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Jon v Kuman; Bima v Mohin; Ku v Michael [1980] PGNC 26; N253 (8 August 1980)

Unreported National Court Decisions

N253

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APPEAL NO. 165 OF 1980

APPEAL NO. 166 OF 1980

APPEAL NO. 172 OF 1980
MONIKA JON
V
DOMINIK KUMAN
MARGARET BIMA
V
JOHN MOHIN
KURAGI KU
V
ILAM MICHAEL

Lae

Narokobi AJ
8 August 1980

INTRODUCTION

NAROKOBI AJ: Before 19ffences generallyrally regarded as petty offences or police offences were covered by the Police Offences Act 1925-1974. That Act itself was an amalgamation of separate Acts that governed former Crown possession of Papua and the Trust Territory of New Guinea Offences relating to the “ancient profession” were also covered under those legislations. But there were differences. In Papua, it was never an offence for a known prostitute to offer in public to have sexual intercourse with a man for money. In New Guinea, this was an offence under s.38. The new Act dropped Section 38. S.18 of Public Order Act would enable police to control prostitutes who are causing trouble in public places. Summary Offences Act of 1977 changed all that. The Police Offences Act, 1925-1974 was repealed. Some offence under that Act were not continued. Some new offences were created. In all respects, the language in the drafting was modernised and simplified. That Act has its origins in the Law Reform Commission which was itself set up under an Act of Parliament which gave effect to a Constitutional provision, requiring the establishment of the Commission.

The Law Reform Commission drafted the original Bill and presented it to the honourable Minister for Justice through the Secretary for Justice. The Minister subsequently presented the Bill to the Parliament. As far as the ancient profession is concerned, no change to the Commission’s proposals were made by the Ministry and no change to these were made by Parliament.

Although no provision is made in the Act to the effect that in the interpretation of the Act, aid may be had to the Law Reform Commission’s Report, I think that it would be useful in ambiguity and if it would help to discern the will or intent of the legislature, to look to the report of the Commission. The processes of legislation and especially reform legislation, rarely begin on the floor of the parliament and often from the industry and perserverence of reform agencies. It would be a chase after a soulless intent if courts were to restrict their inquiry to the four corners of a statutory enactment, in cases of uncertainty.

THE PRIMARY FACTS

Each appellant was a woman, charged with the offence of living on the earnings of prostitution, in breach of section 55(1) of the Summary Offences Act. Each was convicted and sentenced upon the information of Police Officers, named in each case as the respondent.

Monika Jon and Margaret Bima were sentenced to 12 months’ imprisonment, while Ilam Michael received 9 months. Each was imprisoned with light labour.

MONIKA JON

This, my abbreviated, brief statement of facts was read to Monika: The defendant was with some Filipinos at the main wharf when police arrived. The police questioned the defendant and she admitted she slept with a Filipino and was given $10.00 Australian currency. The defendant was again questioned at the police station and she said she had no job.

In the District Court she was asked if she heard and understood the facts to which she gave an affirmative answer. She was asked if the facts were correct and she answered “yes”. The next question put to her was if she had anything to say in her defence. She made a very brief statement which is unfortunately not very clear.

In so far as I am able to read what is contained there, the defendant, (present appellant) said words to this effect: “We don’t know the Filipinos ... they came we thought after ... they came looking for women. We never come to ship, got a cab we stopped main gate, asked the security and you can bring them and they said Sam, the sister. We went and got in and waited and his boyfriend got up and our friends went back, and we came to get boat but rang police”.

In the summary of proceedings sheet, the charge was read and explained to the defendant. In her plea she said “yes he did give me Australian currency”.

From these facts and circumstances, the learned magistrate found the defendant guilty as charged.

The antecedent report shows that the defendant was a single girl in the employment of a man John whose surname is not clear from the depositions.

In fact the summary of information in the trial shows in this case that a plea of Not Guilty was entered against the defendant. It is hard to discover it because of the poor quality of the photocopying. It appears just below the typed sentence which states - “DEFENDANT ADMITS/DENIES TRUTH OF INFORMATION”. The words “ADMITS/DENIES” were crossed out and below that were the words - Plea - Not Guilty entered.

MARGARET BIMA

The summary of facts against Margaret Bima reads simply that she too went to the main wharf at Lae and spent a night on a boat with a Filipino man. She was found to have Australian currency worth $20 with her. One $10 note was in her wallet and the other $10 note was found in her bilum.

Again, it is clear that the magistrate read the facts to her and invited her to state first if she heard the facts, next if she understood the facts and finally if she thought the facts were correct. To each of these questions, her answer was a “yes”. When asked if she had anything to say in her defence she said - “We were taken by taxi by the Filipinos. That was our first time. We would be secured of the wharf authorities and ... time at 5.00 a.m. They did not ring cab, but rang the police”.

The information summary sheet of Margaret Bima clearly shows that a plea of Not Guilty was entered against her.

When she came before the Court, the charge was read and explained to her and she said - “He gave me K5.00 not PNG currency”. The magistrate found her guilty as charged. Her antecedent report showed that she was unemployed.

KURAGI KU

The last defendant, appellant in this case, had the following brief facts read to her on the 27th of May 1980: “Police saw the defendant at Eriku Bush ... K2.00 ... and then having sexual intercourse with her. She took off her clothes at police instructions and K2.00 fell out of her vagina and found a purse inside her vagina. She explained to the police that her husband did not give her some money so she sold her body”.

In the brief of the summary of information of 19th May, 1980, it is clear that a plea of not guilty was entered against the defendant, appellant in this appeal.

The defendant gave evidence on the 27th of May and stated that what was said against her was “half true and half lies”. She continued - “On Friday my husband did not give me money, he was drinking and slept elsewhere drinking beer, one of my friend told me. I was angry, I left all my clothes and followed him into the bush my husband saw me and ran away with some beer. I was angry and I took three men into the bush, and they paid me K2.00 each and after that, I returned and was eating betelnut near Eriku Store and they arrested me”.

Following this brief statement of facts, the court entered a plea of guilty. A further statement in these words appears: “I did hear the name of the woman, and I want to make him angry so I got the money. I stood naked without clothes in the eyes of lot of people ...”

APPELLANTS’ ARGUMENTS

The three appeals were argued together by consent. In each of the appeals the grounds of appeal were first that a plea of guilty should not have been entered, secondly that the facts before the court show no offence known to our law and thirdly that in any case, the sentence was very severe.

At the outset, counsel for the respondents agreed that the sentence was manifestly excessive. At that stage, I also indicated that if I were to uphold the convictions, I too would find 6 months, severe.

I now deal with each of the grounds of appeal.

(i) That a plea of guilty should not have been entered

It will be seen from the outline of the information sheet that the learned magistrate, did in fact enter a plea of guilty. That was a plea which was entered after the charge was read, and is or has been described in one English case as “provisional plea”. (See R. v. Blandford Justices; Ex parte G. (an Infant)N253.html#_edn255" title="">[cclv]¹ - cited with approv>in Gaig Gaigo Kakore v. SingN253.html#_edn256" title="">[cclvi]²).

Provisions of the District Court, ss. 134 and 135, make no explicit requirement of the magistrate to state or enter a plea of guilty or not guilty. All these provisions say is that first, the substance of the information against the defendant is to be read to her. And she is to be asked if she has any reason to say why she should not be convicted. The court would be entitled to convict where the defendant offers no explanation to the facts against her. (Logically of course, if no further evidence is offered and the magistrate is not satisfied he may acquit her.)

If of course the defendant does not admit the truth of an information against her/him, then the logical implication is that the defendant challenges the issues put by the prosecution and the case should go to trial. In terms of pleas, the magistrate is required to enter a plea of not guilty.

On the whole of the evidence adduced, the Court may convict or dismiss the charge against the defendant.

Looking at the evidence as deposed to at the hearing and as shown on the depositions, I do not think that I could fault the magistrate on the ground that he failed to enter a provisional plea of guilty or alternatively stated, as in the Notice of Appeal, that a plea of guilty should not have been entered. On the examination of the District Court records, I am of the view that a plea of guilty was not in fact entered against each of the accused.

In each case, after the provisional plea was entered, evidence was adduced. It was after the evidence was adduced that the magistrate convicted each defendant.

In each case, a plea of not guilty was entered against the defendant.

Monika Jon had an information laid against her on the 28th May, and she was convicted on 4th June. Margaret Bima had information against her laid on the 29th of May, and was convicted on the 4th of June. Kuragi Ku had the information against her laid on the 19th of May and was convicted on the 27th of May.

In each case, the conviction and sentence followed the defendant’s own statement.

Now, although I did not understand the appellant’s counsel to state the ground this way, I think it is fair to say that his argument proceeds along these lines:

The plea of not guilty entered on the days information was laid and charges explained was only a provisional plea. The legal plea ought to be considered after the accused had spoken in answer to the charge, if the defendant chose to say something.

If this “legal plea”, if I may call it is what the appellants are arguing against in their first ground, then I am of the view that the ground to attack that should be based on insufficiency of evidence to support a finding consistent with a conviction, not that the learned magistrate was wrong in not following the District Courts Act procedures.

If after the court has heard the defendant and entered a plea of not guilty, following the prosecution’s evidence, that is tantamount to an acquittal. Since a plea of not guilty appears on the face of the photocopies of the records I have, poorly though, I admit, I am of the view that each appeal on this ground must fail.

(ii) That the facts before the Court disclosed no offence

The resolution of this ground of appeal depends on a view one takes of section 55(1) of Summary Offences Act 1977. That section creates an offence for any person to knowingly live wholly or in part on the earnings of prostitution. The offence carries a penalty of K400 fine or imprisonment for a term of up to one year.

Mr. Glasgow, counsel for the appellants invited me to rule that the appellants had done no wrong known to the law of this country. He argued that in each case, the appellants were arrested for isolated cases involving small sums of money. This did not demonstrate that they had adopted a mode of life or a way of life.

Mr. Glasgow submitted that I should distinguish or rather put a gloss on the decision of Wilson J. in Anna Wemay and Others v. Kepas TumdualN253.html#_edn257" title="">[cclvii]³. In support of his argument Mr. Glasgow cited a 1957 NSW case of Reg. v. ShalugaN253.html#_edn258" title="">[cclviii]⁴. In that case, E.P.T. Raine who earned the distinction of becoming a Deputy Chief Justice of Papua New Guinea and National And Supreme Court judge argued the case for the appellant. The appeal in that case arose out of a conviction under NSW s. 4(2) (o) of the Vagrancy Act which makes it an offence for anyone, being a male person, knowingly living wholly or in part on the earnings of prostitution.

The appellant in that case, was a well off man. He owned property and a car and was in honest and lucrative employment. The appellant drove a man and two women to a military camp. The women were prostitutes and the purpose for their visit was to trade their services for a fee. The two women did engage in their services and the appellant was to be paid from the services of prostitution. There was no evidence of previous trips, against the appellant. However, the appellant knew the women were prostitutes.

The Court of Criminal Appeal consisted of Street C.J. and Owen and Herron JJ. The Court was by way of a of a case stated whether on the proven facts and “having regard to the fact that the charge is in respect of one isolated occasion with no evidence of any kind tending to show prior dealings in prostitution by the appellant, can it be said that the appellant lived in part on the earnings of prostitution?”

Street C.J. suggested in that case that the words used there “appear to suggest that what the legislature had in mind was the creation of an offence of adopting a mode of life or a way of living in which proceeds or earnings from prostitution are used wholly or partly for that purpose”.

His Honour said that in the case before his court there was only one isolated incident, and it was difficult to speak of such an incident as a “living wholly or partly on the proceeds of prostitution”. There must be some continuous association with the “industry” of prostitution and some habitual receipt of money from the earnings of prostitutions.

His Honour went on to make a reference to another provision of the Vagrancy Act which declares it an offence for anyone to receive money from a prostitute which she had earned as the result of her labours if that person had no visible means of subsistence and was habitually in the company of or living with a prostitute. His Honour said that this “lends force” to the argument that the section was aimed at a “mode of living”, not an isolated act.

Mr. Glasgow pointed out that this case was not drawn to the attention of Wilson J. and it would be fair for me to either distinguish or put a gloss on His Honour’s decision I have referred to.

A comment in 32 A.L.J. at p. 97 suggests that in England, there has been a difference of opinion expressed by the courts on the extent of “living on the earnings of prostitution,” to constitute the offence, (compare directions in Regina v. Silver and OthersN253.html#_edn259" title="">[cclix]⁵ and se comment in 72 L.Q.R..Q.R. 319 and the Court of Criminal Appeal in Regina v. ThomasN253.html#_edn260" title="">[cclx]⁶.)

At theet I should say that “#8220;living on the earnings of prostitution” is quite a different notion to the notion of “knowingly lives wholly or in part on the earnings of prostitution”. The latter appears in our legislation and that of N.S.W. The only difference between our Summary Offences Act s.55 and N.S.W. Vagrancy Act s.4(2)(0) is that the N.S.W. legislation expressly relates to “whosoever, being a male person”, whereas ours speaks of “A person”, so that both male and female persons are caught under our Act.

Mr. Cassells sought to distinguish the Shaluga’s (supra)N253.html#_edn261" title="">[cclxi]⁷ case e basis that in Shau>Shaluga’s case, the appellant was an accessory who was in an honest and respectable industry. In the present appeals, the appes, Mr. Cassells argued, were the principals. They were invo involved directly. And furthermore, they had no employment.

I put this question in the course of argument to each of the counsel. What if I had a friend who I knew to be a prostitute and she gave me K10 she earned from her industry, to buy a lunch. And that was all? Would I be living on the earnings of prostitution, knowingly?

The appellants’ counsel responded that I would commit no offence under s.55 of the Summary Offences Act. The respondent’s counsel argued that the question does not arise because in that case, I would be an accessory and not the principal in the alleged crime. In the case immediately before me, the appellants are principals.

It seems to me that whether the appellants are accessories or intermediaries to be more exact, or whether the appellants themselves or herself (in our case) was the one said to be knowingly living or lives wholly or in part on the earnings of prostitution makes no difference whatsoever to the basic question - was he, or she knowingly living wholly or in part on the earnings of prostitution? Whether the person said to be making a living is the prostitute herself or a person transporting the prostitute with the aim of receiving the proceeds of the prostitute’s trade, the question to be asked seems to me to be the same: is he or she a person, who knowingly lives wholly or in part on the earnings of prostitution?

Thus the three elements of the crime consist of knowledge, making a living or earning a livelihood wholly or partly; and earnings derived of prostitution.

In these appeals, there is no question that the appellants did not have the knowledge required for the crime. The fact that they were the principals in the alleged crime is enough to import knowledge on each one of the appellants.

The next question is whether the appellants were living wholly or in part on the results of their trade. There was certainly no evidence that they were living wholly on the proceeds of their trade, so that alternative does not arise. Could they be said to be living partly on proceeds of prostitution when the evidence shows single acts of prostitution and amounts of money ranging from K10 in the case of Monika $A20.00 in the case of Margaret Bima and K6.00 in the case of Kuragi Ku?

The ordinary meaning of the word “lives” suggests to me a sense of having a life, or remaining alive. I think of “lives” in terms of living by an occupation or a profession or simply, by work, or industry.

In matrimonial proceedings we may talk of “living apart”. Here the notion of life is that the couple are physically separated, and if the “life” or the hub of marriage has ceased to subsist, then the marriage is finished. But in s.55(1), we are not concerned about physical dwellings. We are concerned about how a person buys his food, his clothes, meets his/her day to day needs for shelter, medicine, recreation and so on, day in and day out.

As for the word “earnings”, the plain and ordinary meaning I ascribe to this word is “money earned; wages; or profit”. And to earn means to get in return for work or service rendered; to be paid.

Earnings have to be closely related or directly derived from prostitution on the one hand and they have to be earnings that the appellants are living on wholly or partly.

When the Summary Offences Act was being drafted, as I recall, clear opinions in favour of and against legalising the act of prostitution were being raised in the public. The view the Law Reform Commission took was a middle of the road approach. The act of prostitution would not be legalised, nor would it be made a crime. That was the view the Parliament took through the Summary Offences Act.

What was legislated against were brothels and making a living out of prostitution. If a person makes a living out of prostitution he or she would be committing a crime. If a person manages a brothel he would be committing a crime and if an owner or occupier uses his premises or lets them out as brothels, he would also be committing a crime.

Neither the Law Reform Commission which tried to canvass the views of all sections of the community before it made its recommendations, nor the Parliament which consists of elected representatives ever intended this legislation to punish the so called “K2.00 bush” lady.

If s.55 is to be read to encompass a single K2.00 bush affair, it would be tantamount to punishing a lady for prostitution, clearly not intended by the Legislature. I must say that a single act of prostitution which brings to the accused a substantial sum of money may qualify as “earnings a person could be said to be living on wholly or partly”.

In Anna Wemay and Others v. Kepas Tumdual (supra)N253.html#_edn262" title="">[cclxii]⁸ Wilson J. made it plain that the section includes the prostitute herself. This interpretation does not make nonsense of s.55 simply because there the word “person” is used whereashe NSW Vagrancy Act, the word “whosoever” is imis immediately qualified by the words being a “male person”.

But in that case, the point was not argued, as to whether an isolated occasion of prostitution and receipt of money from prostitution fell within s.55(1). Accordingly it is no authority for that issue precisely because it is not part of that case’s ratio decidendi.

CUSTOM

I agree with the sentiments expressed by the learned Magistrate in his reasons for decision. But that is a matter of my private opinion.

The two pillars upon which our society is founded are the Christian principles and the fountains of wisdom and good sense of our people; our customs. I have emphasised these many times in my judgments.

Looking at custom in general, it is plain that it was a matter of a very serious affront to the dignity of the family if a woman was to sell her body for reward. In many communities such a thing was not heard of. Our custom in general, came close to Islamic Law, the Law of Moses too, that the proper punishment for such an offence was stoning to death.

However, it was a custom in some Melanesian communities for men to lend their wives or daughters or sisters as part of hospitality package to a visitor. I am lead to believe, although I have not researched the point that this was a custom in some parts of Sepik. It is no longer so.

Custom has been radically transformed for Christian adherents in this country, since Christ rose his head from writing on the ground and invited the lawyers to cast the first stone on the prostitute. They could not do it, nor did he. He commanded the prostitute to take leave and sin no more. Custom too knew of the virtue of mercy.

It is a serious travesty of justice if magistrates continue to punish wrong doers on the principle of retribution alone and ignore the smiling face of justice rooted in mercy and forgiveness based on love and understanding. Courts must sit, not to destroy those of their kind who fall to the power of the evil one, but to invite them to steer away from the evil one and to paths of righteousness and virtue.

CORE OF MY VERDICT

I must now, return to the core of my verdict. I refer to each woman specifically. I refer first to Kuragi Ku. It is clear she is a married woman. She reacted in anger when her husband did not give her some money. Her case is a case of a woman who wishes to “mekim save” the husband. She wanted to punish her husband. There is no evidence that she was separated from him. Nor is there evidence that in the past she was in the habit of earning K2.00 in the bush. She said in her evidence that “on Friday my husband did not give me money”...

She did not say, every Friday, I would go and earn for myself ...

Monika Jon, in her statement said “we never came to ship”. She did admit to sleeping with a Filipino and he gave her K10.00. There is no other evidence of her past associations. There is no evidence as to whether she was employed or not. Margaret Bima admitted to a single association and she was shown to be unemployed. Again no further evidence was brought against her about her work history or her past association with prostitution. She said in her evidence that it was “our first time”.

WANTOK SYSTEM

It is a well known fact in this country that relatives are often supported by their relatives through the social institution known as the “wantok system”. I know that an over use of this system does create serious strain on individuals. But it is a system, that is being used widely. There was no evidence to suggest that Monika Jon and Margaret Bima were not being supported by other relatives.

My view is that something more than an isolated association is required for a conviction under s.55. My view is that something more than a K2.00 is required to support the element of living in part on the earnings of prostitution. Proof of repeated receipts of earnings of prostitution, enough to show that the accused was relying for bread and butter, or rice and tinned fish and smoke and buai on the earnings of her immoral associations are required to sustain a conviction under s.55.

I therefore uphold the appeals, quash each conviction secured against each appellant and discharge the appellants and direct that they each be refunded their bail money. It is hardly enough to make a living wholly or partly on K2.00 or K20.00 on a single association.

It might be argued that this interpretation would do violence to these principles:

(i) That the Act should be re d in line with a public policy to suppress immoral attitudes; and practices, and

(ii) &#&##160; suchnterpion wmak wmake the section something different from from and and smallsmaller ther than whan what itat its terms express, or the mischief the on seeks to overcome.

On the first principle, I cann cannot act, because of the view I hold that the opinion varies in PNG even on the question of legalising prostitution. In any event, “it is a restive horse when you get on it, there is no knowing where it will get you”.

On the second principle, my interpretation, in my view does not make s.55 smaller. It merely gives it, its proper scope, namely to provide a remedy commensurate with the mischief of making a living on an immoral profession wholly or in part.

Giving s.55 its ordinary and grammatical meaning, I find that s.55 envisages an offence for those who make it a habit or a regular practice of living either wholly or in part on the earnings of prostitution Receiving money for an isolated prostitution association, in my view, cannot fall under s.55, unless it is for a substantial sum of money or goods which the accused could be said to live on wholly or in part, in the course of his or her week to week or day to day sojourn on this earth.

It may be that reform of this section is required to enable the State to punish women who are caught even on one incident of sharing a rug in the bush with men and receiving K2 or K10 for it. But what then would the difference be between that woman and an unemployed woman not married to a man but who was living on the money she received from him on a close sexual association?

Solicitor for the Appellants: D.J. McDermott, A/Public Solicitor

Counsel: I. Glasgow

Solicitor for the Respondent: C. Maino-Aoae, A/Public Prosecutor

Counsel: B.J. Cassells

N253.html#_ednref255" title="">[cclv] ^{(1967) 1 Q.B. 82}

N253#_ednref256" title="">[cclvi]^{(1975) P.N.G.L.R. 104 at pp 109-110}

N253.html#_ednref257" title="">[cclvii]^{(1978) P.N.G.L.R. 173}

N253.html#_ednref258" title="">[cclviii] ^{75 W.N. (N.S.W.) 120}

N253.html#_ednref259" title="">[cclix]^{(1956) 1 W.L.R.}

N253.html#_ednref260" title="">[cclx]^{(1957) 1 W.L.R.}

N253.html#_ednref261" title="">[cclxi] ^{75 W.N. (N.S.W.) 120}

N253.html#_ednref262" title="">[cclxii]^{(1978) P.N.G.L.R. 173}