PPEAL from an acquittal of the Police Magistrate of Chilaw.✓
Wendt, C.C., for the appellant.
September 2, 1932. Macdonell C.J.—
In this case the two accused were charged in that they used or permittedto be used a building or erection for the purpose of a public performance,to wit, staging a play, without having obtained a licence for that purposefrom the proper licensing authority, in contravention of rule A 2 of therules framed under section 3 (1) of Ordinance No. 7 of 1912, as amendedby Ordinance No. 7 of 1919. It is not disputed that the accused haderected this building or that they staged on it a play which was witnessedby a large crowd of people or that they were without any licence from theproper authority. The point was taken by the accused that no moneywas charged for entrance into the building or erection to see the play, andfurther that the parish priest under whose control the play was beingstaged, could have turned out any of the audience if he had wished. Theevidence was that a large number of people attended of all religions.The learned Magistrate agreed with the argument that, as no money wasrequired of persons going in to see the play, and as the parish priest hadthe power to turn out any of the spectators, it was not a public dramaticrepresentation within section 2 of Ordinance No. 7 of 1912. I do not thinkthat this is a correct test of what constitutes a public performance. Itis sufficient if the public are admitted generally even though that admis-sion be without payment. Section 5 of the Ordinance suggests that it isnot the test of public performance whether a person has or has not to payto see it, and notoriously there are many kinds of gatherings, entrance towhich is free but which are, beyond argument, public. In regard to thepower to exclude people I would quote Lawrence J. in Kitson v. Ashe where he says, “ this betting ground is clearly a place of public resort inthe ordinary sense of the words. The public do in fact go there, though,if the owner pleased, they could be turned off; but in the same waypeople could, under certain circumstances, be turned out of many otherplaces such as parks and recreation grounds, which are undoubtedlyplaces of public resort”. In this case it is quite clear that the publicwere admitted freely without distinction and that being so, I think that thiswas a public dramatic representation and that a licence was necessaryfor the building in which it was being held. If that is so, the Magistrateshould have convicted the accused. I will therefore formally alter theacquittal into a conviction, and return the case to the learned Magistrate
i (1699) 1 Q. B. 428.
DALTON A.C J.—Emee Nona v. Winson.
with directions to pass such a sentence as he thinks necessary in this case.As this has been in the nature of a test case, no doubt the Magistrate willconsider a small fine sufficient. The case is remitted to the lower Courtaccordingly.Set aside.