The Supreme Court has ordered to set aside the conviction and the sentence imposed on Rosemary Felicia Perera alias Jeena Madam by the Colombo High Court in 2012 for the offence of procuring women for prostitution.
Accordingly, a majority of a divided three-judge-Supreme Court Bench acquitted Rosemary Felicia Perera from the case filed against her for the offence of ‘procuration’ under Section 360A (1) of the Penal Code by judgement dated 9th November 2012. The accused-appellant had been convicted by the High Court and a sentence of 3 years simple imprisonment and a fine of Rs. 25,000.
Aggrieved by the said judgement and sentence, the Accused-Appellant appealed to the Court of Appeal. By judgement dated 17th January 2014, the Court of Appeal dismissed the appeal and affirmed the conviction and sentence imposed by the High Court. Subsequently, she had filed an appeal in Supreme Court as well challenging the Court of Appeal order to dismiss her petition.
The officers of the Colombo Crime Division (CCD) had arrested the Accused-Appellant, for providing women for sexual intercourse for a payment. She had been arrested together with eight other women in an apartment of the Liberty Plaza Shopping Complex in Kollupitiya.
The lawyers appeared for the accused-appellant maintained that in order to prove a charge under Section 360A (1) of the Penal Code it is essential that the victim in fact engaged in prostitution as a result of the alleged procuration.
Justice Buwaneka Aluwihare and Justice L.T.B. Dehideniya observed that the offence of procuration cannot be committed with regard to a person who is already a commercial sex worker.
'As decided in the case of R v. Ubolcharoen (supra), a Section 52(1) offence {Sexual Offences Act 2003 [UK]} which is similar to that of Section 360A(1), cannot be committed if the complainant [the person]
has already been involved in prostitution, either home or abroad,' Justice Aluwihare observed.
'When analysing Section 360A (1), it appears to me that the desire of the legislature had been in safeguarding the public interest in morality than the chastity of the individual. The objective (of the Legislature) is to impose Penal sanctions, to discourage people from luring or inducing persons who are hitherto not engaged as prostitutes to join the profession of prostitution,' Justice Aluwihare further observed.
Justice L.T.B. Dehideniya agreed with the judgement of Justice Aluwihare.
However, Justice Preethi Padman Surasena pronounced a separate judgement after disagreeing with the conclusion and
reasoning set out in Justice Aluwihare’s judgement.
President's Counsel Rienzie Arsecularatne with counsel Chamindri Arsecularatne and Udara Muhandiramge appeared for the Accused-Appellant.
Additional Solicitor General Ayesha Jinasena PC appeared for the Attorney-General.
