Chua Seong Soi v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 26 September 2000
• Neutral Citation: [2000] SGHC 195
• Docket Number: Magistrate's Appeal No 123 of 2000
• Date: 26 September 2000
• Published date: 19 September 2003
• Year: 2000
• Plaintiff Counsel: Jimmy Yim SC and Suresh Divyanathan (Drew & Napier)
• Citation: [2000] SGHC 195
• Defendant Counsel: Han Ming Kuang (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Charge,Criminal Procedure and Sentencing,Accused unsure which limb Prosecution proceeding on,Playing pai kow,Gaming in place used for two businesses,Offences,Whether such premises a "common gaming house",Common gaming houses,Gambling,Criminal Law,Whether frequency constituted "habitual gaming",Insufficiency of particularity

: On 13 November 1999, at about 8.20pm, officers from the Gambling Suppression Branch of the Criminal Investigation Department conducted a raid on a factory located at 31 Sungei Kadut Street 4 (`the premises`). The raiding party found the main gate to the factory compound unlocked. They proceeded to enter and made their way to an office on the ground floor of the factory. Inside, they found a group of eight people gathered around a table, engaged in a game of pai kow. The raiding party identified themselves by shouting `police`, and proceeded to arrest all eight persons in the office. Apparently, there was one other person who managed to escape arrest by slipping out through the rear entrance of the office. The police found several items lying on the table, including cash amounting to $440, domino tiles, a few dice and a pair of chopsticks. A further search of the drawers in the office revealed other items such as English playing cards, sih seh cards, coloured chips, a box of domino tiles and some mahjong tiles. However, the mahjong tiles did not constitute a complete set.

Of the eight people arrested, seven were charged with gaming in a common gaming house under s 7 of the Common Gaming Houses Act (Cap 49) (`the Act`). All seven pleaded guilty and were fined $1000. The eighth person arrested, the appellant in the present case, was the tenant of the premises. He was charged under s 4(1)(b) of the Act which reads:

Any person who permits a place of which he is the owner or occupier or of which he has the use temporarily or otherwise to be kept or used by another person as a common gaming house shall be guilty of an offence and shall be liable on conviction to a fine of not less than $5,000 and not more than $50,000 and shall also be punished with imprisonment for a term not exceeding three years.

The charge read as follows:

You ... are charged that you on or about 13 November 1999 at or about 8.20pm, at No 31 Sungei Kadut Street 4, office at the ground floor, Singapore, being the temporary owner of the said premises, did permit the said premises to be used as a common gaming house and you have thereby committed an offence under s 4(1)(b) of the Common Gaming Houses Act (Cap 49) and punishable under s 4(1) of the same Act.

The trial judge held that by virtue of the gaming paraphernalia seized from the premises, the presumption in s 17 of the Act came into play. Section 17 reads:

Where in any proceedings under this Act any instruments or appliances for gaming are found in any place entered under this Act or upon any person found in such place, it shall be presumed, until the contrary is proved, that the place is a common gaming house and that it is so kept, used or permitted to be used by the owner or occupier thereof and that any other person found in such place or escaping from it is gaming therein.

At the end of the trial, the judge was of the view that the appellant had failed to satisfactorily rebut the presumption. The appellant was accordingly convicted and sentenced to a fine of $20,000 and a term of imprisonment of two months. The appellant appealed.

The appeal

The term `common gaming house` is defined in s 2(1) of the Act as follows:

The term `common gaming house` includes any place kept or used for gaming to which the public or any class of the public has or may have access, and any place kept for habitual gaming, whether the public or any class of the public has or may have access thereto or not ...

The definition thus incorporates two alternative limbs:

(a) there is freedom of access to the place, available to the public or any class of the public, or

(b) the place is kept for habitual gaming.

A place will be a `common gaming house` if it falls into either of the two limbs. The trial judge below evaluated the facts and formed the view that the premises fell into the second limb, ie that they were kept for `habitual gaming`.

(i) Frequency of the gaming sessions

It appeared that the chief factor relied upon by the trial judge was the frequency of the gaming sessions. At the trial, the defence called as witnesses three of the persons who were arrested on the premises. They were DW2, DW3 and DW4. Another one of the persons arrested on the premises was called as a witness for the prosecution, PW2. The defence also called DW5, who claimed to be the person who slipped away just as the raiding party was entering the premises. Each of these witnesses gave evidence as to how many times they had ever gambled on the premises. The evidence of these witnesses is tabulated as follows:

Witness	Number of times that witness ever gambled on the premises
PW2	Five to six
DW2	Two to three
DW3	Five
DW4	Two to three
DW5	Four to five

The trial judge further made reference to the following exchange that took place during the appellant`s cross-examination:

Q: In a week, how many times do you meet your business associates and gamble with them?

A: Many times a week.

Q: How long has this taken place?

A: Many times.

In the light of all the evidence, the trial judge held:

The varying number of sessions as testified by the various witnesses together with what the accused said during cross-examination indicate that the sessions were frequent, to the extent of many times a week.

It appeared that the trial judge erred, in that he took too literal an approach to the term `habitual gaming`. It is not uncommon for a person to invite his friends over for a game of, say, poker. This may happen more than once a week, and may even take place every week. There may even be monetary stakes involved. In such an example, it would not put too much of a strain on the English language to say that the host`s premises become a place where `habitual gaming` occurs. However, it is absurd to say that the host by doing this opens himself up to criminal liability under the Common Gaming Houses Act. Not surprisingly, the courts take a purposive approach towards the interpretation of the second limb of the definition of `common gaming house`. In R v Fong Chong Cheng [1930] SSLR 139 , Stevens J explained that the second limb of the `common gaming house` definition refers to (at p 145):

... a place which, though barred to the public, is kept or used by the owners or occupiers primarily for the purpose of gaming. I say `primarily` because I think it is clear that a place does not become a common gaming house merely because gaming habitually occurs in it. A private residence is not a common gaming house because the owner makes a practice of inviting his friends to it to gamble. Nor in my opinion do the premises of an ordinary social club become a common gaming house merely because the club provides facilities for its members to gamble, and some of them habitually use the premises for that purpose ...

It is therefore not enough merely for the gambling sessions to be frequent. The premises must be kept primarily for gambling. This was prima facie not the case here. The appellant was the director and major shareholder of two timber companies: Tat Hin Timber Co Ptd Ltd (incorporated in 1978) and also Kar Hin Timber Company Pte Ltd (incorporated in 1980). It was the appellant`s case that both companies had been carrying on business at the premises since 1981, which was when he first rented the premises from the Jurong Town Corporation. This claim was also supported by the General Manager of Kar Hin Timber Company Pte Ltd, one Teo Biow Hin (DW6), who testified that Kar Hin Timber Company Pte Ltd had been carrying on business at the premises for about 20 years. That both companies were live and substantial companies was evidenced by the statements of account, sales invoices and delivery orders tendered by the appellant in the court below.

There will of course be instances when premises are ostensibly used for some legitimate purpose, eg as a residential home or as a club, but where the legitimate purpose is in effect only a facade to hide the fact that the primary purpose of the premises is in fact gaming. This possibility was canvassed by me in PP v Yap Ah Yoon [1993] 3 SLR 763 , where I made the following observation (at p 766):

A common feature of these cases ... is that the premises in question were all social or recreation clubs, or at least purported to be so. In such cases, the real question was whether the club premises were devoted exclusively to gaming or to general social purposes among which games of chance were included. The distinction is between a bona fide social or recreation club, and one which is used ostensibly as such but which is in reality kept and used for gaming purposes ...

The approach is similar when it is a private residence which is alleged to be a common gaming house ... The question must be whether it is in reality used as a private residence or it is in fact, behind the facade of a personal dwelling, primarily kept for gaming.

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