Court upheld criminal prosecution for failing to collect tourism fees, rejecting constitutional immunity as an excuse for illegality.

[*42] 1983 June.16

(KALLIS, AG.D.J. )

IN THE DISTRI CT COURT OF NICOSIA

Cyprus Tourism Organization,

v.

Kyriacos Kammouyiaros,

Accused.

(Case No. 1706/82).

Tourist Centres Law, 1979 - 3%

percentage on the bills of customers - Failure to collect - Sections 12 and 16(4) of the Law - Existence of a licence

for the operation of the tourist centre not necessary in order to prosecute for contravention of the above sections - Above sections create a criminal offence - Shistris v. C.T.O.

(1983) 3 C.L.R. 72 followed - Appropriate sentence for contravention of the above sections.

Criminal proceedings - Private Criminal Prosecution - Right to initiate.

Constitutional Law - Constitutionality of legislation - Not decided by Courts unless absolutely necessary to a decision of the case - Where an act is severable the Court may severe or separate the invalid part - Onus of proving unconstitutionality upon the person propounding it - Belief in the unconstitutionality of a statute not an excuse for illegality.

Statutes - Construction - principles applicable.

Criminal Law- Sentence - Prevalence of an offence - Court may take judicial notice of - Proper sentence in such cases a deterent one.

Rule of Law - Dutyoof the Courts to sustain the Rule of Law.

M. Eliades with A. Paschalides, for the Prosecution.

A.S. Angelides with C. Clerides, for the accused.

JUDGMENT

The following judgment was delivered by:-

KALLIS. AG. D. J. :- The accused,[*43] who is described in the charge sheet as the businessman (epichirimatias) of the Tourist Centre "Crazy Horse" was charged on a charge sheet containing 5 counts as follows (as amended by leave of the court given on 2.6.83):

Count 1 related to

"Failure to collect and pay a percentage contrary to sections 12, 16(4) of the Tourist Centres Law, 1979, and the

decision of the Council of Ministers No. 19.811 dated 11.12.1980 Official Gazette .No. 1683 of 23.4.81 and regulation 8 of the Tourist Centres Regulations, 1980 (No. 203/80)."

The particulars of this count were that accused failed to collect and pay to the Cyprus Tourism Organisation at Nicosia until the 15th March, 1982 the 3% percentage on the bills of customs of the centre "Crazy Horse" in respect of the month of February, 1 982.

Counts 2, 3 and 4 charged the accused of the same offence as in count 1 but in respect of the months of March, April and May, 1982, respectively.

Count 5 related to

"Failure to submit returns of monthly receipts (paralipsis ipovolis ton entypon minieon ispraxeon) con- “trary to sections 12, 16(4) of the Tourist Centres [*44] Law, 1979, of the circular of the Cyprus Tourism Organization dated 12.12.80 and of regulations 8 and 22(2) of the Tourist Centres Regulations 1980 (203/80)".

The particulars of this count were that the accused failed to submit to the Cyprus Tourism Organization at Nicosia by the 15th June, 1982, returns of the receipts of the tourist centre Crazy Horse with the details provided by the above section, circular and regulations in respect of the period 1.2.1982 - 31.5.1982.

The evidence:

F.W. 1, Georghios Pericleous, an Inspector of the Cyprus Tourism Organization ("KOT") testified that they keep a general register in respect of tourist centres and a separate file in respect of each tourist centre and that both are 1 under his control. According to the register in his possession, accused is the businessman and manager (epichirimatias ke diefthintis) of the tourist centre whose classification is night centre cabaret - crazy horse; that accused undertook it as businessman-manager from 1.2.82 and he maintains it until this day, including the period 1 .2.82 - 31 .5.82. Crazy Horse was classified as a tourist centre pursuant to the privisions of the Tourist Centres Law, 1979, (Law 91/79) on 1.3.81 but then it was under a different management; that classification [*45] is made by name in respect of the centre and not in respect of a person. From the material in his possession and the register he keeps, it appears that accused has not until this day paid the 3% percentage in respect of the months of February, March,April and May, 1982, and he has not until this day submitted the returns of the monthly receipts in respect of the same period. Further from the material in his possession and from personal knowledge Grazy Horse was operating during the period 1.2.82 - 31 .5.82.

In cross-examination the witness said that accused on .16.2.82, paid £10.- for the operation licence of his tourist centre.

P.W. 2 Costas Kyprianou, an Inspector of KOT testified that on 2.2.82, in his capacity as an inspector visited cray horse. In the course of his duties he handed to the businessman and manager - the accused - certain circular instructions of .KOT copies of which were put in as exhibits - 3(a) - 3(d) . I will refer later to the contents of these exhibits which will be. hereinafter referred to as "the circular" Upon handing to the accused the circular - exh. 3(a) - 3(d) - he explained to him the provisions of the law regarding the charge (chreosis) of a percentage of 3% on the bills of customers and indicated to him. to use exhibit 3(d) for the payment of the percentage to KOT within the time limit set up by the circular (exhibit 3(c)). Accused replied that he will consider the circular and will let him (the witness) know of his stand on his next visit. The next visit of this witness at Grazy Horse was on 16.2.82 in the course of which he met accused and asked him whether hestudied the circular and whether he charges [*46] (chreoni) the 3%

/and accused replied that for the time being ("pros to paron")

he does not charge (chreoni) the 3% in favour of KOT, and when the witness indicated to him that his refusal to comply with the law constitutes an offence accused replied that if KOT does not grant him a loan he will not charge the 3%. The witness visited Crazy Horse yet on another occasion, on 23.3.82, accused was not present and his brother was acting for him. During this visit he ascertained that Crazy Horse was operating and that the 3% was not charged and paid and that no monthly returns were submitted to KOT in respect of- February, 10 1982. There followed another visit on 27.4.82 whereupon the witness met accused and in relation to the charging and payment of the 3% and the submission of the monthly returns in respect of March, 1982, he ascertained that the 3% was not charged and was not paid and the returns were not submitted. 15 The next visit of the witness took place on

18.5.82 whereupon he ascertained that Crazy Horse was operating and that the 3%, in respect of April 1982, was not charged and was not paid and the montly returns in respect of the same month were not submitted. He asked from accused the 3% and he replied 20 that he does not charge it. The last visit was on

29.6.82 whereupon he again ascertained that Crazy Horse was operating, its businessman-Manager was the accused, that in respect of May, 1982 the 3% was not paid to KOT and the monthly return of receipts was not submitted.

In respect of the period February - May, 1982 accused has not made any proposal for the payment of any amount to KOT [*47] and that whenever he asked him for the 3% he used to reply ''since I do not charge it how shall I pay it?".

In cross-examination the witness said that compliance with the circular required spending of some time.

The circular exh. 3(a) - 3(d).

This circular which was issued by KOT on 12.12.80, so far as relevant to these proceedings provides as follows: -

Exh. 3(a) was headed as "Annex 'A' " and provided that for every order (parangelia) there should be issued an analytical and numbered bill in duplicate in accordance with

"Table A". Para. 4 of this exhibit provided: "with regard to the forms (entipa) of accounts as well as the keeping of the special book and payment to KOT of the percentage collected in favour of the organization you are requested to follow the relevant instructions and circulars issued by the organiza-tion from time to time. See in this connection circular No.

1 dated 12.12.1980".

Exhibit 3(b) was headed as "Table 'A' " and was a specimen of bill to be issued by a tourist centre.

Exhibit 3(c) was the circular No. 1 dated 12.12.1980

referred to in exhibit 3(a). Para. 1 thereof informed the business-men-managers of tourist centres that the Council of Ministers, acting under s. 12 of the Tourist Centres Law, at its meeting of

11.12.80 determined the imposition of a 3% per-[*48] centage on every bill of a customer and that the payment of the percentage is put into effect with effect from 1.1.1981.

Para. 2 related to the giving of a book by the organization to the businessmen where in to enter all daily receipts as well as the amounts collected in favour of the organization; and provided further that the businessman was bound to forward to the Organization by the end of each month and in any case not later than the 15th day of the next following month, a return of monthly collections, in accordance with the form attached together with the amount collected in favour of the Organization.

Paragraph 3 provided: "In accordance with the provisions of the Tourist Centre legislation for every order there should be issued a receipt. The receipts should be numbered and bound in counterfoils. Copies of the receipts should be retained by the businessman until the end of the immediately following year from the date of their issue".

Exh. 3(d) was headed "Return of Monthly Charges" (chreoseon) and was a form for the entry of daily collections, including the 3% for a period of one month.

The defence:

When called upon to make his defence the accused testified on oath that during the period 1.2.82 - 31.5.82 no [*49] customer at the Crazy Horse ever paid to him the 3% in favour of KOT; that during the same period of time no customer offered to pay the 3% and that he declined to collect it adding "I cannot collect my own money how shall I collect other money"; that he had instructions from PASIKA (the union of owners of tourist centres) as to what to include in his prices; that these instructions were to the effect that he may (dikeoute) include in the bill the 3% but how can he include it since it is not collected; that he studied the papers (circulars) which were handed to him by the officials of KOT and he found them to he entirely inapplicable, he ought to have employed an accountant to prepare them, and keep the various books because he is illiterate and he cannot do it himself and he informed KOT officials that he is prepared, free of any charge, to allow them to go at his cabaret and collect the 3% themselves.

In cross-examination the accused admitted that he was the proprietor-businessman and manager of Crazy Horse during the period 1.2.82-31 .5.82 and that it was operating during this period; that during this period he was not paid any amount to KOT because he has not collected any; that he issues cash register bills to customers but that the 3% is not included in these bills; that he asked from many customers to be paid the 3% and they refused and on many occasions he called the police to collect his own money and in respect of the 3% the police advised him to take them (the customers) [*50] to court; that he never submitted any monthly returns to KOT and he does not know what returns mean.

To a question by the court he said that he asked customers for the 3% orally, he did not include it on the bills.

D.W. 1 Savvas Leonida, general secretary of PASIKA (Pancyprian Union of owners of entertainment Centres which is a registered trade union) testified that as a trade union, since their establishment - in June, 1981 - have expressed their opposition to the whole philosophy of the 3% and they have spotted many weaknesses (kena) in the application of the question of the collection and payment to KOT of the 3% and the circulars - exhibit 3(a) - 3(d) - did not solve the practical problems they have ascertained; that he had in mind many instances of customers - local and foreigners - who refused to pay the 3%, particularly the foreigners by invoking a question of principle and not being prepared to pay taxes and local customers invoking a question of height of the bill; that the question of compliance with the circulars - exh. 3(a) - 3(d) - requires much time and the whole obligation of application of the 3% requires the appointment of an accountant on a full time basis.

In cross-examination he said that he charges the 10% for the waiters, there was some reaction from customers, but in spite of the reaction he collects the 10% because it goes [*51] to the staff of the business whereas the 3% has nothing to do with the staff; that the 10% is a part of the salary of the staff for which "we who apply it agree, hut when a customer declines to pay the 3% as we also do not agree with the whole philosophy we do not insist".

Findings as to credibility:

Having had the opportunity in the course of the trial to follow all the witnesses, including the accused, whilst testifying before me and to observe their demeanour in the witness box I have no hesitation at all to accept the evidence of P.W. 1 and 2 and to rely on it because they gave me the impression that they are witnesses of truth. On the other hand I cannot accept the testimony of accused that he ever made the slightest attempt to collect the 3% both due to his demeanour in the witness box and because I prefer on this issue the evidence of P.W. 2 to whom accused admitted repeatedly that he does not charge the 3%. Regarding the evidence of D.W. 1, the trade union official, though he spoke of weaknesses (kena) and practical problems, he was not very specific on this issue and the gist of his evidence was centred over one issue - the disagreement of his union to the whole philosophy of the and though he was collecting a 10% for the staff he did not insist to collect the 3% because he did disagree with its philosophy. His evidence on the alleged practical problems involved in the enforcement of the [*52] provisions of the law is not convincing both due to the demeanour of this witness and due to the contents of such evidence.

The Law:

As already stated, the accused has been charged for contravention of sections 12 and 16(4) of Law 91/79 - counts 1

- 4 - and these sections read as follows in English:*

"12. (1) By decision of the Council of Ministers a percentage may be fixed up to a level of 10% on every account of a client of a tourist centre except the taxes and the service.

Provided that the Council of Ministers may by its

decision exempt in whole or in particular from the aforesaid percentage any touristic centre found in mountain resort as it may be specified in such

decision.

(2) The percentage so fixed is imposed on the client and collected by the businessman and paid at his own responsibility to the Organization, not later than the 15th of the following next month, in accordance with the circular instructions of the Organization.

(3) Each businessman must keep records showing the daily receipts made by the tourist centre in accordance with circular instructions of the Organisation. [*53]

16.(4) Every person which contravenes or omits to comply with any provision of this law in which no special provision is made about it, is guilty of an offence and is liable to a fine not exceeding the sum of C£100."

Regarding count 5, in addition to the above quoted sections accused is alleged to have contravened regulations 8 and 22(2) of the Tourist Centre Regulations 1980, which provide as follows, and the above circular of 12.12.1980.

"8(1) Every manager or businessman of a tourist centre

is bound to keep the specified special book and to enter therein details and data with regard to his daily receipts and to present same

for inspection to any officer of the organisation who is authorised so to do in this respect."

"22(2) Every manager or businessman of a tourist centre is bound, on the basis of circular instructions of the organisation, to submit to the organisation every statistical or other information which relates to the movement of customs of the tourist centre (tin is pelates kinisin)".

Before proceeding to resolve the respective legal submissions of the parties, I will state that the question of the 3% and the interpretation of Law 91/79 came up for consi- [*54] deration before the Supreme Court on three occasions as follows and thus my task has been rendered much easier:

Kissonerga Development v. Republic. (1982)

3 C.L.R. 462; Palalas v. Police. (1982) 2 C.L.R. 200; and Shistris v. KOT. (1983) 2 C.L.R. 72.

Counsel for the accused submitted that KOT cannot be a prosecuting authority because no express provision is made in this respect by the Cyprus Tourism Organisation Law,

1969 (Law 54/6.9 or by the Tourist Centres Law, 1979, (Law 91/79). Counsel referred in this connection to a study by Loukis G. Loucaides, then Senior Counsel of the Republic (now Deputy

Attorney-General of the Republic) "Ο Θεσμός του Γενικού Εισαγγελέως εν Κύπρο" 1974 at pp.

43-55 and to "Criminal Proceduro in Cyprus" by A. Loizou and G. Pikis at p. 64.

At p. 63 of the latter book the following are stated:

"A person aggrieved by an act or omission constituting an offence under the Law has the right, subject to certain statutory limitations,

to bring a charge before the Court. This system of the Common Law owes its origin to the need to ensure the unimpeded

access of the citizen to the Courts of Law."

In Halsbury’s Laws of England 3rd ed. Vol. 10, the following are stated at p. 338:

"628 Right to initiate criminal proceedings. In the [*55] absence of statutory provisions to the contrary any person may of his own initiative, and without any preliminary consent, institute criminal proceedings with a view to an indictment; but there are some statutes which require that certain criminal proceedings should be undertaken only by order of a judge or by the direction or with the consent of the Attorney-General."

(see also Duchesne v. Finch T.L.R. Vol. XXVIII p. 440).

The right to a private criminal prosecution is deeply embedded in our system of criminal justice and as a matter of practice criminal prosecutions by private individuals and government departments or institutions are a matter of daily occurrence in our courts, subject always to the rights of the Attorney-General of the Republic under Article 113.2 of the Constitution and subject to any statutory provision to the contrary.

In this case in the absence of any statutory provision to the contrary, and as KOT is obviously a person aggrieved by the acts of the accused, I am definitely of opinion that it can institute a criminal prosecution against him and it makes no difference at all whether the person aggrieved is a natural person or a corporation (see Interpretation Law Cap. 1 Section 2, definition of "person").[*56]

Another submission on behalf of accused was that since the 3% is an obligation and imposition which is obligatory it constitutes a tax or duty or rate within the meaning of Article

24 of the Constitution and therefore it cannot be collected by, and form part of the Fund of KOT.

Counsel referred in this connection to the Kissonerga case (supra) at p. 495 whereby it was held that the 3% is a charge on clients’ bills, is a source of income for KOT and can be collected by it under s. I3(n) of Law 54/69; and that as in the Shistris case (supra) at p. 81 it was held that it is a tax in the sense of Article 24 of the Constitution it cannot be income in the sense of the above s. I3(n) and thus it cannot be collected by KOT because the Shistris case which was decided subsequently prevails over the Kissonerga case.

Counsel for the prosecution submitted in this respect that the 3% was not expressly defined as tax in the Shistris case because it is also described as charge but even if it is a tax it is again a source of income and may be collected by KOT on the basis of the Kissonerga case.

The short answer to the above submission is that the 3% whatever its true nature and character may be it never cases to be an income for KOT and as such can, on the authority of Kissonerga, be collected by KOT.

The next submission of counsel was that the relevant [*57] decision of the Council of Ministers (No. 19811 taken on 11.12.80 and published in Supp. No. 4 of the Official Gazette of the Republic No. 1683 of the 23.4.81) on the basis of which the obligation to pay the 3% was determined retrospectively as from 1.1.1981 is in view of this fact non-existent because it is contrary to Article 24. 3 of the Constitution which prohibits retrospective taxation; that, also, this

decision is ultra vires the enabling enactment 91/79 - section 12(l) - because this section provides "dinate na orizite" and this is interpreted as referring to the future.

In reply to the above submission, counsel for the prosecution submitted that even if the 3% were to be a tax the offences refer to a period of time subsequent to the 24.4.8l and therefore there is no retrospective imposition of taxation; and, also, the 3% does not burden the accused but the customer.

In resolving this issue of constitutionality, I shall have to deal at some length with the principles governing the constitutionality of legislative enactments. It is well established by the case law of the Supreme Court that:

(a) No act of legislation will be declared void except in a very clear case, or unless the act is unconstitutional beyond all reasonable doubt;

(b) The Courts are concerned only with the constitutionality of legislation and not with its motives, [*58] policy or wisdom, or with its concurrence with natural justice, fundamental principles of government or spirit of the Constitution;

(c) If at all possible the Courts will construe the statute so as to being it within the law of the Constitution.

(d) The judicial power does not extend to the determination of abstract questions, or to put it otherwise it is not the habit of the Court to decide questions of a Constitutional nature unless absolutely necessary to a decision of the case."

(e) In cases involving statutes, portions of which are valid and other portions invalid, the courts will separate the valid from the invalid and throw out only the latter unless such portions are inextricably connected.

(See Board for Registration of Architects v. Kyriakides.

(1966) 3 C.L.R. 640 at pp. 654 - 55; Hoppi v. Republic. (1972)

3 C.L.R. 269; Psaras v. Republic

(1968) 3 C.L.R. 353; (1971)

3 C.L.R. 151; Matsis v. Republic (1969)

3 C.L.R. 245).

In this case given that the 3% does not burden the accused the question of its constitutionality is an abstract question not absolutely necessary to a decision of the case and, therefore, on the basis of principle (d) above I need [*59] not go into it. But even if I had to probe into the question of the constitutionality I would say that as the application of the provisions of the above decision of the Council of Ministers in so far as accused is concerned refers to thefuture (1.2.82 - 31.5.82) I would by acting on principle

(e) above and also, on the auth orities of Kissonerga., Malachtos v. Attorney-General (1981) 1 C.L.R. 543 and Ploussiou v. Central

Bank (1983) 3 C.L.R. 398 and as the act is severable, severe or separate the invalid part i.e. that imposing the 3% retrospectively and hold that the remaining part of the decision is valid. I would add that it is the event of the colleotion of the 3% that governs the issue; and inasmuch as no obligation was imposed on accused to collect the 3% retrospectively the decision of the Council of Ministers does not offend against the principle of non retrospectivity and therefore the relevant submission of counsel cannot be sustained, for the position is, I venture to say, analogous to Matsis v. Republic. (1969.) 3 C.L.R. 245 at p. 271 and Hadji kvriacou v. Republic 5 R.S.C.C. 22.

The next submission of counsel for the accused was that since

the circular of KOT dated 12.12.80 - exh. 3(c) - has not been published in the Official Gazette even if it was issued on the authority of a law it is

not binding. Further, even if

it is not referred to in the statement or particulars of the offence of counts 1 - 4 for an offence to exist under sections 12(2) and (3) there must be

present two elements (a) lawful

determination of the percentage by the Council of Mini- [*60] sters and (b) a lawful circular. Counsel, further, forcibly argued

in this connection that as the charging (chreosis) precedes the payment and the collection follows the payment had the law intended the manager to be burdened with an obligation to charge the customer section 12(2) should have expressly said so; that the obligation of the businessman which has been established by s. 12(2) is infringed only if the customer pays the 3% and the businessman does not collect it and that section 12(2) does not create an obligation on the businessman to charge the 3% together with his prices. Counsel referred in this connection to regulation 6 of the 1980 Regulations to the effect that the prices of the services rendered by Tourist Centres may be constituted "dinate na singrotounde" also by the 3%.

Counsel for the prosecution submitted in this respect that the relevant circular does not constitute a part of the ingredients of the offence but it simply explains the manner and method of the application of the obligations of the managers under the law.

To my mind the circular is absolutely irrelevant for the purposes of guilt or innocence of the accused on counts 1 - 4; following the publication of the

decision of the Council of Ministers any businessman who fails to collect the 3% and pay it to KOT commits an offence. The circular is nothing more than a

purely administrative measure destined to provide [*61] a machinery for the proper application of the relevant provisions

of the law and to facilitate the businessmen in complying with the law. Of course, had I been of opinion that the circular plays any part into the question of guilt or innocence of. the accused on counts 1 - 4, I would have considered whether it had to be

published before it could have any binding force, for no one can be prosecuted for an offence which is not part of the statute book; and

no provision can be a part of the statute unless published. (See Plousiou case (supra).

Regarding the question of the charging (chreosis) of the 3%, the Shistris case clearly, establishes (vide pp. 82, 83 and 84 of the report) that the businessman has a duty to collect the 3% and can only discharge this duty by collecting it and cannot leave its payment to the will or whim of the customer.

Having in mind the above dicta and the principles of statutory interpretation that there is a presumption that a statute does not intend an injustice or absurdity (see Maxwell on Interpretation of Statutes, 11th ed., p. 193 adopted in Georghiadou v. Republic, (1966) 3 C.L.R. 612); and also the principle that a statute is meant to be operative and workable and its interpretation should be to secure this object (see Myrianthis. v. Republic, (1978) 3. C.L.R. 254) as well

as the. principle that the purpose for which a statute was enacted [*62] is a weighty consideration for the purpose of correctly construing

it (see Vita Ora v. Republic, (1973) 3 C.L.R. 273) along with the wording and the purpose of the statute, I cannot but decline to give to the section in question the interpretation suggested by counsel, for to do so will lead to absurd results and there is no other possible and practical way for securing the objects of the law and for the businessman to discharge his duty under the law than by charging (chreoni) the 3%.

The next submission of counsel referred to count 1 and was based on the fact that as accused obtained a licence only on 16.2.1982 he cannot be charged for committing the offence from

1.2.82 - 16.2.82. Counsel referred, in this connection to sections 5 and 2 (definition of "businessman") of Law 91/79.

What matters in this case is whether the Tourist Centre concerned was operating during the period 1.2.82 - 16.2.82 and whether the businessman was the accused, for as at present advised the licence refers to the tourist centre and not to the businessman (see by analogy Kaminaros v. Republic (1971) 3 C.L.R. 445; Lordos and Anastassiades v. District Officer Limassol. (1976) 2 C.L.R. 145). To hold otherwise it would mean that a businessman who operates a tourist centre without licence would only be guilty of the offence of operating it without a licence, contrary to s.4 of Law 91/79, but cannot be prosecuted for contravention of s. 12(2). I there- [*63] fore, hold that the accused can be charged for committing the offence during the period aforesaid notwithstanding the absence of a licence.

Another submission of counsel was that the obligation to collect tax in favour of a third person is not provided by any Article of the Constitution and the obligation imposed by s.12(2) is, therefore, unconstitutional, because it collectively infringes Articles 25, 26 and 28 of the Constitution.

It is well settled that the onus of proving unconstitutionality is upon the person propounding it and particularly with regard to Article 28 the onus is upon the accused to adduce evidence to prove allegation of unequal treatment. (see Miamiliotis v. Republic, (1983)3 C. L.R.322) .1 will dispose this issue by simply saying that accused has not proved or shown, to any degree, in what respects the above articles are infringed.

Having dealt with the legal submissions, I shall now proceed to consider whether the accused is guilty of the offences charged, having regard to the evidence adduced. In the Shistris case (supra), where the charges as subsequently amended (see p. 76 - lines 5 -

10 of the report) were the same as counts 1 - 4 in this case the following were stated at p. 81:-

"No doubt section 12 of the Law set out in this [*64] judgment is a taxing provision in the sense that it imposes on a customer of a tourist centre a tax specified by

decision of the Council of Ministers on the basis of a percentage on every account as provided by subsection 1 thereof. And this pro “vision confers the authority of a law for such imposition required for its legality and constitutionality envisaged by Article 24 of the Constitution. In addition to imposing a tax, it casts a duty on the restaurateur to collect same and account for it to the organization. Thus there are created by this statutory provision two obligations. One on the customer to pay a tax as specified in the said section and another on the businessman to collect same and hand it over to the Organization. There is nothing uncertain, vague or unambiguous in its wording leaving a doubt. Had this been the case, it should, on the principles of construction regarding penal or taxing statutes earlier referred to in this judgment, be resolved in favour of the citizen or the tax-payer."

“Further at p. 82 the following were stated:

"Moreover, the proprietor of a tourist centre and in that respect the appellant, is not called upon to pay for the misdeed of another person, as suggested. There is a clear statutory provision creating an offence in respect of acts or omission[*65] offending section 12(2) of the Law in the provision of section 16(14) which expressly, clearly and unambiguously says so. Consequently, there is a criminal offence created by law and in respect of which the sentence to be imposed is provided by section 16(4) of the Law. An offence may be created by the combination of two or more sections of the Law. So long as the legislative intent is clearly manifested the Courts will give effect to it as the trial Judge did in the present case. The law makes it an offence of the proprietor of a tourist centre to fail or omit to collect the 3% charge. He not only has a right but a duty to collect it. On his own admission the accused in this case ignored his duty and. failed to discharge his obligation. The law was, therefore, rightly Applied and the accused correctly convicted."'

And lastly at pp. 83 and 84:

"The last ground raised concerns the adequacy of the evidence before the Court to sustain the conviction. we have been referred to the relevant passage in the judgment from which it transpires that what the appellant claimed to have done was to inform the customers of the 3% tax and leave it to them to pay; once they refused he left matters at that, being content that he discharged his duty under the [*66] Law. We reject this submission of counsel because section 12(2) of the Law imposes a mandatory duty on the person running a tourist centre to collect a tax which is imposed by law on his customers. Section 12(2) of the Law reads as follows:-

"' The so fixed amount burdens the client and is ' collected by the business-man and handed on his 'own responsibility to the Organization not later 'than the 15th of the next month in accordance with ’the circular instructions of Organization’

It is clear from the aforesaid wording that the businessman has no option but to comply with the law and to aid in its effective enforcement and not to leave the payment of the said imposition to the will or whim of the tax-payer. As the appellant claimed to have done in this case and felt that the had discharged the duty Imposed upon him by law. He could not, in our view, be absolved of his responsibilities by the mere refusal of the client to meet his obligations cast by law; nor can one leave it to the discretion of the customer whether he will pay the charge. He can only discharge his duty by collecting the tax."

In this case there was ample evidence and I so find that Crazy Horse was classified as a tourist centre; that its businessman manager during the period subject matter of [*67] counts 1- 4 (1.2.82 - 31 .5.82) was the accused and that it was operating throughout the whole of this period and had customers. Also there was ample evidence and I so find that the accused failed to charge (chreosi) collect and pay the 3% to KOT during the same period. Learned counsel for the accused submitted that the facts of this case differ from the Shistris case because in this case the police were called and because the legality of the circulars Was not in issue in the Shistris case. His submission as regards the circular is correct but as regards the facts I have already, when dealing with the question of credibility rejected the evidence of the accused that he called the police and with all respect to learned counsel I would say that if there is a difference between the facts of the two cases it lies in this: In the Shistris case there might have been at attempt - albeit slight - by that accused to collect the 3% whereas in this case we have the admission of accused to P.W. 2 "since I do not charge it how shall I pay it".

Having regard to the state of the law as enunciated in the Shistris case and to the evidence and my above findings I arrived at the conclusion that the prosecution has proved the guilt of the accused on counts 1 -4 beyond reasonable doubt and he is, therefore, found guilty as charged on these counts.

Regarding count 5, accused in the

statement of offence is charged for failing to submit to KOT "entipa minieon [*68] ispraxeon", contrary to sections 12, 16(14), to the circular 12.12.80 and Regulations 8 and 22(2) of the

Tourist Centres Regulations. In the particulars of offence he is charged for failing to submit to KOT "entipo ton inspraxeon" - "minieon" is omitted - together with the data provided by the above sections circular and regulations.

Now, from a mere reading of s. 12(3)

- which is the only relevant section - and regulations 8 and 22(2) it is clear that they make no provision for submission of monthly returns; and I would reject as untenable the submission of learned counsel for the prosecution that the offence is committed through the combined effect of section 12(3) and Reg. 8 and 22(2) and that the phrase "tis is pelates kinisin" in the latter regulation creates the obligation of submission of monthly returns as per count 5.

Now the circular - exh. 3(c) - in its para. 2 speaks of return of monthly collection ("katastasis minieon ispraxeon") but this part of the circular lacks binding force because it is ultra vires the enabling section 12(3) of the Law which provides for daily receipts only.

Accused has therefore been charged of an offence which is non-existent and unknown to the law and he will, therefore, be acquitted.

In conclusion, I feel duty-bound to express my [*69] appreciation to learned counsel on both sides who have done their best to help this court in a difficult case.

SENTENCE

In

considering the question of sentence in this case, I took into consideration the facts and circumstances of the case, the nature and gravity of

the offence along with the

fact that the 3% does not burden the accused but his customers. I also took into consideration that from the many hundreds of cases before this Court it is

evident that the offence is a very prevalent one - and indeed this is a matter of which I can take judicial notice (see A.G. v. Mavrokefalos, (1966) 2 C.L.R. 93) - and being a prevalent, offence the only proper sentence is a deteireht sentence (see Loucaides v. Police (1969) 2 C.'L.R. 152 and the cases therein cited). I further took into consideration the attitude of the accused towards his duty under the law and I would observe that accused in a selfish and provocative manner disregarded the laws.

Regarding the submission of his learned counsel that it is his belief that the constitutional issues have not been finally resolved by the Supreme Court I would observe that many constitutional issues affecting the 3% were raised and determined in the Kissonerga and Shistris cases and, further, I would observe that constitutional issues are a matter which cannot possible be exhausted and finalised given the multiple articles of the constitution and the multiple variety of subjects that they embrace. I would, also, add that belief, [*70] whether entertained genuinely or not, in the unconstitutionality of a statute is not an excuse for illegality. Accused ought as a law abiding citizen to comply with the law and contest the constitutionality of the law at the appropriate forum. To accede to the submission that belief in the unconstitutionality of a statute provides immunity from legal process would be tantamount to frustrating the objects of justice and devastating the Rule of Law. The task of the Courts is to sustain the Rule of Law and the Courts will not flinch from this mission.

Though I am of opinion that in view of what is stated above this case deserves to be met with maximum severity, taking into consideration that this is the first case tried after the Shistris case, which has been treated as a test case, and, also, taking into consideration that accused is a first offender, I am of opinion that some allowance should be made because of these matters so as accused will not be treated as a scapegoat for others. Accused is sentenced to pay a fine of £45 (forty-five pounds) on each of counts 1, 2, 3, 4, i.e. a total of £180. Let this case serve as a warning to others in a position similar to that of accused; the axe of justice will fall heavily upon their heads for the court will not hesitate to impose the maximum punishment provided by the Law.

Regarding costs, in the circumstances of this case, particularly due to the fact that the charge-sheet was amended [*71] at the very final stage of the proceedings and due to the fact that accused was acquitted on count. 5, there will be no order as to costs.

Accused found guilty on counts

1 ,2,3 and 4 and sentence to

pay a total fine of £1 80.-

Accused acquitted on count 5.

*The translation was taken from Shistris v. KOT (1983) 2 C.L.R. 72.