034-NLR-NLR-V-33-WIJESURIYA-v.-LYE.pdf
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MACDONELL C.J.—Wijeeurlya u. Lye.
1931Present:, Macdonell C.J.
WIJESURIYA v. LYE.
553—P. C. Colombo, 57,646.
Be/Mtig on Hdrsc-roc/ngf (Taxation) Ordinance—Accepting money ,to put on-totalizator—Negotiating a bet—Ordinance No. 9 of 1930, s. 3 {$).
A person who receives money, merely for the purpose of making e beton behalf of another at a totalizator, on a race-course, does not negotiatea bet other than a taxable bet, within the meaning of section 8 (8) of theBetting on Horse-racing Ordinance, No. 9 of 1930.
^J^PPEAL from a conviction by the Police Magistrate of Colombo.
H. V. Perera, for accused, appellant.
Crossette Thambiah, C.C., for Attorney-General.
October 9, 1931. Macdonell C.J.—
This was a ease under the Betting on Horse-racing (Taxation) Ordi-nance, 1930 (No. 9 of 1930). The facts were that a decoy went with amarked Rs. 5 note to the accused who admits that, prior to this Ordinance,he was a bookmaker. It is not disputed that the decoy wrote in duplicatea list- of three horses and the figures Rs. 5, that he handed these two listsin a bar to the accused who wrote the number 203 in each, giving backone duplicate to the decoy and retaining the other, nor that one of theseduplicates and the marked Rs. 5 note were found on the accused, togetherwith a portion of a newspaper, containing an article estimating the chancesof certain horses in the day’s races, and a piece of paper with sums ofmoney written on it; accused was not cross-examined as to this piece ofpaper. The accused was arrested almost immediately after his meetingwith the decoy. The only conflict of testimony of any importancebetween the decoy and the accused was as follows:—The decoy said"I did not speak to him …. I did not tell the accused to go and* (1917) 19 N. L. R. 378 at 381.
MACDOKKLL C.J.—Wijesunya o. Lye.
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put .the money on these horses …. There was no necessity for(me to speak as I knew that this is the way ‘All on’ betting was done. . . . There was no need for talk as it is a matter of routine.We each understood what we were about.” The accused, on the other-hand, said " On 16.5.31 L. S. Fernando came and wanted me to take abet for him and handed me these slips (the duplicates referred to above).I told him 1 was not accepting any bets now, so he asked me to take themoney and bet for him on the race-course if I was going …. If I
had not been going to the races I should not have accepted the money.1 did it to oblige him and should have put the money on the totaliz-ator . . . . I wrote 203 on the slip for purposes of identification. . . . I wrote 203 just for fancy’s sake.” Thus, according to thedecoy, the accused made a bet with him; according to accused, he simplytook the decoy's money and promised .to put it on the totalizator for himthat day at the race-course. It is conceded that if the decoy’s version asto what occurred is correct, the accused received or negotiated a bet ona horse-race other than a taxable bet, section 3 (3)-, and was liable toa penalty under section 10.
The question is, is the decoy’s version to be accepted? Now the onlyprosecution witness as to what occurred was this decoy, an accomplicein contravention of section 3 (3). It has been laid down again andagain—see particularly Per Garvin J. in Caldera v. Pedrick1—that it isunsafe to convict on the uncorroborated evidence of a decoy a fortioriof an accomplice. It was argued that in this case the evidence of thedecoy was corroborated by an admission of the accused, namely, the factthat he wrote the number 203 on the duplicate slips, for this tended toshow that the decoy's version was correct that accused himself made abet with him. But it was conceded in argument that, whichever storywas true, an identifying mark would be a reasonable precaution, e.g., toprevent a dispute later on as to the amount handed over or as to thenames of the horses. Then the fact of the number 203 having beenwritten on the slips is consistent with the decoy’s story but is also notinconsistent with that of the accused. If so, I fear it cannot be regarded'as corroboration. It was said that the accused’s explanation why he hadput on the duplicates the number 203 and not any other number was alame one, but does this go far enough as corroboration if it is concededthat putting an identifying number on these duplicate slips would be areasonable precaution, whichever story was true? It was also pressedin argument- that on a proper direction, namely, a warning that the soleevidence was that of an accomplice, the verdict of guilty would not beupset. But there is nothing in the judgment here to show that this pointwas appreciated at all; the fact that the sole prosecution witness to theincident was a decoy or an accomplice is not mentioned anywhere in thejudgment. Then it will be difficult to accept the decoy’s version, aboveall, since the accused’s evidence seems to fall short of providing the corro-boration which, even if not absolutely necessary, is certainly desirable.
But it was argued that even if the accused’s story has to be accepted,namely, that- he took Rs. 5 to put it on the totalizator for the decoy witness,still the accused had "received or negotiated a bet on a horse-race other
1 5 Tima L. B. 70.
ISO
MACDONELL C.J.—Wijetariya o. Lye.
than a taxable bet ", and was liable accordingly. This necessitates anexamination of section 3 (1). It would appear that for a bet to be a tax-able bet the following conditions must all be present;—It must be a betof not less than Be. 1 on a horse-race at a race meeting held on aregistered course, made otherwise than on credit by a person acting onhis own behalf, on the day on which the race is run, at a totalizator workedby the certificte holder within an enclosure, room, pr place set apart forthe purpose. If any one of the above conditions is absent, then the betso made would not be a taxable bet. It was argued that the accused byreceiving this money to be put on .the totalizator " received or negotiateda bet ”, that, as between him and the decoy, the b'etting transaction wascomplete, and that as the bet has not been made " at a totalizator workedby a certificate holder -within an enclosure, room, or place set apart for thepurpose ", it was a bet other than a taxable bet. But to test whetherthis be so one must read section 3 (3) with 3 (1); to be a bet the bet mustbe “ made ", and a bet could not be made, I apprehend, merely by handingmoney to a person for him to put it on the totalizator. If there were noprocedural disabilities on the enforcement of wagering contracts in Courts■of Law, then the evidence the decoy would have to lead to prove hisclaim against accused on a common money count for " money receivedby defendant for the use of the plaintiff ”, would be quite different accord-ing as the accused had omitted to put the money for the decoy on thetotalizator at all or according as he had" put it on, had received the decoy’swinnings and then failed to pay them over; in the one case it would bea claim for the return simply of the Be. 1 received by the accused, in theother it would be a claim not for the return of the Be. 1 at all—thatex hypothesi would have gone into the totalizator for good—but of itsproceeds, the winning dividend which the totalizator had paid out, in allprobability a sum different in amount from the Be. 1 and in any eventstamped with a different character and claimable by reason of differentfacts. But the main point is, was this a bet made and if so between• whom? When A entrusts money to B for B to make therewith a bet withC for the behoof and at the risk of A, can B so receiving A’s money be saidto have made a bet with A? I think not, both on the general meaningof the term bet, and on the words of this section, taking section 3 (3)with section 3 (1). Clearly no bet had yet been made on the totalizatorthat could not be disputed'. I must conclude then that, accepting theaccused’s story, he did not make a bet at all, or bring himself within theOrdinance, and as I have said above I do not think that there is thecorroboration of the decoy’s story that would make it safe to accept hisversion and so to convict.
In my opinion this appeal must be allowed and the conviction set aside.
Set aside.