Terrell A-G CJ:

The facts and arguments sufficiently appear from the judgment.

The accused was charged under s. 4(a) of the Common Gaming Houses Ordinance with using the New World Amusement Park as a common gaming house. There was an alternative charge under s. 4(b) with permitting the place to be so used. On each of these counts the accused was charged as the occupier of the New World Amusement Park.

There was a second alternative charge under s. 4(c) that the accused assisted in the management of a common gaming house.

Although the word "occupier" is not mentioned in the charge under s. 4(c), the prosecution did not attempt to prove that the accused actually took any part in the management of a stall where a ring- throwing game was in progress. The prosecution relied on the presumption arising under s. 14 of the Ordinance, and such presumption only arises against "an occupier". It was accordingly an essential part of the prosecution case in all the charges that the accused was the occupier, and they sought to establish that he was the occupier by showing that a company of which he was a director was the lessee of the amusement park, and that the Municipal licences and the licence under the Theatres Ordinance were in his name. It is true that Exh. "C", the counterfoil of the licence of 28 February 1940, states it to be for the "Ghost Train and Side Shows" at the New World, but I cannot see that a stall at the New World can possibly come under any of the definitions of a theatrical performance. Possibly, the Ghost Train falls under one or other of the definitions, but the stalls certainly do not. In my opinion, therefore, a stall does not require a licence under the Theatres Ordinance.

Nor can it be alleged that the accused is the occupier of every stall which his company sublets, and I cannot find that the prosecution alleged that the whole area of the New World was a common gaming house because a game of darts was being illegally carried on in one of the stalls. The prosecution no doubt hesitated to put forward a contention which would give rise to the presumption under s. 6 sub-section 2 of the Common Gaming Houses Ordinance. If the New World were a common gaming house every single visitor however innocent, would be presumed to have been playing therein until the contrary was proved, and be liable to a fine of $25.

The learned Magistrate seems to have held that the accused was not the occupier of the stall in question and accordingly acquitted him of the charges under s. 4(a) and 4(c), but proceeded with the charge under s. 4(b). The charge under s. 4(b) was however never amended so as to charge the accused as "owner" and not "occupier" and the accused was for this reason entitled to an acquittal on this charge also. In the absence of any amendment it was not permissible to argue on the appeal that the accused might be liable as owner. It is true that certain portions of the written judgment appear to indicate that the learned Magistrate was considering the case as if an amendment had in fact been made. As however that was not the case, his observations must be treated as irrelevant. It is certainly not competent for an appellate Court to convict an accused person on a charge different to that upon which he has been tried and acquitted. The powers of the Court in a case of an acquittal are given by s. 310(a) of the Criminal Procedure Code. The power to alter the finding given by s. 310(b)(ii) only applies when the appeal is against a conviction. It would clearly be an injustice to an accused person to convict him on a charge which he has not been called upon to meet.

The record of acquittal on all the charges preferred will therefore be confirmed, but the appeal will be allowed to the extent that I direct the accused to be retried as owner under s. 4(b) of the Ordinance.

Order for retrial.