clr/1983/1983_2_281.pdf

(1)and

(2)of the Fifth Schedule to the Law. The appellants were convicted by the District Court of Nicosia on 22nd April 1980 of the offence of having failed to supply information to the Central Bank of Cyprus, as required by a letter of the Bank dated 6th April 1978. The said information was requested from the appellants, under the provisions of Part 1, paragraphs 1

(1)and

(2)* of the Fifth Schedule to the Exchange Control Law, Cap.199, as amended by the Exchange Control (Amendment) Law, 1972 (Law 53/72). It was common ground -and it was, also, so found by the trial Judge - that the appellants had been prosecuted before an Assize Court in Nicosia in crimiaal case No.18879/77 and that the first count in the information which was then filed charged the appellants with an offence arising from the same circumstances in relation to which the charge on which they were convicted in the present instance waspreferred. There, also,emerged as common ground, during the hearing of this appeal, that previously to the Assize Court proceedings in question the appellants had been Paragraphs 1 and 2 are quoted at pp. 283-284 post. 281

(1983)Antboupolis •. Police formally charged inrespect oftheoffence towhich thefirst count of the aforesaid information related. The hearing of the case before the Nicosia Assize Courtcom­ mencedon 15thFebruary 1978but itwas neverfinally concluded in so far as was concerned the first count in the information 5 (which was based onthe samecircumstances as thecharge inthe present case) because a nolle prosequi* was entered by the Attorney-General of the Republic in respect of it on 3rd March 1978. 10 Upon appeal against conviction; Held, that the Central Bank was not properly entitled,under sub-paragraphs

(1)and

(2)of paragraph 1of Part I of the Fifth Schedule to Cap.199, to request the appellants, by means of the letterof theBankdated6thApril 1978,tofurnish theinformation (with documents) specified therein, after the appellants, on the 15 basis of the same circumstances, had been initially formally charged and then prosecutedin respect of count Iinthe aforesaid criminal case No. 18879/77 before the Assize Court of Nicosia and later a nolle prosequi had been entered in connectionwith such count, for, otherwise the right of a person charged and 20 cautionedtoremainsilent would beremoved; thatas,therefore, the appellants could nothave been required by theCentralBank to furnish the information (with documents) concerned, they couldnothave beenconvicted ofhaving failed tocomplywith the directive contained in the letter in question of the Central Bank- 25 and, consequently, their conviction has to be set aside and the sentencepassed uponthem,aswellastheordermadeby thetrial Court regarding the directors and secretary of the appellants as part of the sentence, have to be set aside, too. Appealallowed. 30 Cases referred to: Goddardv. Smith, 87 E.R. 1008 at p.1009; Queen v. Ridpath, 88 E.R. 670 at p.671; Queen v. Allen, 121 E.R.929 at p.931; A. v. ΗΜ Treasury, Β. v. ΗΜ Treasury [1979]2 AH E.R. 586. * The nolle prosequi was entered by virtue of the provisions of section 154 of Cap. 1SS which is quoted at pp. 284-285 post. 282 35 2 CX.R. AnthoupoUs v. Police Appeal against conviction and sentence. . Appeal against conviction and sentence by Akinita Anthoupolis Limited who were convicted on the 22nd April, 1980 at theDistrictCourtofNicosia(Criminal CaseNo.599/79)onone 5 count of the offence of failing to supply information to the Central Bank of Cyprus contrary to the provisions of Part 1, paras.l(l) and

(2)oftheFifth ScheduletotheExchangeControl Law, Cap. 199(asamended by Law 53/72)and weresentenced by Artemides, D.J. to pay £500.-fine and werefurther ordered 10 to supply the information requested to the Central Bank. K. MichaeHdes, for the appellants. R. Gavrielides, Senior Counsel of the Republic, for the respondents. Cur. adv.vult. 15 TRIANTAFYLLIDESP.readthefollowingjudgmentof theCourt. The appellants wereconvicted bythe District Court of Nicosia on 22nd Aprill980.of the offence of having failed to supply information to the Central Bank of Cyprus, as required by a letter of the Bank dated 6th April 1978. 20 The said information was requested frcm the appellants. under the provisions of Part I, paragraphs 1

(1)and

(2)of the Fifth Schedule to the Exchange Control Law, Cap. 199, as amended by the Exchange Control (Amendment) Law, 1972 (Law 53/72). 25 The said legislative provisions, modified under Article 188 of the Constitution, read as follows: "1.

(1)Without prejudice to any other provisions of this Law, the Central Bank may give to any person in or residentintheRepublicdirectionsrequiringhim,withinsuch 30 time and in such manner as may be specified in the directions, tofurnish tohim or toanypersondesignated inthe directionsasaperson authorized to requireit,any informationinhispossessionorcontrolwhichtheCentral Bankor the person so authorized, as the case may be, may require 35 for the purpose of securing compliance with or detecting evasion of this Law.

(2)Aperson required byanysuchdirectionsas aforesaid to furnish information shall also produce such books, 283 rriantafyllides P. Anthoupolis v. Police

(1983)accounts or other documents (hereafter in this Part of this Schedule referred to as 'documents') in his possession or control as may be required for the said purpose by the Central Bank or by-the person authorized to require the information, as the case may be." 5 The appellants we're sentenced to pay a fine of C£500 and an order was made directing the directors and secretary of the appellarts to supply the information (with documents) requested by the aforementioned letter of the Central Bank. The appellants have appealed on several grounds both against 10 their conviction and against the sentence passed upon them; and, also, against the said order regarding their directors and secretary. It is commor ground - and it was, also, so found by the trial judge - that the appellants had been prosecuted before an Assize 15 Court in Nicosia in criminal case No. 18879/77 and that the first count in the information which was then filed charged the appellants with an offence arising from the same circumstances in relation to which the charge on which they were convicted in the present instance was preferred. 20 There, also, emerged as common ground, during the hearing of his appeal, that previously to the Assize Court proceedings in question the appellants had been formally charged in respect of the offence to which the first count of the aforesaid information related. 25 The hearing of the case before the Nicosia Assize Court commenced on 15th February 1978 but it was never finally concluded in so far as was concerned the first count in the information (which was based on the same circumstances as the charge in the present case) because a nolle prosequi was entered 30 by the Attorney-General of the Republic in respect of it on 3rd March 1978. Section 154 of the Criminal Procedure Law, Cap. 155,modified under Article 188 of the Constitution, provides as follows about entering a nolle prosequi in criminal proceedings: "154.

(1)In any criminal proceedings and at any stage thereof before judgment the Attorney-General may enter a nolle prosequi, either by stating in Court or informing 284 35 2 C.L.R. Anthoupolis v. Police Triantafyllides P. the Court in writing that the Republic intends that the proceedings shall not continue and thereupon the accused shall be at once discharged in respect of the charge or information for which the nolle prosequi is entered. 5 10 15

(2)When a nolle prosequi is entered, if the accused has been committed to prison, he shall be released, or if on bail the bail bond shall be discharged, and, where the accused isnot before the Court when such nolle presequi is entered, the Registrar or other proper officer of the Court shall, if the accused is in custody, cause notice in writing of the entry of such nolle prosequi to be given forthwith to the person having custody of the accused and such notice shall be sufficient authority to discharge the accused in respect of the charge or information for which the nolle prosequi is entered or, if the accused isnot in custody, shall cause such notice in writing to be given forthwith to the accused and his sureties, if any, and shall, in every case, cause a similar notice in writing to be given to any witness bound over to appear. 20

(3)Where a nolle prosequi is entered in accordance with the provisions of this section, the discharge of an accused person shallnot operate asa bar to any subsequent proceedings against him for the same offence or on account of the same facts." 25 The notion of nolle prosequi has found its way into our legal system from the English law and though itputs an end to a prosecution theaccused remainsliabletobereindicted (seeArchbold on Pleading, Evidence and Practice in Criminal Cases, 40th ed., p. 84, para. 143). 30 'In Goddard v. Smith, 87 E.R. 1008, Holt CJ stated (at p.1009) that "entering a nolle prosequi was only putting the defendant sine die". In The Queen v. Ridpath, 88 E.R. 670, it was held (at p.671) that a nolle prosequi is not a discharge. 35 In The Queen v. Allen, 121 E.R. 929, Cockbum CJ observed (at p. 931) that in criminal cases the entering of a nclle prosequi stays proceedings on an indictment. 285 TriantaTyUides P. AnthonpoUs τ. PoUce

(1983)Before the trial Court and before usreferencewas made,and reliance was placed on,by counsel for theappellants to thecase of Α νHM Treasury, Β νHM Treasury, [1979]2 All E.R. 586. The headnote of the report of that case reads as follows: "For the purpose of investigating into alleged offences 5 against the Exchange Control Act 1947 Customs and Excise officers, in March 1978, seized documents belonging to several companies. A and Β were directors of some of those companies. Β declined to answer a questionnaire servedonhimandwas arrested on 13thDecember. Hewas 10 charged and cautioned, the charges against hint alleging contravention with others of s 23 of the 1947 Act andcon­ spiracy at common law with others to defraud the public revenue. On 19th December the Treasury, purporting to act under Sch 5, Part I, para 1

(1)to the 1947 Act, served 15 Βwith a letterof direction requiring him toanswer another questionnaire and to produce certain documents. The letter stated, in accordancewith the 1947 Act, that failure to comply with the letter of direction was an offence. The questionnaires were directed towards obtaining information 20 relevant to the conspiracy charge against B, and it was conceded that Β might incriminate himself in respect of all the charges against him if he answered the questionnaire. On29thDecemberA,whohadnotbeenarrested orcharged, was served with a similar letter of direction, questionnaire 25 and request to produce documents. A and Β took out originating summonses seeking the court's determination whether they were bound in law to comply with the letters of direction Held - On the true construction of Sch 5, Part I, to the 30 1947 Act thepower inpara 1

(1)todirect aperson to furnish information could not be invoked once that person had been charged and cautioned, and was limited to an earlier stage when matters were being investigated, for otherwise the right of a person charged and cautioned to remain 35 silent would be removed. Itfollowed thattheTreasury did not have power under para 1

(1)to direct Β to furnish in­ formation,sincehehadalready beencharged andcautioned, and accordingly, he was not bound to comply with the letter of direction served on him. However there was 40 286 2 C.L.K. 5 Anthoupolis v. Police Trianlafjllides P. power todirect A tofurnish information since hehad not been arrested orcharged, andwas therefore tobetreated like any other potential witness from whom information was sought forthepurpose ofdetectingevasion ofthe 1947 Act. Accordingly, A wasbound tocomply with the letter of direction served on him." It should bepoirited outthat sub-paragraphs

(1)and

(2)of paragraph 1of Part I of theFifth Schedule to theExchange Control Act, 1947, inEngland, are practically the same as sub10 paragraphs

(1)and

(2)of paragraph 1of Part 1of the Fifth Schedule to Cap.199. In theA and Β case, supra, Russell QCsitting as Deputy Judge of the High Court in England, stated, inter alia, the following (at pp. 589-590): 15 20 25 30 35 40 "Reading this part of the schedule as a whole, and con­ trasting itwith,forexample, Part II, whichgoes on todeal with the prosecution of andpenalties for offences under theAct, Ihave cometotheconclusion thatParliament must have contemplatedinPart Iastagebefore arrest, charging and theinstitution ofproceedings against thepersonwhom it is sought to question. Inmyjudgment, Part I iscon­ cerned with thestage when matters arebeing investigated and where, tousethe words of para 1

(1),the authorityis seekingtosecure 'compliance with or detecting evasion of thisAct*. Icannotbelievethatthelegislature everintended that thepowers contained in para 1,with thesanctionof criminal penalties, should or could be invoked toobtain information or documents of a potentially incriminating nature from one who had already been cautioned and charged with offences under theAct, whether those charges are substantive under theAct or are to be found asin­ gredients of acommonlawconspiracy. Ifthis were to be so, it would make a mockery of the caution andthecon­ ceptof therighttosilenceafter acharge hasbeen preferred. I am notpersuaded that a proper construction ofthe 1947 Act requires metohold that the rightsof a person charged and cautioned, rights which were enshrined in the common law and emphasised by the judges* rules, are removedbytheprovision containedinpara 1 ofSch5to the Exchange Control Act 1947." 287 Triantafyllldes P. Anthoupolis v. Police

(1983)Counsel for the respondents has very fairly conceded during thehearing of thepresent appeal that the ratio decidendi of the A andΒ case, supra, in so far as it related to Β was applicable regarding the appellants in thepresent case and that, therefore, the Central Bank was not properly entitled, under sub-para- 5 graphs

(1)and

(2)of paragraph 1of Part Iof the Fifth Schedule to Cap. 199, to request theappellants, by means of the letter of the Bank dated 6th April 1978, to furnish the information (with documents) specified therein, after the appellants, on the basis of the same circumstances, had been initially formally charged 10 and then prosecuted in respect of count 1in theaforesaid crimi­ nal case No. 18879/77 before the Assize Court of Nicosia ard later a nolle prosequi had been entered in connection with such count. As, therefore, the appellants could not have been required 15 by theCentral Bank tofurnish theinformation (withdocuments) concerned, they could not,in our opinion,have been convicted of having failed to comply with the directive contained in the letter in question of the Central Bank and, consequently, their convictionhas tobe setaside andthesentencepassed upon them, 20 as well as the order made by the trial Court regarding the dire­ ctorsandsecretary of theappellants as partof thesentence,have to be set aside, too. Before concluding this judgment we would like to observe that it was, also, conceded by counsel for the respondents that, 25 in passing sentence in thepresent case,the trial Courtcouldnot in thecontext of the present case have made theaforesaid order against thedirectors and secretary of theappellants, but weneed not pronounce on this issue as we have already held that the conviction of theappellants hastobesetaside and,consequently, 30 such order is nullified. This appeal is, therefore, allowed accordingly. Appeal allowed. Conviction set aside. 288