(1982) 1982 March 15 [A. Loizou, MALACHTOS AND SAVVIDES, JJL] K H A U L MOHAMED ALI YOLLNES AND OTHERS, Appellants. THE REPUBLIC, Respondent. (Criminal Appeals Nos. 4220 and 4222-4226). Jurisdiction—V
Article 159of the
Constitution, direct. Counsel, also, submitted that under the Common Law the Admiral had no jurisdiction to try offences by foreigners on board foreign ships whether within or without the limit of three miles from the shore of England; that, therefore, in 20 the absence of statutory enactment the Central Criminal Court had no power to try such an offence. Held,
(1)that sincethe allegation of appellant 1 that they were brought to Limassol wasrightlyrejected bythe Assize Court as untrue the principles of Law governing the involuntary entrance 25 of vessels in distress and the extent of immunity of such vessels from local jurisdiction need not be examined as there does not exist the necessary factual foundation that would call for a pronouncement on this issue. Suffice it to say, however, that suchimmunity isnotabsolute and itcannot bean immunity 30 from every local Law including that which requires the master to make a true report to the Customs Authorities on his cargo (see Cushin andLewisv. R. [1935] L.R. Ex. C.R. 103).
(2)That paragraph (a)ofsection 5(l)(
- a)ofthe Criminal Code, Cap. 154 (as amended) must be read in conjunction with the 35 provisions of the Territorial Waters Law, 1964 (Law 45 of Section 5 is quoted at pp. 57-58 post. Section 6 is quoted at p. 58 post. 48 2 C.L.R. 5 !0 15 20 25 30 35 40 Yollncss and Others v. Republic 1964) which defines "territorial waters" as meaning the part of the sea which touches the coast of the Republic which is ' considered aspart ofitsterritory and issubject tothesovereignty of the Republic, and also with section 3 of the said Law which extends the territorial waters of the Republic to 12 miles from the coast measured from low water mark; that these provisions supplement and extend the meaning of the term "territory of the Republic" to include the territorial waters and no doubt an offence committed therein or on board a ship even if it is a foreign registered ship is an offence committed within the territory of the Republic as defined in section 5 subsection 3 of the Code and section 2of LawNo. 45of 1964;and that consequently the Courts of Cyprus have Criminal Jurisdiction in respect of such offence; accordingly contention (
- b)should fail. Held, further, that the reference in the definition of the "territory of the Republic" in subsection 3of section 5, to "any ship or aircraft registered in the Republic wherever found", does not take away thejurisdiction of the Court in respect of offences committed within the territory of the Republic; that it only extends the jurisdiction of the Court over ships registered in the Republic wherever they are and does not deprive the Courts of Cyprus of theirjurisdiction for offences committed on foreign ships within theterritorial waters; that, moreover, the definition of the word "foreign country" in subsection 3ofsection 5which includes "any foreign ship" obviously refers to foreign ships on high seas or elsewhere and not within the territorial waters of Cyprus; that it is in that case that these ships are deemed tobeaforeign country andinsuchcircumstances that ourCourts have limited jurisdiction that covers only the offences referred to in section 7(l)(
- e)of the Code; that once, therefore, there exist irresistible clearnessin the aforesaid provisions of the Law, the presumption against alterations in the Common Law has been rebutted and the aforesaid express provisions of our Law determine the issue of jurisdiction and any attempt to derive help in this respect from the English Law cannot be helpful (see, also, provisions of International Law as stated in International Law by Greig 1970 ed. at p.230).
(3)That there is nothing in sections 19-23 of Law 29/77 that precludes a prosecution under sections 5 and 6 thereof once the facts of the case support such charges and there is no 49 Yoflness and Others v. Republic
(1982)general principle of Law impeding the prosecution from prefer ring the moreserious charges wherever the same facts constitute also specific lesser offences; that on the contrary it is usual to prefer charges in thealternative for offences of the same gravity or for offences of lesser gravity and there must be compelling 5 reasons tojustify thenonpreferment of the moreserious charges which the facts of a case establish; accordingly contention (c) should, also, fail. Appeals dismissed. Cases referred to: Cushinand Lewis v. R. [1935] L.R. Ex. C.R. 103; Queen v. Keyn [1876-77] 2 Ex. D. 63; R. v. Dudley and Stepkens [1884] 14 Q.B. Div. 373; Reg. v. James Anderson [1867-71] 11 Cox's Cr. C. 198; "Lotus" case [1927] P.C.I.J. Rep. Ser. A, Nos. 9 and 10. 10 15 Appeals against conviction and sentence. Appeals against conviction and sentence by Khalil Mohamed Ali Yollnes and Others who were convicted on the 6th April, 1981 at the Assize Court of Limassol (Criminal Case No. 14496/80) on one count of the offence of unlawful 20 possession of controlled drugs, contrary to sections 2, 3, First Schedule Part ΙΓ, sections 6
(1)
(2), 24
(1)and 30 of the Third Schedule of the NarcoticDrugs and Psychotropic Substances Law, 1977 (Law No.29 of 1977) and section 20 of the Criminal Cod;, Cap. 154 and on one count of the offence 25 of possession of controlled drugs for the purpose of supplying them to others, contrary to sections 2, 3, First Schedule Part II, sections 5(I)(b), 6
(3), 24
(1)and 30 of the Third Schedule of the Narcotic Drugs and Psychotropic Substances Law, 1977 (Law No.29 of 1977) and were sentenced by Loris, P.D.C., 30 Chrysostomis, S.D.J. and Anastassiou, D.J. to the following concurrent terms of imprisonment: Appellants 1 and 6 to 3 years' imprisonment on count 1 and 5years* imprisonment on count
- Appellants 2 and 3 to 4 years' imprisonment on count 1 and 7 years' imprisonment on count 2 and Appellants 4 and 35 5 to 12 months' imprisonment on count 1 and to 18 months' imprisonment on count
- D. Zavallis, for appellant in Criminal Appeal No.
- V. Harakis with Chr. Pourghourides, for the appellants in Criminal Appeals Nos. 4222-
- 50 40 2 CI- Κ. Yollness and Others v. Republic R. Gavrielides, Senior Counsel of the Republic, for the respondent. Cur. adv. vultA. Loizou J. read the following judgment of the Court. 5 The six appellants were jointly charged on two counts one for unlawful possession of controlled drugs of class "B", contrary to sections 2, 3, the FIRST SCHEDULE,PART II, sectiors 6
(1)
(2),24
(1)and 30 ard the THIRD SCHEDULE of theNar cotic Drugs and Psychotropic Subitatces Law: 1977 (Law 10 No. 29 of 1977) and section 20 of the Criminal Code, Cap. 154, and the other with possession of controlled drugs of class "B" for the purpose of supplying them to others, contrary to sections2,3, theFIRSTSCHEDULE,PART II,sections 5
(1)(b), 6
(3), 24
(1)and 30 and THIRD SCHEDULE of the Narcotic 15 Drugs and Psychotropic Substances Law 1977 (Law No. 29 of 1977), (hereinafter referred to as the Law). Appellant No. 1, in Criminal Appeal No. 4222 (Accused No. 1 at the trial) was sentenced to three years imprisonment on Count 1, ardfiveyears imprisonment on Count
- 20 Appellant No.
- in Criminal Appeal No. 4223 (Accused No. 3 at the trial) was sentenced to four years imprisonment on Count 1 and seven years imprisonment on Count 2, Appellant No.3in Criminal Appeal No.4224 (Accused No. 4 at the trial) was sentenced to four years imprisonment on 25 Count 1and seven years imprisonment oo Count
- Appellant No. 4 in Criminal Appeal No. 4225 (Accused No. 6 at the trial) was sentenced to 12 months imprisonment on Count Pand 18 months imprisonment on Count
- Appellant No. 5 in Criminal Appeal No. 4226 (Accused 30 No. 5 at the trial) was sentenced to 12 months imprisonment on Count 1 and 18 months imprisonment on Count
- Appellant No. 6 in Criminal Appeal No. 4220 (Accused No. 2 at the trial) was sentenced to three years imprisonment on Count 1 and five years imprisonment on Count
- 35 All sentences to run concurrently starting from the day of their arrest 51 Λ. Loizou J . Vollness and Others v. Republic
(1982)The facts of the case as found by the Assize court and which are not in dispute are as follows; On the evening of the 7th October 1980, the ship "ARVVAD" registered in Lebanon, sailed from the port of Beirut with no cargo onboard. Hercrew consisted of appellant 1,themaster, 5 a Lebanese national, appellant 6, the ship's engineer and second in command,also Lebanese, appellants 4 and 5Chilians and ex-accused 7 and 8an Egyptian and Lebanese respectively. In respect of the latter two accused a nolle prosequi wasfiled and they were called by the prosecution as witnesses. 10 At a distance of about 14 miles from the coast of Lebanon she stopped and a launch approached her. There were three persons onit,appellants 2and 3,both Italians,anda Lebanese. It carried a cargo of sacks which was transhipped by the crew OD to the ship and appellants 2 and 3went also on board the 15 ship. The launch sailed away with the Lebanese. As stated at the time by appellant 1, the master, they were narcotics to be delivered in the open sea at a poirjt 50 miles away from the Italian coast. During the voyage the ship developed engine trouble twice. On the first occasion her engine was repaired 20 but on the second occasion all efforts made by appellant 6 assisted by appellants 4 and 5 failed. She remained idle on the open sea for a number of days and when all efforts for the repair of her engine failed, appellants 1 and 6 asked for help. Eventually tug-boat "GREAT TITAN" arrived at the 25 scene and undertook her salvage on a "no cure no pay agree ment';, which was later substituted by a new similar agreement for the towing of the "ARWAD" to Limassol, where she was eventually towed. Upon arrival in the port of Limassol in the morning of the 30 20th October 1980, she anchored at the anchorage of the Limassol old port. At 11:30 a.m., for the purposes of the free pratique and inspection, a boarding group went aboard the ship amongwhich were anofficer of theAliens andImmigration Branch and a Custom's Guard, a Marine Police Constable 35 and with them Ferez Naoum, the agent of the ship in Cyprus. Appellant 1,whointroducedhimself astheCaptainof thevessel, gave all the necessary information to the authorities for the free pratique and as a result a number of documents were prepared. The ship Stores Declaration signed by him showed 40 2 C.1..R. Yollness and Others v. Republic Λ. Loizou J. that the articles declared were 16 thousand cigarettes only. A declaration by all persons on board the "ARWAD" was made also as to the nature and quantities of goods each one had, which were obtained outside Cyprus or during the voyage 5 and were not being imported as merchandise or for sale. The goods so declared ware six-hundred cigarettes. On the 21st October 1980, at about noon, P.S. 1740 AndreasPsiloghenis of the Marine Police, together with two policemen of the Marine Police, two of the Narcotics Section and two 10 others from the Dogs Section and a Customs Guard Michalis Anastassi, went on board the "ARWAD" for a search. One of the two police officers of the Narcotics Section was P.S 1559 Nicos Steliko?. in charge of the Narcotics Squad of Limassol. The crew was gathered in the Ioung.*, P.S. Stelikos 15 asked for their passports and asked appellant 1 whether h* was carrying any cargo on board. His reply was in the negative. Following this reply a search was carried out on the ship and. with the help of the dogs, the police eventually found in the hatch in front a number of sacks containing a substance which 20 seemed to P.S. Stelikos to be hashish. He took two slabb into the lounge and showed them to Appellant
- Hecautioned him m English and in Greek and the appellant said in Greek "I don't know anything. I bought the ship. I don't know what it had in it". Upon this P.S. Stelikos arrested all the 25 appellants, he cautioned them agair in English and in Greek and they gave no reply. He then arranged for the ship to be towed to Limassol new port. At the new port a group of police officers headed by Chief Inspector Pandelis Frydas, second m charge of the C.I.D. of Limassol, were waiting for 30 the arrival of the "ARWAD". Among this group were P.C. 1800 Andreas Neocleous of the C.I.D., Ntinos Panaghides, Assistant Collector of Customs, P.C. 972 Kyriacos Pelendridis, P.S. 1753 Philachtis Aristodemou, a police photographer and Customs Officer Andreas Demetriou. 35 40 On arrival of the "ARWAD" this group went on board. The sacks were counted and were found to be 123 in number. Then a new search was carried out and another 30 sacks were found in the anchor chain compartment of the ship. P.S. 1753 Philachtis Aristodemou took photographs of the ship and of the cargo on board. 53 2 C.L.R. Yollness and Others v. Republic A. Loizou J. Taking the last groundfirstit has to be pointed out that the allegation of appellant 1, that they were brought to Limassol involuntarily was rejected by the Assize Court as untrue and reasons were given for that finding. He was present, on his 5 own admission, when appellant 6 made the first telephone call to Ferez Naoum, their agent in Limassol asking him to secure a ship to tow "ARWAD" to Cyprus. Also as stated by Ferez Naoum, appellant 6,madeasecond callto him onthedayprior to the arrival of "ARWAD" to Cyprus to the effect that she 10 was being towed there. Furthermore a new salvage agreement wassigned inLimassolandtheAssizeCourt accepted that there was a change of plans as to the port where "ARWAD" was to be towed, but such a change of plans must have occurred onthedaypriortothedayofarrival of"ARWAD"to Limassol 15 and not at a time when shewas a few miles away from Cyprus within its territorial waters. To these reasons we would like to add two more features of the case, the first one is that they accepted free pratique, and that also the master and the crew wereissuedlandingcardsanditwasafterwards thatthenarcotics 20 in question were discovered. Therefore, the principles of Law governing the involuntary entrance of vessels in distress and the extent of immunity of such vessels from local jurisdiction need not be examined as there does not exist thenecessaryfactual foundation that would 25 call for a pronouncement on this issus. Suffice it to say, however, that such immunity is not absolute and it cannot be an immunity from every local Law including that which requires the master to make a true report to the Customs Authorities on his cargo. See Cushin andLewis v. R. [1935J L.R. Ex. C.R. 30
- With regard to the first ground of law, learned counsel has argued that the term "within the territory of the Republic" contained in section 5(l)(a) of the Criminal Code, Cap. 154, as amended, does not include offences committed on a foreign 35 ship by a foreigner within the territorial waters of the Republic and that the trial Court was wrong in interpreting the said provision as extending to such offences. Such interpretation of this statutory provision he said was in clear violation of the rulesofconstruction inasmuchasit wascontrary to thepresum40 ption that the legislature does not intend to make any change 55 Λ. Loizou J. Yollness and Olhers v. Republic (1982 in the existing law beyond that which is expressly stated in or follows by necessary implication from the language of the statute in question. It was urged that jurisdiction in respect of an offence committed in " a foreign country" which term, as it will be seen, includes a ship registered in such country, is speci- 5 iically covered by section 5(l)(e) and
(3)and section 6 of the Criminal Code which sections should prevail over the provision of para. 5
(1)(a) thereof and which sections give jurisdiction for such offences to such Court of competent jurisdiction as the Supreme Court may,
Article 15910 of the Constitution, direct.
Under the Common Law, he said —and in that respect reference was made to the case of Queen v. Keyn [1876-1877] 2 Ex. D., page 63—"the admiral had no jurisdiction to try offences by foreigners on board foreign ships, whether within or without the limit of 15 three miles from the shore of England; that that and the subse quent statutes only transferred to the Common Law Courts and the Central Criminal Court thejurisdiction formerly posses sed by the admiral; and that, therefore, in the absence of statu tory enactment, the Central Criminal Court had no power to 20 try such an offence". Counsel for the appellants in order to add more force to his argument drew the attention of the Court to the Territorial Waters Jurisdiction Act of 1878, which was passed as a result of the decision of the majority of the court in 7?.v. Keyn (supra) 25 and where express provision is made for such purpose. A position which was not.,followed in Cyprus. In fact section 2 of the said Law and the recital of the act are declaratory of the Law as it was laid down by the minority of the judges in R, v. Keyn (supra) and R. v. Dudley and Stephens [1884] 14 30 Q.B. Div. 373. Another argument advanced against the wide construction, as he alleged that was given by the Assize Court to section 5(l)(a) is that such a construction i* contrary to International Law and is not supported by what has come to be known in 35 International Law as the "floating island principle" that is that a foreign ship bearing the national flag of a State, for pur poses of jurisdiction is treated as if it were the territory of that State. In support of this latter argument reference has been made to the cases of Reg. v. James Anderson [1867-71] 11 Cox's 40 56 2 C.L.R. Yollness and Others v. Republic A. Lolzou J. •Cr. C. 198 and The "Lotus" case
(1927)P.C.I.J. Rep. Ser. A, Nos. 9 & 10. The territorial and extra-territorial application of the Criminal Code and any other Law creating an offence is governed by 5 sections 5 and 6 of the Criminal Code, Cap. 154. Section 5 in so far as relevant to the present proceedings reads as follows: "Territorial and extra-territorial application. 5.-(
- l)The Criminal Code and any other Law creating an offence are applicable to all offences committed10 (
- a)within the territory of the Republic; or (
- e)in any foreign country by any person if the offence is(
- i)treason or an offence against the security of the Republic or the constitutional order; (
- ii)piracy; or 15 (iii) connected with the coin or currency notes of the Republic; or (
- iv)related to the unlawful dealing in dangerous drugs; or 20 25 (
- v)one to which, under any International Treaty or Convention binding on the Republic, the law of the Republic is applicable.
(2)No criminal proceedings shall be instituted in the Republic in respect of an offence committed in a foreign country if the accused having been tried in such country for such offence was either convicted or acquitted.
(3)For the purposes of this section'foreign country' means any country outside the Republic and includes the Sovereign Base Areas and any ship or aircraft registered in such country or Area; . 30 'territory of the Republic' includes its territorial waters within twelve miles of the coast of the Republic measured from low water mark and any ship or aircraft registered 57 A. Loizou J. Yollness and Others v. Republic
(1982)inthe Republic whereverfound, unlessundertheprovisions of international law such ship or aircraft is subject at the time to a foreign law". Section 6 reads: "6.-{l) An offence committed in a foreign country to whichthe Criminal Codeor anyother Law ofthe Republic shall apply under the provisions of section 5 shall be tried by such Court of competent jurisdiction as the Supreme Court may,
Article 159of the Constitution, direct. 5
(2)For the purposes of this section 'foreign country' hasthe meaning assigned to suchexpression by sub-section
(3)of section 5". The aforesaid two statutory provisions introduced by Law No. 3 of 1962 substituted sections 5 and 6 regarding the terri- 15 torial application of the Criminal Code as in force until then. Section 5 as it was then reads as follows: "Territorial Application. 5. The jurisdiction of the Courts of the Colony for the purposes of this Law extends to every place within 20 the Colony or within three miles of the coast thereof measured from low water mark". Comparing the wording of this section with the wording of paragraph (a) of section 5
(1), one might immediately think that the Criminal Jurisdiction of the Courts of Cyprus extends 25 only over the territory of the Republic and does not extend to offences committed within its territorial waters, particularly so in view of the non-inclusion of the words"or within three miles of the coast thereof measured from low water mark" whichexistedinsection5priortotheenactment oftheamending 30 Law No. 3 of 1962. The position, however, becomes clear and unquestionable, if paragraph 5(l)(
- a)is read in conjunction with the provisions of the Territorial Waters Law, 1964, (Law No. 45 of 1964) which defines "territorial waters" as meaning thepart ofthe seawhichtouches thecoastoftheRepublicwhich 35 is considered as part of its territory and is subject to the sove58 10 2 C.L.R. 5 10 15 20 25 YoDness and Others v. Republic A. Loizou J. reignity of the Republic, and also with section 3 of the said Law which extends the territorial waters of the Republic to 12milesfrom thecoast measured from low water mark. These provisions supplement and extend the meaning of the term "territory of the Republic" to include the territorial waters and no doubt an offence committed therein or on board a ship even if it is a foreign registered ship is an offence committed within the territory of the Republic as defined in section 5 subsection 3ofthe Code and section 2 of Law No. 45of 1964, and consequently theCourts ofCyprushaveCriminal Jurisdiction in respect of such offence. The reference in the definition of the "territory of the Republic" in subsection 3 of section 5, to "any ship or aircraft registered in the Republic wherever found", does not take away the jurisdiction of the Court in respect of offences committed within the territory of the Republic. It only extends the jurisdiction of the Court over ships registered in the Republic wherever they are and does not deprivetheCourtsofCyprusoftheirjurisdiction for offences committed onforeign shipswithintheterritorial waters. Moreover the definition of the word "foreign country" in subsection 3ofsection 5 whichincludes"any foreign ship"obviously refers to foreign ships on high seas or elsewhere and not within the territorial waters of Cyprus. It is in that case that these ships are deemed to be a foreign country and in such circumstances that our Courts have limited jurisdiction that covers oily the offences referred to in section 7(l)(
- e)of the Code. Oncetherefore thereexistirresistibleclearnessin the aforesaid provisions of the Law, the presumption against alterations in theCommon Lawhasbeenrebutted andtheaforesaid expressed 30 provisions of our Law determine the issue of jurisdiction and any attempt to derive help in this respect from the English Law cannot be helpful. The aforesaid interpretation of our Law isalsoin conformity with the principles of International Law. As stated in Inter35 national Law by Greig 1970 edition, at p. 230, "Jurisdiction The problems that arise once a foreign ship enters the internalwatersof astate stemfrom thefact that itispoteni \ 59 A. Loizou J. Yollness and Others v. Republic
(1982)tially subject to two jurisdictions. It remains subject to the jurisdiction of the state of the flag of which it is flying; but, unless it is a warship or other public ship operated for a non-commercial purpose, it also comes under the territorial jurisdiction of the coastal state. 5 In criminal cases Unless the vessel is a public ship and entitled to immunity according to the laws ofthe coastal state, a crime committed on board a foreign ship in port is subject to the jurisdiction both of the local courts and of the courts of the flag state _ 10 In the Eisler case,
(1949), 26B.Y.B.I.L. 468,British police boarded a Polich vessel at anchor in internal waters off Southampton to arrest Eisler on a warrant pending the hearing of a request for his extradition by the United States Government. In reply to a protest by the Polish Govern- 15 ment that a state's jurisdiction over territorial and internal waters did not entitle it to arrest persons on board a foreign vessel for the purpose of extradition to a third state, the British Government argued that the Polish claim was tantamount to a right of asylum on board a merchant 20 ship, a right 'quite contrary to the practice of States' which had been rejected on previous occasions by the Polish Government itself. 'The absence of any right to grant asylum on board merchant ship sprang', thereply continued, 'from a universally recognised principle of international 25 law that a merchant ship in the ports or roadsteads of another country falls under the jurisdiction of the coastal state' No doubt a ship by entering the internal waters of a foreign state brings itself within the territorial jurisdiction of that state 30 and becomes subject to the operation of its laws and within the competence of its courts. Wc therefore agree with the approach of the Assize Court that it had jurisdiction to try this case and that there arose no need to invoke the provisions of section 6
(1)of the Code, 35 earlier set out in this judgment, whereby certain offences have to be tried by such Court of competent jurisdiction as the Supreme Court may,
Article 159of the Constitution, direct.
60 2 C.L.R. Yollness and Others v. Republic A. Loizou J. With regard to the second ground argued in this appeal that as the appellants never intended to come to Cyprus and, or that their arrival in Cyprus was only temporary in order to have their engine repaired and then proceed abroad, sections 5 19-23 which come in part V of the Law under the heading "controlled drugs in transit" were applicable in this particular case and not sections 5 and 6, on which they were charged and convicted. The significance of this argument is that offences coming within the ambit of sections 5 and 6carry more serious 10 sentences. The Assize Court rejected this submission on the ground that the provisions of sections 19-23 of the Law do not rule out the possibility of prosecution under sections 5and 6theieof. Section 19of the Law empowers the comptroller of customs to 15 confiscate or detain controlled drugs in transit in respect of which he has reasons to believe that a permit or certificate in respect of them is either false or obtained by fraud or otherwise. Section 20 prohibits the removal of controlled drugs from 20 the means of conveyance by which they were brought into the Republic in transit or the transportation of such controlled drugs in the Republic without a transport permit. Section 21 prohibits the interference with controlled drugs and section 22, the change of the destination of controlled drugs in transit 25 without a permit from the appropriate Minister, and section 23 gives the definition for terms used in this part of the Law. There is nothing in the aforesaid statutory provisions that precludes a prosecution under sections 5 and 6 thereof once the facts of the case support such charges and we know 30 of no general principle of Law impeding the prosecution from preferring the more serious charges wherever the same facts constitute also specific lesser offences. On the contrary it is usual to prefer charges in the alternative for offences of the same gravity or for offences of lesser gravity and in our view 35 there must be compelling reasons to justify the nonpreferment of the more serious charges which the facts of a case establish. This ground therefore also fails. For all the above reasons all these appeals against conviction which have been heard together are hereby dismissed. We 61 A. Lotion J.
(1982)Yollness and Others τ. Republic dismiss also the appeals against sentence which in any event have not been pursued by the appellants before us. Appeals dismissed. 62