ONE WORD LEFT OUT.

Dominion, Volume 3, Issue 807, 3 May 1910, Page 2

ONE WORD LEFT OUT.

* CHINESE CASE. LEGAL LIGHT ON PAK.A-POO. INTERESTING ADMISSIONS. A Raining Street case cauie before Mr. Justice Cooper in the Supremo Court yesterday, the accused appealing from a conviction entered against him by tho magistrate. Mr. \\\ G. Biddoll, on January 28. Several other pak-a-poo cases, brought in tho Magistrate's Court, are awaiting tho result of this appeal. Jim Young, who camo now as appellant, hod appeared before the- magistrate on the following charge:— That during the month of January, 1910, being the occupier of certain premises known as 53 Haining Street, Wellington, he did use the same as a common gaming house. At tho hearirtg, it was pointed out that the information, as read, did not contain the word "gaming," and that therefore no offence was disclosed. The magistrate amended the information to read as sot out above, and Jim Young pleaded not guilty. Having heard evidence, tho magistrate entered a conviction and 'fined Jim Young £\O, with costs (interpreter's fee £H 35., and Court costs 75.) . Appealing from this judgment of the magistrate, Jim Young was again represented by Mr. T. SI. Wilford, Mr. M. Myers (Crown Solicitor) appearing for the r>ipondent police officer, Sergeant Murphy (informant in the Magistrate's Court action). Grounds of Appeal. Tho grounds of the appeal were set out us follow:— (1.) That tho information, as laid, under .which Young was first asked to plead, disclosed no offence. (2.) That the consent to; amend the information by the magistrate was ultra'vires, in that such amendment created an offence whero previously none existed. • , (3.) That there was no proof that tho house in which Young was found was a common gaming house, within the meaning of the Gaming Act, 1908. (4.) That there was no proof that the premises in question were, kept or ■ used for playing an unlawful game. (5.) That there' was no' proof that any' unlawful game was "being played" within the meaning of the . Gaming Act, 130 S. (li.) That there was no proof that ' the premises ill question were "Owned" or "occupied" by Young within the meaning of tho Gaming Act, I'JUS. (7.) That the evidence- adduced by the prosecution .was the evidence of accomplices, and, without corroboraHon, should not be sufficient to put Young even upon his defence. In opening the case, Mr. Myers traced tho history of New Zealand legislation in regard to pak-a-poo, and quoted the decision in a Full Court case, which, he said, furnished a complete answer to erounds 1 and 2. An information was not necessary when the defendant was before the Court. As to paragraphs 3, 4, and 5, he submitted that the tickets and other things found upon the premises, such as paint brushes, were instruments of gaming, and that the conviction - was ' perfectly good. His Honour: Mr. Wilford says that tho tickets are only lottery tickets, and are not part of the game. Mr. Myers: Without them, or something similar, the game cannot be played. You might have a roulette table, but, without something else, , the game could not be played. ' His Honour: I don't know much about roulette, but I Know pak-a-poo very, well, because I had to try Chinamen in Dunedin. . Aims of the Legislature. Mr. Myers said that the three grounds upon which he contended that 'the couvlction'MsF were: (1) The Legislature in 1907 altered the law Hn such iv way as to provide that "any pre.mises occupied, kept, or used for the purpose of an illegal lottery were to be deemed and taken to be a common gaming house." It had been held by the Full Court that pak-a-poo was a lottery, although it was expressly declared by. Statute to be "a game of chance," and it was declared by Statute to be an unlawful game. It was, therefore, an illegal lottery, and, as Jim Young's premises were occupied or usod for the purposes of an illegal lottery, the premises were a common gaming-house, and the conviction was right. (2) Whereas, under the Act of 1881, it had been held by the Chief Justice that certain evidenciary sections."' which were, applicable to common gaming-houses, did not apply to a house in which pak-a-poo or fa*-tan was played, the law had now been altered by repealing certain provisions of the Act of ISSI, and making the evidonciary sections applicable to all common gaminghouses, including premises where pak-a-poo or fan-tan was played. Those evidenciary sections declared that "where any cards, dice, balls, counters, tables, or other instruments of gaming used.in. playing any unlawful game were found in premises entered by warrnnt.Ut should be prima facie evidence that such' premises were used as a common gaminghouse." In the present case, tickets and uther paraphernalia of pak-a-poo had been found on the premises, and, therefore, as no evidence had been called by Young in the. Lower Court, tho magistrate was right in holding that the .. premises were a common gaming-house. (3) One of; the' evidenciary sections provided that, in default of other evidence proving any premises to be a common gaminghouse, it was sufficient to prove that such preinisos were occupied or used for playing "at" an illegal game. It was not ! necessary to play .the whole game; merely playing "at" tho gaino was sufilcient. Tho facts in the present caso hod shown that although no drawing took place on the premises, certain persons had played "at" the game. On this ground, also, cpunsel contended that the conviction had been entered rightly. Mr. Wli'ord urged that tho origiiiul information disclosed no offense. His Honour remarked that the original summons which required Jim Young to appear before tho magistrate had contained the omitted word, so that accused know, when he. came into court, what he had to face. The magistrate, in such .-.case, might rightly amend an information, rectifying a clerical, error. Mr. Wilford contended that the magistrate had no power to amend an information disclosing no offence to make it an information of an offeuce. His Honour pointed out that Mr. Wilford, at the hearing, had submitted to the magistrate's jurisdiction, and had pleaded not guilty to the information as amended. Gambling: Mr. Wilford's Admission. Turning to the other point, as to whether the tickets constituted part of the gamp of pak-a-poo, Mr. Wilford (after remarking that the amendment was an "impossible" one) said that. the. tickets were merely for tho purpose of recording betting on the game. His Honour: Can yoa play the game without, the tiokets? ■ Mr. Wilford: Without these ticketsyes. Mr. Myers: Can you work a totalisator without the tickets? Mr. Wilford: That is a matter specially fixed by an Act under which tho Government has a monopoly ol gambling in this country. His Honour: With the exception of the actual drawing—Marking oIT, and finding out who is entitled to receive money—all the necessary matters which go to constitute the game of pak-a-poo were found upon the promises. Mr. Wilford: The prosecution cannot succeed unless the lottery is seen to be drawn. His Honour: According to that, there can newt bo a c<;nri:'b). unless you traco tho lottery tickets to tho houso wh-;re the lottery is drawn. The Simple European. Mr. Wilford: Suppose thoce was an unscrupulous Chinaman—l don't suppose (hero is such—suppose he has tickets printed by tlie million, and sits in his house soiling them to Europeans— / His Honour: That is part of the game. Mr. Wilford: But not of the gamo of pak-a-poo; part of the Chinaman's game. (Laughter.) That is a very big distinction.

His Honour: It may bp a distinction, in the Chinaman's mind, but the proceedings are viewed in a very different manner by thp Europeans. ; , Mr. Wilforri: They do not know, they never can know anyway, and that is why, they are'so simple. They are never allowed to know anything about the lottery. ' . His Honour: In one of these instances a European did win a shilling. , ' Mr. Wilford: They must hare something like that to keep them going. Thai is not the game of pak-a-poo.- You caniwt Slay the game of pak-a-pop unless you raw the lottery. ' His Honour: I shall hold, upon this evidence, that there is evidence that the ■game was played, on one playing pak-a----poo? His Honour: I think the onus would' rest upon you to show that they were not pak-a-poo tickets. Mr. Wilford: If a man got a lot of Tattersall's tickets printed in Wellington in imitation of the Hobart Tattersall's, and sold the whole lot as tickets in a Tattersall's sweep, he ■ could get away with the money, and leave- people waiting to know the result... Would he be running a Tattersall's? He .would rather be getting money on false pretences. • His Honour: He would bo prima facie running a lottery, and getting money on. false pretences, which is a much more serious- crime. There is no direct evidence that the bank was drawn, bat I look at it with eyes of common-sense, and I come to the conclusion that there, is ample prima facie proof that this man was conducting' one branch of pak-a-poo at any rate. Mr. Wilford: The lottery is the game, not the betting. His Honour: Ah, that is nearer the point. Reserving his decision, his Honour intimated that he would deliver judgment, to-morrow.