The Queen v Barry Victor Randall
| Jurisdiction | UK Non-devolved |
| Judge | Lord Bingham of Cornhill |
| Judgment Date | 16 April 2002 |
| Neutral Citation | [2002] UKPC 19 |
| Court | Privy Council |
| Docket Number | Appeal No. 22 of 2001 |
| Date | 16 April 2002 |
[2002] UKPC 19
Present at the hearing:-
Lord Bingham of Cornhill
Lord Nicholls of Birkenhead
Lord Hutton
Lord Hobhouse of Woodborough
Lord Rodger of Earlsferry
Privy Council
[Delivered by Lord Bingham of Cornhill]
The appellant stood trial in the Grand Court at George Town on an indictment containing five counts: four counts of theft and one count of obtaining a valuable security by deception. After a trial lasting 41 days before Williams J and a jury he was on 8 August 1997 convicted on all counts and sentenced to 4½ years' imprisonment. Orders for payment of compensation of US $500,000 were made under each of counts 2 and 5, with a consecutive sentence of 6 months' imprisonment on each count on default of payment. The appellant appealed against conviction and sentence and on 13 August 1998 the Court of Appeal of the Cayman Islands dismissed his appeal against conviction on counts 1 - 4, allowed his appeal against conviction on count 5, and dismissed his appeal against sentence (save that the second compensation order necessarily fell on the quashing of the conviction on count 5). The Court of Appeal (Zacca P, Georges and Kerr JJA) gave the reasons for its decision in writing on 10 December 1998. By special leave of the Board the appellant now renews his appeals against conviction and sentence. The primary ground of his appeal against conviction is that the trial was conducted in a manner which was grossly and fundamentally unfair. The source of this unfairness, it is said, was the conduct of prosecuting counsel, Mr Richard Small, which is said to have undermined the integrity of the trial process. But complaint is also made that the trial judge wrongly failed to restrain the conduct of prosecuting counsel and on occasion endorsed it. The appellant advances additional grounds of appeal against conviction based on the trial judge's directions to the jury on dishonesty and the omission of a good character direction. The sole ground of appeal against sentence relates to the compensation order which, it is said, should not have been made without inquiry into the appellant's means.
The case against the appellant
Count 1 of the indictment against the appellant read:
"Barry Victor Randall between 10th day of May 1988 and 30 March 1989 stole assets to the value of the sum of $200,000, US currency, the property of clients of Cayman Capital Trust Company namely the Asian Sources Retirement Plan (c/o Trade Media Holdings Ltd a Hong Kong company) formerly known as Publishers Representatives Ltd"
The second count was to the same effect, save that the starting date was a little later and the sum allegedly stolen was US $500,000. The third count also was to the same effect, save that the starting date was later again and the sum allegedly stolen was US $50,000. The prosecution case against the appellant on these three counts was, in brief summary, that the appellant, acting as a professional trustee, had been entrusted with trust funds which he had then used for his own purposes. The victims of the thefts were the beneficiaries of the trust fund, the assets of which had been deposited with Cayman Capital Trust Company (CCTC), a company run by the appellant. The trust fund in question was called the Asian Sources Retirement Plan (ASRP).
The ASRP was a pension fund which had been financed and established by a Hong Kong group of companies of which the parent was known as Trade Media Holdings (HK) Limited (TMHK). TMHK had established the pension fund for the benefit of employees of its group. The Swiss Bank and Trust Corporation of Cayman ("Swiss Cayman") was originally the trustee of the pension scheme, at a time when the appellant was an employee of Swiss Cayman. As an employee he dealt with matters arising in relation to ASRP and had dealings with the managing director and investment manager of the group. When, in 1987, the appellant's employment with Swiss Cayman came to an end, he formed CCTC, of which he became managing director, and by a trust deed of 6 April 1988 TMHK appointed CCTC as trustee of the ASRP funds in place of Swiss Cayman. CCTC was a company duly licensed to carry on the business of a trust company with overseas customers.
Under the terms of the trust deed the assets owned by ASRP, formerly held by Swiss Cayman, were transferred into the name or control of CCTC. The prosecution case was that the appellant, during 1988 and 1989, had used these trust funds for his own purposes. By the time the alleged fraud was discovered the loss suffered by TMHK was said to be in excess of US $1 million. It was alleged that the appellant, having obtained control of these ASRP assets, had used them as security for loans, which were obtained for his own benefit or that of his company, but not for the benefit of ASRP or TMHK. It was further alleged that the appellant went to some lengths to conceal the use of these assets as security for the loans, which he obtained from Credit Suisse Guernsey Limited ("Credit Suisse"). It was said that the funds had been dispersed on the instructions of the appellant and then used for such purposes as investment in a hotel building project and the repayment of a loan to the depositor who featured in count 5. When in due course Credit Suisse demanded repayment of the loans the ASRP assets were sold on the instructions of the appellant to pay off CCTC's indebtedness to Credit Suisse. Reliance was placed on the failure of the appellant to seek the approval of TMHK for these transactions, and on his failure to reveal the true facts to an inspector appointed to oversee CCTC's management of three trust accounts. In the course of a visit to CCTC the inspector noted that a file relating to a Caymanian company named Wintergreen Holdings Limited was missing; in due course this file was found and within it were documents suggesting that Wintergreen had received the proceeds of the loans. In due course it became clear that CCTC was insolvent, and application was made to wind it up. The deficiency noted in its state of affairs was nearly US $4 million. When the appellant was interviewed in the presence of his lawyer at police headquarters, he declined to answer many of the questions put to him concerning his dealings with the assets of ASRP and gave no explanation for his conduct.
The fourth count of the indictment charged the appellant with theft of assets to the value of approximately $106,300 currency, the property of Mr Anthony Tan, a client of CCTC and beneficial owner of a company named Mums Incorporated. Mr Tan was a retired Canadian businessman living in Toronto who was the sole shareholder of Mums. He wished to apply for residence in the Cayman Islands and transferred his savings of $160,574 to CCTC with instructions that the money was to be placed on deposit in the name of the company for his use when he became resident. Mr Tan's application for residence was successful and he arrived in the Cayman Islands in 1988. He then sought payment of the balance of the money he had deposited, some of the monies having been properly disbursed, and (according to the prosecution) the appellant gave a series of unsatisfactory reasons for not paying the money demanded. At one point a cheque for $57,000 was given to Mr Tan, but it was returned unpaid.
The fifth count of the indictment charged the appellant that
"between 24 November 1987 and 30 June 1988 [he] dishonestly obtained from Ronald W Jeffrey valuable securities to the value of $500,000 US currency with the intention of permanently depriving the said Ronald W Jeffrey thereof by deception, namely by falsely representing that a Sally Spence, on whose account for investment the said Ronald W Jeffrey intended to part with the said securities, was shareholder of a Cayman Islands company named 'Sunrise Starts Tomorrow Management Limited', the company by which the said investment was to be conducted, Barry Victor Randall, well knowing that the said Miss Sally Spence was not a shareholder of that company even while purporting to the said Ronald W Jeffrey to accept payment of the said securities on the premise that she was in fact a shareholder."
The prosecution case was that the appellant had obtained US $500,000 from Mr Jeffrey, an American businessman, on the basis of false representations. The appellant had met Mr Jeffrey through Sally Spence and Mr Jeffrey deposited the sum in question with CCTC in early 1988 when the appellant had offered Mr Jeffrey a 10% return on the funds and had said that the deposit of the funds would enable him (the appellant) to obtain a loan using the funds as security. The appellant, it was alleged, repaid Mr Jeffrey the sum deposited plus interest, using the loan he had obtained from Credit Suisse. But Mr Jeffrey also invested US $500,000 in a business venture (namely a nightclub) involving the Sunrise company, having given instructions to the appellant to form Sunrise as a bearer share corporation controlled by Sally Spence. In 1991 Mr Jeffrey was seen by the police and for the first time discovered that his instructions had not been carried out and that Sally Spence was neither a director nor a shareholder of Sunrise.
The appellant was arraigned on 9 June 1997 and pleaded not guilty. Mr Small for the prosecution opened the case and called ten witnesses whose evidence ended on 2 July. The appellant (who was represented by two counsel) gave evidence in chief from 3 July until 15 July and was cross-examined from 15 July to 23 July. He called a single character witness. The trial judge summed up the case to the jury over five days, at the end of which the jury very quickly convicted.
It is unnecessary to explore in detail the defence advanced at the trial by the appellant. The trial judge summarised the...
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