HYNDMAN JONES J.

I am of opinion that the decision of the Magistrate cannot be supported.

The Appellant and five other were charged with assisting in the carrying on of a Public Lottery, to wit, a "Wahweh" Lottery, in premises No. 59, Carnarvon Lane in Penang on the 24th August, 1897. One of the persons charged, Ham Ah How, was called as a witness for the Crown. The Magistrate convicted the Appellant and discharged the other four Defendants.

The evidence shewed that about 12.20 A.M., on the 24th August, 1897, the Police made a raid on the house No. 59, Carnarvon Lane, and that the Appellant was seen outside the house smoking. Mr. Riccard, the Superintendent of Police and Inspector Gordon heard him call out something; Lee Hoo, a Chinese detective stated that what he did call out was "arrest gamblers." The Police went inside the house and upstairs they found accused No. 1, secreting a box under an almeirah, and the box on being subsequently opened was found to contain papers of the kind used in 'Wahweh" lotteries. No. 2 was in a room adjoining on a bed. Nos. 3 and 4 were downstairs and under a table at which they were sitting, the packet market "B" was found consisting of riddles supplying hints as to the winning character o the lottery. Ham Ah How went to the house after 11 p.m. on the 23rd August to hand in a collector's hong and Kong Ah Siang gave evidence corroborating this.

It was admitted at the Bar that there was nothing to shew whether the hong's and other papers found related to a lottery then being carried on, or to a past or future lottery. There appears to be no evidence that a lottery was being carried on at this particular time, and no presumption to that effect is raised by the mere fact of papers of this kind being found, although there appears to be a presumption that the place where such papers are found (if the papers are proved to be articles which are used for the purpose of a lottery). is a place kept or used for the purpose of a Public Lottery. In the case of Reg v. Chong Ah Pye and another, 4, Kyshe 597, it was decided that the more finding of lottery tickets in the prisoners' house or in their possession was not sufficient evidence that they were assisting or managing "a public lottery," and that the presumption raised by section 14 from the fact of finding tickets in the house occupied by the prisoners only applied to a charge under Section 5 Clause (a), and did not apply to a charge of assisting in carrying on a Public Lottery under Section 5 Clause (c) which is the charge in the present case.

I think it ought to have been established that a lottery was actually being carried on, on the 24th August, before the Appellant could be convicted. This has not been done for the other Defendants were not convicted and the Magistrate must I take it have disbelieved the evidence of Ham Ah How and Kong Ah Siang the only witnesses who spoke to the actual lottery. It is a case of suspicion and although the Magistrate was no doubt morally satisfied of the Appellant's guilt, I think that having regard to the points raised the Appellant ought not to have been convicted. As to whether a person ought to be convicted on this charge who, if a public lottery were going on, simply called out "arrest gamblers," I express no opinion.

The adjudication therefore is reversed.