clr/1987/1987_2_33.pdf

(2)and 16{4) of TheTounst Places of EntertainmentLaw 91/79 and are alternative counts to the first three The last three counts, which were also — alternativecountstothefirst thret^werebased onsections259and261 ofthe Code andsection 12

(2)and 16

(4)of thesaid law - - 15 UnderPartIII of Law 91/79 anobligation iscastonbusiness-men running atouristcentretocollectfromclientsafixedpercentageandpayitoverattheir responsibility tothesaid organisation notlaterthanthe 15th of the following month Furthermore,hemustkeep arecord showing thedaily receiptsof his touristcentre 20 For the months of August 1983 until and including February 1984 the respondent submitted knowingly to the organisation statements showing lower collectionsthantherealonesandasaresultthefixed percentage(3%) was calculated onlower figures, and,consequently,theamountspaidtothe organisation were lessthanthosethatoughttohave been paid 25 Upon a submission of no case to answer the tnal Judge acquitted the respondent onthe ground thatthere was no identifiable object, the subjectmatterof stealing As aresult theAttorney-General filed thepresent appeal 33 Attorney-Generalv. Demoathenons

(1987)Held allowing the appeal

(1)The nature of our statutory provisions as regards the vanous aspects of stealing has been analysed in Sotenou ν The Republic, 1962 CL R 188andanextensive analysis of theoffences such as of stealing by agent, by bailee and breach of trust istobe found inAzinasν j. 77iePo/ice

(1981)2CLR9

(2)Inthecontextof Law 91/79 theamountabstracted isintermingled with other monies received by the caterer or other person liable to account for monies received on behalf of the Cyprus Tounsm Organisation Themonies are collected by bucha person as agent andtrustee who is liable toaccount totheorganisation and handover what hehasreceived ontheirbehalf onthe 1 0 strength of therelevant statutory provision Appealallowed Retnalordered Casesreferred to Shistnsv CTO

(1983)2CLR 72, Sotenou ν TheRepublic 1962 C L R 188, Azinas ν ThePolice

(1981)2 C LR 9 Appealagainstacquittal. Appeal by the Attorney-General of the Republic against the judgment of theDistnctCourtofLamaca (G Nicolaou, DJ )given 20 on the 16th December, 1985 (Cnminal Case No 4953/85) whereby respondent was acquitted of thirteen counts of the offences of stealing sums of money andwhich she omittedtopay over to the Cyprus Tounsm Organisation contrary to sections 255, 262 and 270 (c) of the Cnminal Procedure Law, Cap 155 25 and on sections 11, 12, 13 and 16

(4)of the Tounst Places of Entertainment Law, 1979 (Law No 91 of 1979) A Frangos, Senior Counsel oftheRepublic,fortheappellant A Poetis,for the respondent Cur adv vult A LOIZOUJ read the following judgment of theCourt Thisis an appeal by theAttorney-General of theRepublic underSection 137(l)(a)(

1. m)of the Cnminal Procedure Law, Cap 155, from a judgment of acquittal of the respondent by the Distnct Court of Larnaca, on the ground that the law was wrongly applied to the 35 facts of the case 34 30 2 C.L.R. Attorney-General v. Demosthenous A. Lotzou J. The respondent was charged before the Distnct Court of Lamaca with thirteen counts the first seven were based on sections 255 and270(
2. c)of theCriminalCode Cap 154 They refer tothestealing by therespondentof thesums of moneymentioned 5 in each countthatshe omitted topay over to theCyprus Tounsm Organization (CΤΟ)and which she had collected for itsaccount for the monthsof August 1983 to February 1984, respectively Counts 8, 9. and 10 were based on sections 257 and262 of the Code and Sections 12

(2)and 16

(4)of the Tounst Places of 10 Entertainment Law, 1979 (Law No 91 of 1979), hereinafter to be referred toas«theLaw», arealternative countstothefirstthreeand counts 11,12 and 13 which are also alternative counts tothe first threearebased onSections259 and261 of theCodeandSections 12

(2)and 16

(4)of the Law 15 Therespondent,who was duly represented by counsel,entered a plea of guilty to all sewn , junts that were originally on the charge, - and they were the first seven ones - but after the facts of the case were explained and counsel was heard in mitigation the learned trial Judge expressed reservations as to whether there 20 existed or notasubject matterwhich was capable of being stolen and invited argument by both sides We need not however, go intothataspect of the case Suffice ittosay thatcounsel for the appellant invited the attention of the Court tothecase of CharalambosSotenou ν TheRepublic 1962 25 C LR 188 towhich authority I shall be refernng indue course It was then submitted by counsel for the respondent that inview of thatsituationtheCourtshould nothave acceptedtheplea of guilty of therespondentandleavemight be granted tohimtochange his plea 30 Theprosecution thenasked tohave counts8to 13added tothe charge which was duly done and the case was adjourned for heanng after achange of plea was recorded The facts of the case as emanating from the evidence adduced and which donotappear tobe mdispute are the following 35 The respondent was at the matenal time a business-woman running a tounst centre,so classified under the provisions of «the Law» UnderPartIIIthereof an obligation iscastonsuch business­ men to collect from clients the percentage fixed by Order of the 35 A.LoizouJ. Attorney-Generalv.Demotftbenoiw

(1987)Council of Ministers and pay itover attheir own responsibility to the Cyprus Tourism Organization not later than the 15th of the following month in accordance with the Circular Instructions of the Organization. Furthermore each businessman must keep a record showing the daily receipts made bysuch tourist centre in 5 accordance with Circular Instructions of the Organization. Thisis the effect of Section 12 of the Law, the acts or omissions performed thereunder being made into offences by virtue of the provisions of Section 16

(4)and this isthe interpretation given to these sections by thisCourt inShistris v. C.T.O.

(1983)2 C.L.R. 10 72, where it was held that the Law makes it an offence for the proprietorofatouristcentretofailoromittocollectthe3%charge and thatsuch aproprietornot onlyhasarightbutadutytocollect it. Forthe monthsofAugust,September, October, Novemberand 15 December 1983, as well as for the months of January and February 1984, therespondent submitted toCT.O.statementsin which to her knowledge there were recorded collections lower from the real ones which had been recorded in the Register of collections kept by her. The percentage of three percent was 20 calculated on the basis of the false statements and so in every instance there waspaid over to C.T.O. the amount mentioned in such count which islessthan that which the respondent ought to have paid. Particularsinrespect oftheserecordswere adduced atthetrial 25 and the learned trial Judge rightly pointed out that there was no need for the purposes of hisjudgment, which turned on a purely legal issue,to incorporate them therein. At the close of the case for the prosecution a submission was made on behalf of the respondent, -adopting therein also what, 30 was said at the outset of the case, -that no prima facie case had been made out against the accused sufficiently to require her to make her defence. The submission was accepted by the learned trial Judge and thereupon he acquitted and discharged her on all counts. In his 35 reasonedjudgmentheformulated theissueofthecaseasfollows:«Theresultof thiscase depends onwhether therewasornotan itemoranythingwhichcouldbecapable ofbeingstolen underthe provisions of section 255

(3)ofthe Code.» 36 2C.L.R. Attorney-General v. Demosthenous A.Lolzou J. He referred to section Ϊ2 of the Law and went on tosay [hatit is noteworthythatthesaid Section 12 referred topercentages and thatitisof coursetobe understoodthatthepercentageafter being calculated on thebasisof the height of thebill was convertedinto 5 aconcreteamount,butthatthereference inthe Law tocollection and payment of the sum received by the business-man underlined as itappeared to him thatat the time of thecollection itwas notseparated in the hands of the businessman incurrency which represented the corresponding values He then went on 10 andsaid- 15 20 _ -25 30 «The currency in its material form (orotherconsideration) belongs to the businessman whose obligation is to pay over within the prescribed time-limit an amountwhich represents the value of thepercentage Untilthebusiness-man separates from the total currency and allocates part of it as anamount that belongs to CΤΟ CΤΟ cannot be considered as the owner by virtue of Sectio:ι )

(2)of theCnminal Codeof any item under section 255

(3)of the same Code Whether the content of any circular by CΤΟ could differentiate the picture is amatterfor which I need notexpress an opinionin the present case At some stage of the proceedings learned counsel for the prosecution referred the Court to the case of Charalambos Sotenou ν The Republic 1962 CLR 188 in accordance with which the offence of stealing in Cyprus — extends-with the vanous provisions of the Cnminal Code beyond thecorrespondingEnglish offence, inordertoinclude" also instances known in England as embezzlement This does not changethesituationbecause ineveryparticularoffence of stealing asinevery instanceof theoffence of embezzlementm England it is a necessary prerequisite the existence of a concrete object onwhich aperson otherthan theaccused has some nght of ownership or possession » We need not deal with the various aspects pertaining to the offence of stealing and relating offences as the nature of our 35 statutory provisions tobe found in theCriminalCodehas already been dealtwith mthe Sotenou case (supra) Furthermore an extensive analysis of offences such as stealing by agen* and by bailee and bieach of trust was made and examined bytheSupremeCouninthecase ofAzinasand Another 40 ν ThePolice

(1981)2 C LR 9 and we considentunnecessary to 37 A.LoizouJ. Attorney-General v.Demosthenous

(1987)reiterate the relevant pnncipleshere aswe fully subscnbe towhat wasdecided inthe twocases hereinabove mentioned The sole issue upon which the learned trial Judge found the case for the prosecution unproven and, therefore acquitted and discharged the accused without calling upon her to make her 5 defence was the absence of an identifiable object, the subject matter of theft In the context of the law here under consideration, by itsvery nature, the amount abstracted isintermingled with other monies received by the caterer or other person liable to account for 10 monies received on behalf of the Cyprus Tounsm Organization The money iscollected bythe catererasagent and trustee and is liabletoaccount tothetounst organization andhandoverwhathe has received on their behalf on the strength of the relevant statutory provision The appeal is allowed, the case will go back before the tnal Judge todeal further withthe matter Hemust decide whether,in the light of the evidence and thisJudgment, the pnma facie case was made out against the accused on allor any ofthe counts For all the above reasons we set aside the verdict of acquittal 20 and we order a retnal Appeal allowed Retnal ordered 38 15