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Ayakamp v Guringng B [1981] PNGLR 531 (11 December 1981)

Papua New Guinea Law Reports - 1981

[1981] PNGLR 531 - Michael Ayakamp v Guringng B 

[1981] PNGLR 531

N358(M)

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MICHAEL AYAKAMP

V

GURINGNG B.

AND

JEFFREY SMATEN

V

GURINGNG B.

Waigani

Kapi J

18 November 1981

20 November 1981

11 December 1981

STATUTES - Interpretation - “Subject to and do not derogate from” - Summary offences Act 1977, s. 49.

GAMING - Offences - Unlawful game - What is - Declaration of - Offence under Summary Offences Act to be declared under that Act - Definitions under Gaming Act not relevant - Summary Offences Act 1977, s. 49.

Section 49 of the Summary Offences Act 1977 provides:

Application of this Part (Pt. VI) The provisions of this Part are subject to and do not derogate from the provisions of—

(a)      The Gaming Act 1959; and

(b)      The Racing and Gaming Act 1974; and

(c)      The Criminal Code.

Held:

(1)      The words “subject to” in s. 49 are simple words which merely subject provisions of the subject part to the provisions of the master legislation. Where there is no clash, the phrase does nothing; if there is a clash the provisions of the master legislation prevail. The words “do not derogate from” mean that the provisions of Pt. VI cannot in any way repeal or take away the effect of the provisions of the legislation referred to;

(2)      The offence of unlawful game created by s. 51 of the Summary Offences Act, is not an offence under the provisions of the legislation referred to in s. 49, therefore there is no clash and the provisions of Pt. VI must be read and construed on their own;

(3)      Accordingly, for a game to be an unlawful game under s. 51 it must be so declared pursuant to s. 50: an unlawful game for the purpose of the Gaming Act will not suffice.

Appeal.

This was an appeal against conviction and sentence on a charge of playing cards for money contrary to s. 51 of the Summary Offences Act 1977.

Counsel:

C. Marlow and Danajo Koeget, for the appellant.

J. Byrne, for the respondent.

Cur. adv. vult.

11 December 1981

KAPI J:  By consent of the parties, these two appeals were heard together. Both appellants in each case were convicted of playing cards for money. They were charged under s. 51 of the Summary Offences Act 1977. They were both sentenced to six weeks’ imprisonment in hard labour.

They both appealed against conviction and sentence. The grounds of appeal in each case are identical.

The grounds relied upon are as follows:

1.       That the conviction is wrong in law in that there can be no offence committed under s. 51 of the Summary Offences Act as no game has been declared an unlawful game pursuant to s. 50 of the said Act for the purposes of s. 51.

2.       That the magistrate erred in law in imposing a sentence of imprisonment in excess of the maximum term which may be imposed for a first offence under s. 51.

3.       That the sentence is in any event manifestly excessive as I had been in custody for over three months awaiting hearing of the information.

FIRST GROUND OF APPEAL

Counsel for the appellants submitted that an unlawful game for the purposes of the offence under s. 51 of the Summary Offences Act is to be declared by the Head of State under s. 50. Such a declaration is not effective until approved by the Parliament (see s. 50(2) of Summary Offences Act). He submitted that no declaration has been affected under s. 50 and it follows that there is no game which has been declared an unlawful game.

Counsel for the respondent submitted that Pt. VI (ss. 49-54) of the Summary Offences Act (which contains the offence of unlawful games) are “subject to and do not derogate from” the provisions of the Gaming Act 1959 (as amended). He submitted that this has the effect of reading Pt. VI of the Summary Offences Act as part of the Gaming Act. The effect of this submission is that the word “Unlawful game” which is defined in the Gaming Act defines the same word for the purposes of s. 51 of Summary Offences Act. Unlawful game is defined in the Gaming Act to include playing cards for money. It follows from this that the appellants who were playing cards for money were rightly convicted.

Both of these arguments have merit. They turn on the proper interpretation and effect to be given to s. 49 of the Summary Offences Act, which is in the following terms:

“49.    Application of this Part.

The provisions of this Part are subject to and do not derogate from the provisions of—

(a)      the Gaming Act 1959; and

(b)      the Racing and Gaming Act 1974; and

(c)      the Criminal Code.”

It is not unusual to find that certain words used in one legislation are given the same meaning in a different legislation. If this is intended by the legislature then usually it has a provision to that effect. For instance: Under the old Public Service Regulations 1964, reg. 37(2) reads— “In this regulation ‘time of war’ has the same meaning as in the Defence Act 1903 (as amended) of the Commonwealth.”

The same intention may be achieved by a provision in legislation incorporating another Act to be read part of it. This has the effect of reading the two Acts as though they were one. (See s. 59 of Interpretation (Interim Provisions) Act 1975). See also Statutory Interpretation by Pearce at p. 98, pars. 150-153. Section 49 of the Summary Offences Act is not such a provision.

The important words to be interpreted in s. 49 are “subject to and do not derogate from”. During the course of argument I advised counsel that they should research the cases which have interpreted these words. I gave counsel two days to research the cases. When the court resumed, both counsel informed the court that they were unable to find any cases on these words. Mr. Byrne of counsel for the respondent was able to refer to the use of these words in contract cases. However, I did not find these cases particularly helpful in this case.

In Smith v. London Transport Executive[dccxcvi]¹ the court was concerned with the consideration of the words “subject to the provisions of the Act subject to other provisions in the same Act” Lord Simonds at p. 569 said:

“The words ‘subject to the provisions of this Act’ ... are naturally words of restriction. They assume an authority immediately given and give a warning that elsewhere a limitation upon that authority will be found.”

Lord MacDermott at p. 577 said:

“That is an expression commonly used to avoid conflict between one part of an enactment and another, and I have difficulty in reading into it more than it says.”

In C & J Clark Ltd. v. Inland Revenue Comrs[dccxcvii]² the court was again concerned with reading the provisions of an Act subject to other provisions of the same Act. The court was concerned with the meaning of words “subject to”. Megarry J., at p. 520 said:

“In my judgment, the phrase ‘subject to’ is a simple provision which merely subjects the provisions of the subject subsections to the provisions of the master subsections. Where there is no clash, the phrase does nothing: if there is a collision, the phrase shows what is to prevail. The phrase provides no warranty of universal collision.”

With respect, I would adopt the meaning given to the expression “subject to” in the above cases. The subject provisions (i.e. Pt. VI of the Summary Offences Act) are to be read subject to the master provisions of the Gaming Act 1959 (as amended), Racing and Gaming Act 1974 and the Criminal Code. Where there is a clash between Pt. VI of the Summary Offences Act and the Acts referred to above, the master provisions prevail. The words “do not derogate from” mean that Pt. VI of the Summary Offences Act cannot in any way repeal or take away the effect of the provisions of the Acts referred to in s. 49 of the Summary Offences Act.

Where Pt. VI of the Summary Offences Act does not clash with any of the master provisions in the Acts referred to above then the phrase does nothing.

In giving effect to the provisions of Pt. VI, they have to be read on their own. Under this part, an unlawful game for the purposes of s. 51 and s. 52 are to be declared by the Head of State and approved by the Parliament under s. 50. Section 51 of the Act created the offence of unlawful game.

There is no such offence under the Gaming Act and the other Acts. It follows that there can be no question of a clash. It is true that unlawful game is defined in the Gaming Act but that is only for the purposes of Gaming Act and not for the purposes of Summary Offences Act.

If the definition of “unlawful game” in the Gaming Act was intended to define the same under the Summary Offences Act, then I fail to see the need for s. 50 of the Summary Offences Act.

If the argument put forward by counsel for the respondent is accepted, then a declaration by the Head of State under the Gaming Act for other games to be unlawful game would become effective offences whereas a declaration under s. 50 of the Summary Offences Act required approval of the Parliament. In my opinion, the Parliament did not intend this. The difference in two types of declarations supports the view that the words “unlawful game” in each Act have different purposes. In one Act an unlawful game is an offence where in the other it is not an offence itself.

I have reached the conclusion that the offence of an unlawful game can only be declared under s. 50 of the Summary Offences Act. As there has been no such declaration, there was no offence.

I would allow the appeal on this ground.

Appeal allowed.

Solicitor for appellants: A. Amet, Public Solicitor.

Solicitor for respondent: L. Gavara-Nanu, Public Prosecutor.