Mag. Appl. No. 127 of 2001
P.C.
MARTIN PHAGOO
APPELLANT
AND
KURT
HARRIS
RESPONDENT
PANEL:
M. A. de la Bastide, C.J.
L. Jones, J.A.
APPEARANCES:
MISS CHOTE appeared on behalf of the APPELLANT
NO APPEARANCE on behalf of the
RESPONDENT
DATE DELIVERED:
OCTOBER 26th , 2001
JUDGMENT
This appeal is against the acquittal by the magistrate of the respondent on a charge of obtaining money by false pretences. The case against the respondent was that he tendered for payment at Republic Bank in Independence Square, a cheque drawn on a company known as Bradford Trading Limited, in the sum of $157,923.86. That cheque was purportedly signed by representatives of the company who were both named Hadeed, but in fact those signatures were forgeries.
Ronald and Stephen Hadeed, who were signatories on the company’s bank account, gave evidence that they had not signed the cheque. The forgery, however, was not picked up by the bank and the money was deposited in an account which the respondent had opened with the same branch of the bank just two days or so before 3rd March, 1999, which was the date which the cheque bore.
The defence was that the respondent had been introduced by a friend of his called Dexter Ford, to a person who called himself Mr. Hadeed, but who was neither of the Hadeeds who gave evidence, and this person, described as a ‘short, stocky, white man,’ had expressed a wish to start a casino in the premises on the Eastern Main Road, Laventille, in which the respondent lived and carried on the business of a bar. The respondent claimed in his evidence that the cheque had been given to him by Dexter Ford and represented the first installment of the monies which the so-called Mr. Hadeed was investing in this casino business.
The respondent’s evidence was that the fictitious Mr. Hadeed had expressed the intention of investing $200,000 in the casino, of which $80,000 was to be for repairs, presumably to the building, and the rest for gambling equipment. According to the respondent’s evidence, the cheque had been given to him without his having even signed a written agreement, and apparently without Mr. Hadeed having received anything in return, except, of course, promises. The magistrate in her reasons gave this explanation of why she acquitted the respondent:
“The prosecution adduced evidence that the respondent produced and delivered a cheque to Republic Bank Limited, and that cheque was subsequently proven to be invalid. I was of the view that such evidence was not sufficient for me to draw an inference that the respondent knew that cheque was not a good and valid order for the payment of $157,923.86. Further, there was no evidence that the respondent’s bank account was credited with the proceeds of the cheque TMB-1 as a result of the respondent’s false pretences to the bank.”
Dealing first with the last sentence, it is incorrect to state that there was no evidence of the proceeds of the cheque being deposited in the respondent’s account. There was evidence to this effect by the bank clerk, and indeed the respondent himself admitted that he had drawn out over $16,000 from the proceeds of the cheque which had been credited to the account he had opened. The question is, therefore, whether, on the evidence, the magistrate could have harboured a reasonable doubt about the respondent’s guilt. We are clearly of the view that there was no basis for any such doubt on this evidence, and that accordingly the decision to acquit him was one which was unsupported by the evidence.
There are a number of reasons why no reasonable person would have accepted the respondent’s story of how he came by the cheque. For one thing, it is quite incredible that anyone would have handed over a cheque for such a large sum to a virtual stranger in the circumstances which the respondent described.
Secondly, given that the cheque was proven to be a forgery, it simply does not make sense for Dexter Ford and/or the fictitious Mr. Hadeed to have fabricated this story of starting up a casino and then giving to the respondent a forged cheque in the sum which I have mentioned. That simply does not make sense. What was in it for them? There was no suggestion that the whole purpose of their actions was to put the respondent in trouble and certainly no basis for any such explanation.
Again, there was the peculiar amount of the cheque in addition to the $157,000, there was added $900 and then $23, and finally, 86 cents. In the context of the respondent’s story, that amount was quite inexplicable. On the other hand, a possible explanation of it was that the preciseness of the amount was intended to avoid suspicion being drawn to the cheque. There is also the fact, as counsel mentioned, that the monies which were drawn out by the respondent, supposedly for payment to labourers, were not expended on repairs to the property, as the respondent admitted that none were done. There is also the odd coincidence that the respondent opened an account in the same branch a short time before the cheque was issued. All of these factors would inexorably have led any reasonable person to the firm conclusion that the respondent knew full well that the cheque was not a genuine or valid one and, accordingly, the magistrate’s decision cannot stand.
We therefore allow the appeal and substitute a conviction for the offence with which the respondent was charged. The respondent, though served with notice of this hearing, has not appeared either in person or by counsel. We must nevertheless proceed to impose a sentence.
The order of the court is that the respondent be
imprisoned for three years with hard labour, and a warrant is to be issued for
his arrest.
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