R v Sharma (Ajay Kumar)
| Jurisdiction | England & Wales |
| Judge | Mr Justice NEWMAN |
| Judgment Date | 27 January 2006 |
| Neutral Citation | [2006] EWCA Crim 16 |
| Court | Court of Appeal (Criminal Division) |
| Date | 27 January 2006 |
| Docket Number | Case No: 200406437 B5 |
[2006] EWCA Crim 16
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT, MIDDLESEX GUILDHALL
HIS HONOUR JUDGE KARSTEN QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Mr Justice Newman And
Mr Justice Lloyd Jones
Case No: 200406437 B5
Paul Sharkey (instructed by Iliffes Booth & Bennett) for the appellant
James Norman (instructed by Crown Prosecution Service, Middlesex) for the Respondent
This is an appeal against a confiscation order made under section 71 of the Criminal Justice Act 1988 ("the Act"), in the sum of £179,000.34. The sum was ordered to be paid within eleven months or, in default, that the appellant should serve three years' imprisonment consecutive to that imposed for the substantive offence of conspiracy to defraud, for which he had been sentenced to 30 months' imprisonment. A co-defendant, Rajesh Datta, was convicted of conspiracy to defraud and other offences, and was sentenced to 51 months' imprisonment. A confiscation order was made in the sum of £161,772 to be paid by him within ten months or, in default, that he should serve three years' imprisonment consecutive. Another co-accused, Rajeev Datta, was convicted of substantive offences and was sentenced to 18 months' imprisonment, and a confiscation order was made in the sum of £5,000 to be paid within three months or, in default, to serve a period of three months' imprisonment consecutive. Yet further, another defendant, Catherine Aldin, was convicted of conspiracy to defraud and was sentenced to nine months' imprisonment. A confiscation order was made in the sum of £12 to be paid within 14 days or, in default, she should serve a period of seven days' imprisonment consecutive to that imposed for the substantive offence.
The appellant appeals against the confiscation order on the following grounds:
(1) that, when calculating the benefit figure, the judge failed to make a reduction for the value of parts and services which had been delivered to the company called Pentax UK Ltd ("Pentax", the victim of the fraud);
(2) the judge unfairly prevented the appellant's mother, when giving evidence at the confiscation hearing, from having full access to an interpreter. In so acting, he rendered the hearing unfair as against the appellant;
(3) the judge failed to read down section 71 of the Criminal Justice Act as providing the court with a discretion to reduce the benefit figure in circumstances in which the computation of the benefit figure would involve a disproportionate interference with the appellant's human rights under Article 8 and Article 1 of Protocol 1 of the European Convention on Human Rights (ECHR).
The Facts
The appellant and the co-defendants were convicted of perpetrating a fraud on Pentax which, at the material time, was involved in the production of cameras and camera lenses as well as lenses for spectacles. The essence of the conspiracy was an agreement to cheat Pentax by invoicing the company for goods and services which had not been received by it. The appellant and Rajesh Datta were employees of Pentax. Rajesh Datta had initially been employed as a process technician, but was subsequently promoted to assistant production manager and then production manager. He ordered the goods and services, the subject matter of the conspiracy. He organised the placing of the orders, obtained authorisation from senior management, prepared the invoices and then obtained authorisation for payment. In the period October 2000 to May 2002 the vehicle used for the fraud was a firm called Petra Scientific. Invoices for chemicals during that period totalled approximately £93,000 and the figure for parts and services totalled £85,000. The total paid out by Pentax to Petra during that period (the Petra phase) amounted to about £179,000. Pentax paid the money into a bank account opened by the appellant in the name of Petra Scientific. The appellant was the sole signatory on that account and was a good friend of Rajesh Datta. He provided the address and fax numbers for purchase orders to be sent through. The account was nothing more than a "cash cow" and was used by the appellant for the making of cash withdrawals. Large amounts were taken out by cheques drawn for cash and some transfers were made to overseas beneficiaries. All these transactions were executed by the appellant acting on the instructions of Rajesh Datta.
Rajesh Datta had been married to the co-accused, Catherine Aldin, and was the brother of the co-accused, Rajeev Datta, who was also employed by Pentax. In what has been termed the second phase of the conspiracy, Rajeev Datta provided bank accounts for the payment in of the proceeds of the conspiracy and for two particular cheques which came directly from Petra into his bank account. Catherine Aldin was involved with Rajesh Datta between May and June and November 2002. In that period the vehicle for rendering the fictitious invoices to Pentax was changed from Petra Scientific to a firm called C. Aldin. Thereafter an amount of £33,800 was paid into her bank account by Pentax in relation to invoices for chemicals and a further £56,000 in relation to parcel services. The total amount invoiced during that period of the conspiracy was just under £90,000.
Rajesh Datta was involved in both the Petra Scientific phase and the C. Aldin phase of the conspiracy in which the total amount of invoices involved was about £269,000. The appellant and Rajeev Datta were only involved in the Petra phase in which the total amount of invoices amounted to about £179,000. Catherine Aldin was only involved in the C. Aldin phase where the total amount of invoices was about £90,000.
The benefit of Rajeev Datta for the Petra phase was agreed at £59,000 and Rajesh Datta's benefit for the Petra phase was agreed at £73,000. Rajeev Datta was found to have realisable assets of only £5,000. The judge observed when sentencing the defendants that it was not easy to work out where the cash which had been withdrawn from the Petra account had gone, although much seemed to have gone to Rajesh Datta, some to the appellant and some to Rajeev Datta. The need to carry out an evidential inquiry was obviated by the agreement reached between the prosecution and the co-defendants, the effect of which we have already recorded above.
Ground 1: Reduction for parts and services
His Honour Judge Karsten, QC calculated the benefit of the appellant and made the confiscation order after a contested hearing lasting two days. He delivered a detailed ruling. He had also presided over the trial of the conspirators for the substantive offences in which it was the Crown's case that nothing had ever been received by Pentax in return for the money paid to the front companies and in the course of which the suggestion that parts and services were supplied to Pentax by the conspirators was made chiefly by counsel for Rajesh Datta. The contention was adopted by the appellant. That said, Rajesh Datta did not give evidence and no defendant gave evidence that parts and services had been supplied. Accordingly, there was no positive evidence that the companies had been operated other than as vehicles for fraud. The contention advanced by the appellant in the confiscation hearing that the judge ought to reduce the amount of the appellant's benefit on this ground rested entirely upon the evidence of two prosecution witnesses, namely Rod Foster and Sunil Modgill. In addition, reliance was placed upon inferences which it was said could be drawn from the Pentax purchase orders and the out of hours signing-in book.
The judge carefully considered all the evidence upon which the appellant relied and ruled on the factual issue presented to him. He concluded that, although he could not be sure to the criminal standard that no parts or services had been supplied, on the civil standard he was satisfied, on a fine balance of probabilities, that nothing had been supplied. The appellant has advanced no ground for impugning the judge's conclusion of fact on this issue. The argument has, to a large degree, amounted to an attempt to persuade this court to come to a different conclusion of fact from the one to which the judge came. It was suggested that the judge had erred because he had failed to take sufficient account of the evidence of Sunil Modgill and Rod Foster and failed to take account of the absence of evidence that the parts had been supplied from other companies. The submission is plainly wrong. It is clear from the judge's ruling that he took account of the evidence of both the witnesses and was aware of the fact that there was no evidence that the parts had been supplied from other companies (see page 6A – 8E). The argument and evidence was carefully balanced against the main thrust of the prosecution's case which was that the character of the fraud involved no parts or services being supplied. The front companies, being mere vehicles for receipt of the fraudulently obtained money, were not in the business of providing for servicing and service and parts in connection with the products used by Pentax and there was no documentary evidence to support such an activity. It was submitted that it was "unreasonable" to conclude that no parts or services had been delivered. We are satisfied that it was open to the judge to conclude on the evidence that no parts or services had been supplied by the appellant and that his conclusion has not been impugned.
Ground 2: The use of an interpreter
The appellant called his mother as a witness in the course of the confiscation proceedings. His...
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