clr/1988/1988_2_193.pdf

(1)and 31of the Drugs{ControlofQuality,Supply and Prices)Law, 1967. The preparations were produced asexhibitsin the trial.The label on Exhibit 1described thetabletsas«IronSupplementplusVitamin C a Rich Source of Natural Iron» in capital letters, and the label on Exhibit2hadthefollowing inscription,i.e.«CodLiverOilContaining NaturalVitamin Aand NaturalVitaminD». Vitaminsand antianaemic preparations are included in the listof pharmaceutical preparations. There was evidence that iron is an antianaemic drug,butthere wasnoscientific analysisofthe exhibits for the purpose of proving that the substances corresponded to the inscriptions inthe aforesaid labels. In the witness box the appellant admitted that the exhibits contained ironandvitamins. The evidence showed that the appellant is well conversant with 193 Vaslllades v. Police

(1988)foodstuffs and vitamins. Hisknowledge astothecontentsof Exhs.1 and 4 was not limited to the fact that theycontained vitamins butit was extended to the exact proportion ofvitaminscontained in each substance. The appellant had himself placed the order with the English manufacturers for the import of the tablets, Exhs. 1and 4 with the specifications and contentswithwhich theyfinallyarrived in Cyprus andwerecleared from theCustomsand carriedtohisstore.Hethen soldthem asa nutricioussuppplement of food. 5 This is an appeal from appellant's conviction. Counsel for the 10 appellant argued, inter alia, that the inscriptions on the Exhibits constituted inadmissible hearsay evidence and that appellant's admission was of no more evidential value than the inscriptions themselves. Held, dismissing the appeal:

(1)Evidence concerning marks and labels written on containers of articles in the possession of the defendant isinadmissible ashearsay ifitisoffered forthepurposeof establishingthe identityorthenature ofthe articles. 15

(2)An admission in the nature of an opinion orbelief, made by a person regardingthe identityornature ofsuch articlesisof no more 20 evidential value than the marksand labelsthemselves ifitisderived solelyfrom the aforesaid marksorlabels.

(3)If, however, the expressed opinion concerning the identity or nature of the articles is an informed opinion because the person expressing it has sufficient knowledge of relevant background 25 circumstances so as to be able to form an opinion, an admission in respect thereof provides at least prima facie evidence as to the identityor the nature of the goods.

(4)In the circumstances of this case the opinion of the appellant wasan informed opinion. 30 Appeal dismissed. Casesreferred to: Patelv. Comptroller of Customs [1965]3AllE.R.593; ComptrollerofCustoms v.WesternLectricCo.Ltd.[1965]A.C.367; Birdv.Adams (1972]Crim L.R. 174; R. v. Chatwood and Others [1980] 1 AllE.R.467; R. v. Wells[1976]Crim. L.R.518. Appeal against conviction. Appeal against conviction by Christos Vassiliades who was 194 3 5 2 C.L.R. VasUlades v. Police convicted on the 28th November, 1987 at the District Court of Lamaca (CriminalCaseNo.8069/87) OPonecountofthe offence of selling controlled pharmaceur1-; preparations without a marketing licence contrary to sections 5

(1)and 31 of the Drugs 5 (ControlofQuality,Supplyand Prices)Law, 1967 (LawNo. 6/67) and was sentenced by Arestis, D.J. to pay £30.- fine and was further bound over in the sum of £200.- for twoyearsto observe theprovisions ofthe said Lawand Regulations. A Yiorkadjis, forthe appellant. 10 A. Angelides, Senior Counsel of the Republic for the respondent - Cur. adv. vult. SAWIDES J.:The judgment of the Court will be delivered by Boyadjis, J. BOYADJIS J.: On 20 October 1987, at the District Court of 15 lamaca, the appellant Christos Vasiliades pleaded not guilty to '!K offence of selling controlled pharmaceutical preparations «vithoutamarketinglicencecontrarytosections5

(1)and31ofthe Drugs (Control of Quality, Supply and Prices) Law, 1967, hereinafter referred toasthe«Law»for convenience purposes. 20 The pharmaceutical preparations which the appellant was alleged to have marketed were produced at the trial before the C e n t below and were marked as Exhs. 1and 4.The appellant is an importer and selleronwholesale and retailbasisofhealth food forthe last7yearsand he hasadmitted that intheusualcourseof 25 hisbusinesshehadimportanceandsoldaquantityofthe aforesaid exhibitsto the supermarket owned and run by Metro Foods Ltd., at Larnaca, from where the two exhibits were ultimately purchased by P.W.I Nicos Xeros, an inspector of pharmacies. Exh. 1 isa vial containing 50 iablets.There wasa marking on the 30 ~uter surface of the vialwritten bythe manufacturers in England describing the tablets as«Iron Supplement plusVitamin Ca Rich SourceofNaturalIron»incapitalletters.Exh.4isa vialcontaining 100 tablets and the inscription thereon was to this effect: «Cod Liver Oil Containing Natural Vitamin A and Natural Vitamin D» 35 also in capital letters. None of the exhibits was analysed with a view of ascertaining scientifically whether they do contain the vitaminsortheiron stated ontheaforesaid markings. Prosecution witnessXeros,whoisa druggist, expressed theopinionthatironis an antianaemic drug. Inhisstatement tothe Police, the appellant 40 stated that he knows since 1985 that health food containing 195 BoyiadjlsJ. VasUJades v. Police

(1988)vitamins have been declared controlled pharmaceutical preparationsand thattheCustomsAuthorities forbid theirimport. He added thatExhs 1and 4 formed partof an old stock which he had imported before 1985 though he sold them to MetroFoods Ltd.in 1986. Inthe witness box, theappellantadmittedthatExhs. 5 1 and 4 contain iron and vitamins, i.e. what is stated on their respective labels. Following the coming into force of Part III of the Law, acting under sub-section

(4)of Section 4 of the Law, the Minister of Health issued an Order whereby he confirmed the list of 10 Controlled Pharmaceutical Preparations prepared b^ the Drugs Council.TheMinister's aforesaid Orderwas published inPart1of Supplement No. 3 to the Official Gazette(Κ.Δ.Π.274/70) dated 10 April 1970. Vitamins are included in the aforesaid list. Antianaemic preparations were included in the Supplementary 15 List of Controlled Pharmaceutical Preparations published on 3 November 1972. See Κ.Δ.Π. 204/72. The appellant was found guilty andwas convicted accordingly. He now appeals against his conviction alleging that (

1. i)as no analysis of Exhs. 1 or 4 was made,there was no evidence before 20 the trial Court to establish the true contents thereof; (
2. ii)the inscriptions on Exh. 1 and 4 constitute inadmissible hearsay evidence; (iii)thebelief formed by P.W. 1Xerosandthe admission madeby the accused on reading theinscriptionson Exhs. 1and 4 that the latter contain iron and vitamins are of no more evidential 25 value than the inscriptions themselves; and (iv)inthe absence of any admissible and sufficient evidence toestablish thecontentsof Exhs. 1 and 4, one of the ingredients of the offence, namely, that thethingssold arecontrolledpharmaceuticalpreparationshasnot been proved. Insupport of his proposition counsel cited the decisions of the Privy Counsel inPatelv.Comptroller of Customs [1965]3All E.R. 593, and Comptroller of Customs v. Western Lectric Co. Ltd., [1965] A.C.367. Patel'scase concernedaprosecution against the appellant charging himwith themaking of afalse declaration ona 35 customsimportentry inrespectoffiveimportedbagsofcorriander seed, the origin of which was declared to be India instead of Marocco. Each bag was contained in an outer bag which was marked with appellant's name.On theinnerbag, however, there was written «Produce of Marocco»,andthislegend constitutedthe 40 196 30 2 C.L.R. Vasilladesv. Police Boyiadjis J. only evidence regarding the alleged falsity of the declaration which consisted intheentryoftheword«India».Theirlordshipsin thePrivyCouncilwereaskedbytherespondenttosaythatitcould be inferred from the aforesaid legendthatthe goods contained in 5 the bags were produced in Marocco. Their lordships refused to draw such an inference, their opinion being that from an evidentiary point of view the words written on the bags were hearsayandthatthelistofexceptionstothehearsayrulecannot be extended judicially toinclude such thingsas labelsormarkings. 10 15 20 25 30 35 40 In the Western Lectric case (supra) the respondents were convicted formakinga false declaration inacustomsimport entry form regardingtheoriginofcertaingoodswhichwere found tobe stamped with the words «made in U.S.A.» and «Denmark». The goods had been ordered from New Zealand and on the invoices received from NewZealand itwasstatedthatthecountryof origin waseitherAustraliaortheUnitedKingdom.Actinginnocently and having those invoices as the sole source of information on the matter, the appellants' authorised agent made the entry, the subject ofthe prosecution, statingAustralia orUnited Kingdom as the countries of origin of the goods imported. Afew days later, after the markings on the goods were discovered the authorised agent of the respondents presented a post entry form for additional dutyinwhichtheplaceoforiginofthesamegoodswas stated to be Denmark or the U.S.A. The respondents' appeal againsttheirconviction bythetrialCourtwasallowedbytheCourt of Appeal of Fiji The Prosecutor appealed to the Pnvy Council seeking the restoration of the conviction on the ground of the admission on the post entry form that the place of origin of the goods was Denmark or the U.S.A. It was held, dismissing the appeal, (
3. i)that there was no evidence that the entry as to the countryoforiginwasfalse inthecase ofanyofthearticles,(ii)that the markings on some of the goods must be excluded from consideration as being no more than hearsay, (iii) that an admission bya manofsomething ofwhich he knewnothing was ofnorealevidentialvalue,and(iv)thattheadmissionmadebythe respondents' agent on readingthe marksand labelson the goods was of no more evidential value than the marks and labels themselves, sothatthe conviction ought not tobe allowedto rest onthe admission alone. Learned Counsel forthe Republicsubmitted (i)thatthe factsof thecasesrelieduponbytheappellantaredistinguishablefrom the facts of the case now under consideration and (
4. ii)that in the 197 Boyiadjls J. Vasllladeav.Police

(1988)testimony giv-ίη by prosecution witness Xeros and by the appellant at the trialand inthe written statementof the appellant to the Police, Exh. 8 at the trial, there is to be found evidence which is sufficient to establish that Exhs. 1 and 4, admittedly imported and sold by the appellant, contain vitamins and iron 5 which have been duly declared controlled pharmaceutical preparations in accordance with the Law. He cited in support of his submission the decision in Bird v. Adams [1972] Crim. L.R. 174, where the facts were shortly these: The appellant had been arrested for having had inhis possession L.S.D.tablets. Whilstin \Q thepolice station he admittedhaving had 15 tablets of L.S.D,and supplying themtootherpersons. L.S.D. was asubstance included inthelistof prohibited drugs set outintheSchedule tothe Drugs (Prevention of Misuse) Act 1964 and appellant was charged with having in his possession the aforesaid drug without being duly 15 authorised, contrary to section 1of theAct. The only presecution witness on the nature of the substance which constituted the subject-matter of thechargewas thepoliceconstabletowhom the appellant had made his admission. At theclose of the case for the prosecution appellant's counsel submittedthattherewas nocase 20 toanswer in as muchas therewas noproof thatthe appellanthad been in possession of a prohibited drug, for there had been no analysis of the tablets and the appellant was incompetentto say what was the substance of the tablets. The trial Court ruled that therewas aprimafacie case toanswer. Theappellant chosenotto 25 give evidence. The Court found him guilty as charged. He appealed by casestatedtotheHigh Courtandthequestion stated was whethertheevidence offered by theposecutionwas sufficient to prove that the substance in the appellant's possession was in fact asubstance mentionedin theSchedule tothe Act. 30 It was held, dismissing the appeal, that «there were many instanceswhere anadmission made by adefendant onamatterof law in respect of which he was not an expert was really no admission atall,e.g. adefendant couldnotknow inabigamy case whether the foreign marriage was valid, and there were cases 35 where an admission of a fact was valueless because the circumstanceswere such thata defendant could notpossibly have thenecessary knowledge, butherethedefendantadmittedthathe hadinhispossession a dangerous drug andhadbeen peddling it. The defendant had certainly sufficient knowledge of the 40 circumstances of his conducttomake his admission atleast prima facie evidence of its truth which was all that was required at the 198 2 C.L.R. Vastllade* v. Police Boyladjla J . st.gc i,. ai«i proceedings when the submission of no case was made and, accordingly, thejustices,had correctlyruledthat there ,/asa case to answer.» 5 The decision in Bird v. Adams (supra) was approved by the Court <jfAppeal, Criminal Division inR. v. Chatwood and others f 1980] 1AllE.R.467, C.A., whereanother decision on the point, namely that inR. v. Wells[1976]Crim.L.R.518,C.A. isinteralia considered. The principlesthat may be derived from theseveral authorities 10 arebriefly these:

(1)Evidence concerning marks and labels written on containers of articles in the possession of the defendant is inadmissible as hearsay if it is offered for the purpose of establishing the identity orthe nature of the articles. 15

(2)Anadmission inthe nature of an opinion orbelief, made by a person regarding the identity or nature of such articles isof no more evidential valuethan the marksand labelsthemselves ifitis derived solelyfrom theaforesaid marksorlabels,because insuch a case the person making the admission lacks the necessary 20 background knowledge to be ableto make the admission atall.

(3)If,however,theexpressedopinionconcerningtheidentityor nature of the articles isan informed opinion because the person expressing it has sufficient knowledge of relevant background circumstancessoastobeabletoform anopinion,anadmissionin 25 respect thereof provides at least prima facie evidence as to the 'dentity or the nature ofthe goods. In view of the foregoing principles, the question whether an admission of this nature by an accused person carries sufficient weight from an evidential point ofviewor not willdepend on the 30 particularcircumstances of everygiven case. Though,ingivingananswertoaleadingquestionputtohimby his counsel in re-examination, the appellant stated that his knowledge that Exhs. 1 and4containvitaminsisderived from the iabelsthereon, thetrialCourtrightlyattributedsufficient weight to 35 theappellant's opinion andadmission thattheexhibitsdo contain vitamins, taking into consideration the circumstances of the present case which include; (a) The appellant is well conversant with foodstuffs and vitamins.Evidence emanating from theappellant on thismatteris 199 Boyiadjis J. Vaslliades v.Police

(1988)to the effect that vitamins are one of five species of food having nutricious qualities. His knowledge as to the contents of Exhs. 1 and 4 wasnot limited tothe fact that they contained vitamins but itwas extended to the exact proportion of vitamins contained in eachsubstance.He expressed, however, hisdisagreement tothe 5 decision of the Drugs Council to include vitamins in the list of pharmaceutical preparations, insisting that they are simply a substance supplementing food. Hestated morethan once that he didnotconsiderhimselfboundtoabidewiththeaforesaid opinion of the Drugs Council to which he does not recognise the right to 10 legislate. (b)The appellant had himself placed theorder with the English manufacturers for theimportofthetablets,Exhs.1and4withthe specifications and contents with which they finally arrived in Cyprus and were cleared from the Customs and carried to his 15 store. He then sold them asa nutricious supplement of food. He cannot now be heard saying that he did not know what he had imported and marketed inthe island. In view of the above the appellant did possess the necessary background knowledge to be able to make the admission 20 regarding the contents of Exhs. 1 and 4 upon which his subsequent conviction wasmainly based. His opinion and belief to which he had admitted qualify as informed opinion and correctbelief whichhavenotderived solely from the inscription on the packing of the substance which he 25 imported and sold. He had sufficient knowledge of the circumstances of hisconduct.Thecircumstancespertainingtothe admission of the appellant made in the present case are clearly distinguishable from the circumstances in the case of Comptroller of Customs v. Western Lectric Co. Ltd. (supra), 30 where the authorised agent of the defendants-respondents on reading the labelsand markings on the innerbagscontaining the imported goods, made an admission of which he knew nothing. Theconvictionoftheappellantinthepresentcasewasbasedon legally admissible evidence of sufficient weight to prove all the 35 ingredients of the offence withwhich he wascharged. Therefore, theappeal isdismissed and theconviction affirmed. Appeal dismissed. 200