Wemay v Tumdual; Hosea v Tumdual; Joyce v Tumdual; Iamey v Tumdual [1978] PNGLR 173 (26 May 1978)

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[1978] PNGLR 173 - Anna Wemay v Kepas Tumdual; Dorothy Hosea v Kepas Tumdual; Raboni Joyce v Kepas Tumdual; Bonnie Iamey v Kepas Tumdual

POLICE OFFENCES - Prostitution - “Person who knowingly lives wholly or in part on the earnings of prostitution” - Meaning of - Whether prostitute herself included - Summary Offences Act 1977, s. 55(1).

STATUTES - Interpretation - Intention - Precise and unambiguous words to be given ordinary and natural meaning - Inappropriate to look at outside aids to interpretation - Statute to be construed according to the intention expressed in the Act itself - Intention of Parliament to be ascertained by reference to the words themselves.

CRIMINAL LAW - Appeal against sentence - Prostitution - First offender - Fine generally appropriate for first offender - Sentences of 4 to 5 months’ imprisonment manifestly excessive.

“A person who knowingly lives wholly or in part on the earnings of prostitution is guilty of an offence”.

On appeals by four persons who admitted to being prostitutes, against convictions for offences under s. 55(1) of the Summary Offences Act 1977 on the ground that the section did not apply to the prostitute herself, and against sentences of from 4 to 5 months’ imprisonment:

(1) The Summary Offences Act 1977 should be construed according to the intention expressed in the Act itself and in the absence of any ambiguity or uncertainty as to what the words of s. 55(1) mean, it is inappropriate to look at outside aids to interpretation, and the words used should be given their ordinary and natural meaning.

R. v. Oakes [1959] 2 Q.B. 350 and Constitutional Reference No. 1 of 1977 [1977] P.N.G.L.R. 362 referred to.

(2) There being no ambiguity or imprecision in the words of s. 55(1) of the Summary Offences Act 1977 and giving the words therefore their ordinary and natural meaning, a prostitute who is paid money for services rendered by her as a prostitute which money she would not otherwise have available to her for living purposes but for the fact that she was a prostitute is living at least “in part on the earnings of prostitution”, within the meaning of the section.

(4) There being no circumstances of aggravation, and each appellant being a first offender, (circumstances warranting a penalty only) sentences of from 4 to 5 months’ imprisonment were manifestly excessive and should be reduced.

These were four appeals against conviction and sentence on charges contrary to the provisions of s. 55(1) of the Summary Offences Act 1977.

WILSON J: These four appeals were heard together by consent. Mr. Konilio of the Deputy Public Solicitor’s office, appeared for the appellant in each case, and Mr. Sharp, Deputy State Solicitor, appeared for the respondent in each case. In all of these appeals from decisions of the District Court in Rabaul, one ground of appeal was against conviction, it being argued that neither the statement of facts nor the information disclosed an offence. In all four appeals there was an appeal against sentence upon the ground that the sentence imposed was manifestly excessive. In the appeal in which Dorothy Hosea is the appellant, there is an additional ground of appeal alleging that the appellant should have been dealt with by the Children’s Court. No argument was addressed to me upon this ground, and so I say no more about it.

All four appellants were convicted of an offence appertaining to conduct described as prostitution. It was alleged that each had contravened s. 55(1) of the Summary Offences Act 1977. Particulars of the offence alleged against each appellant were that on the date in question they “did knowingly live on part of the earnings of prostitution”. I was informed that in each case the appellant admitted, according to the statement of facts, having been a prostitute and having received K4.00 per act of sexual intercourse.

The question which arises for consideration in each appeal against conviction is whether the prostitute herself, as distinct from the madam, the tout, the bully, the protector, or the pimp, may be convicted of a breach of s. 55(1). That section reads as follows:

“A person who knowingly lives wholly or in part on the earnings of prostitution is guilty of an offence.”

It was argued on behalf of the appellants that, in construing s. 55(1), I should look to the intention of the legislature and that, as, apparently according to some submissions to the Minister for Justice as presented by the Law Reform Commission in 1975, the intention was to suppress the people who lived on the earnings of prostitution and not to suppress prostitution itself, I should construe s. 55(1) narrowly to exclude from its ambit the prostitute herself. My attention was directed to the history of such legislation in Papua New Guinea prior to the Summary Offences Act 1977 coming into force.

It was argued on behalf of the respondent that the ordinary rules of statutory interpretation apply and that, in the absence of any ambiguity or uncertainty as to what the words of the section mean, it is inappropriate to look to any outside aids to interpretation. It was contended that, giving the words of s. 55(1) their ordinary and natural meaning, the prostitute herself who receives payment for her services is caught by the section and may be said to live at least in part on the earnings of prostitution. It was further argued that it must be presumed that the legislature, in deleting the word “male” from the section when the Summary Offences Act was enacted, intended to widen the scope of the section.

Before turning to the rules of statutory interpretation which I am persuaded apply in these appeals, I should mention that I have carefully considered what may be called the leading case on prostitution, Shaw v. Director of Public Prosecutions[cclxxxiii]¹. That case is of only limited assistance here. In that case it was held that the words “living in whole or in part on the earnings of prostitution” in their context do not bear the very wide meaning which might possibly be ascribed to them so covering every person whose livelihood depends in whole or in part upon payment to him by prostitutes for services rendered or goods supplied, e.g. the store-keeper who supplies goods to a prostitute or the doctor or lawyer who renders professional services to a prostitute. Nevertheless, in that case it was not suggested that the words in question in their context should bear the very narrow meaning which counsel for the appellants would ask me to ascribe to them in this case so permitting the prostitute herself to escape from prosecution under the section.

Viscount Simonds said in Shaw v. Director of Public Prosecutions[cclxxxiv]²:

“... a person may fairly be said to be living in whole or in part on the earnings of prostitution if he is paid by prostitutes for goods and services supplied by him to them for the purpose of their prostitution which he would not supply but for the fact that they were prostitutes.”

His Lordship quite obviously did not turn his mind directly to the question of whether or not the prostitute herself could be said to be so living. Attempting to apply the same method of approach to the question under consideration here, I am of the opinion that a prostitute herself may fairly be said to be living in whole or in part on the earnings of prostitution if she is paid money for services rendered by her as a prostitute which money she would not otherwise receive and have available to her for living purposes but for the fact that she was a prostitute.

The fundamental rule for the interpretation of a statute applies in this case, viz. that the statute should be construed according to the intention expressed in the Act itself. If the words of a statute are themselves precise and unambiguous, then no more is necessary than to expound those words in their ordinary and natural sense. The words themselves are generally the best declaration of the intention of the legislature. As Lord Parker C.J said in R. v. Oakes[cclxxxv]³:

“Where the literal reading of a statute ... produces an intelligible result ... there is no ground for reading in or changing words according to what may be the supposed intention of Parliament.”

Applying these principles in this case the prostitute herself may be just as much a “person” for the purposes of s. 55(1) as the madam, the tout, the bully, the protector or the pimp. If it had been the intention of the legislature to exclude the prostitute herself from the ambit of the section, then it would have been reasonable to expect that either the word “man” would have been enacted in place of the word “person” or, if it was thought essential to bring the madam and other women who (apart from the prostitute herself) seek to live on the earnings of prostitution within the ambit of the section, an exclusion clause would have been inserted.

For me to construe the words used in s. 55(1) by ascertaining by reference to outside material what may be the supposed intention of Parliament, as Mr. Konilio on behalf of the appellants urged me to do, would be to do with precise and unambiguous words, which, when read literally, produce an intelligent result, exactly what the Lord Chief Justice deprecated and it would involve this Court reading in or changing words according to what may be the supposed intention of Parliament.

If Parliament really intended what Mr. Konilio suggested it did but which it clearly failed to express, then this enactment is one which might be drawn to the attention of the members of the Law Reform Commission and if it is thought appropriate to do so, it might be amended by appropriate legislation in Parliament.

Mr. Sharp urged me in interpreting s. 55(1) to apply the general rule of not importing into a statute words which are not to be found there and the rule of not adding by implication into the language of a statute unless it is necessary to do so to give the words sense and meaning in their context. I agree that to interpret s. 55(1) in favour of the appellants this Court would be in breach of those general rules.

In Constitutional Reference No. 1 of 1977[cclxxxvi]⁴ Prentice, Deputy C.J (as he then was) accepted that the Constitution, which, after all, is a Statute itself albeit a special type of Statute, should be interpreted without recourse to a construction by implication unless it is “ambiguous imprecise or incomplete”. His Honour relied on Craies on Statutes 7th ed. p. 109 and a number of other authorities considered in that Constitutional Reference. Mr. Sharp rightly, I think, found support for his argument both in the remarks of the learned Deputy Chief Justice and in Craies on Statutes at the page cited.

If the history of the legislature in Papua New Guinea prior to the date when the Summary Offences Act 1977 came into force is examined, it is to be observed that prior to the current legislation there were three types of offender relating to prostitution; first, prostitutes who solicit (see s. 38 of the Police Offences Act (N6) 1925-1974); secondly, male persons living on prostitution (see s. 79 of that Act); and, thirdly, persons keeping or assisting in a brothel or letting or using a house as a disorderly house or house of ill-fame and repute (see ss. 80 and 81 of that Act). It might be argued that, when the legislature repealed and did not re-enact the section dealing with prostitutes who solicit and when the legislature widened the scope of the provisions regarding those who live on prostitution (by deleting the word “male”), it intended that prostitutes who, by virtue of the very nature of their occupation or “profession”, make a living or seek to make a living by having sexual intercourse with men for reward, fall within the ambit of s. 55(1). However, I find it unnecessary to look to the history of this legislation to assist me in ascertaining its meaning because, for the reasons given previously, I regard the words under consideration to have an ordinary and natural meaning.

Giving the words of s. 55(1) their ordinary and natural meaning, it is beyond question that a prostitute who is paid money for services rendered by her as a prostitute which money she would not otherwise have available to her for living purposes but for the fact that she was a prostitute is living at least in part on the earnings of prostitution.

For these seasons the appeals against conviction will be disallowed and the convictions affirmed.

The only other ground of appeal that was pursued during the hearing of these appeals was the ground in which it was contended that the sentences imposed in each instance were manifestly excessive. Under s. 55 this offence is punishable by a fine not exceeding K400 or imprisonmen for a term not exceeding one year. The several appellants received prison sentences ranging between 4 and 5 months. Each of the appellants was a first offender. According to what I was told when these appeals were argued before me, it is likely that these four appellants are the first four prostitutes ever to be prosecuted in Papua New Guinea under this section. They may indeed hold the doubtful distinction of being the first prostitutes ever to be prosecuted in this country for any offence directly appertaining to their calling or, as it is sometimes called, their “ancient profession”.

The respondent did not oppose these appeals insofar as they were appeals against sentence. At the time of the hearing of these appeals the several appellants each had served a sentence of imprisonment of somewhere between two and six weeks which had been served prior to their release on bail pending the hearing of these appeals. I find it hard to imagine circumstances in which, for a first conviction under this section, a fine would not be an appropriate penalty. In the absence of circumstances of aggravation (and there appear to have been none here) sentences of 4 to 5 months’ imprisonment may be said to be manifestly excessive. For these several reasons I propose to allow each of the appeals against sentence and reduce the sentence in each case to the period of imprisonment already served.

[cclxxxiii][1962] A.C. 220.

[cclxxxiv][1961] UKHL 1; [1962] A.C. 220 at p. 264.

[cclxxxv][1959] 2 Q.B. 350.

[cclxxxvi][1977] P.N.G.L.R. 362.

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Papua New Guinea Law Reports

Wemay v Tumdual; Hosea v Tumdual; Joyce v Tumdual; Iamey v Tumdual [1978] PNGLR 173 (26 May 1978)

Papua New Guinea Law Reports - 1978