034-NLR-NLR-V-43-THIDEMAN-v.-GUNASEKERE.pdf
DE KRETSER J.—Thideman v. Gunasekere.143
1941Present : de Kretser J.
THIDEMAN v. GUNASEKERE.237—M. C. Negombo, 30,548.
Soliciting a person in a public place—Meaning of expression—Vagrants
Ordinance (Cap. 26), ss. 7 (1) (a) and 9 (I) (a).
An Inspector of Police and a constable drove up to a place reputedto be a brothel and having halted their car by the side of the road,switched off the lights. The accused then approached the car and askedthe constable who was in civil clothes whether he wanted “ the goods ”,and agreement as to price having been reached the accused went in andbrought a woman, whereupon he was arrested.
Held, that the facts did not establish the offence of soliciting any personin a public place for the commission of any act of sexual intercoursewithin the meaning of section 7 (1) (a) of the Vagrants Ordinance.
Held, further, that the accused had committed the offence of knowinglyliving wholly or in part on the earnings of prostitution under section9 (1) (a) of the Ordinance.
^^PPEAL from a conviction by the Magistrate of Negombo.
L. A. Rajapakse, for the accused, appellant.
T.S. Fernando, C.C., for the complainant, respondent.
Cur. adv. vult.
July 10, 1941. de Kretser J.—
The appellant has been convicted, under section 7 (1) (a) of the VagrantsOrdinance, of the offence of soliciting in a public place a person for thepurpose of the commission of an act of illicit intercourse. The facts arethat an Inspector of Police and a constable drove up to a place reputedto be a brothel and having halted their car by the side of the road,switched off the lights. The accused then approached the car and askedthe constable, who was in civil dress, whether he wanted “ the goods ”,and agreement as to its price having been reached, he went in and broughta woman, whereupon he was arrested.
In a somewhat similar case Fernando J. expressed the opinion that itwas not the accused but the Police who did the soliciting. Notwith-standing some slight difference in the facts it seems to me that that iswhtet happened on this occasion also. If a person had innocently haltedhis car there, on the accused putting this question he would probablyhave been driven away. Here the conduct of the Police was that ofwould-be patrons.
It seems to me that ..even apart from this aspect of the matter theprosecution must fail. Soliciting connotes importunity, asking withearnestness, pressing of a matter and not mere inquiry. It may meaninviting, as when a trader “ solicits patronage ” but that again is not
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DE KRETSER J.—T hide man v. Gunasekere.
mere inquiry. Besides, publicity is one of the elements of the offenceand a private conversation on a public road does not come within thepurview of the section.
In my opinion the offence which the accused committed is that dealtwith'in section 9 (a). Considering how quickly he appeared, the natureof his very first- words, the subsequent haggling over terms, his goingin and promptly producing the woman, one easily infers that he know-ingly lives wholly or in part on the earnings of prostitution. There isalso the presumption created by the section. It is an offence with whichthe accused might have been charged on the very same facts and he maytherefore be convicted of it. His defence was a denial of the wholeincident and he has not suffered any prejudice. I accordingly set asidethe conviction and sentence and convict the accused under section 9 (1)and sentence him to three months’ rigorous imprisonment.
Conviction varied.