Evidence obtained illegally is inadmissible, and the prosecution must establish a prima facie case for charges under the Common Gaming House Act.

JUDGMENT

Teoh Shu Yee M:

Background

[1] The accused was charged under s 4A(a) of the Common Gaming House Act 1953 ("CGHA"). The charge against him reads as follows:

"Bahawa kamu pada 28 February 2021 jam lebih kurang 5.00 petang di alamat MC 506, Jalan Mawar Jaya 8, Taman Mawar Jaya, Machap Umboo di dalam daerah Alor Gajah dalam negeri Melaka didapati telah membantu dalam menjalankan suatu loteri awam tanpa lesen. Oleh yang demikian, kamu telah melakukan satu kesalahan di bawah s 4A(a) Akta Rumah Judi Terbuka 1953."

[2] The accused claimed trial to the charge. At the trial, the prosecution had called 4 witnesses to prove their case against the accused:

a) PW1: Koperal Shaharudin, the photographer;

b) PW2: Insp Saliman, the raiding officer;

c) PW3: Sjn Abu Bakar, the gaming expert; and

d) PW4: Insp Azril, the investigating officer.

Prosecution's Case

[3] The brief facts of the prosecution's case iis as follows. On 28 February 2021, at about 5.00 pm, acting on information from Ops Dadu and following complaints from the public regarding illegal lottery transactions in Machap Umboo, the complainant (PW2) along with 5 officers from the Criminal Investigation Department, IPK Melaka, conducted a raid and arrest at a residential house located at MC 506, Jalan Mawar Jaya 8, Taman Mawar Jaya, Machap Umboo, Alor Gajah (hereinafter referred to as "the said premise").

[4] About 2 hours before the raid at the said premise, around 3.00 pm, PW2 and his raiding team arrived earlier in the Machap Umboo area, Alor Gajah to have a clear view of the surroundings. At approximately 4.55 pm, PW2 and the raiding team went to the said premise. According to PW2's testimony before the court, after observing for 10-15 minutes, PW2 noted the movement of individuals, but it was not clear if they were going to the said premise as the raiding team observed from a distance.

[5] Subsequently, PW2 and the raiding team approached the front of the house and saw a male Chinese individual ("the accused") sitting on a chair in front of the counter. PW2 introduced himself as a police officer to the accused and instructed the accused to open the front grill door of the premise. PW2, along with the team, then entered the front part of the house and proceeded to the counter where the accused was sitting.

[6] In the presence of the accused, PW2 conducted a search at the counter and seized the items which were on the counter table, namely:

a) Exhibits P13 (a roll of paper consisting of printed numbers), P13A is the photocopy of P13;?

b) P14 to P21 (papers with handwritten numbers), P22 is the photocopy of P14 to P21;

c) P24(1-2), the Nokia handphone with its HotLINK SIM card;

d) P25, a mobile printer;

e) P26, a calculator;

f) P27, a Faber-brand pen;

g) P28, a white container; and

h) P30, P31 (1-7), P32(1 -3), and P33(1-35) cash notes totaling RM140.00.

[7] Following this, PW2 seized all the items and arrested the accused. PW2 then lodged a police report which was marked as exhibit P7. PW2 handed over the seized evidence and the accused to PW4, the investigating officer, on the same day.

[8] On 21 March 2021, PW4 sent Exhibits P12 (the envelope containing the papers prepared by PW4 himself), P13, and P1 4 to P21 to PW3 as a gambling expert for analysis. The results of PW3's analysis were issued and recorded in his expert report (P10).

Analysis And Findings At The End Of The Prosecution's Case

Prosecution's Submission

[9] The prosecution submitted that:

i. Exhibits P13, P14 to P21 are records of subscriptions related to illegal public lotteries; and?

ii. the accused possessed exhibits P13, P14 to P21.

Therefore, in such circumstances, the prosecution relies on the evidence given by a gaming expert (PW3) to establish the accused was found in possession of any account, memorandum, riddle or record of stakes or wagers in or relating to a lottery shall be presumed until the contrary is proved to be assisting in a public lottery then in progress. to trigger the presumption under s 11 (1)(c) of the Common G