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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1971) 2 CLR 172
1971 June 1
[TRIANTAFYLLIDES, P., HADJIANASTASSIOU, A. LOIZOU, JJ.]
MICHAEL DEMETRI ZAVOU
Appellant,
v.
THE POLICE,
Respondents.
(Criminal Appeal No. 3249).
Antiquities—Conviction for unlawful possession of antiquities (coins) contrary to section 33(3) of the Antiquities Law Cap. 31—Conviction quashed because the coins in question, although minted before 1900 A.D., were not first discovered in Cyprus but they were imported from abroad in 1970—See further infra.
Antiquities―Definition of "antiquity" in section 2 of Cap.31, as amended by section 3(a) of Law No. 48 of 1964—Intended to apply only to antiquities first discovered in Cyprus—This view is strengthened considering section 3(b) of the Antiquities (Amendment) Law 1964 (Law No. 48 of 1964) and Article 23.1 of the Constitution, the latter reserving the rights of the Republic in relation to antiquities.
Statutes—Construction of—Statutes imposing penalties—Strict construction thereof, so that, in case of ambiguity, the penalty should be avoided.
Words and Phrases—"Antiquities" in section 2 of Cap.31 and Article 23.1 of the Constitution.
Observations with regard to the desirability of further amending certain provisions of the Antiquities Law Cap.31, so as to remove any possible ambiguity and to bring them in line with present day realities.
This is an appeal against the conviction of the Appellant of unlawful possession of antiquities, i.e. 105 old coins, contrary to section 33(3) of the Antiquities Law Cap. 31. The trial Court found that the said coins were "antiquities" within the definition of the word in section 2 of the Law (as amended by section 3(a) of the Antiquities (Amendment) Law 1964, Law No. 48 of 1964), because they were minted before 1900 A.D.; the trial Court accepted that they were imported into this country in 1970 but took the view that the "law does not distinguish between antiquities of Cyprus or foreign origin, or between antiquities locally discovered and those imported from abroad".
It was argued by counsel on behalf of the Appellant that the conviction should be quashed because the definition of the word "antiquity" in section 2 (supra) does not cover antiquities imported into Cyprus in 1970, even if such antiquities are articles produced before 1900 A.D. as required by the statute.
The Supreme Court, though taking the view that the issue thus raised is not entirely free from difficulty, accepted the submission of the Appellant's counsel, quashed the conviction and:-
Held, (1). The definition of the term "antiquity" in section 2 of Cap.31, as framed, leaves the matter in doubt, as it does not contain any direct or indirect reference to the origin of an "antiquity" ;but the amendment effected to the definition of the term "land" in the said section 2, by means of section 3(b) of Law No. 48 of 1964 (supra),_to the effect that "land" includes, also, the territorial waters of the Republic, tends to show that the definition of "antiquity" was intended to apply only to antiquities first discovered in Cyprus.
(2) This view is strengthened by the fact that by Article 23.1 of the Constitution there has been reserved the right of the Republic to "antiquities"; and there could be no question of reserving for the benefit of the Republic any right in relation to antiquities first discovered abroad and imported subsequently into Cyprus.
(3) Moreover, it is a well-established principle of law that when construing a statute imposing penalties there should be adopted, in case of ambiguity, the construction whereby the penalty would be avoided (see London and County Commercial Properties Investments Ltd. v. Attorney-General [1953] 1 W.L.R. 312; and Re H.P.C. Productions Ltd. [1962] Ch. 466).
(4) In the light of the foregoing we have come to the conclusion that the aforesaid 105 coins were not "antiquities" within the ambit of Cap. 31 and, therefore, the appeal should be allowed, the Appellant's conviction and the sentence imposed on him, as well as the order for forfeiture, are hereby set aside.
Appeal allowed.
Cases referred to:
London & County Commercial Properties Investments, Ltd v.
Attorney—General [1953] 1 W.L.R. 312;
Re H.P.C. Productions, Ltd. [1972] Ch. 466.
Appeal against conviction.
Appeal against conviction by Michael Demetri Zavou who was convicted on the 6th April, 1971 at the District Court of Famagusta (Criminal Case No. 755/71) on one count of the offence of unlawful possession of antiquities contrary to sections 33 (1) (2) (3) and 34 of the Antiquities Law, Cap. 31 and was sentenced by Pikis, D.J. to pay £3.-fine and £5.-costs and the antiquities in question were ordered to be: forfeited.
Fr. Saveriades, for the Appellant.
S. Georghiades, Senior Counsel of the Republic, for the Respondents.
The judgment of the Court was delivered by:-
TRIANTAFYLLIDES, P.: This is an appeal against the conviction of the Appellant on a charge of unlawful possession of antiquities contrary to section 33(3) of the Antiquities Law, Cap. 31; according to the particulars stated in the relevant count, the Appellant, on the 4th of November, 1970, "did have in his possession antiquities, i.e. 152 old coins not contained in a list furnished to the Director of Antiquities". The Appellant was found guilty of possessing unlawfully only 105 out of the 152 coins, because the learned trial Judge came to the conclusion that it had not been proved that the remaining 47 coins had originated at a time prior to the year 1900 A.D. and that, therefore, they were not within the definition of "antiquity" in section 2 of Cap. 31, as amended by section 3(a) of the Antiquities (Amendment) Law, 1964 (48/64).
Regarding the 105 coins, in respect of which the Appellant was convicted, the trial Court found that they were antiquities, because they were minted before 1900 A.D.; the Court accepted that they were imported into this country in 1970 but took the view that the "law does not distinguish between antiquities of Cyprus or foreign origin, or between antiquities locally discovered and those imported from abroad".
It has been submitted by counsel for the Appellant that his conviction should be set aside because the definition of "antiquity" in section 2 does not cover antiquities imported into Cyprus in 1970, even if such antiquities are articles produced before 1900 A.D. Also, counsel for the Respondents has stated to us that in view of the finding that the coins in question were imported from abroad in 1970 he was not prepared to support the conviction.
The issue thus raised in this appeal is not entirely free from difficulty; and this was duly recognized by the trial Judge in his carefully prepared judgment.
The definition of the term "antiquity" in section 2 of Cap.31, as framed, leaves the matter in doubt, as it does not contain any direct or indirect reference to the origin of an "antiquity"; but, the amendment effected to the definition of the term "land" in the said section 2, by means of section 3(b) of Law 48/64, to the effect that "land" includes, also, the territorial waters of the Republic, tends to show that the definition of "antiquity" was intended to apply only to antiquities first discovered in Cyprus. This view is strengthened by the fact that by Article 23.1 of the Constitution there has been reserved the right of the Republic to "antiquities"; and there could not have been reserved for the benefit of the Republic any right in relation to antiquities first discovered abroad and imported subsequently into Cyprus.
Moreover, it is a well-established principle of law that when construing a statute imposing penalties there should be adopted, in case of ambiguity, the construction by means of which the penalty would be avoided (see London & County Commercial Properties Investments Ltd. v. Attorney-General [1953] 1 W.L.R. 312 and Re H.P.C. Productions, Ltd., [1962] Ch. 466).
In the light of all the foregoing we have come to the conclusion that the aforesaid 105 coins were not antiquities within the ambit of Cap.31 and, therefore, the appeal should be allowed; the Appellant's conviction and the sentence imposed on him, as well as the order for forfeiture made as a result of such conviction, are hereby set aside.
In concluding we would like to observe that in dealing with this case there was felt the desirability of amending further certain provisions of Cap. 31 so as to remove any possible ambiguity and to bring them in line with present day realities; we have no doubt that the responsible authorities will duly consider what is needed to be done for the purpose.
Appeal allowed.