Howes J:

In this case, the seven Petitioners, together with three other persons, were convicted on a charge that they on or about 17 May 1938 at 3 p.m. did play in a common gaming house, namely Elysee Hotel, and thereby committed an offence punishable under s. 6(1), Ch 30. One other person was similarly charged, but was acquitted.

This case comes before the Court in its revisional capacity; as since the fine imposed by s. 6 does not exceed $25, there is no right of appeal.

The place in which the playing is alleged to have taken place was an office adjoining the garages of the Elysee Hotel. A Portion of this office was screened off by two almeirahs, and in this portion was a table and five chairs, on one of which, at the time of the raid, according to Inspector McLennan, Accused No. 2, a "boy" employed by the Hotel, was sitting when the Inspector entered.

When the police entered, there was a general stampede: none of the 11 accused were actually seen to be playing. Upon the table, on a diagram chalked on it, were 12 piles of cents.

The eleven persons were arrested, taken to the Detective Station, and later, released on bail.

Five of the eleven accused admitted that they were playing Fan-tan. All five were either employees of, or connected with the Hotel, viz Nos (1), (3), (5), (10) and (11) accused. Three others Nos (2), (4) and (6) were respectively a "boy," "second cook" and "cashier" employed by the Hotel. The remaining three viz. Nos. (7), (8) and (9) were, what the Magistrate describes in his grounds of Judgment "members of the public present while the gaming was in progress.

The presence of these three persons is the material factor to the charge; as without them, the "place" would not be a "common gaming house" within the meaning of s. 2 of the Ordinance.

Whilst none of these last-named six persons were seen to be playing, they were found in the "place," viz behind the almeirahs, and by

6(2) provided the place is shown to be a "common gaming house," on the occasion of its being entered under that Ordinance, "they shall be presumed, until the contrary is proved, to be or to have been playing therein.

Under s. 14 of the Ordinance if, (as in this case was admitted) "instruments or appliances of gaming are found in any place entered under this Ordinance......it shall be presumed, until the contrary is proved, that the place is a common gaming house......

The "instruments of gaming" were the matches, the money and the table marked with the chalked diagram.

There are therefore two presumptions to be rebutted by proof, firstly, that arising under s. 6(2), by which a person found on the premises is presumed to be or have been playing therein "until the contrary is proved." The "contrary to be proved" under this Section is the fact that the person was not playing. He has, in fact, to prove a negative - a somewhat difficult matter; but this is a question of the weight of evidence; and before he is required to do so, it must be shown, by the presumption arising under s. 14, that the place in which he played was 1 common gaming house, as otherwise it is no offence. The second presumption to be rebutted is, therefore, that the place is a common gaming house.

With regard to Accused Nos (7) and (8) two of the "members of the public" whom the Magistrate convicted; there was the evidence of Accused No (5), (as to whom the Magistrate made no comments as to his credibility) that "(7) and (8) did not play: they asked to play but we refused." This evidence, coupled with that of Nos. (7) and (8) themselves, and of the other witnesses who explained the presence of Nos (7) and (8), was, in my opinion, sufficient to rebut the presumption raised by s. 6(2) that these two persons were playing.

As was stated in Rex v. Fong Chong Cheng [1930] SSLR at p. 145 by Stevens J

"It has first to be observed that in this Colony it is not illegal to play games of chance for money. But it is illegal to keep a common gaming house or to gam