Howes J:

In this appeal the charge against the accused was that he "on or about 11.30 a.m. on 25 November 1933 at the Overseas Bank, Ipoh, did sell seven lottery tickets, an offence under s. 4(i)(d) of Enactment No. 19/1912," which reads as follows:

4

(i) Whoever-

...

(d) receives directly or indirectly any money or money's worth for or in respect of any chance in any event or contingency connected with a public lottery or sells or offers for sale or gives or delivers any lottery ticket;

shall be punishable with a fine not exceeding three thousand dollars or with imprisonment of either description for a period not exceeding twelve months."

The second portion of the sub-section creates the offence of which the accused was convicted.

"Lottery ticket" as defined in s. 2(i) "includes any paper ... which either expressly or tacitly entitles or purports to entitle the holder or any other person to receive any money or money's worth on the happening of any event or contingency connected with any public lottery."

"Public lottery" means "a lottery to which the public or any class of the public has or may have access, and every lottery shall until the contrary be proved be deemed to be a public lottery."

Section 8A of the Enactment further provides that "A person selling lottery tickets ... shall be presumed until the contrary be proved to be assisting in a public lottery then in progress.

The lottery in question was a sweep, organised by the Penang Turf Club for its Xmas -New Year Gold Cup Meeting, 1933-1934, and the seven tickets were proved to have been sold by the accused.

The issue was: were these sweep tickets "lottery tickets" within the meaning of s. 4(i)(d) as defined by s. 2(i)?

Although every lottery is deemed a public lottery until the contrary is proved, in order to come within the above definition, the tickets must be "connected with any public lottery." It then becomes a question, how is the contrary to be proved? The definition does not directly put on the accused onus of such proof: but, no doubt, this was the intention of the Enactment unless some other proof is given.

A lottery must be either public or not public: i.e., private.

The Enactment, from its title, was clearly aimed at the suppression of "public lotteries," a curious limitation, since in England, under the old Gaming Acts, the expression "public lottery" was only used in connection with lotteries sanctioned by Act of Parliament.

It cannot have been the intention of the Enactment to suppress private lotteries; as if this were so, the word "public" would be redundant.

Mr. SC Vickers, the Secretary of the Penang Turf Club, who was called as a witness for the prosecution stated, in cross-examination, that the Penang Turf Club is a private club; this lottery is a private lottery, and the seven tickets were issued as private lottery tickets. His evidence as to this was not rebutted by the prosecution.

These tickets were put in evidence, and the conditions printed on the back support Mr. Vicker's evidence. That the Magistrate took judicial notice of these conditions is proved by his reference to them in his Grounds of Judgment.

The purchaser of the tickets clearly bought them subject to the conditions endorsed thereon, in the same way that the purchaser of a railway ticket is similarly bound by conditions appearing on the back of it; and on the face of these tickets appear the words "Conditions See Back."

This evidence, in my view proved that the sweep (which is admittedly a lottery) was not a public lottery: in other words "the contrary has been proved" (according to the requirements of ss. 2(i) and 8A of the Enactment) by the evidence for the prosecution. The accused could have called no stronger evidence than that of Mr. Vickers, coupled with the conditions on the back of the tickets.

If the sweep is not a public lottery, and consequently the tickets in it are not "lottery tickets" within the definition, can the nature of the ticke