Court quashed conviction for possession of imported coins, ruling they were not antiquities under the law.

[*1268] 1971 June 1

(TRIANTAFYLLIDES, P. , HADJIANASTASSIOU, A. LOIZOU, JJ. )

APPELLATE JURISDICTION

Michael Demetris Zavou,

Appellant,

v.

The Police,

Respondents,

(Criminal Appeal No. 3249).

Criminal Law - Antiquities - Conviction for unlawful possession of antiquities (coins) contrary to section 33(3) of the Antiquities Law Cap.31 - Coins in question not antiquities within the ambit of Cap. 31 (supra) because they were not first discovered in Cyprus, but they were imported from abroad in 1970 - Conviction quashed.

Antiquities - Definition of "Antiquity" in section 2, of the Antiquities Law Cap. 31 - Intended to apply only to antiquities first discovered in Cyprus - Section 3(b) of the Antiquities (Amendment) Law, 1964 (48/64) and Article 23(1) of the Constitution.

Construction of Statutes - Section 2 of the Antiquities Law Cap. 31.

Construction of Statutes - Penal Act - In case of ambiguity the construction by means of which the penalty would be avoided should be adopted.

Observations with regard to the desirability of amending further 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.

Fr. Saveriades, for the Appellant.

S. Georghiades, Counsel of the Republic, for the Respondents.

JUDGMENT

The following judgment was delivered by: -

TRIANTAFΥLLIDES, P.: This is an appeal against the conviction of the appellant on a charge of [*1269] 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. [*1270]

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(l) 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 [*1271] 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.