clr/1968/1968_2_164.pdf

(1)and 11 (

1. a)(
2. n)of the Wireless Tele­ graphy 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 ol February, 1967, he did maintain a Becker valve apparatus lor wireless telegraphy which was, in fact, a radio installed in his motoi car—without a licence from the appropriate authority This appeal is solely based on the ground that regulation 5, as re-enacted in 1966, has invalidly prescribed a higher annual licence fee, £3—,for a ladio installed in a car, as compared H.+ with the annual licence fee, £1.250 mils, for a radio main1968 tained elsewhere. It wasargued by"counsel for the appellant - N o v · 2S that regulation 5 is ultra vires section 6

(1)(f) of Cap. 307 ANDREAS {supra) because it introduces, by way of prescribing fees, UEMETRIAOES .a differentiation, between car radios and other radios, which _ v· T H E POLICE is allegedly unwarranted. It was further argued that regulation 5 results in unequal treatment contrary to Article 28 of the Constitution, regarding the enjoyment of the right safeguarded under Article 19 which includes the right to receive information and ideas. In dismissing the appeal, the Court : Meld, per TkiANTAFYLLiDES J., (VASSILIADES P. and JOSEPKTDES J., concurring):

(1)I cannot agree that the differentiation made by regulation 5 is so unreasonable, or otherwise unjustified, as to lead me to the conclusion that the relevant enabling powers have been used in a manner which is outside the ambit of their object and that, consequently, regulation 5 is ultra vires.

(2)The right to equality in the enjoyment of any funda, mental right—such as that safeguarded under Article 19 of the Constitution—is not so absolute as to exclude reasonable differentiations or distinctions (see, inter alia, Mikrommatis andthe .Republic 2 R.S.C.C. 125, aswell as the decision of the European Court of Human Rights in the Belgian •Linguistic Case).

(3)(

1. a)In the present case, regulation 5 (supra) does not entail an arbitrary differentiation between car radios and other radios resulting in any violation of Articles 19 and 28 of the Constitution. (
2. b)I take the view that the installation and use of a radio in a car is something distinguishable from and beyond the ordinary minimum daily necessity of having a radio available at one's home.or at one's place of work ; it is somewhat in the nature of a luxury, by, at any rate, present'standards, and it is, thus, reasonably, amenable to different treatment as regards annual licence fee. Appeal dismissed. Cases referred to : Mikromtnatis and the Republic, 2 R.S.C.C. 125; The Decision of the European Court of Human Rights inthe Belgian Linguistic Case. Uo 1968 Nov. 28 ~ ANDREAS DEMETRIADES ρ τ Appeal against c o n v i c t i o n Appeal against conviction by Andreas Demetriades who was convicted on the 24th August, 1968, at the District Court f Nicosia (Crininal Case N o . 10388/68) on one count of 0 the offence of maintaining an apparatus for wireless tele­ graphy without a licence, contrary to sections 3

(1)and 11 (

1. a)(
2. ii)of the Wireless Telegraphy Law, Cap. 307 and regulation 5 of the Wireless Telegraphy Regulations, 1955 to 1966 and was discharged absolutely by Mavrommatis, D.J. A. Triantafyllides with S. Spyridakis, for the appellant. K. Talarides, Senior Counsel of the Republic, for the respondents. VASSILIADES, P . : We find it unnecessary to call on the other side. And I shall ask M r . Justice Triantafyllides to give the first Judgment. TRIANTAFYLLIDES, J . : In this case the appellant appeals against his conviction, on the 24th August, 1968, by the District Court of Nicosia, of the offence of maintaining an apparatus for wireless telegraphy without· a licence, contrary to sections 3

(1)and 11 (

1. a)(
2. ii)of the Wireless Telegraphy Law, Cap. 307, and regulation 5 of the Wireless Tele­ graphy 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. T h e 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. T h i s appeal is based on the ground that regulation 5, as re-enacted in 1966 (see Not. 297 in the T h i r d 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)(/) of Cap. 307, because it introduces, by way of prescribing fees, a differentiation, between car radios and other radios, which is unwarranted. {<·<· Bearing in mind the essentia! nature of things, as well as the purpose of the relevant enabling powers, I cannot agree that the differentiation made by regulation 5isso unreasonable, or otherwise unjustified, asto lead metothe 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 has 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 carradios andother radios entails an infringement of Article 19 when taken together with Article 28, which safeguards the right to equality and prohibits discriminatory treatment. The right toequality intheenjoyment of any fundamental right—such as that safeguarded under Article 19—is not so absolute asto 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 (andthe 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 issomething distinguishable from and beyond 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 somewhat in the nature of a luxury, by, at any rate, present standards, and it is, thus, reasonably amenable 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. 167 1968 Nov. 28 ANDREAS DEMETRIADES v. T H E POLICE Triantafyllides, J. 1968 Learned counsel have, apparently, put in a lot of work into Nov. 28 j i t t e r a n c j have done useful research ; but I do not t n e . — find myself convinced, in the end, that their submissions c a n De DEMETRIADES sustained. For the reasons stated by Mr. Justice v. Triantafyllides, I agree that this appeal must be dismissed. T H E POLICE Vassiliades ρ JOSEPHIDES, J.: I also agree. I am of the view that the imposition of a higher fee for the maintenanceof a car radio is not ultra vires the law (Cap. 307). Nor am I satisfied that this differentiation is arbitrary ; consequently, I hold that the relevant regulation is notunconstitutional. VASSILIADES, P.: In the result this appeal is dismissed. Appeal dismissed. If.S