(1988)1988March4 <A.LOEOU.STyiJANIDES,PIKI5.JJ.) ANTONISMOUZOURASANDOTHERS, Appellants, v. THEIMPROVEMENTBOARDOFAYIANAPA, Respondent. (CriminalAppeals Nos. 4802, 4817, 4826-4830, 4860, 4897-4902). Hawkinggoods,contrarytosections2l(n),24(l)(a),50and51 oftheVillages {Administrationand Improvement) Law, Cap. 243 and Bye-Laws 155
(1)and 221 of the Villages(Administrationand Improvement) Bye-Laws of Ayia Napa 1975-1983 (hereinafterreferred to as the Bye-Laws) — Whether regulating hawking (Bye-Laws 155
(1)) without first establishing a market is ultra vires section 21(n)— Questions determined inthe negative. Wordsand Phrases:«Hawking», 'Hawker»insection 21(n)ofthe Villages (Administrationand Improvement) Law, Cap.
- Words and Phrases: 'Keep the peace and be of good behaviour» in 10 section 32 ofthe CriminalCode, Cap.
- Constitutional Law —Nullum crimen nullapoena sine praevia lege — Constitution, Article 12— The CriminalCode, Cap. 154, section 32 —Recognizance tin such amount asdie Courtthinksfit» —This provision does not contravene the aforesaid principle—Art. 12.3 15 safeguards that no punishment shall be disproportionate to the offence —For this reason and save in exceptional circumstances, theamount should not exceed the monetary punishment provided by the Law. Sentence —Criminal Code, Cap. 154, sections 32 and 33 — The 20 difference between the recognizance under s.32 and that under s.33 — The recognizance under section 32 —Its purpose and ambit. • The appellants were convicted and sentenced for hawking 26 5 Motuourasv.Impr.BoardAy.Napa contrary to the aforesaid provisions of Cap 243 and the bye-laws Counsel forthe appellant argued that 5 (a)Bye-Law 155(1} isultra viressection 21{n},because there was no powertoprohibit orregulate hawking,without firstestablishinga market, (b)Thewords«hawk»,«hawking»and«hawker»shouldbegiven in the absence of definition the meaning given tothem by the English HawkersAct 1888 10 (c)Section 32 of the Cnminal Code iscontrary toArt 12 1of the Constitution and that, in any event, the amount should not exceed that of the fine provided for bythe lawand thebye-laws, (d) Section 32 of the Cnminal Code is not applicable in case of offences other than those provided for mthe Code itself 15 20 25 30 35 40 Held
(1)Ona trueconstruction ofsection21(n)ofthesaid lawthe establishment, regulation and use ofmarketsisone function and the prohibition and regulation of hawking of any goods in any place other than such marketsisanother Itfollows that Bye-law 155isnot ultra viressection 21(n)
(2)The words «hawk»,«hawking» and «hawker» should be given theirordinaryand naturalmeaning Thedefinition of«hawker»inthe Hawkers Act (supra}, cannot be invoked as that was a definition drafted for thepurposes of that enactment (3} Examination ofthetermsofsection32showsthatthe legislator specified with a fair degree of certainty the sentence that may be imposed, namely, a recognizance with or without sureties and the purpose for which the recognizance may be required to be given Whatsection 32 omitsisto specify the amount of the recognizance, leaving the amount to the Court «as it thinks fit» The omission to specify themaximum sentencedoes notderogate from the pnnciple ofArticle12 1 Thefailuretospecify themaximumpunishmentisnot incompatible with any of the provisions of the Constitution Article 123 expressly safeguards the pnnciple that no punishment shall be disproportionate to the gravity of the offence and any punishment imposed that defies this fundamental pnnciple of the Constitution, can be struck down as unconstitutional and be vaned in an appropnate case in a manner conforming to the Constitution Section 32 has to be applied in a reasonable manner The amount should, as a rule, be correlated to the maximum punishment provided by law, that is, the fine, and if there is provision for impnsonment as well, an amount of fine corresponding thereto in order that under no circumstances should the punishmemt be disproportionate to the gravity of the offence In exceptional 27 Mouzourasv.Impr.BoardAy. Napa
(1988)circumstances that is, when there is a real likelihood of future breaches of the peace orthe law, the amountof therecognizance mayexceed themaximummonetarypunishment provided byLaw
(4)Thewording of section32 shows thattherangeofapplication of section 32 is not confined to offences defined by the Criminal Codebuttoanyoffence punishable assuchby law,thatis thelaw ^
(5)Thepurpose of therecognizanceis twofold (a)«Keep thepeace», which ispnmanlyassociated withpersonal violence andthreats, and (b)«Be of good behaviour», which may take a vanety of forms, 10 includingobservance ofspecified provisions of thelaw Appeals against conviction dismissed Appeals against sentenceallowed Appealsagainstconviction and sentence. Appeals against convictionandsentenceby AntontsMouzouras and Others who were convicted on vanous dates at the District Court of Famagusta (CnminalCase Nos 1256/86, 1768/86 etc) of hawking fruit, sandwiches, refreshments etc within thearea of the Improvement Board of Ayia Napa contrary tosections 21(n), 20 24(l)(a), 50 and 51 of the Villages (Administration and Improvement)Law, Cap 243and Bye-laws 155(l)and221 ofthe Villages (Administration and Improvement) Bye-laws of Ayia Napa (1975-1983) and were sentenced topay fines ranging from 2 5 £15 - to£25 -on each count G Pittadjis, for theappellants Ρ Angehdes with A Savenades and Μ Sehpa (Mrs), for the respondents A LOIZOUJ This is our judgment in respect of two sets of appeals One set consisting of Cnminal Appeals Nos 4897-4902, both inclusive, is from judgments of His Honour Arestis DJ and the other set consisting of CnminalAppeals Nos4802, 4817, 48264830, and 4860, from theJudgmentsof HisHonourEhades, DJ by which judgments - which have the same reasoning - the 35 respective accused persons were found guilty of hawking fruit, sandwiches, refreshments, icecreams, vegetables, and other goods with theuse of vehicles onvanous dates within thearea of the ImprovementBoard of Ayia Napa,withoutalicence,contrary to sections 21(n) 24(l)(a), 50, 51 of the Villages (Administration 40 28 30 2 C.L.R. Mouzouras v. Impr.Board Ay.Napa A. Lotzou J. and Improvement) LawCap.243,as amended (hereinafter to be referred to as the Law) and Bye-laws 155
(1)and 221 of the Villages (Administration and Improvement) Bye-laws of Ayia Napa, 1975-1983, (hereinafter tobe referred toas the Bye-laws). 5 The particulars of the offence are set out in the respective charge-sheetsandwe need notdelve intothe factsofeach caseas they are not indispute. There were two other appeals by the Improvement Board of Ayia Napa, namely Criminal Appeals 4954 and 4955, from the 10 judgmentsofHisHonourHadjihambis D.J.,bywhichhe acquitted the accused by finding that «Regulation 155 was ultra vires the expressly limited powers given by section 21(n),such being o" 1 " to «prohibit or regulate the hawking of any goods in any place outsidesuch market»that isthe marketsestablished bythe Board, 15 the prohibition of hawking not standing apart from the establishment, regulation and use of markets and not therefore being possible to disregard the limitations of the Law by virtueof the authority ofwhich aloneitderivesitsforces.» Criminal Appeal 4954waswiththeleaveoftheCourtwithdrawn anddismissed.As 20 CriminalAppealNo.4955washeardseparately weshallbegiving abriefjudgment asourbasicreasonswillinevitablybeanalyzedin thisjudgment. The appeals against conviction were argued on two grounds. ThefirstoneisthatthemeaningascribedbythelearnedtrialJudge 25 tothe words«hawk»and«hawking»tobe found insection21(n)of the Lawand Bye-law 155
(1)of the Bye-laws, iswrong inlaw. The second is that Bye-law 155
(1)of the Villages (Administration and Improvement) Pedhoulas Bye-laws 1951 is ultra vires the Villages (Administration and Improvement) Laws 30 1950and inparticularsection 21(n) inasmuch asthe requirement ofalicenceforone tobeentitledtohawkwithinthe improvement area only arises if a market is established by the Improvement Board. The appeals against sentence were only argued as regards the 35 orderofrecognizancetowhichcertainappellantswererequiredto enterwith which arguments weshall deal laterinthisjudgment. Section 21(n)of the lawreadsas follows: «Subject tothe provisionsofthisLawand anyotherLawin force for the time being, the Board, within the limits of the 29 A. Loizou J. Mouzouras v. Impr.Board Ay. Napa
(1988)improvement area and inso far asitsresources permit (
- n)provide for the establishment, regulation and use of markets and prohibit orregulate thehawking ofany goodsin any place other than such markets.» Section 24(I)(
- a)thereof provides:- 5 «A Board may, from time to time make bye-laws not inconsistent with the provisions of this or any other Law in force for the time being, for all or any of the following purposes, that isto say:(
- a)to enable or assista Board to perform any of the duties 10 assigned to it by section 21 or 23 and to provide for the payment of any rates, fees, rents, tolls, or charges in connection therewith.» Section 50 deals with the power of the Court to order, on conviction, the payment of rates, fees, rents, tolls or charges payable, and section 51 provides thatthe Board may sue and be sued initsname. 15 Acting under the powers vested in itby virtue of section 24,of the Law, the Improvement Board ofAyiaNapa made the Villages (Administration and Improvement) Bye-laws of Ayia Napa 1975, 20 published in Supplement No. III(I) to the official Gazette of the Republic of the 31st January, 1985, under Notification 28 adopting with the modification the Villages (Administration and Improvement), Pedhoulas Bye-laws1951. Bye-law 155
(1)provides: 25 «No person shall,within the improvement area, hawk any goods without a licence first obtained therefor in every year from the Board or person authorized by the Board in that behalf.» Bye-law 221 provides: 30 «Savewhere other provision ismade inthese bye-laws(a)Any breach of thesebye-lawsshall be punishable with a fine not exceeding £25; and (
- b)Any continuing breach shall be punishable with a fine not exceeding £1.-for every day during which such breach continues,and inaddition,theCourt,mayupon convictionof the offender, order that any articles or goods in respect of 30 35 2 CUR. Mouzourasv.imp*.BoardAy.Napa A.LorzouJ- whichthebreach hasbeen committed shallbeforfeited tothe Board.» As regards the first ground of appeal learned counsel for the appellantshasargued inthisCourt,ashedidunsuccessfully inthe 5 Courtbelow,thatintheabsenceofanintention tothecontrarythe words «hawk» and «hawking» or «hawker» should be given the meaning obtaining in England at the time as the legislature in employing these terms in section 21(
- n)and in Bye-law 155
(1)without a definition had that intention. On that premise learned JQ counsel for theappellantshasinvitedthisCourttoacceptmatthe words«hawk»,«hawking»,and ^hawker»,havethesame meaning astheword «hawker»isdefined inthe English HawkersAct 1888 whichreadsasfollows: 15 20 «Ahawker means any person who travelswitha horse or other beast bearing or drawingburden; and goesfrom place toplaceortoothermen'shousescarryingtosellor exposing for sale any goods, wares, or merchandise or exposing samplesorpatternsofanygoods,wares,ormerchandisetobe afterwards delivered,and includesanypersonwhotravelsby any means of locomotion to any place inwhich he does not usuallyresideorcarryonbusiness,andthere sellsor exposes for saleanygoods,wares,ormerchandiseinoratanyhouse, shop, room, booth, stall, or other place whatever hired or used byhim forthat purpose.» 25 The words «hawk», «hawking» and «hawker» are indeed not defined eitherinthe LaworintheBye-laws.Theyhave therefore to be construed in their ordinary and natural meaning. For that purpose we felt that we should turn to the dictionaries for iristruction and consultation. The meaning of the word «hawk» 30 given in the Concise Oxford Dictionary is«cany goods;to cryin the street».The same meaning isto be found also inthe Shorter Oxford English Dictionary. And «hawker» isdefined as one who hawks goods about, a man who goesfrom placeto place selling hiswares or who criesthem inthe street Itiscleartherefore that 35 thedictionarymeaningofthewordsistheirordinarymeaningand everyonewhohadtheopportunitytoconsidertheirmeaningtook thisto be theirordinary signification in the sense mat they mean the sale or offer for sale in the streets of merchandise conveyed £- fromplacetoplacebymeansofanimals,vehiclesorevenon foot. The definition of «hawker»inthe HawkersAct{supra),cannot be invoked as that was a definition drafted for the purposes of that enactment. 31 A. Loizou J. Mouzouras v.Impr. Board Ay. Napa
(1988)Weturn nowtothesecond ground ofappeal.Itwasarguedthat paragraph (n)ofsection 21ofthe Lawshould be read asa whole, that isthatan improvement board cannot regulatethe hawkingof any goods and subject suchfunction to a licence, unless markets are established and in the case of Ayia Napa this has not been 5 done. On a true construction of the said statutory provision the establishment, regulation and use of markets isone function and the prohibition and regulation of hawking of any goods in any place other than such markets is another. In our view the 10 establishment of a market is not a condition precedent to the regulation of hawking. Bye-law 155
(1)therefore which does not refer tothe establishment ofa market before hawkingbut only to the requirement of a licence first obtained and lays down by paragraph 2thereof the fees tobe paid, isintraviresthe Law. 15 There remains now to examine the appeal against sentence whichineffect isonlyagainstthesentenceimposed inthose cases where theaccused wasorderedtoenterintohisown recognizance to keep the laws and the regulations. Itwas argued that the trial Judge had no power to compel the accused to enter into a 20 recognizance for an amount higher than the maximum penalty provided for the offences charged. The argument of learned counsel for the appellants on this ground istwofold, theone wasthattherecouldbenobindingover to keep the lawsand regulations, butonly asprovided bysection 25 32 tokeep the peace and beofgood behaviour. The second one was that the amount of recognizance should not exceed the maximum amount of fine as in case of a breach one may be punished bythe forfeiture of hisrecognizance which may be of a bigger amount than the maximum fine it would have been 30 imposed on the offender in the first place. In other words a sentence will be imposed on the offender not provided by Law contrary to the principle nullum crimen nulla poena sine praevia lege, that isonly those actsarecriminal and onlythose sentences are imposed which are expressly provided by Law before the 35 commission of the act. Connected with mis latter argument was alsothestandthatapunishmentshouldnotbedisproportionateto the gravity of the offence. Itwas urged that the interpretation of section 32 of Cap. 154, should be such as to take cognizance of thisbasic principle enshrined inArticle 12,paragraphs 1 and3of our Constitution. 32 2 C.L.R. Mouzouras v. Impr. Board Ay. Napa A. Lolzou J. Section 32 of Cap. 154reads:- 5 10 15 «32.Aperson convicted of an offence not punishable with death may, instead of, or in addition to, any punishment to which he is liable, be ordered to enter into his own recognizance, with or without sureties, insuch amount as the Court thinks fit, that he shall keep the peace and be of good behaviour for a time to be fixed by the Court, and may be ordered to be imprisoned until such recognizance, with sureties, if so directed, is entered into; but so that the imprisonment for notentering intothe recognizance shall not extend foratermlongerthan oneyear, andshallnot, together with the fixed term of imprisonment, ifany, extend for aterm longer than thelongestterm forwhich hemightbe sentenced tobe imprisoned without fine.» The sole ground on which the appeal against sentence turns relatestothe sentence imposed by Eliades D.J. in Cr. A.4802. "Besidessection 32, section 33 of the Code provides: 20 «When aperson isconvicted ofanyoffence not punishable with death the Court may, instead of passing sentence, discharge the offender upon his entering into his own recognizance, with or without sureties, in such sum as the Court may think fit, conditional that he shall appear and receive judgment atsome future sitting of the Court or when called upon.» 25 As observed inThomas on Sentencing Second Edition p. 228 binding over, describes two procedures essentially different, although they maysharea common origin. Bindingover to keep thepeace, asbeinganalogoustotheimposition ofasuspendedfine while binding over to come up for judgment might be compared 30 to the procedure for deferment of sentence. We agree fully that that is the position as regards these two kinds of punishments provided by the aforesaid two sections and described as punishments insection 26(g)oftheCode. Moreover inthe caseof binding over to keep the peace and be of good behaviour if the 35 term of his recognizance is broken, which has to be formally proved against theperson bound, the whole orpart ofthe sumof therecognizance maybeforfeited butnofurther sentence may be passed in respect of the original offence and in ordering the recognizance to be forfeited, the Court should fix a term of 40 imprisonment to be served in default and make such other 33 A.Loixou J. Moozoaras v.Impr. Board Ay.Napa
(1988)incidental orders as may be appropriate as in the case of the imposition of a fine. Aspointed out inChristopherJ. Emmins,aPractical Approach toCriminal Procedure 3rd Editionatp.243 : «Bindingoverisessentiallyameasureofpreventivejustice, 5 designed to avoid future breaches of the peace. It is not appropriate where an offender has been convicted of an offence such as theft, repetition of which ismost unlikely to involve violence or publicdisturbance. Itisappropriate -and common - in cases of petty violence, especially in disputes 10 between neighbours where Smith alleges mat he was assaulted byJonesandJonesallegesthathewasasaulted by Smith, and the magistrates metaphorically knock their heads togetherbyorderingthattheybothbeboundovertokeepthe peace for a year. Abind-over may be ordered in addition to 15 another penalty for an offence, or instead of any other penalty ...» In Glanville Williams Criminal Law, 2nd Edition at p. 716, the following isstated: «According to ft. v.Sandbach, [1935]2 K.B. 192,thesum 20 forwhichsuretyisrequiredbythemagistratesmaylawfully be greater than the maximum fine that couldbe imposed for the offence itself. This enables magistrates to make an order against habitual offenders where the maximum fixed by the statute istoo low for deterrence. The decision must now be 25 accepted, and iscertainlysalutaryinpractice,though itforms an exception to the general principle that when Parliament has laid down a penalty for an offence itisnot open to resort to a different process to compel compliance with it. (ft v. HurieHobbs(1945] K.B.165.).» Mr. Pittadjis raised a three-fold argument in support of his challenge to the legality and validity of the order whereby the appellantswere required toenter intoa recognizance for asumin excess of the maximum fine and in terms irreconcilable with the wording of the empowering statutory provisions, namely, section 35 32 of the Criminal Code.Thefirstpointtaken isthatsection 32is irreconcilable withArticle 12.1oftheConstitution inthatitleaves sentence unregulated by law. Article 12.1 safeguards constitutionally, counsel argued, theprinciplethatno punishment 34 30 2 C.L.R. Mouzouras v. Impr. Board Ay.Napa A. Loizou J. can be imposed unlessaprovision certain for itsimposition ismade in a statute. Examination of the terms of section 32 refutes the validity of this argument for the legislator.specified with a fair degree of certainty the sentence that may be imposed, namely, a c recognizance with or without sureties and the purpose for which therecognizancemayberequiredtobegiven.Whatsection32omits isto specify the amount of the recognizance, leaving the amount totheCourt«asitthinksfit».Theomission tospecify the maximum sentence doesnotderogate from theprinciplesofArticle 12.1that 10 primarily aims toensure that no one isconvicted save for acrime in existence at the time of the alleged commission of the offence and no punishment is meted out by a Court of law, save in accordance with and subject tothe provisionsof astatute in force at the time of the commission of the offence. Section 32 does 15 provide for a punishment and iscorrelated tothe penal measures that may be imposed for the commission of an offence; no doubt in existence atthe time the misdeed was committed. The failure to specify the maximum punishment is not incompatible with any of the provisions of the law. Article 12.3 20 expressly safeguards the principle that no punishment shall be disproportionate tothegravityoftheoffence and any punishment imposed that defies thisfundamental principleofthe Constitution, can be struck down as unconstitutional and be varied in an appropriate case ina manner conforming tothe Constitution. 25 Another argument no less invalid is that the punishment provided for by section 32, Cap. 154, can only be imposed in relation to one offence specified by the Criminal Code. The submission is refuted by the wording of section 32 and the definition of«offence» supplied bysection 4oftheCriminal Code. 30 Offence is defined as follows: «Is an act, attempt or omission punishable bylaw».Therefore, the rangeof application of section 32 isnot confined tooffences defined bythe CriminalCodebutto any offence punishable assuch bylaw,that is,the law. Amoresequential argumentaffects theinterpretation ofsection ^5 32 inthe lightof theConstitution and the need forcertainty in the provisions of the statute; like any residual penal provisions, section32mustbereasonably applied.'English authoritiessuggest that the amount of the recognizance may be higher than the maximum fine provided by law. See Criminal Law by Glanville 40 Williams, Cap. 16,Preventive Justice and theRule ofLaw,p. 714 et seq. Nevertheless, that amount should, as a rule,be correlated tothemaximum punishmentprovided bylaw,thatis,the fine, and if there isprovision for imprisonment as well, an amount of fine 35 A. Loizou J. Mouzouras v.luipr. Board Ay.Napa
(1988)corresponding thereto in order that under no circumstances shouldthepunishment imposedbedisproportionate tothegravity of the offence. In exceptional circumstances that iswhen there is a real likelihood of future breaches of the peace or the law, the amount of the recognizance mayexceed themaximum monetary 5 punishment provided byLaw. Lastly the terms of recognizance. Section 32 authorizes the Court to require the accused to enter into a recognizance for a two-fold purpose: «Keepthe peace and be of good behaviour for a time fixed by the Court». As explained in Glanville Williams 10 (supra)thenotionsof peace andgoodbehaviour arenotidentical; keeping the peace is primarily associated with the prevention of personal violence or threats.On the other hand, good behaviour may take a variety of forms, including observance of specified provisions of the law. Hence no objection can be taken to a 15 requirement to observe the specific provisions of a law or regulations. Inthis case the terms of the recognizance are unobjectionable. On the other hand the amount of the recognizance is excessive and isreduced to fifty pounds. 20 In the result the appeals against conviction are dismissed, the appeals against sentence are allowed to the extent hereinabove stated. Inthe circumstances, however, there willbe no orderasto costs. Appeals against conviction dismissed. 25 Appeals againstsentence allowed. 36