Court of Appeal
| DOI | 10.1177/002201839906300103 |
| Published date | 01 February 1999 |
| Date | 01 February 1999 |
| Subject Matter | Court of Appeal |
Court
of
Appeal
Forgery
by
Fax
RvOndhia [1998] 2 Cr App R 150
The explanation of events in R v Ondhia [1998] 2 Cr App R 150 is
that
a
multinational pharmaceutical
manufacturer
was prepared to issue its
products to wholesalers for export to Third World countries at
more
favourable discount rates
than
those
intended
for distribution in
the
UK.
The appellant was a registered pharmacist
and
adirector of a wholesale
distributing company,
who
created false bills of lading for
the
purpose of
Inducing
the
manufacturers to believe
that
the
goods
were
destined for
Africa,
although
in fact his
company
intended
them
to be distributed in
the
UK. He stated
that
it was his co-defendant's father, aformer
em-
ployee of
the
manufacturers,
who
had
suggested his sending
such
documents
to
the
company
which
would
supply
the
goods;
but
he
added
that
he
was
under
the
impression
that
the
manufacturing
company
knew
that
the
goods
would
be distributed in
the
UK (so
that
they
knew
that
the
bills of lading
were
false),
with
the
result
that
it could
not
be said
that
they
could be, or were, deceived by
them.
He did not,
however
offer
any
explanation for
the
manufacturers
requiring
such
documents
(ex-
cept
that
it was 'for
their
files');
and
he
further
confessed
that
he was
aware
that
his company
would
not
have
received
the
goods
on
the
more
favourable terms
if
the
documents
had
not
been
sent.
At
the
appellant's trial for forgery
contrary
to
the
Forgery
and
Coun-
terfeiting Act 1981, it was
proved
that
he
had
not
sent
to
the
manu-
facturers the original false bills of lading,
but
had
sent
by facsimile copies
of those
documents
to
the
father of his co-defendant,
who
had
(as
he
had
expected)
sent
facsimile copies of those
which
he
had
received
on
to
the
manufacturers. The manufacturers, therefore,
had
received, as
the
court
put
it, only
'the
second
generation'
of
the
facsimiles,
and
never
saw
the
false
documants
as originally forged. The particulars of
the
three
offences
were
that
he
had
made
an
instrument
namely
a copy bill of
lading
which
was false,
with
the
intention
that
it
should
be used to
induce
someone
to accept it as
genuine
and
by reason of so accepting it
to do some act to his or
another
person's prejudice. He was convicted
on
all
three
counts
and
fined £25,000
on
each
count,
with
asentence of 12
months'
imprisonment
in default.
In
support
of his appeal from conviction,
the
appellant advanced
two
arguments.
In
the
first place, he
contended
that,
when
he
used his
facsimile
machine
to
send
the
documents
to his co-defendant's father,
he
had
done
so,
not
with
the
intention
of creating
new
documents,
but
documents
which
were identical
with
those
he
had
already created.
That, in effect, therefore is all he
had
succeeded in doing. For
that
reason,
he
should
have
been
charged,
not
with
an
offence contrary to s I
of
the
1981 Act,
but
with
offences contrary to s 2 or s 4,
both
of
which
deal
with
offences of misusing copies of false documents.
21
The Journal of Criminal Law
The appellant raised, secondly,
the
question
whether, in
order
to
establish
an
offence
under
s 1, it has to be proved
that
he
intended
that
his act or omission actually resulted in prejudice to
the
persons receiving
the forged documents.
It
was clear
that
the
manufacturers
had
not
seen
the
original forged documents,
but
acopy faxed to
them
by
the
interme-
diary (the father of
the
co-defendant) of
the
copy faxed to
him
by
the
appellant (the 'second generation').
Although
the
point was
not
argued
at
the
trial,
the
court
raised
the
question
whether
the
document
received
'told a lie
about
itself'. The issue
treated
as
the
essential issue at
the
trial
was as to
the
intent
of
the
defendant,
when
he created
the
false instru-
ment.
Although
he agreed
that
he
had
intended
the
manufacturers
to
receive
the
false documents, he stated
that
he believed
that
they
needed
them
merely 'for their files'
and
that
they
knew
full well
that
they
were
false. He had, therefore,
not
sought
to
obtain
the
goods by
means
of a
false
document
which
the
suppliers
thought
to be true.
As it was conceded by
the
prosecution
that
the
original false docu-
ment
was
not
sent
to anyone,
the
question
was
whether
the
transmis-
sion of
an
identical
document
by
way
of facsimile was
the
transmission
of a 'copy' in
the
sense in
which
that
word
is used in s 2
and
s 4, or a
'duplicate', a
term
which
the
court
decided was a
more
accurate term,
since
it
was used
on
the
basis
that
a facsimile duplicated
the
original
and
the
recipient acted
upon
it
on
the
basis
that
that
was so. The
court
therefore rejected
the
appellant's
argument
that
he
had
used his fac-
simile
machine
to create a
new
document,
which
told no lie
about
itself:
see Rv
More
(1988) 86 Cr App R 234.
The appellant relied
on
RvUtting (1988) 86 Cr App R 164, in
which
aphotocopy was held to
have
the
status
and
effect argued for by his
counsel in respect of a facsimile. The
court
distinguished
the
photocopy
in
that
case from
the
facsimile in this case
on
the
ground
that
the
latter
was
not
a copy
but
aduplicate
which
he
had
transmitted.
Although
the
court
agreed
that
s 1
was
not
concerned
with
copying
false
documents
or
with
using
such
copies
or
with
the
misuse of false
documents, it
pointed
out
that
the
section is concerned
with
the
'mak-
ing' of
the
false
document
and
with
the
intent
of
the
maker
at
the
time
of
the
making.
If
that
intent
is
proved
to exist at
the
time of
the
making,
any
subsequent
use of
the
document
or
any
subsequent
intent
would
be
irrelevant (save, perhaps, for evidential purposes). Thus,
the
offence
under
s 1 is
not
an
inchoate offence.
And
the
making or use of a copy
does
not
exculpate
the
maker
of
the
original document, for
the
person
who
is guilty of
an
offence contrary to s 1
cannot
escape prosecution
merely because he
had
not
made
up his mind,
when
committing
the
forgery,
how
he
would
eventually
transmit
it.
Here, it was sufficient
that
the
appellant intended,
when
making
the
false
document,
that
the
manufacturers
would
accept,
without
ever
seeing it,
that
the
original
false
document,
of
which
they
received aduplicate, was
genuine.
As to
the
appellant'S intent,
although
s 1 provides
that
it is
the
intent
of
the
maker
at
the
time of
the
making
that
must
be proved, his
intention
will relate to future events,
namely
its impact
on
the
recipient:
see s 10 of
the
1981 Act,
which
defines
(and
limits)
the
'prejudice'
which
22
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