clr/1984/1984_2_59.pdf

(1984)imprisonment which was suspended for threeyears. Regarding the offence ofthe 17thApril the appellant was sentenced to £15 fine and thesum of £50,out of a recognizance of£100given by him in respect of a previous conviction, was forfeited. Hewas further bound over in thesum of £250for twoyearsto keepthe 3 Laws and Regulations. The appellant appealed both against hit. conviction* and sentence.** Counsel for the appellant mainly contended that Notification No. 332/68 did not create any offence in respect of the keepingof a shopopen on Sundaysinthearea of Ayia Napa 10 becausethewording ofparagraph (d)ofthesaid Orderwassuch asto extend only the application of section 6of the Lawto the area of Ayia Napa and nottheremaining provisions ofthe Law. Held, (I) that the wording ofparagraph (d)should beread in conjunction withtherestofthe order and inparticular theopen- 15 ing words of section 3thereof; that when thesetwo provisions areputtogether they makethewhole Lawapplicable but onlyin respect of offences which are created by section 6 of the Law, that is Sunday closing, and no otlier offence; accordingly the appeal against conviction must fail. 20

(2)That inthe circumstances ofthiscase and bearing in mind that theappellant wasactingon legaladvicetotheeffect that the Order as drafted did not makeit an offence for a shop-keeper to open on a Sunday in theAyia Napa area,the term of imprisonment imposed on the appellant even if it was suspended, is ma- 25 nifestly excessive and consequently this appeal against sentence must be allowed; that in the circumstances and in view of the sentence passed onthe other offences hecould beand heisdischarged absolutely as this offence would normally have been taken into consideration by the Judge when passing sentence in 30 respect of the other case to which the appellant had pleaded * In spite of the plea of guilty the appellant appealed against conviction by virtue of s. 135(b) of the Criminal Procedure Law, Cap. 155 whereby upon a plea of guilty a person convicted and sentenced is only entitled to appeal against conviction on the ground that the facts alleged in the charge or information to which the accused person pleaded guilty did not disclose any offence. *" The appellant withdrew the appeal against the sentence of fine and pursued only the appeal against the suspended sentence of imprisonment. 60 2 CL.lt. 5> Djionis v. Police guilty but,fortheobjection ofthe prosecuting officer, it wasnot done. Appeals againstconvictiondismissed. Appeal No. 4461 against sentencedismissed. Appeal No. 4462 against sentence allowed. Cases referred to: Athlitiki Efimeris"O Filathlos" andAnotherr. Police

(1967)2 C.L.R. 249. Appeals against convection and sentence. 10 Appeals against conviction and sentence by Michael P. Djionis who was convicted on the 23rd August, 1983 at the District Court of Famagusta (Criminal Cases Nos. 1399/83 and 1403/83) on two counts of the offence of keeping his shop open on a Sunday contrary to sections 6 and 12(

1. a)of the Shop 15 Assistants Law, Cap, 185 and was sentenced by Eliades. D.J. to three months' suspended imprisonment for three years. G. Pittadjis, for the appellant. A.M. Angelides, Senior Counsel of the Republic, for the respondents. 20 A. Loizou J.: The appellant in these two appeals pleaded guilty to two charges of keeping on two different dates, namely the 10th and the 17th of April 1983, at Ayia Napa, his shop open on a Sunday, contraiy to the provisions of sections 6 and 12(
2. a)of the Shop Assistants Law, Cap. 185, and P.Ts. 25 254/67 and 332/68. The appellant had six similar previous convictions, one on the 9th September 1982, for which he was fined ten pounds and another on the 16th December 1982, when four other offences were taken into consideration and for which he was fined £ 2 5 30 and bound over in the sum of £250.- for a period of two years to keep the laws and regulations. Moreover before sentence was passed on him in respect of the offence committed on the 10th April, he asked that the other offence committed on the 17th April, and which is the subject of the first appeal be taken 35 into consideration. The prosecuting officer, however, for reasons that we do not understand and in fact none is recorded, objected to its being taken into consideration and the teamed trial Judge after hearing a plea in mitigation sentenced the appellant to three months' imprisonment, suspended for three years 61 \. Ι οί/ι»ι: •'. DjiunK ι Ριιΐκτ

(1984)by virtue of the provisions of section 3

(3)of the Sentence of Imprisonment (Conditional Suspension m Certain Cases) Law, 1972 (Law No. 75 of 1972). He wih further ordered to pay three pounds costs of the prosecution The learned tital Judge thou dealt with the case in lespecl of 5 the ollcncc committed on the following Sunday, and taking into consideration his previous coimctions and the fact that the Law provide-, for a maximum sentence of six months' imprison­ ment and L"3()0.- line, sentenced the appellant to £15.- fine and oideied the forfeiture of a .aim of 150.- out of a recogniz- I" ancc of a bundled pounds gh.en by the appellant in respect of an οHence fo.· which he UM* convicted on the 13th January I!JS.:. which iccognizance was for two year-; Lo keep the law·» .ι-α',ί le^uiaifom. He was fu;thci IHHUUI over in the sum of iJ25i) f.v two years to keep the Lu*. ·. anil regulations. 15 Tlie ,e appcaU against conviction IKUC been lilcd by the appel­ lant in ·,οΐί.* ol hi-, pica of guilty by \i:tue o\' the provisions of vjcho.i Milbi t iiut the Crimni;! IVoecdiuc Law, Cap.

1. v. he. coy upon a plea of guilty a peiMin convicted and sentenced i·. oiil;· on inled to appeal against ronuction on the ground that It) il.e !avt* alleged m the charge <·ι infoimalion to which the aceti-ed peo.o-ti pleaded guilty did not disclose any offence. (See tt/iltHhi I'/'IMLR/S "O Iihiiidos" and another v. The Ren-ihia- ι;\)ί>7) 2 C.L.R. p. 249). lie also appealed against the venu-nec ιmposed in both cahe·. but in the course of the 25 !'.eai;,ig he withdrew the appeal against ^evtlence in lespect of the .t.fniec o( the ifith Apul I9i»
2. iC'nmmal Appeal 4461). The Shop Assistant.-. Law. t a p . I S3 was enacted on the 26th Nou'inber 1942 !l was a Law a:, its title reads to tcgulate •hop hour., and the hour·» of employment o\' shop assistants. >> .OK! .ι·. )ii'o\ided b\ scaion In. it is to apply to such towns. \ii!.uc- or other area^ as lite (lovemor in Council—now the i'.Kiiie-! *">Γ Minister*--may by Older appoint. The latest <.f i\:c orde's piescribing the aiea\ to which the Law applies made i.nder the provision-; of section
3. is the one published 35 in the (>i-iei;,l Gazelle of the Republic dated the 24th May, Wo.V Supplement No.
4. under Notification 33?. which lo the e^:en; rial i-> relevant read.: '"•' · fiii:. order rmu be cited as the Shop .Assistant·» (Appointri'.iu of Area·.) Order of l%X. 62 40 2 CM'.li. Djionis *. Police \. I rn/mi -I

(2)In this Order 1 'Law' mean * the Shop Assistant Law .MKIauy !.o.·. amending or substituting same.

(3)I'he Law shall apply 5 (d) to the areas of ihe rcmainiuu \illage^ of the Republic. only as much as it icfers lo the proM.i.n· of" section 6 of the Law.

(4)The Shop Assistant-. Appoinlincnl oi Areas Otdei ol 1967 is revoked"'. 10 15 20 25 30 35 The Order under Notification 254 of 1*967 rcfcued to in ihc charge-sheet is an 0:dci made under the ptovisions t>f seeiion 19 of the Law. by which the special provisions reminding shop assistants in trades and business set out in the schedule:, have been vaiied and we a^c not concerned with that O.dcr in i h r case. Section 12 of the Law in so far as rele\ant provides th:it an\ shop-keeper who contravenes or fails to comply with am ol the provisions of sections

4. is.
5. !0, IfS and 17 ol the Law. shall be guilty of an offence and shall be liable on conviciion to imprisonment for a iciin not exceeding si\ months and/or to a tine not exceeding £300.- or to both etc. It has been the case for the appellant that the O d e r under Notification 332 of 1968 does not create any offence in ιc··peel of the keeping of a shop open on Sundays in the area of Ayia Napa. It has been argued that the woiding o\~ paragraph ulι of the said Older is such as to extend onl\ the application oi section 6 of the Law to the a.ea of Ayia Napa and not the icmaining provisions of the Law. We do not subscribe lo this view as the wot ding of this paragraph should be read in conjunction with the ieu of the Older and in particular the opening words of section 3 theicof When these two piovisions aie pttt together they tead as follows: "The Law shall apply . „_ . as much as it refers to the pro\isions o\' section ft of the Law", In other words the whole- Law· is made in this Oidcr applicable but only in tespect of offences which are created by section 6 of the Law. that is Sunday closing and no othei offence. 63 Λ. Loizou J. Djionis ». Police

(1984)Moreover section 12 of the Law refers expressly to section 6 and completes same by making provision for the penalties to be imposed to an offender. For all the above reasons both appeals against conviction should fail. 5 As regards the appeals against sentence the appellant with­ drew his appeal against the sentence imposed in Criminal Care 1403/83 which is the subject of Criminal Appeal 4461 but pur­ sued his appeal against the sentence imposed in Criminal Case 1399/83 which is the subject of Criminal Appeal 4462 and which Jt! as already seen was a term of imprisonment of three months suspended for three years, plus the payment of the costs of the prosecution. In the circumstances of this case and bearing in mind thatthe appellant was acting on legal advice to theetfect that the Order as drafted did notmakeit anoffence for a shopkeeperto openon a Sunday in theAyia Napaarea,we find that theterm of impri­ sonment imposed on the appellant even if it was suspended, is manifestly excessive and consequently we allow this appeal against sentence. We feel that in the circumstances and in view of the sentence passed on theother offences he could be and we so do discharge him absolutely as this offence would normally have been taken into consideration by the learned Judge when passing sentencein respect of the other case to which theappellandhad pleaded guilty but. for the objection of the prosecuting officer, it was not done. In the result, both appeals against conviction and the appeal against sentence (CriminalAppeal 4461) are dismissed. Appeal agamst sentence (Criminal Appeal 4462) allowed and order made accordingly. Both appealsagainst conviction dismissed. Appeal against sentenceallowed. 64 ~>* 25 30