No: 96/8633/X5

IN THE COURT OF APPEAL
CRIMINAL DIVISION
                               Royal Courts of Justice
                               The Strand
                               London WC2
 
                               Friday 28th November 1997
 
                    B E F O R E :

               LORD JUSTICE MANTELL
 
                 MR JUSTICE HOOPER
 
                         and

              THE RECORDER OF SHEFFIELD
           HIS HONOUR JUDGE MICHAEL WALKER
           (Acting as a Judge of the CACD)

 
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                    R E G I N A

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                GURMIT SINGH RANDHAWA
 
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   Computer Aided Transcript of the Stenograph Notes of
           Smith Bernal Reporting Limited
          180 Fleet Street, London EC4A 2HD
    Tel No: 0171 831 3183   Fax No: 0171 831 8838
         (Official Shorthand Writers to the Court)
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MR ALUN JONES QC appeared on behalf of the Applicant
 
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                      JUDGMENT
             (As Approved by the Court)
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                   Crown Copyright 
                     JUDGMENT
MR JUSTICE HOOPER: In November 1996 in the Crown Court at Cardiff before His Honour Judge David Morris the applicant was convicted of four offences.  The jury had retired on 17th November after a trial which had lasted something over a month.  The applicant was at the material time a solicitor.  On 18th November they found him guilty unanimously of one offence of theft, that was count 6 on the indictment.  On 19th November they found him guilty, again unanimously, of one offence of conspiracy to defraud, count 5.  On 20th November they found him guilty, again unanimously, of two further conspiracies to defraud, reflected by counts 1 and 2 of the indictment.  The applicant now renews his application for leave to appeal against conviction following refusal by the single judge.  He has been represented today by Mr Alun Jones QC.
      The applicant prepared his own grounds of appeal. There were in all seven grounds.  Mr Jones when he took over the case supplemented ground 5 with further submissions relating to count 6 on the indictment. Mr Jones accepted this morning that if he were not to succeed on that ground, and in particular on his submissions about count 6, then leave to appeal would not be granted.  This court has, however, looked at the  other grounds and is quite satisfied that there is no arguable point in those other grounds.
      In the light of the limited matters with which this court is now concerned, the background to the case can be taken shortly.
      The prosecution's case on counts 1, 2 and 5 was that the applicant was involved in a series of mortgage frauds.  The allegation was that false representations had been made by his co‑defendants in order to either obtain a remortgage or a mortgage of certain properties.  The representations which were alleged to be false were of a type which is typical for these kind of frauds, for example that the applicant for the mortgage had lived in a particular address for a certain period, the level of earnings and the house was to be used as a residence for the applicant.
      Count 6 charged theft and it read in the following terms:
"Gurmit Singh Randhawa on or about the 21st day of May 1992 stole the sum of £492.50 belonging to the Woolwich Building Society." 
A sum of money had come into a client account in the name of Rouf, who was the proposed purchaser of the premises which were the subject matter of count 5.  Some considerable time after that transaction had been completed there was a sum of money left in that client  account.
      The learned judge dealt with count 6 in a number of different places in his summing‑up.  It is necessary to cite those in order to consider the submissions now being made:
"... it is also said that the first defendant indulged in a piece of impromptu dishonesty on his own account, namely by removing from a client account a monetary surplus identified upon the client ledger as being unatributed to any necessary disbursement required from or by that client or his account and thus being monies just lying on the account, withdrawing that sum in the form of a practice cheque made out to cash as if it were a valid disbursement and then simply pocketing that cash.  The amount said to have been unlawfully and dishonestly taken or stolen is £492.50 and it came from the client account ledger of Abdur Rouf, being surplus from the monies advanced by the Woolwich for and in respect of the supposed purchase of 40 Mackintosh Place by Rouf from Miah." 
That supposed purchase was the transaction in count 5.
      Later on the same page the learned judge said this:
"[The prosecution case of the first defendant] is guilty of Count 6, namely of stealing the sum of £492.50 in cash, being monies belonging ultimately to the Woolwich Building Society." 
The learned judge returned to count 6 at page 14 of the first day of the summing‑up:
"As to count 6, the first defendant's case is that no dishonesty occurred.  He admits that he caused a cheque to be drawn on Rouf's ledger account made out to £492.50 in cash.  He denies that he pocketed that money or any part of it himself.  He has told you that he gave that money in a sealed envelope to Miah to give to Rouf.  He explained it to you as being a surplus on the account by reason that when the Woolwich Building Society made the  original advance of the mortgage monies to Rouf via his account at the first defendant's office, that building society had deducted at source a payment in respect of indemnity insurance premium whereas some societies, the first defendant told you, advanced this sum as part of the total monies lent, out of which the borrower by his solicitor was then required to make a specific payment from the monies advanced by way of disbursement drawn on the ledger account and paid to other insurers or back to the society.  The more usual practice was to include the premium within the total amount left, said Mr Randhawa to you.  This, therefore, was not within what he regarded as the usual practice.  So he went on to tell you that after completion of the transaction and at the time when the Rouf file came to be closed he realised that there had been retained in the ledger account monies the sum for such a disbursement which never had been disbursed and he also realised that the premium had in fact been deducted at source and had never been sent.  The first defendant told you that this was his mistake as the solicitor in the case.  He had put in, upon his calculations, the amounts to be advanced to the building society, including in the insurance indemnity premium, whereas, as I say, the Woolwich had deducted it at source.  Accordingly, realising this mistake, but still wishing to close the Rouf file, he drew this money out and also caused some other minor disbursements to be made to the general postage and miscellaneous account and thought it appropriate to return these monies to Rouf.  He said it was easier and more convenient to turn it into cash rather than send a cheque to Rouf, especially as it was his intention to give the monies to Miah to hand on to Rouf.  By this stage, he said, Miah was a bankrupt and objected to dealing with a cheque, being not permitted to do so, particularly for someone else.  So it was for that reason, said the first defendant, that the monies were turned into cash and were given to Miah in cash.  If the money never got to Rouf then that is down to Miah or some other explanation and is not due to any dishonesty on his part. As he asserted to you, he was in a financial position where he was sufficiently comfortable, receiving at that stage a total gross income in excess of £90,000 wherein it was not necessary for him to have to stoop to steal such a comparatively minor amount.  That is the first defendant's case as I have summarised it." 
Mr Jones accepts that as a matter of law the money in  that client account could be said to be owned by the building society having regard to the provisions of section 5 of the Theft Act 1968.
      The learned judge again returned to count 6 at page 43.  He defined the offence of stealing and then went on to say this:
"In the present case it is not suggested that if the first defendant pocketed the cash from the cheque and used it for his own purposes that would not have been dishonest or would not have amounted to the offence charged, namely that of theft.  On the contrary, it is accepted that if that is what occurred then he would have committed that offence and the only realistic and proper verdict would be one of guilty.  But the question in count 6 is a factual one.  Did he take the money alleged?  The prosecution say that he did, that he took it for his own purposes and that the first defendant's account of having passed it on to another (namely, Miah) is a lie.  The defendant says he did not take it.  He had good reason to remove the money, of which explanation I have already reminded you this morning. He did not put it into his own pocket.  He did hand it on to Miah." 
This court bears in mind that the applicant was represented by Mr Price QC and in that passage the learned judge was putting to the jury the case which this applicant was advancing.  As the first sentence of the earlier passage we read out made clear, the defendant's case on this count was essentially that he had not been dishonest.  If of course the jury thought that he had handed the money on to Miah for onward transmission to Rouf or thought that that may have occurred then he would not have been acting  dishonestly.
      Mr Jones submits that here the learned judge was falling into error because if the jury thought that he had or may have handed it on to Rouf via Miah, then the allegation in the indictment should have been that the money belonged to Rouf.  With that submission this court does not agree.  It is quite clear from the passages quoted that the defence were content to have the matter left to the jury in the way that they did.  In our judgment that was a sensible approach to take because whoever owned the money, and it certainly could have been the building society as Mr Jones accepts, the real issue was whether or not he was acting dishonestly.  If he did not hand the money over and the jury were sure of that then he had to be dishonest.
      The learned judge returned to count 6 again at page 41 of the transcript of the second day:
"So Count 6, offence of theft, Mr Randhawa alone.  There are documents relevant to this count, but at the end it is admitted that the monies were in the account, the monies were turned into a cheque made out to cash, Mr Randhawa had the cash.  His case is, as I reminded you on Friday, that he handed it over to Miah.  Therefore, I do not think you need spend much time, unless you think it appropriate, looking through the ledger account, the cheque requisition form and the other documents which are exhibited, because none of that is in dispute. The issue is where did that money go?" 
Again he came back to count 6 at page 50 of the transcript of that second day: 
"He told you the money was taken out, he paid it to Miah, he paid it to Miah for Rouf, considering it was Rouf's money, although conceded that in reality it probably was still the building society's, but it had been building society's monies advanced to Rouf and therefore Rouf prima facie was entitled to it, he thought.  The reason he gave it to Miah was because of what Rouf had told him about working at nights and not being available and having authorised Miah to act for him.  He did not get a receipt for it.  He bitterly wishes now that he had better advised to himself and had obtained a receipt, but he did not because he trusted Miah to give it to Rouf.  There we are.  That is what he had to say about Count 6." 
To that one should add that Rouf gave evidence that he himself had never received the money.  Miah who was the vendor of the property in what the prosecution described as the sham transaction in count 5 was not called to give evidence.
      Mr Jones makes two further points in support of this ground.  He points to the fact that the jury went to this count first and both he and the applicant in the applicant's own grounds say that they should have gone to other counts first and in particular should have looked at count 6 before they had examined count 5. This court is not in agreement with those submissions. Count 6 was a very simple point.  The jury, sensibly in our view, went straight to it.  There was no need for them to have gone to count 5 first.  Count 6 did not depend upon the facts in count 5, it depended upon what had happened to that £492.50.  Thirdly it is submitted  by Mr Jones that it is arguable that the conviction on this count is unsafe.  The jury only had the applicant's evidence that he had handed over the money and there was no material upon which the jury could reach the conclusion that the applicant was not telling the truth.  Again this court cannot accept that submission.
      Having regard to all the circumstances which we have outlined in the various passages from the summing‑up, it is in our view not at all surprising that the jury went to this count first and found the defendant guilty of it.  In those circumstances this application is refused.