Sand severed from land becomes movable property capable of theft under Criminal Code.

[*124] 1973 June 16

(PITSILLIDES, S.D.J.)

IN THE DISTRICT COURT OF KYRENIA

Kyrenia Police,

against

Panayiotis Michael Chrysomilis and Others,

Accused.

(Case No. 281/73).

Criminal Law - Stealing - Sand - After severance from the land becomes a movable thing capable of being stolen - Sections 255(3) and 277 of the Criminal Code, Cap.154.

Criminal Procedure - Stealing sand the property of two private individuals - Charge rightly brought under sections 255 and 262 of the Criminal Code, Cap. 154 - Foreshore Protection Law, Cap. 59 not applicable.

Stealing - See under “Criminal Law”; “Criminal Procedure”.

Police Sergeant Michaelides, for the Prosecution.

P. Petrakis, for the accused.

RULING

The following ruling was delivered by:-

PITSILLIDES, S.D.J.: The accused of this case [*125] are charged for stealing two motor loads of sand of the value of £20.- the property of Castas Agathocleous Germanos of Lapithos and Costas Paraskevaides of Nicosia contrary to sections 255, 262 and 20 of the Criminal Code, Cap. 154.

At the close of the case of the prosecution counsel of the accused submitted that no prima facie case has been made against the accused to require them to make their defence and this is the ruling on. this submission.

Defence counsel bases his submission on the following two grounds:-

(a) As sand forms part of the realty it cannot be stolen.

(b) Taking sand from the foreshore comes under the Foreshore Protection Law, Cap. 59, and should be applicable in this case as the special law, whereas the Criminal Code, Cap. 154, is a general law and as such not applicable.

With regard to the first of the said grounds, reference should be made to the evidence adduced that two lorry loads of sand were found by P.C. 1954 Soteris Ioannou (P.W.1) on the two lorries of the first and second accused; therefore these two lorry loads were severed from the realty and subsection 3 of section 255 of the Criminal Code, Cap.154, renders things adhering to property capable of being stolen after severance therefrom; [*126] the said subsection reads as follows:-

“Everything which has value and is the property of any person, and if adhering to the realty then after severance therefrom, is capable of being stolen”.

Further section 277 of Cap.154 speaks of severing from the immovable anything, which thus becomes movable, with intent to steal it and considers the maker of such movable with such intent equally liable to punishment as if he had stolen the thing after it had become movable.

In view of the said statutory previsions, I have no doubt that the sand having been severed from the land became a movable thing capable of being stolen and therefore the above ground

(a) of the submission should fail.

Regarding now the second ground of

the submission, i.e. that under (b) above, defence counsel cited Stavros Eraklides v. The Police (1971) 2 J. S. C. p.256. I have examined this argument very carefully

and my opinion is that it cannot stand for the following reasons:-

(1) The Criminal Code, Cap.154, cannot be classed as a general or special law. It prescribes particular acts, which are considered criminal acts if committed anywhere in Cyprus, and the punishments which the courts .of Cyprus can impose; it applies generally to all persons in Cyprus and to all acts committed in any part of Cyprus making no reservation or exception for acts done in any particular [*127] place or for similar acts prohibited by any particular law or regulation for any particular place.

(2) The terms ‘general’ and ‘special’ law used in Stavros Eraklides case in connection with the Mines and Quarries (Regulation) Law, Cap. 270, and the Foreshore Protection Law, Cap. 59, are used therein in the sense that the latter law was enacted for the ‘special’ purpose of protecting the foreshore and therefore applicable to cases of taking sand and gravel from the foreshore, whereas the former law was enacted for the ‘special’ purpose of regulating and controlling the working of mines and quarries. In view of the ‘special’ purpose of each of the said laws, the fact that the wide definitions in Cap.270 of the words ‘quarry’ and ‘quarrying’ cover the obtaining of sand and gravel from the foreshore, this does not render such ‘generality’ applicable to obtaining sand and gravel from the foreshore in substitution of the applicability of Cap.59 which is the ‘special’ law applicable to such obtaining, for it is a ‘generality’ which should be ignored as it does not serve the very purpose for which Cap. 270 was enacted. This distinction does not exist in the present case as there is no generality in Cap. 154, or in the sections under which the accused are charged, which should be ignored and therefore there is nothing to call for the necessity of the application of the rule of statutory interpretation that ‘generalia specialibus non derogant’. Further it may be observed here that Cap.1 54 was enacted in 1929 and Cap.59 was enacted in 1934 and [*128] there is nothing in Cap.59, which is a later law of special application, which directly or indirectly repeals or alters the sections of Cap.154 under which the accused are charged.

(3) The Foreshore Protection Law, Cap. 59, is applicable only to foreshores which are prescribed by notice of the District Officer of each district and it is not applicable to all foreshores in Cyprus. There is no evidence in this case that the foreshore in question is so prescribed or not; but regardless whether it is prescribed or not it cannot be argued that for parts of the foreshore which are prescribed by notice of a District Officer the said law is applicable to the exclusion of the sections of Cap. 154 under which the accused are charged and for those parts which are not so prescribed the said sections of Cap.1 54 are applicable. In

this connection it should be observed that the foreshore in Eraklides case was not prescribed by a notice of the District Officer and it

was decided that nevertheless Cap. 270 was not applicable.

(4) Cap.59 prohibits the removal of certain materials from and the dumping .of other materials on the foreshore and it applies to all persons including owners of the foreshore, whereas the sections of Cap.154 under which the accused are charged could not apply to such owners but they do apply to any other person who steals something belonging to someone else who in such case would be the complainant as the person wronged. Under Cap.59, however, the complainant could not be a [*129] private individual and the owner can be an accused if he is himself the wrongdoer.

For the above reasons I find that the submission that no prima facie case was made should fail and is therefore overruled.

Order in terms.