Costas Papadopoulos v. R., Crim. App. 244-A-69, 24/9/69.

Costas Papadopoulos v. R., Crim. App. 244-A-69, 24/9/69.

The appellant was convicted of unlawful possession of gemstone namely a ruby, c/s 3 of the Gemstone Industry (Development and Protection) Act, 1967. The offence was committed on 29 July, 1969, and the act was brought into force only on 1 August 1969, by virtue of G.N. 203/1969.

Held: (1) It was conceded by the Republic that as the offence occurred prior to the Act coming into force, the charge was irregular. However it was contended that the irregularity might be cured and the charge amended to bring it under ss. 72-73 of the Mining Ordinance, Cap. 123, which had been extended to cover gemstone by G. N. 709/1964, called “The Restriction on

Possession and Purchase of Gemstones Notice 1964”. However, when the Gemstone Act came into force on 1 August 1969, it explicitly revoked G.N. 709/1964. The position, at first sight, then, would appear to be this: (a) The offence was committed prior to the Gemstone Act coming into force, and so no charge could be laid under that Act; (b) However the charge was laid in September after the Gemstone Act came into force, and had revoked. G. N. 709/1964. So no charge could be laid under ss. 72-73, Mining Ordinance, because those sections had only extended to gemstones by virtue of the now repealed General Notice. The dilemma, however, is solved by s. 10(2), Interpretation and General Clauses Ordinance, Cap. I, from which it follows that where a liability has been incurred under an enactment afterwards repealed, the repeal is no bar to legal proceedings being taken under that enactment in respect of the liability in questions. So the accused could have been charged under ss. 72-73, Mining Ordinance, as extended by G. N. 709/1964, even though the latter had been revoked. (2) The question, however, is whether the court can now cure the irregularity under s. 346, Criminal Procedure Code, and amend the charge so as to bring it under the Mining Ordinance. The criterion laid down in R. v. Indo Prasad Jaincetram Dave, Crim. Rev. 40-D-63, Tanganyika Law Reports Supplement, No. 1/1964, is whether “the offence was in every essential the same under the old and the new sections.” In this case the two sections are in essence the same, although the Gemstone Act differs in defining “gemstones” for the first time and imposing more severe penalties. So the defective charge could be cured. (3) However, even were this done, the conviction could not be upheld, because the alleged ruby was not properly proved to be a gemstone, according to the provisions of the Mining Ordinance. (4) Appeal allowed and conviction quashed.