MRS DOROTHY SILVA, Accused Appellant and INSPECTOR OF POLICE, CITY VICE SQUA

066-NLR-NLR-V-78-MRS-DOROTHY-SILVA-Accused-Appellant-and-INSPECTOR-OF-POLICE-CITY-VICE-SQUA.pdf


Dorothy Silva v. inspector oj Police, Pettah
Present: Pathirana, J., and Tittawella, J.MRS. DOROTHY SILVA, Accused Appellant and INSPECTOROF POLICE, CITY VICE SQUAD, PETTAH ComplainantRespondent.S. C. 12/76—M. C.—Maligakande—19422Brothels Ordinance 1889—Meaning of the term “ Brothel ”
S. 2(a) of the Brothels Ordinance No. 5 of 1889 reads as follows :—
“ Any person who,
(a) Keeps or maintains or acts or assists in the management of abrothel shall be guilty of an offence.
The accused-appellant was charged and found guilty of having on24th January 1975 at ‘ Sal Mai Savoy Buildings No. 2, Galle Road,Weilawatte, kept or managed a brothel. It was argued on her behalfthat ti is imperative tnai acts of indecency or sexual intercourseshould be committed or opportunities for such acts should beavailable in the premises itself to which persons of both sexes resortto for the purpose of prostitution in order to make such premises a* orotnei' witnm the meaning of the Brothels Ordinance.
Held, (i) That a construction should be given to the word41 brothel ” in the Brothels Ordinance consonant with the miscnicfsought to be suppressed by the Brothels Ordinance. A constructionsnouiu be given- wmcn wnl suppress the mischief and advance theremedy. The mischief sought to be suppressed by the BrothelsOrdinance is prostitution. In order to bring about an effective resultthe Courts musi give a meaning to the word “ brothel ” which wouldcarry uuc me oojecc oi tne nromeis Ordinance. If tne miseniei soughtto be suppressed by the Ordinance is the suppression of prostitution,it makes no difference that if instead of the acts of indecency orsexual intercourse taxing place in ihe very premises itself in wnichthe women are offered for prostitution, arrangements are made inthe premises to supply women living in the premises or elsewhereto be made available to men to be taken elsewhere for the purposeof committing acts of indecency or sexual intercourse. If anypremises are used to promote such activities such premise^ haveall the attributes of a brothel for the purpose of the BrothelsOrdinance.
That a “ brothel ” for the purpose of the Brothels Ordinanceis certainly what the word is understood in common parlance,namely a place where persons of both sexes resort to for the purposeof prostitution in the place itself. It also means a place wherearrangements are made whereby women living at the premises orelsewnere are supplied for the purpose of prostitution, that is tocommit acts of indecency or sexual intercourse either at the premisesitself or elsewhere.
The “live” element need not be present in the premises torender a place a ** brothel ” within the meaning of the Ordinance.If a resourceful brothel keeper thinks that he can circumvent theOrdinance without keeping women in the premises by thesubtler device of displaying the photographs of them in the premisesand soliciting men to make their selections from the photographsand adopting some method by which the woman answering to thedescription of the photograph is supplied from a place outside thepremises to be taken to a place outside the premises for the purposeof prostitution, a person resorting to this subterfuge is also guiltyof “ managing a brothel ” within the meaning of the Ordinance.
Appeal against conviction.I*— A 30717—3,261 (77yil)
554
PATHIRANA, J.—Dorothy Silva v. Inspector of Police, Pettah
A. H. C. de Silva with Anil de Silva for the accused-appellant.
' Priyantha Perera, Senior State Counsel, with P. Ramanathan,State Counsel, for the ALtorney-General.
January 1, 1977. Pathirana, J.—
The accused-appellant, Dorothy de Silva, was charged withhaving on 24-h January, 1975 at premises called “ Sal Mai ”,No. 2, Savoy Building, Galle Road, Wellawatte, kept or manageda brothel and thereby committed an offence under Section 2 (a)and punishable under Section 2 (1) of the Brothels Ordinance.She was found guilty and sentenced to pay a fine of Rs. 300.
The interesting point raised in this appeal is whether it isimperative that acts of indecency or sexual intercourse should becomm tted or opportunities for such acts should be available in.the premises Pself to which persons of both sexes resort to forthe purpose of prostitution, in order to make such premises a‘ brothel ’ within the meaning of the Brothels Ordinance.
The case for the prosecution which was accepted by thelearned Magistrate was that Gerard Perera who acted as thedecoy in this case on the day in question selected a girl calledMala Jayawardene out of four or five girls offered to him at thepremises in quest on by the accused for prostitution for whichhe paid the accused Rs. 75. No sexual act or any form of inti-macy took place at the premises, but the girl was sent to a hotelcalled Eurnpa House, a short d stance away, where by previousarrangement the decoy met her .and took her into a room of thehotel where preparations were made for- the sexual act whenthey wehe detected by the Pokce. .
The premises “ Sal Mai ”, No. 2, Galle Road, Wellawatte, in itsoutward appearance answered ~ the. description of a dressboutique with three sewing machines and about sixseamstresses. On a petition received by S. I. Ratnayake regard-ing certain activities at “ Sal Mai ” he detailed P.C. David towatch the place. P.C. David reported to S.I. Ratnayake thaton 19.1.75 he saw a male person speaking to the accused, givingher some money and leaving the premises. A little while later& woman left the. premises, got into a taxi which was driven toa place called Europa House a . short distance away. On thesame' day.be observed another male person going to “ Sal Mai ”and ;speak-tp .they accused1.: • This-, person left the place, crossedthe road "and went across .to the Piccadily hotel. On thisinformat on, Sub-Inspector Ratnayake decided to “ raid ” theplace and Gerard Perera was used as a decoy for this purpose.The raid took place on 24.1.75.
PATH HI AN A, J.—Dorothy Silva v. 1 napeclor of Police, Pet t ah
555
The learned Magistrate accepted the evidence of the decoyGerard Perera that on instructions from Sub-Inspector Ratna-yake he went on 24.1.75 at 11.30 a.m. to “ Sal Mai ” and askedthe accused “ who is there today ? ”, when the accused showedhim 4 or 5 girls out of which he selected the girl Mala Jayawar-dene for whom he paid Rs. 75 to the accused. He was told togo tov “ Europa House ” and that the girl would be sent there.According to him he went to “ Europa House ” and after a whilethe girl Mala came there in a taxi for which he paid Rs. 10.He booked room No. 11 on the 3rd floor of this hotel. The twoof them undressed themselves and were seated on the bed whenthe Police knocked at the door. When he opened the door hesaw Sub-Inspector Ratnayake. The girl had a towel wrappedaround her body at that time. The learned Magistrate has takenthe precaution to approach the evidence of the decoy with theusual caution in view of his past record.
Despite strong criticisms urged against the findings of thelearned Magistrate by Mr. A. H. C. de Silva, who appeared forthe accused-appellant, I am satisfied that no convincing reasonshad been urged by him for me to differ from the find ngs of thelearned Magistrate. The evidence of Gerard Perera is corrobo-rated by the evidence of two marked fifty rupee notes foundin the drawer of the accused out of the three marked 50 rupeeno'es which were earlier given by Sub-Inspector Ratnayake toGerard Perera. The Police found six girls n the premises on theday in question. In one of the hand bags of the girl Padma wasfound nude photographs. In the premises were also foundcontraceptive sheaths used by males. According to. Sub-InspectO”Ratnayake there were no indications at all that th^ placewas in fact used as a dress bout'que or where garments weresold. The evidence of Gerard Pereira is also corroborated byP.C. David who saw the transaction between Gerard Perera andthe accused through the transparent glass shutter. The detec-tion by Sub-Inspector Ratnayake of the girl Mala and GerardPerera in a room at “ Europa House ”, the girl wearing only atowel around her also corroborates the evidence of GerardPerera. The accused neither gave evidence nor called anyw tnesses. On this evidence despite the fact that no form ofsexual intimacy or intercourse took place at “ Sal Mai ”, thelearned Magistrate in a well-reasoned judgment held that onthe proved facts of this case the accused had “ managed abrothel ” within the meaning of the Brothels Ordinance.
Mr. A. H. C. de Silva, for the accused; appellant strenuouslycontended that for a premises to be a brothel within the mean-ing of the Brothels Ordinance some act of indecency or sexual
5S6PATHIRANA, 3.—Dorothy Silva v. Inspector of Police, Pettah
intercourse should be committed or opportunities for such actsshould be provided in the premises itself and in the absence ofsuch evidence the charge in the present case must necessarilyfail. The point raised in this case has not been the subject of anydecision by this Court. The reported cases deal with caseswhere at the time of detection men and women had been seenin suggestive and indecent positions at the premises in questionor where opportunities were provided for such acts. Morris v.Cornells—(1914 3 Balasingham’s Notes of Cases 48 ; Silva v.Suppu—(1919)21 N.L.R. 119 ; Toussaint v. Cecelia—(1935)
37 N. L. R. 30 ; Rosalin Nona vs. Perera — (1946) 47 N. L. R. 523 ;Podinona vs. Haniffa—56 N. L. R. 165.
Section 2 (a) of the Brothels Ordinance No. 5 of 1889 readsas follows:
"Any person who—
(a) Keeps or maintains or acts or assists in the managementof a brothel shall be guilty of an offence."
The draftsman of this Section had in fact borrowed the wordsof the corresponding English section, namely, Section 13 of theCriminal Law Amendment Act, 1885, which reads as follows :“Any person who—
(1) keeps or manages or acts or assists in the management
of a brothel• ■ shall on summary conviction in
manner provided by the Summary Jurisdiction Actsbe liable
The present English Law is contained in Section 33 of the SexualOffences Act of 1956 which is also similarly worded:
“ Section 33 : —
It is an offence for a person to keep a brothel, or manage,
or act, or assist in the management of a brothel”
In all three statutes the word “ brothel ” has not been defined.Prior to the Criminal Law Amendment of 1885 under thecommon law in England, a brothel would come under thedescription of “ a common bawdy house ”. In Stephen’s Digest ofCriminal Law, 6th Edition, page 152, the definition of a “ commonbawdy house ” is “ a house or room or set of rooms in any housekept for purposes of prostitution ”. In R. v. Holland. LincolnshireJustices—1882 (46) J.P. 312, (cited in Winter v. Woolf—(1930)A. E. R. at 625) a case decided before the Criminal Law Amend-ment Act of 1885, Grove J. referred to a “ brothel ” as follows :
“But what needs only to be proved is this, namely,
that the premises were kept knowingly for the purpose ofpeople having illicit sexual connection there."
PATHIRAJSTA, J.—Dorothy Silva v. Inspector of Police, Pettah
557
Lopes J. in the case stated :
“ What is the meaning of permitting the premises to be abrothel ? I think my brother Grove has given a very aptdefinition, namely, that is permitting people of opposite sexesto come there and have illicit sexual intercourse. That is avery complete and satisfactory definition of the wholematter. ”
It is reasonable to assume that the draftsman of Section 13 ofthe Criminal Law Amendment Act of 1885 would have beenaware of this decision which gives the restricted definition to theword “ brothel ” as a place where people resort to and have actsof indecency or sexual intercourse. But, nevertheless, the drafts-men of the English statutes chose advisedly not to define theword “ brothel The leading case on the definition of the word“ brothel ” in English Law is Singleton v. Ellison—1895 (1) Q. B.607. In this case a woman occupied a house frequented by dayand night by a number of men for the purpose of committingfornication with her. No other women lived in that house orfrequented it for the purpose of prostitution. Fornication andindecent acts would seem to have happened between some ofthe men and the respondent and there was evidence that the res-pondent received money from the men who frequented herhouse. While holding that the woman had not committed anoffence of “ keeping a brothel ” within the meaning of Section13 of the Criminal Law Amendment Act of 1885, Wills J. definedthe word “ brothel “ as follows :
“ A brothel is the same thing as a “ bawdy house ”—a termwhich has a well-known meaning as used by lawyers andin Acts of Parliament. In its legal acceptation it applies to aplace resorted to by persons of both sexes for the purposeof prostitution. It is certainly not applicable to the state ofthings described by the Magistrate in this case where onewoman was received by a number of men. ”
It is this definition which has guided subsequent English decis-ions and decisions of this Court. Stroud’s Judicial Dictionary,4th Edition, in dealing with the word ** brothel ” has thiscomment :
“ A brothel involves the idea of a place of resort. ”
In Morris V. Cornells—1914 (3) Balasingham’s Notes of cases,page 48, de Sampayo J. observed :
“ The Ordinance itself does not define what a brothel is,but as the provisions of the Ordinance are borrowed from theCriminal Law Amendment Act of 1885, the meaning attri-buted to the word under the English Law may be applied
1**—A 30747 (77/11)
658
PATHIRANA, J.—Dorothy Silva v. Inspector of Police, Pettah
here. In Singleton v. Ellison (1895)1 Q. B. 607 it was
observed that the word “ brothel ” in its legal acceptationapplied to a place resorted to by persons of both sexes forthe purpose of prostitution. ”
According to the facts in this case, two Europeans were foundeach lying with a Sinhalese woman in a separate room at thetime of the detection. Facilities therefore for sexual inter-course were provided in the premises itself. This case, therefore,is not much helpful to decide the point that arises before us. InPieris v. Magrida Fernando no act of indecency or fornicationwas spoken to by any of the witnesses as having occurred inthe premises itself. The evidence was that a number of womenoccupied it and men of all sorts visited it both by day and night.Spirits appeared to be drunk at the premises and fights weresaid to have taken place there. Wither J. applied the definitionof the word “ brothel ” in Singleton v. Ellison and held that therewas no evidence that the premises was a “ brothel ”. This case toois not helpful to decide the point raised in the present case.
In Silva v. Suppu—21 N. L. R. 119 two men were found in twoof the rooms in the company of two women who admitted thatthey had come there for the purpose of prostitution and that theaccused received money from them. Schneider A.J. applying thedefinition of the word “ brothel ” in Singleton v. Ellison heldthat the place was a “ brothel ”. Schneider A.J., however, thoughtof giving a definition to the word “ brothel ” for the purposes ofour law “ a meaning consistent with local ideas and conditionsHe defined the word “brothel” as follows :
“ Here we have no immoral women walking the streetspicking up men and resorting to some house for the purposeof prostitution. I have always understood the commonlyaccepted meaning of “ brothel ” locally to be a house runby a man usually called a “ brothel keeper ”, to which menresorted for purposes of prostitution with women who wereto be found in the house. I would hold that it is this mean-ing which our legislature meant the word “ brothel ” to havein local Ordinances, despite the fact that the language of ourOrdinances appears to have been borrowed from the EnglishCriminal Law Amendment Act, and the words in sub-section (2) would appear to draw a distinction between a“ brothel ” and a place resorted to “ for the purpose ofhabitual prostitution ”.
In Wickramasuriya v. Mary Nona—24 N. L. R. 26, opportunitiesfor sexual intercourse were provided in the premises itself. DeSampayo J., referred to the fact that there is no definition of theterm “ brothel ” in the Ordinance and having referred to the
PATHIK.ANA, J.-—Dorothy Silva v. Inspector of Police, Pettah
559
.cases of Singleton v. Ellison, Peiris v. Magrida Fernando andMorris v. Cornells, however, made the following comment onSchneider A. J’s defintion in Silva v. Suppu :
“ But in a more recent case Schneider J. enunciated a viewwhich makes the matter wofrthy of reconsideration, andwhich at all events appears to me to render the Ordinancemore effective in its operation. For in Silva v. Suppu thelearned Judge expresses the opinion that the Ordinanceused the word “ brothel ” not in the strict English Law sense,but as commonly understood locally, that is to say,it is a place “ to which men resorted for purposes of prosti-tution with women who were to be found in the house Theparticular language of Singleton v. Ellison (supra) which•discusses the meaning of the word, appears to me to be dueto the peculiar circumstances of that case, for there a womanwho used to receive men into her rooms for the purposes ofsexual intercourse with herself alone was held not liableto be convicted for “ keeping a brothel The occupation ofa house or room by a single prostitute may not constitute ita brothel, but I do not myself see that the exigency oflanguage or of law requires that, in order to make a houseof ill-fame a brothel, women should resort to it from out-side and that it is not sufficient if prostitutes reside in thehouse and men visit them there for immoral purposes. ”
The decisions in both Silva v. Suppu and Wickramasuriya v.Mary Nona have shown a tendency to depart from the definitionof “ brothel ” as a place of resort in Singleton v. Elftson, “ in■order to render the Ordinance more effective in its operationThe decision, however, in Wickremasuriya v. Mary Nona is not-very helpful to decide the question arising in the present case.
In Eliyathamby v Wijelath Menika (1934) 36 N. L. R. 300facilities for sexual intercourse were provided in the placeitself. Although on the facts the accused was acquitted, Akbar-J. made the following observations :
“ In my opinion, before an accused person can beconvicted under Section 1 (1) of Ordinance No. 5 of 1889,there must be evidence as pointed out by the Judges whodecided the cases I have named above, that the premiseswere used as a brothel, that is to say, evidence to provethat men came there for the purposes of prostitution withwomen or with one woman in the premises.
This case also is not helpful to decide the case before us.
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PATHIRANA, J.—Dorothy Silva v. Inspector of Police, Pettah
Soertsz J. in. Tcmssaint v. Cecilia also endeavours to give theword “ brothel ” a wider meaning “ consistent with local ideasand conditions ” in order to render the Ordinance more effectivein its operation by adopting the approach of de Sampayo J. inWick-ramasuriya v. Mary Nona on this question. In this casetoo facilities for sexual intercourse were provided in thepremises itself. Soertsz J. having referred to the definition of“ brothel ” in Singleton v. Ellison and the restricted definitionby Stroud in the Judicial Dictionary as involving “ the idea ofa place of resort ” goes on to say at page 308 :
“ It would appear that there is no etymological justifica-tion for restricting the meaning of the word brothel in thismanner. The Oxford Dictionary points out that “ brothel ”originally was applied only to persons and meant “ a worthless, abandoned fellow”, “an abandoned woman, a prosti-tute ” and that the correct old word for a house of ill-famewas “ bordel ”. It goes on to say that the personal sense ofthe word became obsolete and it now remains as a substi-tute for the original word “ bordel ”. This dictionary defines“ brothel ” in the modern sense as “ a house of ill-fame, abawdy house ”. A “ bawdy house ” is defined as a house ofprostitution ” and “ prostitution ” as “ the offering by awoman of her body to indiscriminate intercourse with menfor hire.
In this view of the matter, it is not clear why Wills J’sdefinition of brothel in Singleton v. Ellison (Supra) as “ abrothel, or bawdy house is a place where people of oppositesexes are allowed to resort for prostitution ” has been under-stood by the editors of Stroud’s Judicial Dictionary in thesense I have referred to, that is to say, as “ involving theidea of a place of resort ” and excluding the acts of prosti-tution on the part of women who are occupiers or jointoccupiers of the house in question ”.
Soertsz J. then proceeded to introduce two modifications to thedefinition of the word “ brothel ” suggested by Schneider A. J. inSilva v. Suppu.
“ Instead of saying “ run by a man usually called a“ brothel keeper ”, I should say “ run by a person usuallycalled a brothel keeper, and instead of saying “ for thepurpose of prostitution with women who were to be foundin the house ”, I should say “ for the purpose of havingsexual intercourse with women who were to be found inthe house or with women who resort to or are introducedinto the house. ”
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PATHIRANA, J.—Dorothy Silva v. Inspector of Police, Pettah
Here again, the facts of the case are different from the factsin the present case as such this decision is not helpful in decid-ing the case before us.
If in the words of Soertsz J. in Toussaint v. Cecilia, a Brothelis a place used for the purpose of having sexual intercourse withwomen who were to be found in the house or with women whoresort to or are introduced into the house, what difference doesit make if these same women are introduced to men at thehouse to be taken out for prostitution elsewhere ? In both casesthe purpose for which the place is used is the same, namely, tosupply women to men for prostitution. The aim of the BrothelsOrdinance is to suppress prostitution.
Mr. Priyantha Perera, Senior State Counsel, submitted thata construction should be given to the word “ brothel ” in theBrothels Ordinance consonant with the mischief sought to besuppressed by the Brothels Ordinance. A construction should begiven which will suppress the mischief and advance the remedy.His submission was that the mischief sought to be suppressedby the Brothels Ordinance was prostitution. In order to bringabout an effective result the Courts must give a meaning to theword “ brothel ” which would carry out the object of the BrothelsOrdinance. If a narrow construction is given to the word“ brothel ” as suggested by the Counsel for the accused-appellantit would virtually give a licence to running houses of ill-fameby using the subtler method of keeping a number of women inthe premises and allowing them to be taken out for prostitutionelsewhere.
Prostitution has earned the reputation of being th% world’soldest profession. Over the ages in spite of the laws enacted tosuppress prostitution, man’s ingenuity (not to mention women’s)has devised newer, subtler and more sophisticated methods toevade and circumvent these laws. One normally associates abrothel as a place where persons of both sexes have resort tocommit acts of indecency or sexual intercourse in the premisesitself. This is the notion of a brothel in the popular mind. If themischief sought to be suppressed by the Ordinance is the sup-pression of prostitution what difference does it make if insteadof the acts of indecency or sexual intercourse taking place inthe very premises itself in which the women are offered forprostitution, arrangements are made in the premises to supplywomen living in the premises or elsewhere to be made availableto men to be taken elsewhere for the purpose of committing actsof indecency or sexual intercourse ? If any premises are used topromote such activities, in my view, such premises have all theattributes of a brothel for the purpose of the Brothels Ordinance.
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PATHIRANA, J—Dorothy Silva v. Inspector of Police, Pettah
Maxwell on Interpretation of Statutes, 12th Edition, page 40quotes the following passage from Heydon’s case in regard tolegislation which seeks to suppress the mischief and advance theremedy.
“ The true reason of the remedy ; and then the office ofall the Judges is always to make such construction as shallsuppress the mischief and advance the remedy, and tosuppress subtle inventions and evasions for continuance ofthe mischief, and pro privato commodo, and to add forceand life to the cure and remedy, according to the true intentof the maker of the Act, pro bono publico. ”
In support of his submission that a law like the Brothels.Ordinance should be construed with a view to bringing aboutan effective result, Mr. Priyantha Perera, cited the case ofSmith v. Hughes—(1960) 1 W. L. R. 830. In this case two commonprostitutes standing on a balcony or behind windows in theirhouse, severally solicited men passing in the street by tappingon the balcony rail or window pane, attracting their attentionand by inviting them into the house. Each of them was chargedbeing a common prostitute she did solicit in a street for thepurpose of prostitution contrary to Section 1(1) of the StreetOffences Act of 1959 which made it an offence for a commonprostitute “ to solicit in a street for the purpose of prostitutionIt was contended on behalf of the accused that the balconyand the windows were not “ in a street ” within the meaningof Section 1(1) of the Street Offences Act and therefore soli-citing was not “ in the street ”. Lord Parker, C.J. rejected thiscontention at page 832 : —
“ The sole question here is whether in those circumstances,each defendant was soliciting in a street or public place-The words of Section 1(1) of the Act of 1959 are in thisform : ‘ It shall be ’ an offence for a common prostituteto loiter or solicit in a street ‘ or public place for the purposeof prostitution Observe that it does not say there speci-fically that the person who is doing the soliciting must bein the street. Equally, it does not say that it is enough ifthe person who receives the solicitation or to whom it isaddressed is in the street. For my part, I approach the matterby considering what is the mischief aimed at by this Act.Everybody knows that this was an Act intended to cleanup the streets, to enable people to walk along the streetswithout being molested or solicited by common prostitutes.Viewed in that way, it can matter little whether the pros-titute is soliciting while in the street or is standing in adoorway or on a balcony, or at a window, or whether thewindow is shut or open or half open ; in each case her soli-citation is projected to and addressed to somebody walking
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in the street. For my part, I am content to base my decisionon that ground and that ground alone. I think themagistrate came to a correct conclusion in each case, andthat these appeals should be dismissed. ”
A wider construction was given to the word “ in the street ”in order to suppress the mischief aimed at by the Act, viz.,prostitutes soliciting in streets for the purpose of prostitution.
Mr. A. If. C. de Silva for the Appellant submitted that if theinterpretation that was sought to be placed by learned StateCounsel on the word “ brothel ” was accepted it could lead tostartling consequences capable of making any place including aplace of worship a brothel. As an extreme example he gave thecase of a person who frequents a place of worship in the companyof attractive women and in the place of worship he makesarrangements for the women to be taken out by men forprostitution elsewhere. His contention was that by no stretch ofimagination could such a place of worship come within themeaning of a “ brothel ” under the Brothels Ordinance. Myanswer to this hypothetical example given by Mr. de Silva is thatif the facts are proved as stated by him, then the person whomakes the arrangements in the place of worship whereby womenare offered for prostitution to men to be taken elsewhere for thatpurpose, the person concerned is “ managing a brothel ” in theplace of worship within the meaning of the Brothels Ordinance.
While a “ brothel ” for the purposes of the Brothels Ordinanceis certainly what the word is understood in common parlance,namely, a place where persons of both sexes resort to for thepurpose of prostitution in the place itself, in my view, it alsomeans a place where arrangements are made whereby womenliving at the premises or elsewhere are supplied for the purposeof prostitution, that is to commit acts of indecency or sexualintercourse either at the premises itself or elsewhere. If thedefinition is restricted to what is understood in common parlanceonly it would give the green light to houses of ill-fame tomushroom and proliferate like hawkers’ sheds using the methodadopted in the present case where girls are openly offered atone place for prostitution for sexual intercourse or acts of in-decency to be committed elsewhere. Such a construction of theword “ brothel ” would fail to achieve the manifest purpose ofthe legislation and reduce the legislation to futility. The widerconstruction I have put on the word would bring about theeffective result aimed at by the legislation, namely thesuppression of prostitution, by suppressing “ subtle inventionsand evasions for the continuance of the mischief ” by adding“ force and life to the cure and the remedy according to thetrue intent ” of the Brothels Ordinance. This construction, toborrow the words of Schneider A. J., keeps abreast “ with local
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TITTAWELLA, J.—Dorothy Silva v. Inspector of Police, Pettah
ideas and conditions ” and " renders the Ordinance more effectivein its operation ” to meet newer and subtler methods calculatedto circumvent the Ordinance.
I might even add that the “ live ” element need not be evenpresent in the premises to render a place a ‘ brothel ’ within themeaning of the Ordinance. For example, if a resourceful brothel-keeper thinks he can circumvent the Ordinance without keepingwomen in the premises by the subtler device of displaying thephotographs of them in the premises and soliciting men to maketheir selections from the photographs and adopting some methodby which the woman answering to the description of the photo-graph is supplied from a place outside the premises to be takento a place outside the premises for the purposes of prostitution,in my view, a person resorting to this subterfuge is also guiltyof “ managing a brothel ” within the meaning of the BrothelsOrdinance.
For these reasons, I agree with the conclusion of the learnedMagistrate that the prosecution has established that the accused-appellant on the evidence in this case was “ managing a brothel ”within the meaning of Section 2 (a) of the Brothels Ordinance.The conviction and sentence are affirmed and the appeal isdismissed.
Tittawella, J.—
I have read the judgment of Justice Pathirana. I am in agree-ment with his reasons and conclusions. My own views are givenbelow.
The accused-appellant has been found guilty of having on24.1.75 at “ Sal Mai ”, Savoy Building, No. 2, Galle Road, Wella-watta, kept or managed a brothel. She was convicted underSection 2 of the Brothels Ordinance and fined Rs. 300.
The Police had received information that a brothel was beingrun at these premises which was ostensibly a Dress MakersShop. The place had been watched thereafter and it was observedthat men were entering the place from time to time. Someyoung girls were then seen coming out of it and going in taxistowards nearby hotels followed by these men. The accused wasalso seen receiving money from the men prior to the girlsleaving the premises.
On 24.1.75 a police decoy had gone to the premises with threemarked fifty-rupee notes. He had inquired from the accused asto who was available that day. She showed him four or fiveyoung women who were inside. The decoy selected one andpaid the accused-appellant Rs. 75. He was asked to go to a nearby
TITTAWELTjA, J.—Dorothy Silva v. Inspector of Police, Pettah
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hotel called Europa House saying that the young woman wouldcome there. He left the place thereafter in a taxi. At EuropaHouse the decoy booked a room for the two of them. Havingordered a bottle of beer they entered the room, stripped them-selves of their clothes, and were getting ready to have sexualintercourse. Police officers who were watching all this hadthen come up to the hotel room and tapped at the door. It wasopened from within and the decoy and the woman were seeninside only with towels round them. The police then rushed upto the “ dress boutique ” of the accused and there were abouteight young girls at that time. This was about 2.30 p.m. of theday. Two of the three marked fifty-rupee notes were found inthe drawer of the accused. There was no indication whatsoeverto show that the premises were being used as a dress makersshop.
These facts were given in evidence at the trial. The accusedwho was represented by Counsel did not call or give anyevidence on her behalf. The facts were not seriously contestedat the trial. It was however contended that as sexual intercoursedid not take place at the Sal Mai building where the accused-appellant had her “ dress makers shop ” it could not be saidthat she was running a brothel there even though girls werepresent on the premises. The learned Magistrate in a carefuljudgment having analysed the facts very fully has acceptedthe evidence led for the prosecution. He has also rejected thelegal submissions made on behalf of the accused-appellant andconvicted her on the charge.
In appeal learned Counsel for the accused-appeUant hasdrawn our attention to a number of contradictions, infirmitiesand improbabilities in the evidence. I have examined them alland am unable to say that the learned Magistrate was wrongin accepting the testimony of the witnesses for the prosecution.It must also be noted in this connection that the facts were notseriously contested at the trial and no cross-examination hadbeen directed on any of the factual matters that have beenraised in appeal. That the learned Magistrate had not dealt withall of them exhaustively in the manner suggested by thelearned Counsel for the appellant cannot therefore be the sub-ject of serious complaint. The accused-appellant cannotsucceed on this ground.
The question of law raised however is a novel and an interest-ing one. The accused-appellant has been convicted of keepingor managing a brothel at “ Sal Mai ”, Savoy Building, GalleRoad, Wellawatta. Admittedly no sexual intercourse takes placeat these premises. The women were selected from here on pay-
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TIT1AWELLA, J.—Dorothy Silva v. Inspector of Police, Pettah
ment of money and then taken to places determined by theappellant where sexual intercourse takes place. It was submitted,that since no sexual intercourse takes place at “ Sal Mai ” itcannot be considered to be a brothel.
The Brothels Ordinance enacted in 1889 has as its long title“ An Ordinance To Provide for the Suppression of Brothels. ”There is no definition in the enactment of the word “ brothelIn the case of Pieris v. Magrida Fernando, 1 N. L. R. 212, Withers,J. said that the word brothel has a well known legal acceptanceand defined it as follows : —
It applies to a place to which persons of both sexes haverecourse for the purpose of prostitution.
In that case a number of women were in occupation of thepremises and men of all sorts visited it both by day and night.Spirits were drunk there and fights were said to take place.However not a single act of indecency or fornication is spokento by any of the witnesses as having occurred in the housewhich was said to be used as a brothel. The conviction had there-fore to be set aside.
In Silva v. Suppu 21 N. L. R. 119 there was evidence to provethat the house in question was run by the accused so that womenwho were prostitutes had access to it for the purpose of prosti-tution and men visited it, paying the accused a consideration andwere allowed access to the women for purposes of prostitution.Schneider J. said—
This view of the facts satisfies the acceptation of the term“ bibthel ” according to English Law. But if it were reallynecessary to define a brothel for the purposes of our ownlaw, I should feel inclined to give that term a meaningconsistent with local ideas and conditions. Here we have noimmoral women walking the streets picking up men andresorting to some house for the purpose of prostitution. Ihave always understood the commonly accepted meaning of“ brothel ” locally to be a house run by a man usually calleda “ brothel-keeper ” to which men resorted for purposes ofprostitution with women who were to be found in the house.
In Wickremasuriya v. Mary Nona, 24 N.L.R. 26, De Sampayo, J.preferred the extended interpretation given by Schneider, J. inSilva v. Suppu to that given by Withers J. in Pieris v. MagridaFernando for the reason that it “ renders the Ordinance moreeffective in its operation ”.
In Toussaint v. Cecilia, 37 N. L. R. 309, Soertsz J. refers to thedictionary meaning of “ brothel ” as a “ house of ill-fame, a
TITTAWEI/LA, J.—Dorothy Silva v. Inspector of Police, Pettah
667
bawdy house A “ bawdy house “ is defined as a house of “ pros-titution ”, and “prostitution ” is the offering by a woman of herbody to indiscriminate intercourse with men for hire. Soertsz, J.also preferred to accept the definition given to a brothel bySchneider J. in Silva v. Suppa as being good “ locally ” andconsistent with “ local ideas and conditions
A consideration of the above authorities indicates that therehas been no attempt at a universal definition of a brothel. Thedefinition given in each case has some direct relation to thefacts and circumstances of that situation. One discerns a desireto suit the term to “ local conditions ” and to “ local ideas andconditions ”. As far as I have been able to ascertain there is nolocal case where the offering of women for sexual intercoursetakes place at one point and the intercourse itself is at anotherpoint as for instance in a separate building. The reason for thisnew modus operandi is not far to seek. In recent times there havecome into existence numerous hotels and resorts in the city andelsewhere. It is a comparatively simple arrangement to offerat one point women for sexual intercourse and determine thatthe intercourse itself would be at another point, decided by theperson who transacted the earlier business of offering thewomen. This is precisely what has occurred in the instant case.The earlier activity of keeping or managing a brothel is beingcontinued but of course in a more sophisticated manner. Thequestion that presents itself to us is whether the provisions ofthe Brothels Ordinance of 1889 are too feeble to stand up tothis new challenge. I do not think so.
Section 2 of the Brothels Ordinance penalises a person whokeeps or manages a brothel. A brothel is a house of prostitutionand prostitution is the offering of the body of a woman for indis-criminate sexual intercourse with men for hire. The uncontra-dicted evidence in the instant case shows that the appellant hada number of women at “ Sal Mai ” in the Savoy Building atWellawatta for the purpose of hiring them to men for sexualintercourse. The selection is made and the money paid at thatpoint. The clearest evidence is available both at the time of thetransaction and later that the hiring was for the purpose ofsexual intercourse. The appellant in my view has done no moreor no less than keeping or maintaining a brothel. The antiquatedmodes and procedures have been abandoned to a more commer-cialised and sophisticated method in keeping with modern trends.I have therefore no difficulty in holding that the appellant comeswell within the ambit of the section and that her appeal musttherefore be dismissed.
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Nadaraja v.Republic of Sri Lanka
Learned Counsel for the appellant however submitted thatthe proper approach to the question would be to ascertainwhether the legislature at the time of the enactment of theOrdinance in 1890 intended to bring within its fold the factsof the present case. This clearly cannot be the true approachand I am unable to agree with this proposition. Broadly speakingthe intention of the legislature in 1890 was the suppression ofprostitution. The interpretation I have adopted is no more thanan attempt, however feeble, towards the fulfilment of thatobjective.
Appeal dismissed.