clr/1988/1988_1_329.pdf

(1)The provisions of section 170are clear and leave no room for any ambiguity Section 170 empowers the Court to make an order *SeeSawa*Pambos*v ThePolice

(1986)2 CL R 30 "SeeReSawa*Pambos*

(1986)1CLR 518 329

(1988)I n r e S a w a «Pambos» forthedeliveryofthepropertytothepersonappearingtotheCourt tobetheownerthereof andonlyincaseswheretheownercannotbe ascertained thenitmaymakeanorderwithrespecttosuchproperty astheCourtmayseefit.

(2)In thiscase the money wasinthe absolute possession of the 5 applicant.Suchmoneyhadnotbeenstolenbyhimorcameintohis possession by any illegal means. The mere fact that such money might have been used for an illegal purpose doesnot render their possession illegal.InthelightofthedecisionoftheCourtofAppeal applicant's possession of the £700.- could not be treated as 10 possession forillegalpurpose.

(3)ThedecisioninIrvingv. NationalProvincialBankLtd. [1962] 1 AHE.R. 157 is distinguishable from this case, because there the outcome depended on the onus of proof between tworival claimants. ^ Applicationgrantedwith costs. Ordersforcertiorariandmandamusissued. Casesreferredto: Irvingv. NationalProvincialBankLtd. [1962]1 AllE.R.

1. Application. Application for an order of certiorari forthe purpose of bringing up and quashing thejudgment of the District Court of Larnaca in Criminal Case No. 6263/85 dated 8th July, 1986 dismissing applicant' sapplication for the return to him of the sum of £700.forfeited intheabove Criminalcaseandforanorderofmandamus 25 directing the trial Court to return to applicant the above sum. K.C. Saveriades, for the applicant. S. Matsas,for the respondents. Cur. adv. vult. SAWIDESJ. read thefollowingjudgment.Theapplicantinthe 30 present application prays for A. An order of Certiorari for the purpose of quashing the judgment of the District Court of Larnaca in Criminal Case No. 6263/85 dated the 8th July, 1986, dismissing the application of the applicant dated 8th April, 1986,forthe return tohim of asum 35 of £700.- under the provisions of Section 170 of the Criminal Procedure Law, Cap.
2. 330 20 1 C.L.R. In re S a w a «Pambos» S a w i d e s J. B.AnorderofMandamusdirectingtheDistrictCourtofLarnaca toreturntoapplicantthesumof£700-referredtoinparagraph(A) hereinabove as per the provisions of section 170 of the Criminal Procedure Law, Cap.
3. 5 10 The present application was filed after leavewasgranted to the applicant on the 15th December. 1986 on an ex parte application tothisCourt and wasserved on the Attorney-General of the Republic, the Registrar of the DistrictCourt of Larnaca and the Divisional Commander of Police at Larnaca. The facts of the case are briefly as follows: The applicant wascharged before the DistrictCourt of Larnaca in Criminal Case No. 6263/85 in respect of offences under sections 17A

(1)(a)(b)(aa)ofthe CyprusSportsOrganization Law 41/69, asamended by Law 79/

1. He was charged on a number 15 ofseparate countsinsomeofthem personallyandinothersjointly with otherpersons.Applicantwasacquitted oncount 1 buthe was convicted on the remaining counts 2, 3, 4, 5 and 6 and was sentenced on the 15thOctober, 1985tooneyear's imprisonment on counts 2 and 4 to run concurrently whilst no sentence was 20 passed on him on counts3,5 and
2. Counts2and 3charged theapplicant withpromising togiveon 16.5.1985 and 17.5.1985 at Larnaca and count 6 with having given £300 to a certain Demetris Christophides, a football player of «ETHNIKOSASSIAS»with theintention ofaltering infavourof 25 «ORFEASATHIENOU»theresultofafootball match whichwasto be held between the aforesaid two clubson 19.5.
3. During the trial of the case the prosecution produced to the courtthesumof£700seizedfrom and/orhandedbytheapplicant duringthe investigation of the case.After the close of the case for 30 the prosecution defending counsel for the applicant submitted to thetrialcourtthatnoprima facie casehadbeen made out because there wasno evidence astothe legal constitution ofthetwo clubs involved inthe caseas required bysection 17Aof Law79/80 and invited the court toacquit the applicant. 35 ThetrialJudge instead of proceeding togivehisrulingon the a above submission allowed the prosecution to reopen itscase and adduce further evidence inordertoprove the legal constitutionof thetwoclubsinquestionasrequired byLaw.Asaresult, evidence wasadduced and onthebasisofthewholeevidencethe applicant 331 S a w i d e s J. In re S a w a «Pambos»

(1988)was found guilty and was sentenced to one year' s imprisonment and thesum of£700handed overbytheaccused tothepolicewas forfeited. The applicant filed an appeal against his conviction (Criminal Appeal No.4690),asaresultofwhichhisconviction onallcounts 5 was quashed and he was acquitted accordingly (see Sawa «Pambos»v. The Police

(1986)1C.L.R. 30. Inaccordance with thejudgment intheabove appealthe Court of Appeal decided, inter alia, that: (a)Forthepurposes oftheCyprusSportsOrganization Lawthe 10 'club' must be a legally constituted club or organization in the Republic; (b)No offence iscommitted under s.17(A) of the aforesaid law for any act with the intention of altering the result between two foot-ball teams, if the said teams are not clubs or organizations 15 legally constituted; (

1. c)By the time the prosecution closed its case, there was no proof that the aforesaid foot-ball teams of ETHNIKOSAssiasand ORFEASAthienouwereclubsororganizationslegallyconstituted, 20 and (
2. d)The trial Court had no power under the law to allow the prosecution, after ithadcloseditscase,toadducefurther evidence inorder toprove thesaid substantial element oftheoffence which was lacking. Inthe lightof thejudgment ofthe Supreme Court intheappeal 25 the applicant by an application dated the 8th of April, 1986, applied totheDistrictCourtofLarnaca forthereturntohimofthe aforesaid sumof£700 undertheprovisions ofsection 170ofCap. 155. HisHonourJudge G.Nicolaouafter havingheard arguments on behalf of the applicant on the one hand and the Police on the 30 other hand, delivered his ruling on the 8th July, 1986 whereby applicant' sapplication wasdismissedashavingnosubstance and refused to order the refund to himof thesum of £700. The grounds upon which the remedies applied for are based ^-„. are: «(a)Thesaidjudgment dated the8thJuly, 1986waswrong in law. 332 35 1 C.L.R. InreSawa «Pambos* Sawides J. (
3. b)There was an error of law apparent on the face of the record. (c)The said judgment was contrary to the provisions of s. 170oftheCriminal Procedure Law,Cap. 155. 5 (d)Thesaidjudgment wascontrarytotheratiodecidendiof the judgment of the Supreme Court dated the 13th March, 1986 in Criminal Appeal No. 4690 connected with Criminal Case No.6263/85oftheDistrictCourtofLarnaca,referred to above. 10 (
4. e)The Hon. trial judge had no power to disregard the binding force ofthejudgment oftheSupreme Court, referred to above and further, he had no power to 'reopen' the case, thus disregarding the principle of finality injudicial litigation, and 15 (
5. f)The Hon. trial judge misinterpreted and/or misapplied fthejudgment of the Supreme Court, referred to above.» Counsel for applicant submitted that: (a)The Court disregarded the binding force of thejudgmentof 20 theSupreme CourtinCriminalAppeal4690and,therefore, acted in excessand/or outside thejurisdiction orpowers with which itis vested. (
6. b)The reasons given by the court in dismissing applicant' s application forthe return of the sum of £700 are wrong inlaw. 25 (
7. c)The Court by altering and/or weakening the effect of the judgment of the Supreme Court in Criminal Appeal 4690 indirectly refused toadjudicate according to itspowers. Learned counsel for applicant made reference to extracts from thejudgment ofthetrialCourton whichtheCourtreliedto refuse 30 the application and submitted that the trial Judge wrongly interpreted the facts and applied the law in the circumstances of the case. The Court by so acting, counsel contended, closed its eyes to the binding force of the judgment of the appellate Court and thus acted in excess of itsjurisdiction or powers with which it 35 isvested. Alsothe interpretation or evaluation of an acquital ison thebasisofitsfindings fallacious. Hefinallyconcludedthathad the trial Court followed the reasons given by the appellate Court in 333 SawidesJ. InreSawa «Pambos»

(1988)acquitting the accused itshould not have proceeded to make an order for the forfeiture of the money seized from the appelant. Counsel fortherespondents, ontheotherhand,contended that under s. 170of Cap. 155adiscretion isgiventotheCourttomake an order for the return of property seized by the police to the 5 person appearing to the Court tobe the owner thereof and if the owner cannot be ascertained makesuch orderwithrespectto the property as tothe Court maydeem fit. The acquittal of the accused, counsel submitted, isnot by itself the only criterion which the Court should take into consideration 10 indirectingthereturn ortheforfeiture ofthepropertyseizedbythe police and that in the circumstances of the present case the trial Judge exercised his discretion properly in refusing the return of the property and directing its forfeiture. Insupport ofhisargument counsel soughttorelyonthedictain 15 thejudgmentofIrvingv. NationalProvincialBank Ltd. [1962]1All E.R., p . l 5 7 a t p . l 5 9 the factsofwhich,hesubmitted, were similar to those in the present case. Section 170of the CriminalProcedure Law,Cap. 155provides as follows: «170.

(1)Subject to the provisions of subsection

(2)of this section, where any property has come into the possession of the police in connection with any criminal proceedings, the Court may, on application either by a police officer or by a claimantoftheproperty,makeanorderforthedeliveryofthe 25 property totheperson appearingtotheCourttobethe owner thereof or, if the owner cannot be ascertained, make such order with respect to the property as to the Court may seem fit.

(2)An order under this section shall not affect the right of 30 anyperson totakewithinsixmonthsfrom thedateofthe order legal proceedings against any person in possession of property delivered by virtue of the order for the recovery of the property, but on the expiration of those six months the rightshall cease.» The provisions of section 170 are clear and leave no room for anyambiguity.Section 170empowerstheCourttomakean order for the delivery of the property to the person appearing to the 334 ^ 1 C.L.R. Inre S a w a «Pambos» S a w i d e s J. Court to be the owner thereof and only incaseswhere the owner cannot be ascertained then itmay make an order with respect to such property asthe Court maysee fit. There isno dispute in the present case that the sum of £700.5 wasinthe absolute possession ofthe applicant and itwas handed byhim tothePoliceattheirrequest inthe courseof their inquiries inthe commission of the alleged offences. The applicant was not convicted inrespectofanyoffence forthepossession oruseofany illegal or prohibited goods under the provisions of any law and 10 which are subject to forfeiture irrespective of the conviction or acquittal of the person on whose possession they are found and who claimstobe owner thereof. The money found in the possession of the accused were legal tender claimed by him as hisown and which had not been stolen 15 byhimorcameintohispossession byanyillegalmeans.The mere fact that such money might have been used for an illegal purpose does not render their possession illegal. The case of Irving v. National Provincial Bank Ltd. (supra) on which counsel for respondent soughttorelyisdistinguishable from thepresent case. 20 In that case the money seized from the accused were connected witha criminaloffence and inparticularwiththeft.Thewholecase turnsastowhetherthe plaintiff orthedefendant werethe persons entitled to be handed over the money in question and the issue turned on the incidence of the onus of proof between the two 25 claimants.The facts of that case were briefly as follows: Theplaintiff wasconvictedofbreakingandenteringbranchesof thedefendants' bankand ofanother bankand ofstealing money. Bankof England notesamounting to 154pounds andtenshillings seized bythepolice from theplaintiff' spossession formed exhibit 30 athistrial.Onappeal hisconviction relatingtothedefendant bank was quashed. The defendant obtained an order from a Magistrate's Court under section 1

(1)of the Police (Property) Act, 1897, the provisions of which correspond to section 170 of Cap. 155 in pursuance of which the police handed over the ceased 35 sums of money tothe defendant. Theplaintiff sued the defendant for the return of the money. The plaintiff did not satisfy the trial Judge of his right to the money nor were the defendants in a position to prove that the notes were theirs.The issue, therefore, depended on the incidence of the onus of proof. 335 Sawides J. InreSawa «Pambos*

(1988)Inthe present casethere wasno claimbyanyotherperson that he was the owner of the money in question. They were only claimed bytheapplicant from whose lawful possession they were seized by the police. The Court of Appeal in acquitting the applicant found that no offence was committed under s.l7(A) of 5 the Cyprus Sports Organization Law 41/69 as amended by Law 79/80 and, therefore, in the light of such decision the possession bytheapplicant ofthesaidsumcouldnotbetreated aspossession for use for an illegal purpose.Therefore, the Court in making an Order for its forfeiture did notexecute itsdiscretion correctly and 10 acted insuchawayastonullifytheeffectofthedecisionoftheCourt of Appeal in acquitting the accused and wipingoff the resultof any conviction. In the circumstances of the present case upon the acquittal of the applicant thisamount should have been returned to him by the police even without the need ofany application on 15 hisparttotheCourtforitsreturn.Oncethepolicedidnothaveany claim from any other person then such money lawfully belonged to and should have been returned tothe applicant. In the circumstances of thepresent case theapplicant succeeds and an order of certiorari ishereby made quashing thejudgment 20 of the District Court of Larnaca in Criminal Case 6263/85 dated 8th July, 1986 dismissing applicant' sapplication dated 8thApril, 1986 forthe return to him of asum of£700.-and alsoan orderof the Court directing the District Court of Larnaca to return to the applicant the sum of £700.- referred to hereinabove which was 25 seized by the Police from the applicant and was an exhibit in Criminal Case 6263/85. Itisfurther directed that the costs of the applicant be paid bythe Republic. Application granted. Costs tobepaid by the Republic. 336 30