Public Prosecutor v Yap Ah Yoon and Others

• Judge: Yong Pung How CJ
• Judgment Date: 29 March 1993
• Neutral Citation: [1993] SGHC 70
• Citation: [1993] SGHC 70
• Defendant Counsel: Respondents in person
• Published date: 19 September 2003
• Plaintiff Counsel: Tan Chee Meng and Edna Lim (Deputy Public Prosecutors)
• Date: 29 March 1993
• Docket Number: Magistrate's Appeals Nos 273/92/01-273/92/08
• Court: High Court (Singapore)
• Subject Matter: ss 2(1), 7 & 17 Common Gaming Houses Act (Cap 49),Words and Phrases,Common gaming house,Presumption that premises were used primarily for gaming,Gaming,'Used primarily for gaming' presumption,Rebuttal,Betting, Gaming and Lotteries,Burden and standard of proof required to rebut presumption

The accused persons were charged under s 7 of the Common Gaming Houses Act (Cap 49) (`the Act`) with gaming in a common gaming house. They were acquitted in the subordinate courts and the public prosecutor appealed to this court against their acquittal. I allowed the appeal and set aside the acquittal. Each of the accused was fined $2,000 or in default, one month`s imprisonment. I now give my reasons.

The relevant facts can be stated shortly.

On 31 July 1989 a police raid was carried out at 30B Yio Chu Kang Road (`the premises`). The eight accused persons, seated in two tables of four, were playing mahjong in the premises when it was raided. Chips were used as stakes and these chips could be exchanged for money at the end of the day. Mahjong tiles, chips, dice, wind indicators as well as the two tables and eight chairs and stools the accused persons were seated on were seized by the police in the raid. Expert evidence confirmed that the items seized were used to play mahjong, a game of mixed skill and chance. The prosecution also adduced evidence that mahjong games had been observed to be in progress at the premises on three separate occasions, on 2 July, 4 June and 8 June 1989, and that on two of these occasions the people entering the premises had been different from those coming out. Further evidence for the prosecution came in the form of statements obtained from the accused persons pursuant to s 122(5) and (6) of the Criminal Procedure Code (Cap 68). With one exception, the accused persons in these statements referred to the premises as a `gambling den` and all admitted to the charge.

At the trial the accused persons claimed, however, that they had all gone to the premises to celebrate the birthday of one of the occupants of the premises. After dinner, they had decided to play mahjong to pass away the time. The mahjong games were friendly games with small stakes, and it was agreed that the winner would use the winnings to treat the other players to a meal. The accused persons also contended that the s 122(5) and (6) statements did not accurately reflect what they had said to the person recording the statements.

The learned magistrate rejected the defence claims and found that all the accused persons had gone to the premises for the main purpose of playing mahjong. He also found that the owners or occupiers of the premises were not themselves involved in the gambling, and that they had only a superficial relationship to the accused persons.

However, the magistrate acquitted the accused persons on the ground that the premises were not a `common gaming house` as defined in s 2(1) of the Act. Section 2(1) provides that a 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 magistrate found that the premises were a private residence and not a place to which the public or a class of the public has or may have access. The accused persons were at least friends or acquaintances of the owners or occupiers of the premises, or they had been brought there by such friends or acquaintances. This finding cannot be faulted.

The main question was therefore whether the premises were a place kept for habitual gaming. In this respect, the magistrate rightly referred to the presumption in s 17 of the Act which states:

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 person found in such place or escaping from it is gaming therein.

The presumption clearly arose in the present case. However, the magistrate decided that the presumption had been rebutted by the defence. He relied on the decision of Stevens J in R v Fong Chong Cheng which decided that in order for certain premises to be a common gaming house they had to be kept `primarily` for the purpose of gaming. The magistrate reasoned that a private residence which had its normal furniture and which was used as a normal residence would not be a common gaming house just because gaming took place in it off and on. He was of the view that the premises in the present case were used primarily as a place of residence as the rooms were furnished as any ordinary...