Court quashes conviction for failing to pay social insurance contributions where hawker was not an employee under contract of service.

[*259] 1969 December 4

(VASSILIADES, P., TRIANTAFYLLIDES, LOIZOU, JJ. )

APPELLATE JURISDICTION

Minas Lazarou,

Appellant,

v.

The District Jabour Officer, Nicosia,

Respondent.

(Criminal Appeal No. 3124).

Social Insurance - Failing to pay contributions - Sections 5(1), 9(6)(e), 73( 1) (2) (4) and 77 of the Social Insurance Laws 1964 to 1969 - Hawker selling baker’s wares on latter' s barrow and spring profits - Not an employee

- No contract of service within paragraph 1, of Part I, of the Schedule to the Law - Conviction quashed.

Appellant in person.

A. Frangos, Senior Counsel of the Republic, for the Respondent.

JUDGMENT

VASSILIADES, P.: Mr. Justice Triantafyllides will deliver the judgment of the Court.

TRIANTAFYLLIDES, J.: In this case the appellant, who is a baker, appeals against his conviction by the District Court Nicosia, on the 6th September, 1969, of the offence of failing to pay contributions for a person in his employment, contrary to the relevant provisions of the Social Insurance Laws 1964 to 1969. [*260]

In convicting the appellant the learned trial Judge found that the person in respect of whom the appellant was charged was, at the material time, selling the appellant’s wares and other goods, as a hawker, using the appellant’s barrow, and receiving 25% of the daily proceeds from the sale of the appellant's wares.

As the appellant is not represented by counsel and as it appeared that what had to be decided upon by us is the issue of mixed law and fact as to whether or not, on the facts as found by the trial Judge, there did exist a contract of service, in the sense of paragraph 1, of Part I, of the First Schedule to the legislation in question, we called, first, upon counsel for the respondent, who, unlike the appellant, was in a position to assist the Court in this respect.

Counsel for the respondent, after referring us to the application of similar legislation in England (see Halsbury’s Laws of England, 3rd ed., vol. 27, p. 710, para. 1294) has very fairly conceded that on the whole he did not think that this was a case in which the person in respect of whom the appellant was charged and convicted was in the appellant’s employment under a contract of service, in such a manner as to warrant the conviction of the appellant.

Even the trial Court in its judgment seemed to have faced quite some difficulty on this point; and it decided in the end that the method of remuneration of the said person by the appellant was "more consistent with [*261] being in the nature of a salary than in the nature of a commission"; and on this basis it proceeded to convict the appellant, which, with respect, we think was not a safe thing to do in a criminal proceeding.

In the light of all that has been placed, or stated, before us for the purposes of this appeal we have reached the view that the appellant should not have been convicted of the offence in question and we, therefore, allow this appeal and quash his conviction.

Appeal allowed.