives were again there for half an hour. There were ten Europeans present. Eight of the ten men had marked pa-ka-poo tickets in their hands, and were comparing them with two other pa-ka-poo

tickets. The appellant was present. The Europeans left shortly afterwards. Another European came in and said, “' I have got two fives.’ Defendant compared two pa-ka-poo tickets handed to him by the man with one of two ‘ marked tickets that the eight men had already been “ comparing their tickets with. After defendant had com- “ pared them he said, ‘ Yes.’ European said, ‘ Put it in the next two banks. Defendant said, ‘ No,’ and gave the man “ two shillings. The man said, ‘ What is the matter ? ’ “ Defendant replied, ‘ Too late.’ Afterwards another Euro- “ pean came in, took up one of these forms ” [form produced | “ and obliterated ten of the characters, and was handing it to defendant when he was called out by another “ European who knew me.” On the 20th of September the detectives again visited the appellant’s room. There wore five Europeans and the appellant in the room. The evidence of Detective Broberg as to this visit is, “ I saw defendant “ mark three pa-ka-poo forms out of one of the pa-ka- “ poo record - books. He tied the three tickets up and “ placed them in a rack. From another record-book he marked one slip, and stuck it in the wall alongside the “ other slip. Ho then took Is. 3d. from his table-drawer, and took the first slip out of the rack, went out, and “ returned in about a minute.” On the 22nd of September the appellant was served with a summons, and certain things were found in his possession namely, unmarked pa-ka-poo tickets, a number of pa-ka-poo record - books, eiglit bundles of bank - tickets, which show the result of different drawings, &c. The question is, is there any evidence here, first, that any tickets were sold ? In my opinion there is no evidence that any tickets were sold, save the admission which I shall mention hereafter. Europeans offered to buy tickets, but were refused. There is evidence that money was apparently paid by the appellant—on the 13th of September a shilling, and on the 19th of September two shillings. There is also evidence that a Chinaman gave the ax>pellant Is. 3d. and a slip, but there is no evidence that he got any ticket or anything for this Is. 3d., nor is there any evidence as to what was on this slip. lam of opinion, therefore, that, if the case depends upon proof that tickets were actually sold, there is no evidence that any tickets were sold, except the admission previously mentioned, or that any marked ticket was received by the appellant from any one. No doubt an inference can be drawn that payments were made on two occasions in connection, perhaps, with this pa-ka-poo game, but it was held in Bradford v. Dawson ([1897] 1 Q.B. 307) that the payment of bets in a house was not evidence that the house was occupied for the purpose of betting. The charge under this section that has to be proved is that the game was played in the house. Paying over money that may be the result of the game after the game is played, if the game has been played in another house, would not bring the appellant under section 10.

There is, however, an admission by the appellant to the detectives that he was in the habit of selling tickets. The evidence is that in answer to a question by one of the detectives as to how many tickets he sold in a day the appellant replied, “ Sixty or seventy, sometimes a hundred.” There is also an admission by him that “ he did not make 10s. a day “at it.” The Magistrate, therefore, may have been right in drawing the inference that lie had sold tickets for this pa-ka-poo game ; and the question arises, would the sale of tickets be sufficient to prove that the game had been played in that house within the meaning of the words of section 10 ? lam of opinion that that is not sufficient. It might happen that tickets were sold and the game never was played; or suppose a person sold tickets and there was what is called no “ drawing ” for a month afterwards, could it then be suggested that the person who sold tickets could be prosecuted and convicted for playing the game when the game had not been played—that is, when the drawing had not taken place ? In my opinion the meaning of this section is that what is really the game—that is, the drawing of the tickets—must be played in the house before there can be a conviction under section 10.

The only thing that has made me have any hesitation in coming to this conclusion is the decision in tins "case of Gleeson v. Yee Kee (18 V. L.R. 698). But that was a case under a different statute, and a statute differently worded from section 10. There it was held that selling a ticket in a pa-ka-poo game was a betting transaction, and, as the contract for the bet was mado in the house, this was sufficient to bring the transaction under section 49 of the Victorian statuto, which said, “ No house,” &c., “ shall be open, occupied, or used for “ the purpose,” &c., “ of betting with persons resorting “ thereto,” &c. And, no doubt, if pa-ka-poo is a betting transaction, as the Court held, the contract for the bet was made in the house, and that brought the use of the house directly within the section. This was the view taken by Mi'. Justice Hodges, and also the view taken by Chief Justice

Higginbotham. It is true that Mr. Justice Holroyd said, “ Another house, so far as the proof went, was used for play- “ ing the whole game, but, as it seems to me, each house “ was used for playing at the game, and from the nature of “ the game such use would make each a common gaming- “ house.” But, as I have pointed out, the definition of “ gaming-house ” there was a “ place where betting was “ carried on,” and the buying of the tickets was the contract of betting. I know of no other case that has any bearing on this question of pa-ka-poo under section 10. In my opinion the intention of the Legislature was to punish, and the section is aimed at punishing, the keeper of a house where the game—that is, the drawing—took place. In the same statute, where it is intended to provide for various parts of the transaction, special provision has been made, such as in section 18, where a person who sells tickets for a lottery can be prosecuted, whether the lottery takes place or not. Section 10 seems to be aimed at a different class of offence—that is, at the keeping of a house where the game is played. In my opinion the game is played where the drawing takes place. Even assuming, therefore, that the admission in answer to the detective is evidence that tickets were sold in the house—though this evidence strictly construed could hardly be deemed sufficient in a criminal case to prove the sale in the house, for they may have been sold elsewhere—l am of opinion that that is not sufficient to bring the appellant under the terms of section 10. I may add that it seems to me very necessary that there should be amendments made in our Gaming Act so as to make many things clear that are at present left doubtful. Conviction quashed. Solicitor for the appellant: E. G. Jellicoe (Wellington). Solicitor for the respondent: The Crown Solicitor (Wellington).