clr/1977/1977_3_400.pdf

(1)(b) thereof restricting the importationor manufacture of"flipper" machines—Not unconstitutionalas being contrary to Articles 23 and 25 of the Constitution—Saidrestrictionsabsolutely necessaryin the interests, inter alia, of public morals, public orderandpublic interest. 5 Constitutional Law—Right to property and right to practise any profession or tocarryon any occupation,tradeor business— Articles 23 and 25 of the Constitution—Section 6B

(1)(b) of \Q the Betting Houses, Gaming Houses and Gambling Prevention Law, Cap.151 (as amended by Law 23/65) notunconstitutionalas beingcontraryto the aforesaid Articles. Monopoly—Section 6B

(1)(b) of the Betting Houses, Gaming Houses and Gambling Prevention Law, Cap. 151(asamended 15 by Law 23/65)—Differentiations betweenimportationof new "flipper" machines and those already possessed—Does not createamonopoly. The soleissuefor consideration in this recourse waswhether section 6B

(1)(b) of the Betting Houses, Gaming Houses and 20 Gambling Prevention Law, Cap. 151 (as amended), which prohibits the importation or manufacture of machines commonly known as "Flippers" was unconstitutional as offending ithe right of ownership and the right to practise any profession or to carry on any occupation, trade or business, safeguarded 25 byArticles 23and 25of.the Constitution. 400 10 15 20 25 30 In support of the contention of unconstitutionality it was submitted that thedefinition of a gaming machine in the above Law·was so wide and sweeping covering thereunder all kinds of machines, including toys, and it could not, therefore, be a mere restriction which the State was empowered .to impose on the exercise of the said rights by virtue of the provisions of Articles 23.3 and 25.2 of the Constitution. It was further submitted that the abovesection created a monopoly for those people who were, at the lime of its enactment, in possession of such machines and who, subject to the conditions of subsection 2 thereof, may continue using them and in a sense without a limitation as to time, as the law permits the importation of spare parts for the maintenance of these machines. Held, 0) that the object of thesaid section, emanating from the provisions, inter alia,of sub-section 2, is to protect from time-wasting activities which, with the consequential gathering of people and associations, entail generally the development of bad habits, particularly among the youth; that looking at the whole of the enactment and 'bearing in mind that the legislature must be considered innocent till it is proved guilty beyond reasonable doubt, this Count has come to the conclusion that the restriction on the importation and manufacture of the said machines is not unconstitutional as being contrary to or inconsistent with Articles 23.3 and 25.2 as it can properly be considered tobe absolutely necessary in the interests, interalia,of public morals and in the case of Article 25.2 of publicorder and in thepublic interest.

(2)That the argument that the different approach in respect of the importation of new machines and those already possessed creates a monopoly cannot succeed as offending any provisions of the Constitution because it merely regulated existing rights at the time of the enactment of the Law. Application dismissed. Recourse. 35 Recourse against thedecision of therespondentswhereby 11"Pin Tables" were found to be "flipper" machines the importation of which is prohibited and had to bereexported. 4 R. Michaelides, for the applicant. 401 1977 Sept.20 MEUS CONSTANTINOU v. REPUBLIC (MINISTRY OF FINANCE ANDANOTHER) 1977 Sept 20 MEUS CONSTANTINOU v. REPUBLIC (MINISTRY OF FINANCE AND ANOTHER) R. Gavrielides, Counsel of the Republic, for there­ spondents. Cur. adv.vult. Thefollowing judgmentwas delivered by:A. LOIZOU,J.: The applicant imported through theLimassol Port 18 packages said to contain various goods, inter alia, 11 "Pin Tables". Upon information received later by the Collector of Customs, those 11 Pin Tables were found to be "flipper" machines the importation of which was prohibited under section 6(B)

(1)(b) and

(4)of theBettingHouses,GamingHouses and GamblingPre­ vention Law, Cap. 151 as amended by Law 23/65 and sections 39(b), 188 and 191(b) of theCustoms and Excise Law, 1967 (Law 82/67). As these prohibited imports escaped the attention of the Customs personnel at the time of theexamination and they allowed theirclearance, theCollector orally requested theapplicanttoreturnthese goods to the Customs pending their re-exportation. The applicant duly complied, but protested in writing and re­ quested their re-delivery to him to which the respondent addressed a letter drawing his attention to the relevant sections of the Law contravened and requested him to proceed with the re-exportation of the goods, otherwise they might be forfeited without prejudice to the eventual prosecution of the offences. Section 6 Β

(1)provides thatevery person who (a)has in his control or possession any gaming machine or per­ mits thatsuch gaming machine be installed or used onany premises of which he has the control or possession other­ wise than in accordancewith the conditionsreferred toin sub-section

(2)and (b) imports or manufactures any such machine, is guilty of an offence and liable to imprison­ ment notexceeding two years or fine notexceeding £.200 or to both, and theCourt is empowered also to order for­ feiture of suchmachine. It is not in dispute that the machines in question, sub­ ject matter of theseproceedings, are "Rippers" that is to say, gaming machines within thedefinition of section 6 Β

(4)of the Law, as amended by Law 23/65, which pro­ vides that for the purposes of the said section gaming machine means any machine commonly known or called 402 10 15 20 "Flipper" which aims at offering simple pleasure to the person operating it and no monetary or otherconsidera­ tion'and theplaying of which calls for further activity on behalf of the person handling it in addition to setting it 5 in motion and which offers sufficient possibility of exer­ cise of skill on one's behalf or any other machine which is declared by order of theCouncilof Ministers published in the official Gazetteof theRepublic as gamingmachine for the purposes of this section and further it includes 10 any sparepartof such machine. It was contendedonbehalf of theapplicantthatsection 6 Β

(1)(b) of theLaw which prohibits theimportationor manufacture of such machines,is unconstitutional,as of­ fending the right of ownership and the right to practise 15 any profession or to carry on any occupation, trade or business, safeguarded by Articles 23 and 25 of theCon­ stitution. Thefirst reason for this contentionis thatthe definition of a gaming machine is so wide and sweeping covering 20 thereunder all kinds of machines, including toys,and, therefore, it could not be a mere restriction which the Stateis empowered toimpose on theexercise of the afore­ said rights by virtue of theprovisions of para..3 of Article 23 and para. 2 of Article 25 of the Constitution, and at 25 that, absolutely necessary in the case of Article 23 orne­ cessary in the case of Article 25, in the interests, inter alia, of public morals. The second reason is that this section creates amono­ poly for those people who were, at the time of its enact30 ment, in possession of such gaming machines and who, subject totheconditionsprovided by sub-section

(2)there­ of, may continueusing them and in a sense without limi­ tation as to time, as the law permits the importation of spare parts for the maintenanceof their machines. 35 In'my opinion, the restriction on the importation and manufacture of such machines is not unconstitutional as being contrary to or inconsistent with the said Articles as they canproperly be considered tobe absolutely necessary in theinterests, interalia, of public morals andin thecase 40 of Article 25, para. 2, of public order and in the public interest. 403 1977 Sept 20 MELIS CONSTANTINOU v. REPUBLIC (MINISTRY OF FINANCE AND ANOTHER) 1977 Sept 20 MELIS CONSTANTINOU v. REPUBLIC (MINISTRY OF FINANCE AND ANOTHER) Thelegislator,who,inview of theexpressions "imposed by law" in para. 3 of Article 23 and "prescribed by law" in para. 2 of Article 25, only can decide to what extent fundamental rights and liberties safeguarded by theCon­ stitution should be restricted or limited,intimates by what is provided in sub-section

(2), para (a) of section 6 Β of the Law, in particular the object of these restrictions which are clearly within the bounds permitted by the Constitution. Sub-section

(2)even regulated the use of already owned appliances and subjected it to certaincon­ ditions. Under para, (

1. a)thereof, a licence from the Dis­ trict Officer is a prerequisite for the installation or use of such machines in any premises and is subject to such conditions, as the District Officer might impose in the public interest, the public morals or public order.Under para, (
2. b)of sub-section

(2)the operation or handling of such amachineis prohibited to any person under 18years of age and under para, (c) thereof, no more than two such machines may be installed or be accessible to any premises. The object, therefore, of this legislation, as emanating from theprovisions, interalia, of sub-section

(2)is topro­ tect from time-wasting activities which, with the conse­ quential gathering of people and associations, entail ge­ nerally the development of bad habits, particularly among theyouth. Further, even if I were to grant that the definition of a gaming machine isas wideasclaimedtobeby counsel,yet, I amnotconcernedwith thatinthis case, as the machines, subject matter in these proceedings are those mentioned by name therein and do not come within the wider ambit of this definition andtheprovisions empoweringtheCouncil of Ministers to declare any other machine as a gaming machine for the purposes of sub-section

(4). Also, the argument advanced that the different approach in respect of the importation of new machines and those already possessed in the country with the regulation of theircon­ trol and use, creates a monopoly, cannot, in myopinion succeed either, as offending any provisions of theConsti­ tution. It merely regulated existing, at the time of the enactment of thelaw,rights. In arriving at these conclusions I have looked at the 404 whole of the enactment and I have borne in mind that the legislature must be considered innocent till it is proved guilty beyond reasonable doubt. For all the above reasons thepresent recourse fails but in the circumstances I make no order as to costs. 1977 Sept^20 MELIS CONSTANTINOU v. REPUBLIC (MINISTRYOF Application dismissed. No order as to costs. 405 A N ™ T L R ,