Rigby J:

The appellant was convicted, together with another person, of being found gaming in a public place, contrary to s. 7(2) of the Common Gaming Houses Ordinance, 1953.

The brief facts of the case were that on the afternoon of the 25 August 1960, a Police party, acting on information received, raided a waste piece of land at Kampong Permatang Rawa, in the district of Bukit Mertajam. On the piece of land was an open unwalled shed. Inside the shed some 15 to 20 persons were congregated. As the Police approached the shed someone shouted: "Mata Lai", and the occupants of the shed took to their heels and ran away. The appellant was one of those who ran. He was caught by a Police Inspector about 15 yards from the shed. He was searched and in his trouser pocket $170.90 was found, and in his purse a further $107. The appellant is a lorry driver, aged 44. In the shed itself the Police found a table. On the table was a chart divided up into squares. On the chart was a four-sided top with inscriptions on each side. A porcelain plate was found nearby. There were, in fact, all the appliances present to show that the game of blangkas was being played before the Police arrived.

In his defence the appellant gave evidence that he had gone to the place to look for a friend whom he had been told was gaming there. He had not actually reached the shed when he first saw the Police, and he ran away because everyone else ran away. The money in his purse was his own money, and the loose money in his pocket was money belonging to a friend.

The Magistrate disbelieved the accused and convicted him of the offence as charged. He fined him the sum of $50 and, purporting to act under s. 16(2) of the Common Gaming Houses Ordinance, ordered that the loose money amounting to $170.90 found in his pocket be forfeited on the ground that it was money used or intended to be used for gaming.

The accused appealed against both the conviction and sentence. At the commencement of this appeal Mr. Lee Thean-Chu, on behalf of the accused, informed the Court that he abandoned the appeal against the conviction and restricted his appeal against the sentence to that part of the order directing the forfeiture of the $170.90.

It is quite clear that the learned Magistrate had no power to make the order for forfeiture under s. 16(2). That Section is restricted to the confiscation of gaming instruments, appliance's, money, etc. found in a common gaming house "or on any persons found therein or escaping therefrom and which the Magistrate is of opinion were used or intended to be used for any game or lottery . . . . . . .". It is only in relation to common gaming houses and where a search warrant has been issued in accordance with the provisions of s. 16(1) of the Ordinance that the Magistrate is entitled to exercise his powers of forfeiture under s. 16(2). The appellant was found gaming, not in a common gaming house, but in a public place.

Section 7(2) and (3) of the Ordinance enact:

(2)Any person gaming in any public place shall be guilty of an offence and liable on conviction to a fine not exceeding two hundred and fifty dollars; and all instruments or appliances for gaming seized under this Section may be declared by the Court before which the conviction is had to be forfeited to the Government and shall be dealt with accordingly.

(3)Where any money or other valuable thing is used in the playing of any game of chance or of mixed chance and skill in any public place, the players shall be presumed, until the contrary is proved, to be or to have been gaming.

Under s. 2 of the Ordinance instruments or appliances for gaming include "articles which are used in or for the purpose of gaming . . . ." When money is found as in this case-placed on the square of a chart obviously used for gaming, no doubt it may reasonably be said that such money falls within the meaning of the words "articles . . . . used in or for the purpose of gaming". But in the absence of any word