clr/1989/1989_2_39.pdf

(1)— Conviction without amending the charge or information, if part of the charge or information is proved — Quantity of drugs possessed by accusednot included m thequantity referred to in the particulars of theoffence— Thesectionisnot applicable • Cnminal Procedure — The Cnminal Procedure Law, Cap 155,section 85

(4)— Amending chargeor information by adding a charge,the Court actingexpropno motu,and thenconvict — Prerequisitesofits application 10 Cnminal Procedure — Appea' — Power of Court of Appeal to apply section 85

(4)of the Cnminal Procedure Law, Cap 155.ι e amend the charge or information by adding new countsand convict upon them — In the light'of section 145(l)(c) of Cap 155, this Court possesses such a power — The power can only be exercised if the 15 prerequisitesof theapplication ofsection85

(1)are satisfied Sentence— Possessing small quantity (sample) of controlled drugs (heroin) — Sentence of 4years' impnsonment reduced to 2years' impnsonment 20 25 Sentence — Possessing controlled drugs (197 grams of heroin) — Trafficking in narcotics has become a senous menace — 5 years impnsonment — Ratheron thelenient side The two appellants were charged for possessing 197 grams of hereom Thisquantity was foundby thepolice intwoplasticbags The evidence showedthatthesecondappellant gaveasample tothefirst appellant, so that the latter may finda buyer for the whole quantity The 197 grams found by the Police were found after the removal 39 tesa and Anotherv. Republic

(1989)of thesample therefrom ThetnalCourtconvicted thefirstappellant, mdoing so itapplied section85{1)*of theCnminalProcedureLaw, Cap 155 Thecharge was-not amended These are appeals against theconviction andsentence of 4 years' impnsonment on the first appellant and the sentence of 5 years' impnsonment on the second appellant, who was the one, who brought the drugs in Cyprus and in whose possession the whole quantity of 197 grams was found 5 Held, dismissingthe appealagainstconvictionof appellant 1

(1)When the particulars of the offence refer to a particular quantity of 10 drugs, but the evidence shows that the accused possessed a lesser quantity, the Court may convict the accused withoutamending the charge under section 85

(1)of Cap 155 Inthis case however, the sample, which the first appellant took, was not part of the 197 grams to which the particulars of the offence referred The sample 15 was aquantityadditionaltothatreferred tointheparticulars Section 85

(1)was wrongly applied

(2)Canthis Courtamend theinformation by adding newcounts, so as to convict the appellant for possessing the sample' The combined effect of sections 145(l)(c) and 85

(4)suggests a positive reply, provided theprerequisites of theapplicationofs 85

(4)aresa­ tisfied* Inthese cases theyare Theinformation isamendedaccor­ dingly Thefirst appellantisconvicted onthenew counts Held further,allowirg the appeal of the firstappellantagainst sentence Considenng his part in the commission of the offence a sentence of 2 years' impnsonmentisapnropnate 20 25 Held further, dismissing the appealagainstsentence of appellant 2 The sentence imposed on him is neither «vrong nor manifestly excessive On thecontraryitisonthelenientside Appeal againstconvictionof first 30 appellant dismised Appeal against his sentence allowed Appeal against sentence of appellant2 dismissed Casesreferred to Chrysostomou ν ThePolice, 24 CL R 192 Foum and Others ν TheRepublic

(1980)2CLK 152, Panayides and Others ν ThePolice

(1985)2 C L R 147, *Quotedatρ 46 post " Theprerequisibesareanalysedatpp 46-47 40 35 2C.L.R. IssaandAnotherv.Republic Leonidouv.ThePolice

(1987)2C.L.R.96; Rexv.MohammedAshraf,JusticeofthePeace1982Vol.146p.

1. Appealsagainst convictionand sentence. Appeals against conviction and sentence bySammy Imbrahim 5 Imbrahim Issa and Another who were convicted on the 26th October, 1987attheAssizeCourtofLimassol(CriminalCaseNo. 20577/87) on one count ofthe offence of unlawful possessionof controlled drugs contrary to sections 2, 3, First Schedule Part
2. 6

(2), 24

(1), 30 and the Third Schedule of the Narcotic Drugs 10 and Psychotropic Substance? Law, 1977 (Law No. 29/77) as amended and section 20 of the Criminal Code, Cap. 154and on one count of possessing controlled drugs for the purpose of supplyingthemtootherscontrarytothesamelegalprovisionsand were sentenced by Boyadjis, P.D.C, Anastassiou, S.D.J, and N. 15 Nicolaou, D.J. to five years' imprisonment (Accused 1)and four years' imprisonment (Accused 2) on count 2 with no sentence beingpassed on count

1. S. Sofroniou, forappellant inCr.Appeal
2. H.Solomonides, for appellant inCr.Appeal
3. 20 R. Gavrielides, Senior Counsel oftheRepublic, forthe respondent. Cur.adv. vult. SAWIDES J. read the following judgment of the Court. The appellant in Criminal Appeal No. 4926, the first appellant, has 25 appealedagainsthisconviction bytheAssizeCourtofLimassolon an information charginghim that: (a) Between the 27th June, 1987, and 1st July, 1987, at Limassoldidhaveinhispossession controlleddrugsofclass«A»to wit a preparation of 197 grms of a powder containing 14% 30 Diamorphine (Heroin) contrary to sections 2, 3 First Schedule. Part I, 6

(2). 24

(1), 30 and the Third Schedule of the Narcotic Drugsand Psyhotropic Substances Law, 29of 1977 as amended byLaw67of 1983and s.20 ofthe Criminal Code, Cap. 154. (b) Possessing the same for purposes of supplying them to 35 otherscontrary tothe samelegal provisions. 41 Savvtdes J. Issa and Anotherv. Republic

(1989)He has also appealed against the sentence of four years' imprisonmentimposedonhimoncount2.Inviewof thesentence imposed oncount2theAssizeCourtpassed nosentenceon count

1. Appellant in Criminal Appeal No.4928, the second appellant, has appealed against his conviction and sentence for the same offence for which he was charged jointly with the previous appellant. Before thehearingoftheappeal however he withdrew his appeal against conviction and pursued only the part directed against sentence. The sentence imposed upon thisappellant was 10 fiveyears'imprisonmentoncount2andnosentencewasimposed on count
2. Onthe indictmentbefore theAssizeCourtbothappellantswere jointly charged, thefirstappellant as accused 2 and the second appeiland as accused
3. Both appellants are aliens of Egyptian 15 origin.Thefirstappellanthasbeen inCyprusforthelastfiveyears, he is 28 years old, he got married in Cyprus and was in the employment of one Costas Asprou of Limassol as a furniture carver. The second appellant is a sailor and he isaged 31.The police acting on information carried out a search into a vacant 20 buildingsiteinEriniStreetLimassolandfound underthegrasstwo plastic bags containing white powder which after analysis was found to be a powdpr containing 14% diamorphine (heroin). Actingonthesameinformaton thepolicearrestedbothappellants who made several voluntary statements to the police admitting 25 possession of such staff. The materialfactsastothepossession ofthisquantityof heroin besidesthe admissionsofthetwoaccused were asfollows: The second appellant, whowasthe person whobrought these narcoticsintoCyprus,wastryingtofindabuyerforthequantityof 30 heroin found bythepolice.Inthe course ofsuch efforts he came in touch with the first appellant to whom he gave a small sample ofthe drugsto find a purchaser. The first appellant, according to his own admission, took this sample to his employer who was interested and kept it for 35 inspection. After information received by the police from other prosecution witnesses some of whom were present when the negotiations between theappellants were takingplace, including that ofan accomplice whowasthe person whogave information tothe police,thetwo appellantswerearrested. The workshop of 40 42 2C.L.R. Issa andAnotherv.Republic SawidesJ. the employer of the first appellant wassearched but nothing was found. Attheindication oftheaccomplicethepolice carried outa search in an empty building site in Limassol where they found, under thegrass,thetwobagscontaining thedrugsinquestion the 5 contents of which were weighed and found tobe 197 grms of a power which after analysisbya government analystwasfound to contain heroin mixed up with a powder to the extent of 14% heroin inthe whole quantity. TheAssizeCourthavingdulyweighedtheevidenceadducedby 10 theprosecutionandhavingaccepted such evidenceincludingthat ofthe accomplice which, havingwarned themselvesofthe factof his involvement in the case, accepted as true and as amply corroborated by the rest of the evidence, as well as by the confessions of the appellants, found the second appellant guilty 15 on both counts. In a trial within trial the Court rejected the contention of both appellants that the statements containing their confessions were notadmissibleashavingbeen improperlytaken underthreatsand violence exercised on them,and found thatsuch statements were 20 voluntarily made bythe appellants. Concerning the first appellant, accused 2, the Assize Court made the following findings: 25 «We have no evidence indicating that the second accused had any control or access on exhibits 11 and 12 nor did he knowwhere accused 1kept or hid these exhibits From what we have earlier mentioned however, the fact cannot be ignored thatthesecond accused took from the first accused the sample ofheroin and kept ittillhe delivered itto a third person. 30 35 40 The question which poses for answer in this respect is whether this sample can be the subject of possession. The only thing we know is that this sample is a sample of the quantity ofheroin underexhibit 11 ofthefirstaccusedand the object ofthesecond accused of takingitwastotransportitto the person whom hedisclosed asbeingCostasAsprou totest itanddecidewhetherhewasprepared tobuyalargerquantity ifthe qualitysatisfied him.Wedo not knowthe weight of the sample.Takingfurther intoconsideration thatthepurpose for which this sample was given was for a test by the intended buyeraswellastheevidenceofthegovernment analyst,P.W. 43 Sawtdes J. IssaandAnotherv.Republic

(1989)6, concerning the manner in which this powder, exhibits 11 and 12, islikelytobe used by drug addictswe can conclude that the quantity of the sample was such that could be seen, counted and certainly be used. Whether a quantity of prohibited drugshoweversmall,eventracescanbetheobject 5 of possession by a person all other characteristics of possession being present is a matter to be decided by the Court on thebasisofcommon sense.» The Court then reviewed the legal authorities concerning possession of smallquantitiesof drugsand concluded asfollows: 10 «It, therefore, emanates from what we have said that the sample of heroin which the second accused had in his possession with theintent of disposingittoa thirdperson, as he did, can be the subject of possession and that the second accused has acted in contravention of the legal provisions 15 referred to inboth counts.» Then the Assize Court pondered on the question whether accused 2(firstappellant)could befound guiltyonthetwocounts, inrespect of the quantitycontained inthesample only, under the provisions of s.85(l) of the Criminal Procedure Law, Cap. 155 20 without amending the charge or whether the charge should be amended under the provisions of s.85

(4)by adding new counts charging the accused isrespect of the sample only and find him guiltyon such hew counts accordingly. TheAssizeCourtintheirjudgmentinthisrespecthadthistosay: 25 «Thelastquestionwhichremainstobeanswerediswhether the charge in its present form allows the conviction of the second accused. The difficulty rests in the existing contradiction which arises from the fact that the Court has already ruled that the second accused did not possess 197 30 grms of the controlled drug which is referred to in the particulars of both charges. We, however, believe that the circumstances ofthepresentcase,permittheinvokingofsubsection

(1)ofs.85oftheCriminalProcedureLawCap. 155as it has been explained and applied by the Supreme Court in 35 the case of FatmaMehmet v. The Police

(1970)2 C.L.R. 62. Inthe circumstanceswedo notconsiderthatitisnecessaryto make anyamendmentsto thecharge undertheprovisionsof s.83 of Cap. 155 or apply the provisions of s.85

(4)of Cap. 155, something we would have proceeded to do ifthe case 40 wasnot covered by s.85(l). 44 2 C.L.R. Issa and Anotherv. Republic S a w i d e s J. For all the aforesaid reasons we find also accused 2 guilty on both counts with the clarification which we have already made i.e.inconnection only withthesample of heroin.» The question which has to be answered in respect of such 5 finding is whether the Assize Court correctly applied the provisionsofs.85(l) oftheCriminal Procedure Lawinthepresent case. S.85.

(1)providesas follows: 10 «85.

(1)Ifpart only of the charge or information is proved and the part so proved constitutes an offence, the accused may,withoutalteringthecharge orinformation, be convicted of the offence which he isproved to have committed.» It is clear from the wording of this section that in cases of unlawful possession, as the present one, where an accused is 15 charged for possession of a larger quantity of the articles referred tointhechargetheCourtinsteadofamendingthechargemayfind the accused guilty in respect of the quantity actually found in his possession. In the present case the charge against both appellants was for 20 possession of a particular quantity, 197 grms, of the powder containing 14% of a prohibited drug, in particular heroin, which was contained in two small nylon bags found by the Police in a vacant building site hidden under the grass and which was produced as exhibits 11and 12. For the possession of the whole 25 of such quantity the second appellant was found guilty. Concerning the first appellant, as already mentioned, the Court found that there was no evidence indicating that he had any control or access to such quantity and that he could not be convicted inrespect ofsame.Whatthe Courtfound wasonlythat 30 he was in possession of another quantity which wascontained in a sample given tohim bythesecond appellant forthe purposeof finding a purchaser for it. The quantity of the sample though it might have emanated from the original quantity contained in the bags and have reduced same to that found by the police, 35 nevertheless, it was not part of the quantity set out in the two countsnorpartofthe exhibits11and 12produced inCourt.Itwas an additional quantity over and above the 197 grms. Had this quantitybeen includedinthequantitydescribed inthetwocounts the Court might have exercised itspower under s.85(l) and find 40' the first appellant guilty of the charge in respect of the quantity contained inthesample without amending th*>charge. .45 SawidesJ. Issa and Another v. Republic

(1989)We, therefore, find that, bearing in mind the time, place, circumstances, that the quantity which the Court found that the firstappellan*tookinhispossession isdifferent from thatdescribed incounts 1and 2and alsotheaforesaid findings of thetrial Court, theprovisionsofs.d5(l) cjuldnothavebeen invokedandthatthe 5 firstappellant cou'd nothcve been found guiltyoncounts 1 and2 in respect of drugs mentioned therein and for which itwas found that he had no conneclor. In the result the conviction and sentence of the first appellant cr counts 1 and 2 have to be set aside. Counsel for the respondent submitted that the first appellant could be found guilty on new counts charging him with unlawful possession ofthesample andforpossessingthesamefor purposes of supplying it to others and that this Court, in the exercise of its powersunderparagraph (c)ofsubsection

(1)ofsection 145ands. 15 85

(4)of Cap. 155 can, in the light of the findings of the Assize Court, find thefirst appellant guiltyon such new counts. S 85

(4)providesas follows: «85

(4)Ifattheconclusion ofthetrialtheCourtisofopinion that it has been established by evidence that the accused has 20 committed anoffence oroffences notcontained inthecharge or information and of which he cannot be convicted without amending the chargeorinformation, andupon hisconviction for which hewould notbeliabletoagreaterpunishment than he would be liable to ifhe were convicted on the charge or 25 information, and that the accused would not be prejudiced thereby inhisdefence, theCourtmaydirectacountorcounts tobeadded tothechargeorinformation chargingtheaccused with such offence or offences, and the Court shall give their judgment thereon asifsuchcountorcounts'had formed apart 30 of the onginal charge or information.» Asitappears inthetextand pointed outalsoinaseriesof cases ofthisCourttherequisiteswhichhavetobesatisfied before s.85

(4)can be applied are (

1. a)It must be established by evidence that the accused has 35 committedanoffence notcontainedinthechargeor information. (
2. b)The accused cannot be convicted without amending the charge or information 46 10 2 C.LR. IssaandAnotherv.Republic Sarrldes J. (c)Theaccused mustnot upon hisconviction onthenew count be liabletoagreaterpunishment than ifhewere convictedon the charge or information as it stood, in other words that the punishment providedbylawforthewholeoftheoffence mustnot 5 exceed that ofthe original offence. (
3. d)That the accused would not be prejudiced by the amendment inhis defence. (See, inthisrespect, interalia, Chrysostomou v.ThePolice,24 C.LR. 192at p. 194;Fourriand Others v. TheRepublic

(1980)2 10 C.LR. 152atpp. 176-177;Panayidesand Othersv. The Police

(1985)2 C.L.R. 147at pp. 162-163 and Leonidou v. The Police

(1987)2 C.L.R. 96atp. 103.Inthe lastcase an exposition of the lawismade as towhen the provisions of s.83(l) and s.85

(4)may be applied). 15 The powers of the Supreme Court in determining appeals appear ins.145 ofthe CriminalProcedure Law, Cap. 155.Under paragraph (c) of sub-section

(1)it is provided that the Supreme Court in determining an appeal may setaside the conviction and convict theappellant ofanyoffence of whichhemighthave been 20 convicted by the trial Court on the evidence which has been adduced and sentence him accordingly. Inexercisingsuch powertheSupreme Courtmustbearinmind the requisites set out in s.85

(4)hereinabove. In the case under consideration from the material before us and thefindingsof the 25 trialCourtwearesatisfied thatithasbeen established byevidence(a)That the first appellant committed an offence not contained inthecharge or information. (b)Thefirstappellant could not have been convicted without amendingthe charge or information. 30 (c) The punishment for the new offence is not greater if the appellant had been convicted on the charge or information as it stood and (d)That thefirstappellant would not have been prejudiced by the amendment in his defence as the facts on which his original 35 conviction wasbased werethosesurrounding thepossession and disposition ofthe narcotic drugscontained inthesample. We have considered the groundsraised bycounsel for the first appellant against the findings of the trial Court as to the voluntariness of his confession and the credibility of the 47 S a w l d e sJ . l e s a andAnother v. Republic

(1989)accomplice but we have not been convinced that the trial Court went wrong in accepting such evidence. The Court in a well considered judgment gave ample reasoning for accepting such evidence and novalid reason has been shown forinterfering with the findings ofthetiial Courtin thisrespect. 5 We further agree with theexposition ofthelaw bythetrialCourt and itsfindingthatthequantityoftheprohibiteddrug containedin the sample, however sma'l, coiId bethesubject of a charge for possession. In thecircumstances we accept *hr. submission of counsel for 10 the Republic that the first appellant could be convicted and sentenced on two new counts contrary to sections 2, 3, First Schedule, Part 1,6(1M2), 24

(1),30and theThird Schedule ofthe Narcotic Drugs and Psychotropic Substances Law, 29of 1977 as amended byLaw 67of 1983, namely, thatbetween the27th day 15 of June, 1987andthe1stdayof July, 1987at Limassol, in the District of Limassol, did unlawfully have in his possession controlled drugs of class «A» to wit a sample containing a -reparation of a powder containing 14% diamorphine (heroin) (3rd -.ount)andthat atthesame time andplace didunlawfully 20 -,-e ein'-"'s possession thesame controlleddrug for thepurpose of s-1 ·\ to others (count 4). We, therefore, direct the ame'idmi:.'. of the information by the addition of the above ch '. ,·. . ' d%rcounts3and4andwefind thefirstappellantguilty 25 a.ΛΜ-d'nyIy thereon. Thouyh counselfor theappellanthasaddressed usinmitigation to the extent covering the newcounts,before we pass sentence on theappellant wepropose tohearhiscounsel ifhehas anything more tosay (Mr.Sofroniou a d d ^ s e d theCourtfurther inmitigation. 30 Mr Gavriehdes sta*;·*. that he does notwish toadd anything more towha· he h··.ai-^ady said). COUP.'! Wehave taker,intoaccountwhat hasbeen submit­ ted bycounsel fc thoc^fellants in mitigation;also theirpersonal and family c.r.urr.Mances.Thefacthowever remainsthattheywe- 35 re both found guilryofpossessingandtrafficking narcoticdrugs of a dangerous characteri.e.diamorphine (heroin). In thecase o'Rex ν Mohammed Ashraf, Justice of the Peace 1982, vol 146,μ." ) . \Ί which theaccused, a36years old pedlar 48 2 C.L.R. Issa and Another v. Republic S a w l d e s J. in drugs was convicted to seven years' imprisonment for the possession of 52 grms of heroin and ten years' imprisonment on the basis that he was an established dealer, the Court of appeal refused tointerfere with thesentenceand observed that«heroinis 5 one of the most addictive of drugs and that it had the power to destroy people both physically and morally and lead to total misery. Beginner ornot, anyone whotraded indangerousdrugs, particularly heroin, must expect a severe sentence. If those who dealt in, orwere minded todeal in,drugs realized that they might 10 belessinclinedtoindulgeinthisdangerousandmiserabletrade». Possession and trafficking of drugs isa social menace and has created asocial problem endangering the foundations of society. From the cases which appeared before the Court during the last fiveyearsitisapparent thatsuch offences havebecome prevalent 15 and notwithstanding the long terms of imprisonment imposed by the Courtssuch sentences have notoperated asdeterrent against the commission of same. In the case of the second appellant we find that the sentence imposed by the Assize Court was neither wrong nor manifestly 20 excessive. On the contrary it is rather on the lenient side. The second appellant brought into Cyprus the quantity of drugs for which hewasconvictedwiththeobject ofdisposingittoothersfor profit. Hespared no effort tofind prospective purchasersand had the police not acted in time such quantity would have been 25 disposed inthe market foruse bydrugaddicts. Inthe case of the first appellant however, we find that there are good reasons for making a differentiation. These are his involvement inthecase,thesmallquantityforwhichhewasfound guilty and the part he played in the whole case. He was not 30 involved with the possession of the quantity forwhichthe second appellant wasconvicted and hisconviction isonlyinrespectofan undefined smallquantity contained inasampletakenbyhim from the second appellant for delivery to his employer. Inhis case we find that a sentence of two years' imprisonment on count 4 isa 35 proper one in the circumstances and we order accordingly. We passno sentence on count 3 as the facts on which itisbased are insubstance covered bycount 4. Inthe result theappeal of thefirstappellant against conviction on counts 1and 2 succeeds. His conviction and sentence are set 40 aside and the first appellant is sentenced to two years' 49 S a v v i d e ·J . Iss» a n dAnother v. Republic

(1989)imprisonment on new count 4. Wepassnosentence on count 3 Theappealofthesecondappellantagainstsentenceisdismissed. AppealNo. 4926 allowed andsentence reduced.Appeal No. 4928dismissed. 50