Buttrose J:

This was an appeal by the deputy public prosecutor against an order of acquittal of the tenth Magistrate in respect of a charge against the respondent of acting as a bookmaker under s. 5(3)(a) of the Betting Ordinance 1960 (No 30 of 1960).

I agreed with the decision of the learned Magistrate but not for the same reasons and dismissed the appeal.

There were, in my view, certain unsatisfactory features of the case which rendered it unsafe not only to convict but which did not justify the respondent being called on for his defence.

The evidence was not sufficient, in my opinion, to bring the respondent within the provisions of s. 8 of the Ordinance so as to enable the prosecution to invoke the aid of the presumption.

Section 8(1) of the Ordinance is as follows:

Any person accepting or receiving bets, stakes, or wagers or found in possession of any books, accounts, documents, telegrams, writings, circulars, cards or other articles which are used or appear to have been used or intended to be used in connection with or which relate or appear to relate to the business of a bookmaker shall be presumed until the contrary is proved to be acting as a bookmaker.

The learned Magistrate in his grounds of decision said this:

The prosecution in this case seeks to rely on s. 8(1) of Ordinance 30/60. However, in my opinion, the word 'bookmaker' in this presumption must be read within the ambit of the definition of 'bookmaker' in s. 2(1) of the Ordinance. In my view, time is of the essence in a charge of this nature, and a person cannot be said to be a bookmaker within the said definition once the races are over for the day. For example - to stretch a point - a person cannot be charged with bookmaking at 12 midnight because there will be no bets which a person can receive or negotiate, nor is there any question of his holding himself out as a bookmaker, unless there is evidence that a person can continue to be a bookmaker within the definition of 'bookmaker' even after the races are over.

With respect to the learned Magistrate I am unable to agree. Time is not of the essence of the matter in a charge of this nature.

Once possession is established the time factor is immaterial and irrelevant insofar as raising the presumption is concerned. The section refers to possession of documents or other articles which are used i or appear to have been used or intended to be used or which relate or appear to relate to the business of a bookmaker. The person so found in possession is presumed until the contrary is proved to be acting as a bookmaker within the definition in s. 2 of the Ordinance.

Similarly under s. 8(2) any person who settles or pays money in respect of bets or wagers relating to a horse race is presumed until the contrary is proved to be acting as a bookmaker within the definition in s. 2 of the Ordinance. Settling day may be and often is on a day subsequent to a race day.

Construing the section as a whole it seems to me to be clear that time is not and was never intended to be of the essence of the charge as found by the learned Magistrate.

Appeal dismissed.