Ali v Reginam [1978] FJSC 46; Criminal Appeal 038 of 1978 (26 August 1978)

IN THE SUPREME COURT OF FIJI_
Appellate Jurisdiction

Criminal Appeal No. 38 of 1978

Between:

JAFFAR ALI
a/o Cheddi
Appellant

And:

REGINAM
Respondent

Mr. F.M.K. Sherani, Counsel for the Appellant
Mr. E.E.J. Cleave, Counsel for the Respondent

JUDGMENT

The appellant was convicted for keeping a hotel without licence contrary to section 10(1) of the Hotels & Guest Houses Act 27/73, and for keeping a brothel contrary to section 163(a) of the Penal Code. He was jointly convicted with one Asinate Dimisiwaqa, a Fijian woman, who does not appear in this appeal.

He complains that there was no evidence to connect him with the charges.

The charges describe the premises as 65, High Street in each case.

Mr. Sherani, for the appellant argued that the premises were not identified being referred to as 65, Amy Street or 65, High Street or Toorak Guest House by different prosecution witnesses and that the magistrate could not really find that the premises concerned were in fact 65, High Street.

65, Amy Street was not referred to by any prosecution witness giving evidence as to the user of the premises, but P.W.1 Secretary of the Hotel Licensing Board tendered the appellant's application for a hotel licence at 65, Amy Street which had been refused. P.W.1's evidence made no reference to the address mentioned in the charge and did not identify any particular building as being the subject of the application by the appellant for a hotel licence. There was therefore no confusion caused by his reference to 65, Amy Street. The prosecution witnesses who visited the premises and who gave evidence identifying them referred to them as Toorak Guest House or 65, Amy Street.

P.W.2, an Indian male, who went there for sexual intercourse described them as Toorak Guest House and he was in Toorak Guest House when the police raided it. P.W.4, a special police sergeant and P.W.5 a police corporal described the premises they raided as 65, High Street. They saw P.W.2 and a prostitute called Noor Jahan. On that evidence Toorak Guest House and 65, High Street are the same place.

It was also submitted that there was no sufficient evidence to support either charge. In that connection I am bound to say that P.W.5, Corporal Ram's evidence of the observations he maintained on these premises was in itself inadequate to found a charge of keeping a brothel. He kept observations on the premises on 31/1/77, 11/2/77 and 11th and 18th February, 1977 and his evidence demonstrates an ignorance of what is required of a policeman keeping such observations. He did not state the periods during which he maintained his watch and although he said he saw prostitutes frequent the premises he did not name them; nor did he state on what days and at what times he saw them enter the premises and whether they were alone or with men and whether the prostitutes eventually emerged alone. He does not state the number of men who entered during a period of hours and the number of men who emerged during such periods. There is considerable difference between a convicted prostitute i.e. a known prostitute and a woman who is suspected of prostitution. Anyone can say that he saw known prostitutes using premises but in my view such loose statements are not satisfactory evidence on which to establish the existence of a brothel. It is not necessary to establish that the women are convicted prostitutes if a detailed account of comings and goings shows that certain women went in and out with men several times in an evening or during the course of several evenings. There has to be some detailed evidence from which the court can be satisfied that their behaviour points to prostitution. P.W.5's evidence of his observations only happens to be of value because of the surrounding circumstances.

When the police party raided the premises on 25/2/77 they were halted by locked iron bar gates and a demand for admission accompanied by production of a search warrant was refused. The police climbed into the premises and discovered P.W.2 and the prostitute, Noor Jahan. Although P.W.2, said there were other girls on the premises neither of the policemen, P.W.'s 4 or 5, said that there were other known prostitutes on the premises apart from P.W.2's temporary bed-mate.

The evidence pointing to a brothel comes from the Indian male, P.W.2, who says that he went to the premises in December 1976 and again on the night of the police raid. On each occasion he saw the appellant's co-accused, (accused 2), and asked her for a woman; the charge was $6.00 each time which sums he paid to the co-accused. On the first occasion he had sex with a Fijian girl and on the second occasion with the prostitute Noor Jahan.

In cross-examination P.W.2 stated that ho saw two other girls on the premises.

P.W.2's evidence shows that the premises provide accommodation for, or were used by, more than one prostitute.

Although P.W.2 is the only male shown to have gone there to hire a prostitute P.W.5's evidence shows that other males did enter the premises and in the circumstances of this case that is rather significant evidence. I say this because P.W.'s 2, 4 & 5 reveal that entry is only gained via a locked gate. It is apparent that a visitor has to pause outside a locked gate where he can be scrutinised and he is required to state his business and pay a fee before being admitted beyond the reception area. Persons on lawful business such as police officers were refused admission.

In my view that, in the light of P.W.2's use of the premises, was sufficient to establish their use as a brothel and that the co-accused, who received money from the client allocated to him the prostitute and the room to be occupied, was engaged in keeping it.

With regard to the appellant there is no evidence that he was in the premises at any material time. There is nothing to show that he went there to collect money. He was not seen by the police until a week after the police raid and he than stated that he was the landlord. However, there is nothing to indicate that he is a resident landlord or that he was aware of the use to which the premises were being put. With respect to the learned magistrate I do not think it could be said that he was keeping a brothel. One cannot keep a brothel without being aware of one's business and there is no proof of mens rea.

If the appellant was to be charged at all on the evidence available I would have expected it to be under S.163(c) which makes it an offence for the landlord to let premises knowing that they are to be used as a brothel. Of course the evidence adduced falls short of proving any offence under S.163 P.C. against the appellant.

The evidence of P.W.2 shows that he paid $6.00 for a prostitute and he was allocated a woman and a room. No doubt the room was incidental to the hire of the woman but for a period of time P.W.2 enjoyed the privacy of the room allocated to him.

It appears to me that the mode of operating the premises was of the kind contemplated in the judgment of the Chief Justice in GAYA PRASAD & ASINATE PRASAD v. R. Cr. Appeal 95/76, reported at p.177 of Vol. I of the stereotyped Fiji Criminal Reports, as amounting to running a hotel.

For the same kind of reasons given in relation to the count of keeping a brothel I find that the evidence did not provide a case for the appellant to answer on the charge of keeping a hotel without a licence.

The appeal against both convictions is upheld and the fine if paid will be remitted.

I do not make any order for costs as against the prosecution.

J.T. Williams
JUDGE

Suva,
26th August, 1978.

Messrs. Sherani & Co., for the Appellant
Director of Public Prosecutions for the Respondent

Date of Hearing: 27th day of July, 1978.