State v Tak Lee Cho [2000] FJHC 158; Criminal Appeal 23 of 2000 (17 May 2000)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 23 OF 2000
(Suva Mag. Ct. Case No. 2585/99)

Between:

THE STATE
Appellant

And

TAK LEE CHO
Respondent

Mr. N. Bhindi for the Appellant
The Respondent in Person

JUDGMENT

On 4 January 2000 the respondent was on his own plea convicted of the offence of being found in a common gaming house contrary to section 6(2) of the Gaming Act Cap.273 and fined $20 in default 20 days’ imprisonment and $10 court costs. The Court also ordered that $382 monies found in his possession be returned to him.

The State appealed against the sentence on the ground that:

1. the Magistrate has not complied with the provisions of section 13 of the Gaming Act Cap. 273 by returning the monies $382 to the defendant.
   
2. The sentence was manifestly lenient.
   

After listening to the submissions of the learned Counsel for the State and the Respondent having nothing to say, I find that the learned Magistrate was in error in not complying with the provisions of section 13(2) of the Act when he ordered that the monies be returned to the Respondent. The said section provides:

All implements or appliances for gaming, money, securities for money and other articles found in a common gaming house or on any person found therein or escaping therefrom which the Magistrate is of opinion were used, or intended to be used for any game or illegal lottery, SHALL be declared by him to be forfeited to the Crown and shall be dealt with accordingly. (Underlining mine for emphasis).

I therefore set aside that part of the sentence which allowed for the return of the monies to the Respondent and substitute it with one ordering that the sum of $382 be forfeited to the State and shall be dealt with accordingly as required under s.13 of the Act. I find there is no merit in the State’s submission on the fine of $20.00. It is therefore not disturbed.

The appeal is allowed to that extent.

D. Pathik
Judge

At Suva
17 May 2000