Inchcup (trading as Alexis Entertainment and Plush) v Attorney General

• Jurisdiction: Bermuda
• Judgment Date: 23 March 2006
• Date: 23 March 2006
• Docket Number: Civil Appeal 2005 No. 21
• Court: Court of Appeal (Bermuda)

In The Court of Appeal for Bermuda

Zacca, P; Nazareth, JA; Stuart-Smith, JA;

Civil Appeal 2005 No. 21

BETWEEN:

Neil Inchcup (trading as Alexis Entertainment and Plush)

Appellant

and

The Attorney General

Respondent

Dr Barnet and Mr M Pettingill for the Appellant

Mr S Froomkin, QC for the Respondent

The following cases were referred to in the judgment:

Olivier v ButtigiegELR [1967] AC 115

Francis v Chief of PoliceELR [1973] AC 761

Attorney General v Grape Bay LtdWLR [2000] 1 WLR 574

Farias v MalpasBDLR [1993] Bda LR 18

Manitoba Fisheries v RUNK (1978) 88 ALR (30) 462

Belfast Corp v OD Cars LtdUNK [1960] 1 All ER 65

Adams v Scottish Ministers [2004] Scot CS 127

Bermuda Telephone Co Ltd v Attorney GeneralBDLR [1999] Bda LR 12

Prohibition of Gaming Machines Act 2001

Gambling — Whether Prohibition of Gaming Machines Act — Deprivation of property without compensation — Whether club was common gaming house — Whether goodwill of business is property

JUDGMENT of Stuart-Smith, JA

Introduction

1. This is an appeal from a judgment of Ground CJ given on 22 July 2005 in which he dismissed the Appellant's application for relief under s15 of the Bermuda Constitution Order 1968 and Order 114 of the RSC 1985. By the Amended Originating Summons the Appellants sought the following orders:

‘1. An Order declaring that sections 5 & 6 of the Prohibition of Gaming Machines Act 2001 (as amended by Prohibition of Gaming Machines Amendment Act 2004) are void for inconsistency:

(1) with section 1 (c) of the Bermuda Constitution 1968, in that their effect is to deprive the Applicant of property without compensation; or alternatively

(2) with section 13 of the Bermuda Constitution 1968 in that their effect is to deprive the Applicant of property without compensation in circumstances where such deprivation amounts to taking possession of his interest in or right over such property without the conditions of section 13 (1) being satisfied; and

(3) with sections 1 (b) and 8 of the Bermuda Constitution 1968, in that their effect is to hinder the Applicant in his enjoyment of his freedom of conscience; and

(4) with sections 1 (b) and 10 of the Bermudas Constitution 1968, in that their effect is to hinder the Applicant in his enjoyment of his freedom of association with other persons.

Background

2. The facts of the case are set out in the Appellant's affidavit of 25 June 2004. The Appellant is concerned in the supply and operation of gaming machines. There is no dispute that these machines are gaming machines within the meaning of the Prohibition of Gaming Machines Act 2001(The 2001 Act) as amended by of the Prohibition of Gaming Machines Amendment Act 2004 (The Amended Act). The Appellant started his business in 1999 when, trading as Alexis Entertainment, he imported three machines, which he then rented to a club in Hamilton, on terms that he would receive a half-share of the earnings. From its inception in about August 1999 until 22 December 1999 (the time when the Prohibition of Importation of Gaming Equipment Act 1999 came into force) the gross revenue of the business was about $13,500.

3. In about mid 2000 the Appellant decided to enter the club business on his own account. He rented premises in Hamilton and obtained planning permission on 8 November 2000 to use them as a members club. He put five machines he already had and a further 20, purchased from his father, on the club premises. The club was called 'Plush' and opened in November 2000 as a private members club. The members paid a $25 annual fee and could bring as many guests with them as they liked. There were some basic rules governing conduct in the club, and it does not seem to have existed for any other purpose than gambling. The Appellant continued with his rental business. Both undertakings flourished. By the time of his application the annual revenue was $996,382 of which about $300,000 came from his rental business. The Appellant claims that the effect of the ban contained in the legislation is that his business will be utterly destroyed and worthless and that he will be deprived of all income and ruined.

The Legislation

4. The Prohibition of Importation of Gaming Equipment Act 1999 (The 1999 Act), as its name implies, prohibits the importation into Bermuda of machines and their parts to which that act applies. It applies to any machine constructed or adapted for the playing of a game of chance by means of the machine, and which had a slot for the insertion of money or tokens. The preamble recites that it ‘is expedient to prohibit the importation of gaming machines, parts and accessories.’

5. The 2001 Act essentially repealed and re-enacted the 1999 Act with minor variations, but the ambit of the legislation was extended to the ‘use, sale, supply and importation of gaming machines’. Under the heading “General Prohibition” Section 5 provided:

(1) No person shall permit any other person to use on any premises a machine to which this Act applies for gaming.

(2) No person shall whether as principal or as a servant or agent, sell or supply a machine to which this Act applies.

(3) No person acting as principal shall—

(a) undertake for valuable consideration to maintain the mechanism of a machine to which this Act applies; or

(b) cause or permit another person to enter into such an undertaking on his behalf.

(4) For the purposes of subsection (2), a person who, in pursuance of any concession, licence or other right granted to him, places a machine, or causes a machine to be placed, on premises which are not in his occupation shall be treated as supplying the machine at a time when it is placed on those premises.

(5) Any person who contravenes the provisions of subsections (1), (2), or (3) is guilty of an offence and liable on summary conviction to a fine of $25,000; and the court before which he is convicted may order any machine shown to its satisfaction to relate to the offence, to be forfeited and destroyed or dealt with in such other manner as the court may order.

6. The Prohibition on the selling, leasing and maintenance of gaming machines is...