Prasad v R [1977] FJSC 102; Criminal Appeal 95 of 1976 (11 March 1977)

IN THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION

Criminal Appeal 95 OF 1976

BETWEEN

1. GAYA PRASAD
s/o Ram Prasad
2. ASINATE PRASAD

AND

REGINAM

JUDGMENT

On the 13th October 1976 at Suva Magistrates Court the appellants were convicted after trial of jointly keeping the purpose of a hotel without being the holders of a licence issued in respect of the premises contrary to section 4(2) and section 10(1) of the Hotels and Guest Houses Act 1973.

The appellants have appealed against conviction on the grounds that there was no evidence that the premises were used as a hotel; and that evidence was adduced by the appellants that there were no guests but only tenants residing on the premises.

On the facts found by the trial Magistrate two men (P.W.2 and P.W.3) went to the premises in question seeking sexual intercourse with prostitutes. They were received by the second appellant and upon being informed by them that they wanted women she invited them to enter and referred them to a young man with whom they negotiated the price of women and rooms. Thereafter, to quote from the carefully prepared and reasoned judgment of the trial Magistrate, "they bought beer which they drunk on the premises, they paid for girls and rooms and they used both."

By virtue of section 2 of the Hotels and Guest Houses Act 1973, a hotel is "a boarding-house, lodging-house, guest-house, and any building, vessel, premises, structure, caravan or house on wheels or any part of any such building, vessel, premises, structure, caravan or house on wheels, not being a public institution, some part of which is used or occupied for the business of receiving guests or travellers desirous of remaining or dwelling therein for any period of time or to which persons are entitled to resort for accommodation for hire or reward of any kind."

In R. v. David Surendra (Suva Crim. App. No. 2 of 1973) this Court held that this description relates to premises of one type or another, or part thereof, into which persons are received and provided with such accommodation as is afforded in the way of rooms with or without meals at a stipulated charge; and that for the purposes of the Act, a distinguishing feature of a hotel is that there must be provision for persons to be received, which is a question of fact in each case.

On the facts of this case the trial Magistrate found that -

"Clearly P.W.2 and P.W.3 were received into one part of the building by the second accused and they went to another port to use the rooms there for the purpose of sexual intercourse. In my view the second accused was "using" that part of the premises nearest the door, where P.W.2 and P.W.3 were received, as a reception area and it matters not that there was no desk, table, chairs or the like there. It was simply 'a part of the premises used for the business of receiving guests or travellers desirous of remaining or dwelling therein for any period of time'. It matters not that P.W.2 and P.W.3 only spent short periods of time in the rooms with the women."

This is a perfectly correct application of the law to the facts of the case and fully disposes of the first ground of appeal.

As to the second ground of appeal the status of the prostitutes and others residing on the premises is neither here nor there. The relevant facts are that the two men (P.W.2 and P.W.3) were received into the premises as guests and paid for and were provided with accommodation and other services, and this was proved to the satisfaction of the trial Magistrate beyond a reasonable doubt. In any event, the evidence of the appellants was a tissue of lies and, as the trial Magistrate stated "... all part of a cover-up to allow these premises to operate as a guest house without a licence."

Although the trial Magistrate found as a fact that the two men paid for the accommodation and services provided he commented, obiter, that no payment of money is required to bring the case within the requirements of the Act and that it is not a requisite of the offence. That point was examined by the Court in R. v. David Surendra (supra) and, after full consideration of a number of English authorities on the meaning attached to such terms as boarding-house, lodging-house, guest-house, guest, traveller and lodger; the Court came to the conclusion that payment is an ingredient of the description contained in section 2; and it is for this reason that the words "at a stipulated charge" were included in that judgment. The fact that the trial Magistrate's comment is incorrect does not affect the outcome of this appeal, but I have drawn attention to it so that the prosecution may not be misled in any future cases of this type.

It is precisely the sort of mischief revealed by the facts of this case that the Hotels and Guest Houses Act 1973 is aimed at preventing. There is no merit in the appeal which is dismissed.

(Sgd.) Clifford H. Grant
Chief Justice

Suva,
11th March, 1977