( 483 )
Present: Lyall Grant J.
KANDIAH v. ENDY SINGHO.3.57^—M. C. Colombo, 4,753
Guide—Plying for hire—Conducting passengers ' in a park—Ordinance
.No. 27 of 1906, s. 8.
Where a person, found passengers walking in a park,conducted them round the flower beds and received a voluntarypayment for doing so,—
Held, that he was not guilty of plying for hire as a guide withinthe meaning of section 8 of Ordinance No. 27 of 1906.
ft. C. Fonseka, for the accused,* appellant.
June 12, 1930. Lyall Grant J.—
This is an appeal on a point of law from a conviction for plyingfor hire as a guide not being a licensed guide. The offence is chargedas being one under section 10 of Ordinance No: 27 of 1906. Thisis obviously a mistake, as section 10 applies to the return of licences,and the accused is not charged with this" offence. The convictionunder this section is obviously wrong. It is, however, open to meto correct the conviction by altering it to a conviction under theproper section if I am satisfied that by this procedure no injusticewould be done to the accused. The accused was represented by alawyer in the lower Court and no objection was taken, and I thinkit is quite' clear that the accused and his lawyer both clearly under-stood what the offence was with which he was. charged, namely,an offence under section 8 of the Ordinance. That section providesinter alia that any person who shall ply for hire as a guide shall beguilty of an offence. The ground of appeal was that the factsproved did not show that the accused was plying for hire as a guide.The facts as related by the police constable are that he saw some
11 /I A
LyAUs' Grant J.
Kandiah v.Endy Singho
( 484 )
passengers walking about Victoria park and that the .accused calleda gentleman and a lady into the park and showed them the flowerplants, going round with them- After showing them round -thepark, he took them' along the road leading to the Town Hall, wherethere was. a car halted into which the passengers got, and the policeconstable says he saw the gentleman put something into" theaccused's hand, whereupon he arrested the accused. He says hefound money in the pocket of the accused and that theaccused is not a licensed guide. In cross-examination he saidthat he saw the money given. The defence was a total denial ofthe incident and a statement that the case was engineered by thewatcher of the park, who was an enemy. This statement is corro-borated by a friend of his whom he called as a witness. 1 wouldhere remark that the Magistrate has said that the accused and hiswitness have contradicted each other on a most material point inhis defence. He does not indicate the point in question and I amunable to discover it.
I And the question to be decided, viz., whether the facts allegedby the prosecution amount to plying for hire as a guide, not an easyone. In the ordinary sense of the words, “ plying for hire ” meansoffering oneself in some way for a reward agreed upon; and what ismeant by the words “ as a guide ”? One would not think that muchguidance was required to look at the flowers in Victoria park.There is another Ordinance which deals with the case of personspersistently following, accosting, or addressing persons against theirwill and to their annoyance, but there is nothing to show that inthis case there was any such annoyance. According .to the police con-stable’s evidence the passengers were quite satisfied with the accused.
The Ordinance under which the charge is brought provides thatby-laws may be made to regulate fees which may lawfully bedemanded by guides, and presumably such by-laws exist. There isnothing to show that this accused either represented himself to be alicensed guide or demanded a fee. Supposing that a person wishedto find a particular house in Colombo and was unable to do so andsomeone offered to show him the way to the house, did so, andreceived a santhosum or tip, could it be said that such . an actinfringed the employment of the Guides Ordinance ? I dp notthink so, and I do not think that the present case in any waydiffers from the case I have supposed.
One comment that occurs to one is that, if. the accused wascommitting an illegal act in a public place, such as a park, onewould have expected the police constable to have sent him awayas soon as he attempted to speak to the passengers, rather thancarefully to have waited for what must have been a considerabletime, following him around, until the offence, if it was an offence,was complete and then to have arrested him.
( 485 )
This seems to be a typical case where the duty of the police isto prevent offences.
T do not think it is clearly proved that the accused was plyingfor hire as a guide or that he is guilty of any offence under theemployment of the Guides Ordinance.
The conviction is quashed and the accused acquitted.
Lyau. – •Grant J.
KANDIAH v. ENDY SINGHO