R v Nanayakkara
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 16 December 1986 |
| Judgment citation (vLex) | [1986] EWCA Crim J1216-23 |
| Docket Number | Nos. 6769/B/85, 6880/C/85 and 7274/C/85 |
| Court | Court of Appeal (Criminal Division) |
| Date | 16 December 1986 |
[1986] EWCA Crim J1216-23
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Lord Chief Justice of England (Lord Lane)
Mr. Justice McCowan
and
Mr. Justice Simon Brown
Nos. 6769/B/85, 6880/C/85 and 7274/C/85
MR. D. de SILVA, Q.C. and MISS K. SALARIYA appeared on behalf of the Appellant Nanayakkara.
MR. M.C. ASTON appeared on behalf of the Applicant Khor.
MR. C. SALLON appeared on behalf of the Appellant Tan.
MR. V. TEMPLE and MR. P. RICHARDSON appeared on behalf of the Crown.
On 1st November 1985 Nanayakkara and Tan were convicted at the Crown Court at Southwark of conspiracy to procure the execution of valuable securities by deception. Khor pleaded guilty to the same offence. They were sentenced as follows: Nanayakkara to four years' imprisonment; Tan to four and a half years' imprisonment and recommended for deportation; and Khor to three years' imprisonment and recommended for deportation.
Nanayakkara and Tan appeal against conviction by certificate of the trial Judge. All three apply for leave to appeal against sentence.
The certificate of the trial Judge reads as follows: "The learned Judge may have erred in law in: (1)(i) ruling there was jurisdiction in the Court to try the alleged offence; (ii) rejecting the appellants' submissions that the evidence disclosed the alleged offence was only triable outside the jurisdiction of the Court. (2)(i) Ruling the meaning of 'acceptance' (as set out in a material allegation in the indictment) was merely 'taking in or taking possession'; (ii) rejecting the appellants' submissions that the Bills of Exchange Act 1882 applied to and assisted in the interpretation of that material allegation of acceptance."
The facts of the case are these. On or about 29th December 1984 some 4,000 United States Treasury Social Security orders (described in the indictment as "cheques") worth about US 5 million Dollars were stolen from the mail in California. By 14th January 1985 some 317 (worth US ¼ million Dollars) were in London. 82 had been endorsed by a co-defendant called Foo and the remainder by a man called Peter Tang. The orders were for the Payment of money drawn on the United States Treasury payable in America.
Nanayakkara was staying at a hotel in London. After one abortive attempt to pass the orders at Barclays Bank he got in touch with a man called Strassborg, who was jointly indicted with the appellants but acquitted. Nanayakkara and Strassborg went to Strassborg's bank, the Indo-Suez Bank in Berkeley Square, where Strassborg endorsed the orders again and handed them to an official of the bank. The orders were passed by the bank to their head office, but suspicions were aroused, enquiries made, and as a result the police were informed. No money was sought directly from the bank. Strassborg expected his account to be credited only after clearance in the United States.
The case for the prosecution was that the appellants were all party to a joint enterprise to cash the orders through a London bank, knowing full well that they had been acquired dishonestly and that they had no lawful authority to encash them. There was ample evidence that the appellants were knowingly engaged upon the fraudulent enterprise of turning the stolen orders into money for their own benefit.
The indictment read as follows: "Statement of Offence: Conspiracy to procure the execution of valuable securities by deception, contrary to section 1(1) of the Criminal Law Act 1977. Particulars of Offence: The defendants on divers days between the 1st day of December 1984 and the 20th day of January 1985, conspired together and with Peter Tang and other persons unknown to procure, dishonestly and with a view to gain for themselves or another, the execution of valuable securities, namely the acceptance of US Treasury Social Security Cheques, by deception, namely by falsely representing that: (i) those presenting the said cheques for acceptance were lawfully entitled to negotiate the same, and (ii) each of the said cheques had been endorsed by the original payee."
At the close of the prosecution case submissions were made by counsel on behalf of the appellants inviting the learned Judge to rule that the prosecution had failed to prove any agreement on the part of the appellants to procure the execution of valuable securities. The learned Judge ruled against that submission and the case proceeded.
That submission is now repeated before us by Mr. de Silva. His argument runs as follows. In order to succeed the prosecution had to prove that there was a conspiracy to procure the execution of a valuable security. Section 20(2) of the Theft Act defines the substantive offence as follows: "A person who dishonestly, with a view to gain for himself or another or with intent to cause loss to another, by any deception procures the execution of a valuable security shall on conviction on indictment be liable to imprisonment for a term not exceeding seven years", and goes on to state, "and this subsection shall apply in relation to the making, acceptance, indorsement, alteration, cancellation or destruction in whole or in part of a valuable security, and in relation to the signing or sealing of any paper or other material in order that it may be made or converted into, or used or dealt with as, a valuable security, as if that were the execution of a valuable security."
It was open to the prosecution to choose any of the activities as set out to found their allegation of "dishonest execution". Had they for example chosen "alteration" or "endorsement", the result might, with hindsight, have been different. They did however choose to rely upon "acceptance". Their case was based upon the contention that the receipt of these securities by the Indo-Suez Bank was an "acceptance" within the meaning of that word in section 2C(2). In other words that "acceptance" has its ordinary colloquial meaning of "receiving" or "taking into possession". It was conceded by the prosecution that their case depended upon that interpretation being correct.
Mr. de Silva submits that that interpretation is wrong; that "acceptance" has its technical meaning derived from the Bills of Exchange Act 1882; that there was no acceptance when the documents were handed over to the Indo-Suez Bank and therefore no execution. Indeed, even if they were capable of such acceptance at all, which is highly unlikely, that could only take place in the United States and that would mean that the substantive offence which the defendants were conspiring to commit would be committed outside the jurisdiction. It would follow that the Crown Court would have no jurisdiction to try this matter.
The argument goes as follows. The second half of section 20(2) sets out in chronological order all stages in the life of a Bill of Exchange, and is in effect the skeleton of the 1882 Bills of Exchange Act. Section 3 deals with the making; section 17 with acceptance: "The acceptance of a bill is the signification by the drawee of his assent to the order of the drawer ….. It must be written on the bill and be signed by the drawee…..". Sections 31 to 35 deal with endorsements, section 6k with alterations and section 63 with cancellation.
Next, if one traces the history of section 20(2), it becomes apparent, submits Mr. de Silva, that "acceptance" is being used throughout in its technical sense. 1858, 21 and 22 Victoria Cap 47, provided as follows: "If any person shall by any false pretence obtain the signature of any other person to any Bill of Exchange, Promissory Note, or any valuable security, with intent to cheat or defraud every such offender shall be guilty of a misdemeanour ….". One notes the necessity of proving a signature.
That statute was repealed in 1861 by the Criminal Statutes Repeal Act. It was replaced by the Larceny Act...
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