clr/1987/1987_2_63.pdf

(1)of the Sexual Offences Act, 1956 which is almost identical with section 164(l)(a)ofCap 154 The trial Court concludedthatasthe element ofprostitution ofthree ofthe girls(Prosecutionwitnesses 2,3 and4)was established,astheappellant knew the surrounding facts of such prostitution and as the £15 - per night were money emanating at least partly from such prostitution,the said amount of £15 -per night constituted«earnings of prostitution» within the ambit of the said dictain Shaw, supra Held, allowing the appeal

(1)The payment of the seven members of the group was made in consideration oflegitimate services offerredbythegroup to the night club, notably dancing, and had nothing to do with any money 63 Mavrides v. Police

(1987)earnedbythethreegirlswhenindulgingintheiraforesaid illicitactivities,afact absolutely unconnected with the appellant The said amount of £15 was receivedbytheappellant inaccordancewithhisaforesaid agreementwiththe members of the group inconsideration of the £150 per month salaryandof providing food, lodging and costumes

(2)Inthelightoftheabovethesaidamount of£15pernightcannotbeheld asconstituting «earningsof prostitution» withi'i theambit of Shaw, supra Appealallowed Casesreferredto Shawv DPP [1961]Cr App Rep 113 10 Appeal against conviction and sentence. Appeal against conviction and sentence by Pambos Mavndes who was convicted on the 15th November, 1986 at the Distnct CourtofLamaca (CnminalCaseNo.9524/86) ononecountofthe offence of knowingly livingmpart on the earnings of prostitution 15 contrary tosection 164{l)(

1. a)of the Criminal Code, Cap. 154and wassentenced byArestis, D.J tofive months' imprisonment. N. Clendes, for the appellant A. Vladimtrou,for the respondents TRIANTAFYLLIDES P.: The judgment of the Court will be delivered byLoris, J. 20 LORISJ.: The present appeal isdirected against the judgment in Lamaca Criminal Case No. 9524/86, whereby the appellant, who wasjointlycharged with another person, wasfound guiltyof the offence of knowingly, living in part on the earnings of 25 prostitution, contrary to s.l64(l)(
2. a)of the Criminal Code, Cap.154, and was sentenced by Arestis D.J. to five months' imprisonment. The appellant, a manager of a dancing group, consisting of seven girlsfromPhilippines wasjointlycharged (asaccused No.
3. l)withex-accused No.2namelyFlortelizaNecessito,theChiefofthe Balletonfiveseparatecounts with: 64 30 2 C.L.R. Mavrides v. Police Loris J. (A) Procuring to prostitution four distinct girls of the ballet (Counts One to Four), contrary to the provisions of s.157(
4. b)of the Criminal Code, and 5 10 15 (B) knowingly living on the earnings of prostitution (Count 5) contrary to the provisions of s.l64(l)(
5. a)of the Criminal Code. After hearing the case for the prosecution, the learned trial Judge ruled on a submission of 'no case' that the prosecution failed to make out sufficiently a prima facie case against both accused on Counts 1, 3 and 4, but called upon both accused to defend themselves on Counts 2 (procuring to prostitution Myma Pombita - one of the girlsof the ballet) and 5 (knowingly living on the earnings of prostitution). Finally the appellant was acquitted and discharged on Count 2, but he was found guilty on Count 5. Ex-accused 2 was acquitted and discharged on Counts 2 and 5 as well. The Court below proceeded and passed a sentence of five months' imprisonment on appellant on Count 5, as aforesaid. 20 The present appeal isdirected against conviction and sentence but learned counsel for appellant confined his forceful argument against conviction only. The salient facts of this case with particular reference to Count 5, on which the appellant was found guilty, are very briefly as follows: 25 30 35 The appellant was at all material times a manager of a dancing group named «Erotica International Ballet», comprising of seven Philippinese girls of which ex-accused No.2 was the «chief of the ballet». The dancing group in question was brought to Cyprus from Philippines by the appellant on 1.1.1986 under an agreement concluded at Manilla - Philippines, at about October 1985, by the appellant (who had travelled to the Philippines for this purpose) and each one of the members of the group. Invirtue of the said agreement the appellant would pay to each member of thegroup, whilstinCyprus, £150.- per month provide food, costumes and lodging for them and in consideration thereof he would be hiring their services as a dancing group to various nightclubs inCyprusgettingtherelevantpayment himself directly from the person running the night club. 65 Lori* J. Mavrides v. Police

(1987)The services of the group were hired by the appellant to three successive night clubs, namely «Chez Nous» at Lamaca, «Trocatero» at Nicosia and «Silver Moon» at Lamaca from the beginning ofJanuary 1986uptothe end ofJuly 1986. It is common ground that throughout the said period the 5 appellantwasgettingdirectlyfrom theperson runningeachoneof the said night clubs the fixed sum of £15.-per night for each one of the members of the dancing group. On occasions when the appellant was absent such payment was made by the person running the night club to the appellant through the «chief of the 10 ballet»ex-accused No.2. Independently of the facts herein above stated, which were accepted by the court below, the learned trialjudge made some more findings of fact in relation to the offences of procuring to prostitution that is, Counts one to four on the charge sheet on 15 which the appellant was ultimately acquitted. These latter findings of fact were inter alia the following: (

1. a)Some of the girls of the dancing group, whilst at the Night Club,wereonoccasionsaccompanyingCustomersoftheClubto places outside the club premises with a view to having sexual 20 intercourse with them. (
2. b)Arrangements for such outings were made beforehand between waitersservinginthecluboreventhepersonrunningthe cluband customers. (c)Onsucharrangementbeen cocludedthecustomerwouldbe paying in advance £50.- to the clubout of which £30.- would go to the club for drinks and £20.-to the specific girl of the dancing group who would accompany the customer of the club for the illicitpurpose aforesaid. 25 Atthisstage we shall confine ourselves in observing that these 30 latterfindingsof the learned trialjudge maypoint at procuring to prostitution of the fourspecific girlsofthedancinggroup, referred to in Counts one tofour, bythewaitersservingatthe night clubs in question, or even by the person running the night club, but definitely notbytheappellant.Andthetrialjudgewhohadbefore 35 him the evidence adduced as a whole, was not satisfied that the appellantwasprocuringthegirlsinquestion toprostitution;hence theacquittaloftheappellantonthefirstfourcounts,forprocuring. 66 2 C.L.R. Mavrides v. Police Lorts J . The learned trial judge then elaborated at length on the legal aspect of the case and in deciding what is meant by «knowingly living wholly or in part on the earnings of prostitution» (as envisaged bys.l64(l)(
3. a)ofourCriminalCode Cap. 154)adopted 5 the dicta of Viscount Simonds in delivering the judgment of the House of Lords in Shaw v.D.P.P.[1961]Cr.App.R. 113,where the noble Lord indealing withs.30(
4. l)of the SexualOffences Act 1956*whichwas**almostidenticaltoours. l64(l)(a)ofCap. 154 stated thefollowing atp.143ofthereport:«Ithinkthat(apart from 10 the operation ofsub-section

(2))aperson may fairly besaidto be livinginwholeorinpartontheearningsofprostitutionifheispaid byprostitutesforgoodsorservicessuppliedbyhimtothemforthe purpose oftheirprostitutionwhichhewouldnotsupplybutforthe factthattheywereprostitutes.Iemphasisethenegativepartofthis 15 proposition, for I wish to distinguish beyond all misconception such a case from that in which the service supplied could be supplied to a woman whether a prostitute or not. Itmay be that circumstances will be equivocal, though no example readily occurs to me. But a case which isbeyond all doubt isone where 20 the service isof itsnature referable toprostitution and to nothing else.» 25 30 35 Reverting to the facts of the case before him, the trial judge concluded that (

1. a)as the element of prostitution in respect of prosecution witnesses 2,3 and 4 was established, (
2. b)as the appellant knew the sunounding facts of the «prostitution» of the aforesaid three witnesses, (c)as the £15.-per night the appellant wasgettingfrom theperson running thenightclubforeach oneof the members of the dancing group, were money emanating at least partly from the prostitution of the three witnesses aforesaid, (
3. d)the said amount of £15.- collected by the appellant as aforesaid, constituted «earningsofprostitution»withintheambitof the dicta in the case of Shaw v, D.P.P. (supra). Relying on the above reasoning the court below found the appellant guilty of livingpartly on the earnings of prostitution. Learned leading counsel appearing for the appellant strenuously arguedbefore usthat theverdictofthetrialjudgeisin * "s.30(
4. l)It is an offence for a men knowingly to live wholly or in part on the earnings of prostitution " **TheSexualOffencesAct 1956isbeingreplacedby theSexual OffencesAct 1967and the relevantsection iss5 67 Loris J. Mavrides v. Police

(1987)direct conflict to his own findings of fact and it is in no way warranted by them. He further submitted that the court misconceived and wrongly applied the principle enunciated in Shaw v.D.P.P(supra)setoutabove. Learned counsel for the appellant pointed out that it was 5 common ground accepted bythe trialjudge that (i)The appellant was getting directly from the owner of the night club the fixed amount of £15.- for each one of the 7 danang girlsof the group per night (and not only for each one of the three prosecution witnesses) in consideration of his providing food, costumes and 10 lodging plus£150.-per month toeach one oftheseven members of the ballet pursuant totheagreement aforesaid. (ii)Thesaid amount of£15.-pernightforeach one oftheseven dancing girls of the group, was a fixed amount paid to the appellant by the owner of the club pursuant to an agreement between the night-club owner and the appellant for the hiringof the services of allseven artistsasdancersinthe nightclub. 15 (iii)Thefinding ofthetrialcourt totheeffect thatthreeoutofthe seven artistswereaccompanying night-clubcustomersoutsidethe clubpremises forpurposes of prostitution isinnowayconnected 20 with the appellant as it is clear from the said finding that the arrangements fortheillicitpurpose aforesaid weremade between waitersservinginthecluboreven thepersonrunningthecluband the customers. In other words if there was any procuring of the aforesaid three witnesses for purposes of prostitution, such 25 procuring emanated from waiters serving inthe club or even the person running same and not from the appellant who was acquitted bythe trial court on allcounts of procuring. Wehave carefully gone through therecordandthejudgmentof thetrialjudge.Wehave examined with utmost care the reasoning 30 followed inorder toarriveathisverdict and wehold theviewthat the conviction under consideration cannotstand forthe following reasons: The amount of £15.- per night for each one of the seven members of the dancing group was paid by the night clubowner 35 tothe appellant who wasthemanager ofthe dancing group.This paymentwasmadeinconsideration oflegitimateservices offerred bythedancinggroup tothenightclub,notablydancing,andithad nothing to do with money earned by any one of the three 68 2 C.L.R. Mavrides v. Police Loris J. members of the group when indulging in their aforesaid illicit activities, afact absolutelyjjnconnected With the appellant 5 The amountof £15 - per girl,per night, was being received by the appellant as a manager of the group, in consideration of appellants providing food, lodging, costumes and amontly salary of£150 - toeach oneof theseven members of thedancing group, under a contract produced and accepted by the tnal Court as already stated at thebeginning of this judgment The said amount of £15 - per night for each member of the 10 ballet collected by the appellant from the night club owner as aforesaid, cannottherefore,by anystressof imaginationbe held as constituting«earnings of prostitution» within theambit of thedicta in thecase of Shaw ν DP Ρ (supra) For all the above reasons the appeal is allowed, the conviction 15 andsentencearehereby set aside andtheappellantis accordingly acquitted and discharged Appeal allowed Appellant acquittedanddischarged. 69