1939-05-22 — Page 11

HONGKONG DAILY PRESS

APPEAL JUDGMENT

Magistrate's Action Is Criticized

(Continued from Page 7)

SECOND APPEAL The action of Mr. Forrest in dismissing two summonses re lating to the keeping of a lodging house for prostitutes and the keeping of a brothel. without taking any evidence and even though pleas of guilty had been entered, was criticised by their Lordships in their decisions, which were also handed down on Saturday.

The judgments arose out of the

In connection with the first case. the decision of the Chief Justice

was as follows:

that the respondent was the to be interpreted so as to conform keeper of the premises but he with the general aim of the Or proceeds to argue that the strict dinance. In the circumstance in reading of the relevant section of which the corresponding section the Ordinance would work in- was enacted in 1897, it is esay to tolerable hardship un prostitutes, see that a prostitute was and so by Implication negative from exploitation by tramckers in the declared purpose of the Legis one of the tolerated and inspected lation as stated in the short title house

women or girls as the be.

than in an

(1) Finally, 1

safer

uncontrolled

GENERAL

AUXILIARY

NURSING

SERVICE

An examination in First Ald was held in Chinese at the Queen examiners were Drs. S.Y. and H. Mary Hospital on May 5. The Y. Cheng.

the examiners and will be award

The following ladies satisfied ed the St. John Ambulance As sociation Certificate in First Aid in due course:-- Lan, Chan

Chu Zou Leung, Chan Yuek

Kin Ming.

Cheung Shun Mong, Chue Lai King. Chan Tsau Hung, Chung San Yin, Chan Wai Lin, Chan Mai Yin. Tak Hing. Chiu Mel Ching. Kwong Chue

Sau Fong. Ku Lan 31 Ng satisfied

Chun, Wong Yuet Sin. Ho Yan Ching. Lau Wal Him, Li Sau Lo Fung Lok. Lau Foon Yung, Ha, Li Kam Chuen. Lat Shin Ying. Li Po Fai, Lal Suet Ying, Li Ping U, Lai Kwal Sang. Sun Hing Bun. vip Sun Of. Yau

Kwan Fung. Yu Fon Ying, Yau Wai Mary Yip, Yau Wat Chee.

to

from

Yuen

Fun.

:.

"

URBAN COUNCIL

MEETING

Nightsoil Disposal

Question

At the Urban Council meeting to be held to-morrow at 4.15 p.m. will move the Chairman, pursuant to notice,

"That this Council, having visited the site of the proposed flush latrine in Lower Lascar Row and having considered the objections raised by the owner of the Cen- tral Theatre, as set forth in Mesars

of the opinion that these oblec- Deacons letter of April 13, 1939, to the Hon. Colonial Secretary, 18,

tions are not valid.

The Council

re-affirms the resolution made at the meeting held on November 8, letter of November, 9, 1938, to the 1933, as set forth in the Secretary's Hon. Colonial Secretary."

Mr. B. Wang Tape, pursuant to notlée, will ask:-

Is the Chakman aware that nightsoil instead of being disposed of by authorized means, is some- and washed down the drains? times dumped into open channels

discover whether this is being done Will the Chairman take steps to to prevent any repetition?"

of the Ordinance, inasmuch as the establishment elsewhere. It aim- deprivation of living and "sleeping ed, in fact, to drive prostitutes accommodation for a prostitute into such tolerated houses by cannot be. for the protection of suppressing all others, and it is case may therefore, in its strictest inter- pretation, inapplicable to present Paragraphs 7 and 8 of the case conditions, such tolerated houses appeals brought by the Orown stated are in the following terms: no longer existing to ensure the against the decisions of Mr. For-

7-The reasons for which I found freedom of the prostitutes. "gest in dismissing the two follow-that appellant was unable on his

ing, summonses. - Ho

Fo-kam, own admission to prove fully the that it never was the considered widow, for keeping a

brothel at charge against respondent were as intention of the Legislature No. 32 Aldrich Lane, prostitutes follows:

make it a penal offence to supply lodging house ut 10 Gough Street,

(1) It is admitted that the pre-a prostitute with one of the neces- first floor, on January 10.

mises as described by appellant sarieg" of "life, viz., shelter fell within the definition of athe clements. Yet that brothel in

is pre section 2 of the said cisely

the effect which would Ordinance; but I hold that section follow the conviction of a princi- This is an appeal by way of case 12 of the Ordinance No. 5 of 1938, pal tenant under this section in stated from the refusal of the having been brought forward sub cases such as the present; few, if magistrate to convict in the fol- stantially unchanged since its en-any, Chinese prostitutes are well lowing circumstances.

actment in the days of tolerated enough off to rent complete The evil, recited is but the motive The respondent on January 12, he uses, works unintended hardship floor for the sole occupation of for legislation: the remedy may 1939 was charged under section 12 when applied rigorously in the each prostitute: persons other both consistently and wisely be of the Women and Girls Protection present altered conditions: and than prostitutes object to sharing extended beyond the cure of that Ordinance. No. 5 of 1939, with that that section must be read in a floor with a prostitute; there evil, and keeping a brothel. To this inconfunction with what is known fore, if a prostitute is to reside whole act a wider intention than

Kon a review formation she pleaded guilty but and expressed as the purpose of anywhere in a tenement building that expressed in the preamble the magistrate without taking any the Ordinance as a whole; that (and the vast majority of houses appears to be the real one effect evidence and without recording purpose is expressed plainly in then the clty are

tenement build-is to be given to it notwithstand-tu the fact that he had entered a title of the Ordinance as the pro-ings), it must be in the same flooring the less extensive import of plea of not guilty on her behalf tection of women and girls, and, with other. prostitutes. If the the preamble." dismissed the charge,

In so far as its provisions affect mere fact of such sharing and the

This appeal is allowed. I desire

The to say emphatically prostitutes, the protection afford-practice, of prostitution by the case is remitted to the magistrate that for such a summary proceed can only be that against the tenants therein constitutes the with a direction to convict. dure I know of no authority. It is various classes of persons who as floor share" a brothel then it

LAST APPEAL. a magistrate's primary and per- traffickers, brothel mistresses, bro- follows

For eating house licence for No. that the law, so Inter- manent duty to hear and deter-thel bullies, and in other capaci-preted, denies to the prostitute one Lordship said:

Dealing with the last appeal, His 188, Spring Garden Lane, ground mine charges brought before him, ties prey on such women, and in cf the necessaries of life; a view

Boor: No. 5, D'Agular Street, and, except where a plea of guilty one way or another control their which any reasonable man

"This appeal by way D case round floor: No. 42A, Main Street, Is tendered and accepted a hear movements so as to prevent them regard as inhumane and uncon- appeal No. 1 of 1939,

stated, was argued together with Stanley, ground and first floor; No. ing and determination, can only from abandoning a shameful mode scionable,

the only 187, Connaught Road Central, be on the sworn testimony of the of life.

difference being that the respon- ground floor; parties and

dent in this case was charged with keeping certain premises as a lodg-manufacture Gourmet Powder in For food preserving licence to ing house for prostitutes, in con- the premises un Lot No. 753, 8, D: travention of section 12 of the Pro-1, Sheung Sha Po, Kowloon City: tection of Women and Girls Ordin-

For food factory licence for No. ance 1938.

floor. 238, Queen's "Road, Central Arst

their witnesses. A ་ mandamus, would on application. clearly have been directed against 619)

in a

regular

manner but the

27

TOLERATED HOUSES

QUESTION OF LAW

will

3. The question of law arising on the above statement for the This reading of the par opinion of this court is therefore the magistrate, calling on him to pose of the Ordinance is corro- hear and determine this charge borated when the circumstances can properly be hrought under an whether a charge of this nature in which the present section 12 Ordinance the dedared purpose of magistrate, having taken, the un-was originally enacted are consi-which is the protection of women usual course which we have des-dered: this section goes back in ertbed, then consented to state a substantially its present shape at danger from which it is sought to and girls, unless the particular case, though, under section 100 of least to the Ordinance of the Magistrates Ordinance 1932 hehe.. to times when certain houses question, is, or is capable of being. 1897- protect the women or girls in could do so only after hearing and in the Colony were set apart and determination.

tolerated for the purpose of pros-

jspected. titution, and their inmates licensed der which the charge was brought Section 12 of the Ordinance un- MAGISTRATE'S DECISION to practise prostitution either on reads: Every occupier or keeper The magistrate's grounds for or off the premises: a woman was of a house who uses it or know coming to hls decision may be admitted to those houses only ingly permits it to be used as a summarised thus:-The respondent after the authorities were satisfied lodging house for prostitutes or as was principal tenant of the pre- that she went there of her own a brothel shall be liable on sum- mises in question in which resided free will, and the premises were paid to the respondent a axed no others than those so admitted two hundred and fifty dollars and a fine not exceeding monthly rental. On the day com were present. Other plained of the three women were aimed at in the system of tolerat-not exceeding three months, for

ends were to imprisonment for any terms on the premises with a number of ed house, but above all came the second offence (whether in respect males and all stated presumably protection of women against of the same or other premises) to in the presence and hearing of the traffickers and others ejusdern respondent that they were there generis. This section.

a fine not exceeding five hundred therefore. for purposes of prostitution. The coming as it does in an Ordinance any term not exceeding six months. dollars and to imprisonment. for magistrate concedes that

these the remainder of which clearly and for a third or any subsequent facts established that the pre-aims at the protection of women offence (whether in respect of the mises were used, as a brothel, and from various dangers, s. I hold same or other premises)" to a fine

three prostitutes each of whom visited frequently to ensure that offence to

mary conviction, for the first

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SANITARY ESTIMATES

the appointment of a Committee Minate by the Chairman relative consider the proposed changea the Sanitary Department's

Estimates for 1940.

The following applications will alsu be considered:

For a food preserving licence for

The magistrate again adopted the same irregular procedure, in plea of guilty from the respondent, Nu. 44. Tal Yuen Street, ground that, having taken and recorded a

acquitted the respondent without he disregarded that plea and floor.

hearing any evidence.

magistrate "sought to justify his The main ground on which the

dismissal of the information was the divergence which he found be- tween the Intended scope of the Ordinance as indicated in its short

title and the express provisions of the section under which the res pondent was charged, the section, under which the res-

add to what I have just said in dealing with Appeal No. 7 of 1939.

On that point I have nothing to

In this case, however, the, magis- trate has stated in his case that the tion "who uses it or knowingly per- operative words of the relevant sec- mits it to be used as a lodging house icr prostitutes" are so ambiguous for their construction, in the ex- as to compel him to seek guidance,

pressed intention of the Legisla ture as stated in the short title to the Ordinance.

not exceeding one thousand dollars and to imprisonment for any term not exceeding twelve months.

It is refreshing to And so clear and unambiguous a section in an Ordinance other sections of which clearer, language could have been I find it difficult to imagine what present such dificulties of cop employed to designate the relations struction. It provides in the sim-between a willing occupier and a plest language that any person prostitute tenant. who is the occupier or keeper of the opeupler of the house knows Provided that bouse or part of a bouse and i knowingly permits it to be used herein, that her lodger is a proe- when she lets accommodation as a brothel. within the classic titute or, later discovering the pro- definition in singleton vs. Ellison fession of her lodger, allows the 1895 1 QB.D. p. 607 which is em lodger to continue in bodied in the interpretation section, the offence is complete, and the tion of the Ordinance and the

iespondent's plea of guilty to the respondent's knowledge of the use to which the premises were put substantiates her knowledge. The charge in this case conclusively is inherent in her original un-

relations of landlord and lodger solicited plea of guilty. The only

was established to the satisfaction question for our decision therefore is whether because of the wording

of the magistrate, and it was his of the short title and preamble to duty thereupon to and the charge the Statua the words of section

proven and to convict. ** 12 must be held to mean some- thing other than what they express In simple language.

AMBIGUITY

"It is sumcient for our present purpose to refer to and cite from the 7th edition of Maxwell on the Interpretation of Statutes at pages 39, 40 and 44

Occupa-

This appeal is allowed. The case with a direction, to convict. will be remitted to the magistrate

PUISNE JUDGE'S DECISION The decision of the Pulsne Judge in respect of both cases was as follows:

The two respondents in these. appeals were charged by the appel- bunt before the Senior Magistrate The function of the preamble on January 12 Is to explain what is ambiguous in respectively, the one with keeping and 13 -lást, the enactment and it either res- the 1st noor of 10 Gough Street train' or extend it as best suits the

as a prostituter lodging house and intention. But the preamble can the other with keeping the 2nd not either restrict or extend the floor of 32 "Aldrich Street as a enacting part when the language brothel, contrary in each case to and the object and the scope of 12 of the Womens and Girls Pro- the act are not open to doubt. It tection Ordinance, 1938,255 is not untiaital to find that the enacting part is not exactly co-each respondent pleaded guilty,

On the charge laid against her extensive with the preamble. In

In each case the Magistrate en- many Acts of Parliament, although quired of the appellant what were

recited,

the facts on which he relied to substantiate the charge and feeling

a particular mischief is

the legislative provision extend beyond it. The preamble is often that the facts then disclosed by no more than a recital of some of the appellant were insumcient to the inconveniences and does not justify a conviction advised each exclude any others for which a

remedy is given by the Bistate/

Continued on Back Page

MONDAY, MAY 22- 1939.-PAGE 11

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