Buhagiar J:

The appellant was charged in the lpoh Magistrate's Court that he on 19 January 1954, at about 5.15 p.m. at No. 1 Jacaranda Avenue, Pasir Puteh, Ipoh, being the occupier of the said premises, did allow same to be used as a common gaming house by others and that he had thereby committed an offence punishable under s. 4(i)(b) of the Common Gaming Houses Ordinance, 1953 (No 26 of 1953). He was found guilty of this offence and sentenced to four months rigorous imprisonment and ordered to pay a fine of $4,000 or in default of payment thereof to undergo a further term of four months rigorous imprisonment.

The facts briefly are these.On 19 January 1954, Police Inspector Goh Swee Cheang (who is gazetted as a Senior Police Officer under the Common Gaming Houses Ordinance, 1953) acting on information received, together with two police constables, raided at about 5.15 p.m. premises at No. 1 Jacaranda Avenue, Pasir Puteh, lpoh.The appellant was found in the said premises together with eleven other persons.There were also found in the said premises, inter alia, documents relating to 100, 1,000 and 10,000 characters lotteries.There is no evidence that there was written information on oath as provided by s. 16 of the Common Gaming Houses Ordinance, 1953, or that the entry and search was effected as a result of a search warrant issued as provided by s. 18(1) of the said Ordinance or that, in default of such warrant, any of the circumstances set out in paras. (a), (b), (c) and (d) of the same sub-section fulfilled.

The first ground of appeal was that in default of such evidence the presumption under s. 19 of the said Ordinance cannot arise. I agree with this submission.That presumption can arise only when premises have been entered under the Ordinance. Before the presumption can arise there must be proof of how the entry was made. Regina v. Tan Yok Lan & Ors 4 Ky 668 is authority for this proposition - see also Indian cases referred to in Brdddell's Common Gaming Houses at pp. 41 and 42.

But the mere fact that there is no evidence of entry "under the Ordinance" does not prevent evidence of the finding of instruments or appliances of gaming found therein being given and a conviction being obtained; the absence of such evidence only prevents the presumption that a house is a gaming house arising so that the onus of proving this by evidence remains on the prosecution.

Now by statutory definition (s 2(1) of the Ordinance) the expression "instruments and appliances for gaming" includes all articles which are used in or for the purpose of gaming or a lottery, and there is no doubt therefore that the documents which are exhibits in this case and which have been proved to relate to 100, 1,000 and 10,000 characters lotteries are "instruments and appliances for gaming." But the fact that "instruments and appliances for gaming" are found in a place is not sufficient by itself to make that place a common gaming house.Under sub-section (1) of s. 2 of the Ordinance, the expression "common gaming house" includes "any place kept or used for the purposes of a public lottery" and under the same sub-section "a place in which lottery tickets are offered for sale, sold or distributed shall be deemed to be "used for the purpose of a public lottery.The learned Deputy Public Prosecutor submitted that the latter definition is not exhaustive and that a place is to be deemed to be "used for the purpose of a public lottery" not only when lottery tickets are "offered for sale" or "sold" or "distributed" but also when anything else connected with a public lottery is done in such place. I do not agree with this submission; it is clear from that definition that it is only in the case therein specified that a place is to be deemed to be "used for the purpose of a public lottery"; this becomes clearer still when the phrase "used for the purpose of a public lottery" is related to the definition of" common gaming house, which is the only context in which tha