R v Thompson (Michael)

JurisdictionEngland & Wales
JudgeLORD JUSTICE MAY
Judgment Date22 March 1984
Judgment citation (vLex)[1984] EWCA Crim J0322-1
Docket NumberNo. 4333/C/83
CourtCourt of Appeal (Criminal Division)
Date22 March 1984

[1984] EWCA Crim J0322-1

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

Before:

Lord Justice May

Mr. Justice Bristow

and

Mr. Justice MacPherson

No. 4333/C/83

Regina
and
Michael Thompson

MR. J. CAPLAN appeared on behalf of the Applicant.

MR. B. WALSH Q.C. and MISS S.A. KILLERBY appeared on behalf of the Crown.

LORD JUSTICE MAY
1

This appeal raises interesting questions of law, the answers to which we think in the end are clear. That apart, there is no merit in this appeal at all.

2

On 20th July 1983 in the Huddersfield Crown Court this applicant was convicted on six counts of obtaining property by deception and sentenced to 15 months' imprisonment on each count concurrent. He now applies for leave to appeal against conviction. The points raised are, we think, questions of law. In the circumstances no question of leave properly arises and accordingly we shall refer to the applicant as an appellant throughout this judgment.

3

The facts of the case are these. In 1979 the appellant became employed as a skilled computer programmer by the Commercial Bank of Kuwait, in Kuwait. Between February and June 1980 he opened a savings account at each of five local Kuwaiti branches of that bank. In all those cases he used his own name. In the course of his employment as a computer programmer, and particularly during the absence of his immediate superior in Pakistan where he was visiting his seriously ill father, the appellant was able to obtain information about other savings accounts held by other customers of the bank at the same five branches, all of which had two particular features. First, they were ones with substantial credit balances and, secondly, they were what were called dormant accounts -accounts which their proprietors only infrequently operated. With that information and with his programming skills, the appellant between mid-June and 2nd July 1980 programmed the bank's computer with a programme of his own devising which caused the computer to debit five of the substantial dormant savings accounts (one at each of the five branches of the bank) and to credit his own savings account at each of those five branches with a corresponding amount. The appellant's skills were also such, and the operation of modern computers so sophisticated, that he was able to arrange that the relevant entries (debit and credit respectively) were only made by the computer on the records of the accounts at each of the branches after the appellant had left Kuwait and was in an aircraft on the way home to England, ostensibly on leave. In the circumstances to which we shall refer in a moment it is not surprising that he never returned to Kuwait. His skills and the computer's sophistication were indeed even greater; once the latter had made the entries, the programme went on to cause it then to erase within itself any evidence that they had been made. In fact there were six fraudulent credits to accounts in the name of this appellant at the five branches. There were also the corresponding fraudulent debits on the five substantial dormant accounts. The six counts in the indictment which the appellant faced related to two at one particular branch and the remainder at the other different branches.

4

Once he had got back to this country, the appellant proceeded to open a number of accounts at banks here in his name. He then wrote to the bank in Kuwait asking them to telex a substantial part of the credit balances which then apparently existed on his five accounts at these branches to the credit of his various accounts at banks in England. Having received those instructions the bank in Kuwait checked its records to see whether there was sufficient credit on the various savings accounts of the appellant to make the transfers. As the result of the fraud they were satisfied that on their face the accounts did show such credits. They telexed to the bank's correspondent bank in London and that latter bank in due course transferred to the appellant's accounts at the various banks in England the apparent credit balances from his accounts in Kuwait. Thereafter the appellant withdrew the money from those various accounts and used it for his own purposes. The total sum involved was of the order of £45,00.

5

It was in respect of those transactions that the indictment which the appellant faced at the Huddersfield Crown Court was drawn. How the offences were pleaded in the indictment will appear shortly.

6

The relevant statutory provisions are well known. By section 15(1) of the Theft Act 1968: "A person who by any deception dishonestly obtains property belonging to another, with the intention of permanently depriving the other of it, shall on conviction on indictment be liable to imprisonment for a term not exceeding ten years. (2) For purposes of this section a person is to be treated as obtaining property if he obtains ownership, possession or control of it, and 'obtain' includes obtaining for another or enabling another to obtain or to retain."

7

Section 4(1) of the same Act provides: "'Property' includes money and all other property, real or personal, including things in action and other intangible property."

8

It is of course a basic principle of our criminal law that no British subject can be tried under English law for an offence committed on land abroad, unless there is a statutory provision to the contrary. In so far as offences under section 15 of the Theft Act are concerned, it is accepted on both sides in this appeal that the question on the issue of jurisdiction in this territorial context is whether the obtaining of the property concerned occurred within the jurisdiction. If authority is required for that proposition it is to be found in R. v. Harden (1962) 46 Cr.App.R. 90 and in R. v. Governor of Pentonville Prison, Ex parte Khubchandani (1980) 71 Cr.App.R. 241.

9

The Particulars of Offence of all six counts in the indictment in this case were in the same terms, save in so far as the amounts involved and the branches of the bank differed. We quote only the Particulars to the first count as an example. That pleaded that "Michael Thompson on or about the 15th day of July 1980 dishonestly obtained the sum of £447 the property of the Commercial Bank of Kuwait intending permanently to deprive the bank of that sum and by deception namely by false representations that the amount stated as credited to his account with the Farwania Co-operative Society branch of the said bank was a genuine and accurate credit and that he was entitled to receive payment of the said sum." It will thus be apparent, and it has been the Crown's case throughout, that the obtaining in the six offences under section 15 of the Theft Act alleged against the appellant in this case occurred in England, within the jurisdiction, at the time when in each instance he received into a particular bank account the sterling equivalent of the credit balance in an account in Kuwait, which he had fraudulently created and which the bank transferred by telex as the result of the request in the appellant's letters. One might have thought that any other contention about the place where the relevant obtaining in each of the six offences in this case occurred was unarguable. However, Mr. Caplan has attractively argued before us that the relevant obtaining in each of the six instances occurred as the result of fraud committed by this appellant, and occurred in Kuwait on each occasion when the corresponding debit and credit entries in the respective savings accounts were made as the result of his dishonest manipulation of the bank's computer.

10

Mr. Caplan has submitted that section 15 is not concerned with questions of lawful title to any relevant property but, as the section itself specifically provides, with the ownership, possession or control of such property. He submits that when one asks the question whether at any material time –hat is to say at any time before the bank in Kuwait was asked to remit to England –he appellant had control of what seemed to be his credit balance, the answer must be "yes, he did" –t least until the bank discovered the fraud. Until they were so put on enquiry it would not have been possible for them to have said that this appellant had no such credit balance. Mr. Caplan went on to argue that the proof of the pudding was in the eating because the bank in Kuwait in fact acted upon the letters which the appellant wrote asking for the transfers of his credit balances; it is thus difficult to say, Mr. Caplan contends, that the appellant did not have control of a credit balance when the bank acted upon the basis that he did. In this connection he referred us to the case of R. v. Kohn (1979) 69 Cr.App.R. 395. That was a case in which the defendant had been an accountant for various companies and in that capacity had used company cheques to draw sums of money from the bank accounts of the companies concerned, which he thereafter pocketed and used for himself. He was charged with nine counts of theft. It was contended...

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