Court dismisses appeal against conviction for unlicensed car radio, upholding higher licence fees as reasonable differentiation.

[*1397] 1968 November

(VASSILIADES, P., TRIANTAFYTLIDES, JOSEPHIDES, JJ.)

APPELLATE JURISDICTION

Andreas Demetriades,

Appellant,

v.

The Police,

Respondents.

(Criminal Appeal No. 3029)

Wireless Telegraphy Law Cap. 307 - Licence fees - Differentiation introduced, by Reg. 5 of the Wireless Telegraphy Regulations 1955 to 1966, between the annual licence fee for the maintenance of a car radio and the annual licence fee for a radio maintained elsewhere - Neither ultra vires The Wireless Telegraphy Law (supra) s. 6(1)(f) nor arbitrary.

Licence fees -- See under "Wireless Telegraphy Law".

Constitutional Law - Constitutionality of Reg. 5 of the Wireless Telegraphy Regulations (supra) - Article 19 and 28 of the Constitution - No unequal and discriminatory treatment in relation to the enjoyment of the right to receive information and ideas.

A. Triantafyllides with S. Spyridakis, for the Appellant.

K. Talarides, Senior Counsel of the Republic, for the Respondents.

JUDGMENT

VASSILIADES. P.: We find it unnecessary to call on the other side. And shall ask Mr. Justice Triantafyllides to give the first Judgment.

TRIANTAFYLLIDES. J.: In this case the appellant appeals against his conviction, on the 24th August, 1968, [*1380] District Court of Nicosia, of the offence of maintaining an apparatus for wireless telegraphy without a licence, contrary to sections 3(1) and n(a)(ii) of the Wireless Telegraphy Law, Cap. 307, and regulation 5 of the Wireless Telegraphy

Regulations 1955 to 1966; the particulars of the offence being that on the 1st day of February, 1967, he did maintain a

Becker valve apparatus for wireless telegraphy - which was, in fact, a radio installed in his car - without a licence from the appropriate authority.

The conviction is not attacked on any question of fact; it is common ground that, at the material time, the appellant did maintain the said radio and that he did not have a licence for the purpose.

This appeal is based on the ground that regulation 5, as re-enacted in 1966 (see Not. 297 in the Third Supplement to the official Gazette of the 9th June, 1966) has invalidly prescribed a higher annual licence fee, £3.-, for a radio installed in a car, as compared with the annual licence fee, £1.250 mils, for a radio maintained elsewhere.

Learned counsel for the appellant has submitted, first, that regulation

5 is, in essence, ultra vires section 6(1)(f) of Cap. 307, because it introduces, by way of prescribing fees, a differentiation, between car radios and other E radios, which is unwarranted.

Bearing in mind the essential nature of things, as well as the purpose of the relevant enabling powers, I cannot agree that the differentiation made by regulation 5 is so unreasonable, or otherwise unjustified, as to lead me to the [*1381] conclusion that the said powers have been used in a manner which is outside the ambit of their object and that, consequently, regulation 5 is ultra vires.

Secondly, counsel for the appellant have submitted that regulation 5 results in unequal treatment regarding the enjoyment of the right safeguarded under Article 19 of the Constitution, which includes the right to receive information and ideas. It has not been submitted that the making of provision for the payment of a fee for an annual licence to maintain a radio violates, as such, Article 19; counsel's contention is that the differentiation made between the annual licence fees for car radios and other radios entails an in fringement of Article 19 when taken together with Article 28, which safeguards the right to equality and prohibits discriminatory treatment.

The right to equality in the enjoyment of any fundamental right - such as that safeguarded under Article 19 – is not so absolute as to exclude reasonable differentiations or distinctions (see, inter alia, Mikrommatis and The Republic, 2 R.S.C.C. 125, as well as the Decision of the European Court of Human Rights in The Belgian Linguistic Case).

In the present case, I am not of the opinion that counsel for the Applicant has managed to satisfy me (and the burden was on him) that regulation

5 entails the making of an arbitrary differentiation between car radios and other radios, with the result that Articles 19 and 28 have been violated; I take the view that the installation and use of a radio in a car is something distinguishable from and beyond [*1382] the minimum ordinary daily necessity of having a radio available at one's home or at one’s place of work for the purpose of keeping in touch with what is happening in his country and the world around him, and of listening to other radio broadcasts; it is some via at in the nature of a luxury, by, at any rate, present standards, and it is, thus, reasonably amenable 3 to different treatment as regards annual licence fee.

For the foregoing reasons, I would dismiss this appeal.

VASSILIADES. P.: I agree. I found the elaborate argument advanced on behalf of the appellant quite interesting. Learned counsel have, apparently, put in a lot of work into the matter and have done useful research; but I do not find myself convinced, in the end, that their submissions can be sustained. For the reasons stated by Mr. Justice Triantafyllides, I agree that this appeal must be dismissed.

JQSEPHIDES. J.: I also agree. I am of the view that the imposition of a higher fee for the maintenance of a car radio is not ultra vires the law (Cap. 3C7) Nor am I satisfied that this differentiation is arbitrary; consequently, I hold that the relevant regulation is not unconstitutional.

VASSILIADES. P.: In the result this appeal is dismissed.

Appeal dismissed.