clr/1988/1988_2_153.pdf

(1)of the Sale of IntoxicatingLiquorsLaw, Cap. 144. 5 Construction of statutes —Criminallegislation— Whether a particular provision createstwo ormore offences ormore thanonealternative ways of committing the same offence — The Sale of Intoxicating LiquorsLaw, Cap. 144,section 3

(1)—Createsonly one offence. 10 15 20 Sentence —Exemplary punishment by reason of the way counsel for accused cross-examined witnesses — Wrong in law— Accused entitled totestcaseforprosecution (Art. 12.5 of the Constitution). Sentence — Offering for sale intoxicating liquor, contrary to the Intoxicating Liquors Law, Cap. 144—Application for relevant licence pending at the time and eventually received—First offender —Fineof£150.-and recognizance inthesum of£500.- to observe thelawforthreeyears —Finereduced to£50 —Orderfor recognizance quashed. Appellant was convicted on a charge of offering for sale intoxicatingliquorwithoutaretailer'slicence,contrarytoss.3

(1)and 23 of the Sale of Intoxicating Liquors Law, Cap. 144; and was ordered topay a fine of£150.-and enter intoa recognizance inthe sumof£500.-toobservetherelevantlawforaperiodofthreeyears. Thefactsfounding thechargewerethatappellantservedbehindthe bar of a restaurant on the shelves of which were exhibited 153 Chalhoubv. Police

(1988)alcoholic dnnks The area of the bar was illuminated, signifying readiness toserve customerswho might ask for adnnk Counsel for the appellant argued that in this case there has not been an offer for sale, butsimply an invitation totreat Held, dismissing the appeal against conviction

(1)The general rule isthatwords inastatuteshould begiven theirordinarymeaning, unlessthepopularmeaningoftheword isexpressly or,by necessary implication,qualified by theAct «Offer» means«expressreadinessto do or provide if desired» 5

(2)In any case appellant's conduct is caught by the words of 10 section 3

(1)«have in his possession for sale» This is not another offence, but an alternative way of committing the same offence Consequently, even if the basic argument of counsel had been accepted, the conviction would still be upheld by applying the proviso 15 Held, further, allowing the appeal against sentence

(1)The a F pellant is a first offender At the time of the commission of the offence, there was pending an application for a licence, which was eventually granted to him Itappears that a heavier sentence was imposed by reason of theway his counsel cross-examined certainof 20 the witnesses

(2)While implausible defences must be discouraged, their advance is not of itself a reason for imposing an exemplary punishment The accused is entitled to test the case for the prosecution inexercise of hisdefence nghts guaranteedby Art 12 5 25 of the Constitution Sentence will be reduced to a fine of £50 Recognizance quashed Appeal against conviction dismissed Appeal againstsentence allowed Casesreferred to 30 Fisherv BeW[1963]3 AUER 731, Keating ν Horwood [1926] All ΕR Rep 88, Wiles ν Maddison [1943] 1All Ε R 315. Police ν Economides and others, 20 (PartII)CLR 11, 3 5 R ν Surrey [1932] 1ΚΒ 452, Veman ν Paddon [1973] 3 All ΕR 302 154 2 C.L.R. Chalhoub v. Police Appealagainstconvictionandsentence. Appeal against conviction andsentence byJoseph Chalhoub who wasconvicted on the 12th February, 1988at the District Court ofLamaca (Criminal Case No. 10898/87) onone countof 5 the offence of offering for sale intoxicating liquors without a retailer'slicencecontrarytosection3

(1)and23ofthe Intoxicating LiquorsLaw, Cap. 144and wassentenced byArestis,D.J.topay £150.- fine andwas further bound over inthesum of£500.-to observe the relevantlawforaperiod ofthreeyears. 10 N.Panayiotou withA. Iacovides, forthe appellant. A. M.Angelides, Senior Counsel of the Republic, forthe respondents. Cur.adv. vult. DEMETRIADESJ.:ThejudgmentoftheCourtwillbe delivered IE byPikis,J. PIKISJ.: Appellant was convicted ona charge of offering for sale intoxicating liquor without aretailer's licence, contrary toss. 3

(1)and23oftheSaleofIntoxicatingLiquorsLaw,Cap. 144;and wasordered topayafine of£150.--and enterintoarecognizance 20 inthesum of£500.--toobserve therelevant lawforaperiodof threeyears. The facts founding the charge were that appellant served behind the bar of a restaurant on the shelves of which were exhibited alcoholic drinks. Thearea ofthebarwas illuminated, 25 signifying readiness toserve customerswho mightaskforadrink. Hisconductamounted, asthetrialCourtfound, tooffering forsale alcoholic drinkstocustomers ofthe restaurant. The facts didnot establish, inthe contention ofcounsel, conduct amounting toan offer tosell. Premising his arguments onthelawofcontract and 30 thedistinction made inthatarea ofthelaw*between an offer and an invitation totreat, heinvited usto overrule the trial Court and hold that the offence remained unproven. We were asked to interpret the expression «offer forsale»inthecontext ofs.3(l) of Cap. 144, asconfined toconduct involving a concrete offer toa 35 particularperson orpersons.Counsel found support for thisview . in thedecision inFisherv. Bell**where theCourt held thatthe • (ChtttyonContact GeneralPrinciples,24th ed.,pp. 22-23,para.43). "[196313A11E.R. 731(adecisionottheDivision,'Court}. 155 Pikis J. Chalhoub v. Police

(1988)display of a prohibited article*, a flick knife, in the window of a shop, did notamountto an offer tosell butan invitation totreat The legislature should, in the opinion of the Court,be credited withknowledge of thegeneralpnnciplesof thelawofcontractand on that account be deemed to have fashioned the law with awareness of the distinction between an offer to sell and an invitation totreat 5 InFisher, theCourtdistinguishedtwo e" 'he·u^ .·-. •», namely, Keating ν Norwood** and Wiles ν Maddison***thatsupported a contrary view to the one taken by the Court in Fisher 10 In Keating, the Court found that a baker's van driven on the rounds, carrying bread ©rdered and bread for sale, constituted both an offenng and an exposure for sale In Wiles, supra, the Court espoused the view that there was an offering for sale whenever anarticleisoffered for saleby display inashop-window 15 withoutanybody having seen theoffer oranyonemakingan offer for itspurchase. Itissignificant tonotethatinthecase ofFisherthe Court doubted, tnthefirst place,whethertheevidence before the Court established that the knife in question answered the description of the prohibited weapon The general rule is that 20 words in a statuteshould be given theirordinary meaning.Put in other words, the legislature is deemed to have intended words used inastatutetobearthatmeaningunlessthepopularmeaning of theword is expressly or,by necessary implication, qualified by the Act According to the Concise Oxford Dictionary, 7th e d , 25 ρ 706, one of the meanings of the verb «offer» is, «express readiness to do or provide if desired.» 77ie Safe of Intoxicating Liquors Law does notprovide adefinition of the expression «offer for sale». Moreover,s 3

(1)does notqualify the ordinarymeaning of theexpression directly orbynecessary implication.Themanm 30 the street would, we believe, nghtly construethe conductof the appellant as involving an offer for thesale of intoxicating liquors Whether display of liquor in the window of a restaurant would have thesame effect, isaquestionwe neednotdecideinthiscase We confine ourselves toholdingthattheconduct of theappellant 35 amounted tooffenng for sale intoxicatingliquor Furthermore, even if we held otherwise and found that the conductof theappellantfellshortof anoffering for sale,hisaction •(s1

(1)— Offensive WeaponsAct 1959) "11926JA11ER Rep 88 "·(194311 AltER 315 156 2 C.L.R. Chalhoubv. PoBce Pilds J. would nonetheless be caughtby anotherprovision of s.3(l) laying down an alternative way of committing the offence of selling intoxicating liquors without a retailer's licence, namely, «havein his possession for sale»;s.3(l)created one offence, thatof selling 5 intoxicating liquors without a retailer's licence. Numerous cases establish that only one offence is created whenever the legislature instances several alternative ways of committingan offence. Different tests have been propounded*to determine whether acts specifically prohibited by statute 10 constitute separate offences or merely instances of a broader category of prohibited conduct. The foremost consideration is whether the specific prohibitions constitute different manifestations of the broader subject of the enactment. To determinethisthe Courtmustinturn inquire whetherthereis any J5 intrinsic difference between the blameworthiness of the acts instancedandfurther whetheroneormoremischiefs aresoughtto be suppressed. Inthis case theanswer toboth questions is inthe negative. What thelegislature intendedtoprohibitwas thesaleof intoxicating liquors without a retailer's licenceand acts'associated 20 therewith.Consequently, even ifwe were tofind thattheconduct of theappellant did notamounttoan offering for sale, we would stillupholdtheconvictionby applying theproviso tos.145(l)(b)of theCriminalProcedureLaw -Cap. 155, ongrounds ofabsence of any substantial miscarriage of justice. 25 30 35 Sentence: Appellant challenges the sentence as manifestly excessive.Atthetimeof thecommission of theoffence reply was awaited toanapplication for aretailer's licence,alicencethat was induecourse issued. Moreover,theappellantwas afirst offender. Counsel for the Republic joined in the submission that the sentencewas manifestly excessive. It is evident from the reasons given in support of the decision affecting sentence,thatthe learned trial Judge was unfavourably impressed by the conductof the defence, particularly suggestions made in the course of cross-examination of witnesses for the prosecution that the bottles that were stored on the shelves and exhibited on the bar-counter might contain a liquid substance other than alcoholic liquor, such as tea or water. This suggestion • (See.ThePohcev. Economidesand Others, 20(PartB)C.L.R. ll.R. v.Surrey11932)1 KB. 452; Veman v. Paddon (1973]3 AltΕR.302; thesubjectisdiscussedinCriminalProcedurein Cyprus, pp.48-51). 157 Pitts J. Chalhoubv. PoUce

(1988)hadbeenmadenotwitiislandingLi.ζLbelhngofthebodiesandthe place where they were stored. While implausible defences must be discouraged, theiradvance isnotofitselfareasonfor imposing ,n exemplary punishment as we are inclined to construe the pimfehmentpassed ontheappellant.Theaccused,wemuststress, 5 is entitled to test the case for the prosecution in exercise of his defence rights guaranteed by article 12.5 of the Constitution, rights associated with thepresumptionofinnocence safeguarded by para.4 of article 12. The fine is reduced to£50.--and theorder for entering intoa 10 recognizance is quashed. Appeal against conviction is dismissed. Appealagainstsentenceisallowedasabove. 158