040-NLR-NLR-V-56-PODINONA-PERERA-Appellant-and-HANIFFA-Inspector-Respondent.pdf
SWAN J.—Rodinona Per era v. Haniffa
I <16
1953
Present: Swan J,
PODINONA PERERA, Appellant, and HANIFFA (Inspector),
Respondent
S. C. 860—M. C. Kegalle, 37,335
Brothels Ordinance—Charge oj “ Keeping or managing a brothel ”—Quantum of evidence—Sentence.
If a person koeps in a place even one solitary prostitute to be supplied to allcoiners, that person may be convicted of “ keeping or managing a brothel
Where a Magistrate chooses to impose a sentence of imprisonment rather thana fine for a first offence under the Brothels Ordinance, he must give reasonsfor so doing, or at least the proceedings nust show that he has exorcised hisdiscretion properly.
^VpPEAL. from a judgment of the Magistrate’s Court, Kegalle.
C. It. Qunaratne, for the accused appellant.
A. Hahendrarajah, Crown Counsel, for the Attorney-General.
Cur. ado. vult.
January 30, 1953. Swan J.—
The appellant was charged with having on 20. 3. 1952 kept or manageda brothel. She was convicted and sentenced to undergo a term of twomonths rigorous imprisonment. Mr. C. R. Gunaratne appearing for hercontends that the evidence falls far short of establishing the charge of" keeping or managing a brothel ”. At the time of the raid there was onlyone woman in the house besides the accused. It is, he submits, anisolated case of prostitution.
The word brothel is not defined in the Ordinance. The definition givento it in Singleton v. Ellison 1 was adopted by Wit-hoi’s J. in Pieris v.Magrida Fernando2 and followed by de Sampayo J. in Morris v.Cornells3 and Wickremasuriya v. Mary Nona4. In these cases abrothel is defined as a place to which men resorted for purposes of prosti-tution with women. In the last mentioned case de Sampayo J. held thatthe occupation of a house or room by a single prostitute did not constituteit a brothel. But that does not mean that if a person keeps a singleprostitute in a place to be supplied to all comers that person cannot besaid to keep or manage a brothel.
1 (189a) L. R. 1 Q. B. 607.* (1S‘J5) 1 N. L. R. 212.
3 3 Bal. Notes 48.
* {IV22) 24 N. L. It. 26.
106
SWAN J.—Podinona Perera s. Haniffi
Iii Eliyaiamby v. Wijelath Nona 1 Akbar J. held that a single act ofprostitution was insufficient to render a place a brothel. But in Toux-aaint v. Cecilia2 Soertsz A.J. in a very interesting judgment wentinto the derivation of the word “ brothel ” and gave it the followingdefinition :
“ A brothel is a house of ill-fame to which men resort for purposes ofprostitution with women who are to be found in the place or with womenwho resort to or are introduced to the house. ”
With this definition I am in complete agreement, but I do not think itexcludes such a case as I have referred to above, namely, a case where asingle prostitute is kept to be supplied to all comers.„
Referring to the proposition that a solitary instance of prostitution isinsufficient to render a house a brothel Soertsz A.J. remarked:—
“ Generally a solitary instance of prostitution in a house no moromakes that house a brothel than one swallow can make a summer. ’’
And he referred to a passage in Stroud’s Judicial Dictionary which says“ the one proved instance may prove itself not a solitary but one of manyinstances ”.
In the present case J ohn Singho who was both informant and decoy saysthat when he went to the accused’s house it was the accused who openednegotiations and asked him whether he wanted a “ badua ” and whenhe answered this cryptic question in the affirmative, demanded Rs. 6 forthe “ badua ”, took him inside a room where later a woman was brought tohim. There is also his evidence that about a year earlier he took a gentle-man to the same house and procured a woman for him. This by itselfconstitutes no offence, but gives an indication of what went on in thehouse. In my opinion the learned Magistrate was justified on the materialbafore him in holding that the charge was proved.
I see no reason to interfere with the conviction but as regards the sen-tence I am inclined to accept the submissions made by Counsel for theappellant. The Ordinance provides a penalty for a first offence of a fine notexceeding Rs. 500 ‘‘or in the discretion of the Court to simple or rigorousimprisonment for a term not exceeding six months or to both such fineand imprisonment ”. In a matter like this where a Magistrate choosesto impose a sentence of imprisonment rather than a fine he must givereasons for so doing, or at least the proceedings must show that he hasexercised his discretion properly. I see no reason why the accused shouldhave been deprived of the option of a fine. Accordingly I delete thesentence of two months rigorous imprisonment and substitute therefora fine of Rs. 200 in default two months rigorous imprisonment. Subjectto this variation the appeal is dismissed.
Sentence altered.
1 {1934) 36 N. X. R. 300.
(1935) 37 N. X. R. 308.