SUPREME COURT, ACCRA
DATE: 20TH JULY, 1962
BEFORE: KORSAH, C.J., SARKODEE-ADOO AND CRABBE, JJ.S.C
CASES REFERRED TO
(1) R. v. Dalton (1949) 33 Cr.App.R. 102; 65 T.L.R. 326
(2) R. v. Welham [1960] 2 Q.B. 445; [1960] 2 W.L.R. 333
NATURE OF PROCEEDINGS
APPEALS against sentence and conviction. The appellants were convicted by Apaloo, J., sitting in the High Court, Kumasi, on the 16th August, 1961. The first appellant was convicted of conspiracy to defraud and abetment of fraud by false pretences. The second and third appellants were convicted of conspiracy to defraud and attempting to defraud by false pretences. The facts are set out in full in the judgment of the Supreme Court.
COUNSEL
O. Amankwatia for the first appellant.
N. Y. B. Adade for the second and third appellants.
K. Dua-Sakyi, D.P.P. for the respondent (the State).
JUDGMENT OF CRABBE, J.S.C.
Crabbe, J.S.C. delivered the judgment of the court. The three appellants together with another who has not appealed were convicted by Apaloo, J. at the Kumasi Criminal Session on the 16th August, 1961, and were sentenced to various terms of imprisonment.
The charges upon which the appellants were tried were as follows:
FIRST COUNT
STATEMENT OF OFFENCE
CONSPIRACY TO DEFRAUD BY FALSE PRETENCES
Contrary to section 23 (1) and 131 of the Criminal Code, 1960
PARTICULARS OF OFFENCE
KWADJO AGYEMAN, KWASI BASARE, YAW ASEM, KWADJO BOAMONO, NURU-DEAN KOFI DISU, and JOSEPH PAUL ARHIN, between January, 1960 and the 11th May, 1960, at Bekwai in the Ashanti Region did with other persons unknown agree together with a common purpose for committing a crime, namely, defrauding by false pretences.
THIRD COUNT
STATEMENT OF OFFENCE
ABETMENT OF FRAUD BY FALSE PRETENCES
Section 20 (1) and 131 of the Criminal Code, 1960
PARTICULARS OF OFFENCE
KWADJO AGYEMAN, on the 11th May, 1960 at Bekwai in the Ashanti Region did purposely promote the commission of a crime, namely, fraud by false pretences, by one KWASI BASARE.
FOURTH COUNT
STATEMENT OF OFFENCE
ATTEMPT TO DEFRAUD BY FALSE PRETENCES
Sections 18 (1) and 131 of the Criminal Code, 1960
[p.69] of [1962] 2 GLR 67
PARTICULARS OF OFFENCE
YAW ASEM, on the 11th May, 1960, at Bekwai in the Ashanti Region with intent to defraud did attempt to obtain cash the sum of £G3,400 from HENRY KWASI GYAN, a cashier of Messrs. Barclays Bank, Bekwai, then acting as such cashier, by falsely representing that you were one KWAKU ADDAI whose name was on a certain cheque numbered 57/N12113 then produced and presented by you to the said HENRY KWASI GYAN for payment, that the said cheque was a good and valid order for the payment of £G3,400, and that you were entitled to payment upon the cheque for an amount of £G3,400 which representations you knew to be false.
FIFTH COUNT
STATEMENT OF OFFENCE
ATTEMPT TO DEFRAUD BY FALSE PRETENCES
Sections 18 (1) and 131 of the Criminal Code, 1960
PARTICULARS OF OFFENCE
KWADJO BOAMONO, on the 11th May, 1960, at Bekwai in the Ashanti Region with intent to defraud did attempt to obtain cash the sum of £G3,400 from HENRY KWASI GYAN, a cashier of Messrs. Barclays Bank, Bekwai, then acting as such cashier, by falsely representing that you were one KWABENA DONKOH whose name was on a certain cheque numbered 57/N12111 then produced and presented by you to the said HENRY KWASI GYAN for payment, that the said cheque was a good and valid order for the payment of £G3,400, and that you were entitled to payment upon the cheque for an amount of £3,400 which representations you knew to be false.
At the commencement of the trial, counsel for the prosecution entered a nolle prosequi in respect of the charge in count one against the fifth and sixth accused persons and each was accordingly discharged.
The case for the prosecution was as follows: During the period of the 25th November, 1959, to the 3rd December, 1960, one Joseph Amoako (P.W.1) was the officer in charge of the government treasury at Bekwai/Ashanti. Among other things it was part of his duty to sign cheques on behalf of the government. These were then sent to one Francis Anthony Haizel (P.W.4), the senior clerk in the office of the district commissioner of Bekwai. This latter counter-signed the cheques and returned them to Joseph Amoako at the district treasury. All the cheque forms were kept by Joseph Amoako in a safe and locked with keys.
On the 18th January, 1960, whilst checking the cheque-book in use Joseph Amoako discovered that six leaves, Nos. 57/N12111-6, together with their relative counterfoils had been torn from the cheque-book. He made a reconciliation statement with the bank and found that none of the six cheques had been presented to the bank for payment. On the 19th January, 1969, he made a report to the manager of Barclays Bank, Bekwai, and he requested that cheques Nos. 57/N12111-6 be stopped, and their payment was accordingly stopped by the bank.
On the 9th March, 1960, Mr. Van Dyke (P.W.9) who had then become the manager of Bekwai branch of Barclays Bank, received a letter,
[p.70] of [1962] 2 GLR 67
exhibit E, which purported to have come from the Government District Treasury, Bekwai. The full text of this letter is as follows:
“THE DISTRICT TREASURY BEKWAI/ASHANTI My Ref. No. 9/Vol. 1/175, 3rd May, 1960.
Dear Sir,
THE LOST OF 6 CHEQUE LEAVES FROM BEKWAI TREASURY
I have to inform you that 6 Cheque Leaves which were reported missing from the Bekwai Treasury Office have been found and I would be grateful if you could honour them for payment whenever presented.
For your information, I have today issued 3 out of the 6 cheque leaves Nos. 57/N12111-3, and I would be most grateful if you could honour them for payment when presented.
I have the honour to be,
Sir,
Yours faithfully,
(Sgd.) ? ? ?
Treasury Officer.
The Manager,
Barclays Bank D.C.O.,
Bekwai/Ashanti.”
The signature under this letter appeared to be that of Joseph Amoako and it was copied to the Accountant-General, Accra, the Treasury Office Kumasi, and the Government Agent, Bekwai. The authorship of this letter was denied by Joseph Amoako, and the learned trial judge accepted his evidence.
It was testified by Mr. Van Dyck that a few days before the 12th May, 1960, the first accused came to his office and said that he had three cheques from the district treasury totalling about £G10,000 and asked whether there was sufficient cash in the bank to meet payment. Mr. Van Dyck told him that he had not got sufficient cash to make such a huge payment. According to Mr. Van Dyck, the first accused came to his office again in the morning of the 10th May, 1960, and repeated his previous enquiry whether the bank had sufficient funds. Again Mr. Van Dyck informed him that he had not got sufficient cash and he assured the first accused that he would go to Kumasi the next day for more cash. In the evening of the same day, at about 8 p.m., the first accused called at Mr. Van Dyck’s flat ⎯ his first visit there ever ⎯ and asked whether Mr. Van Dyck would indeed go to Kumasi the next day, that is on the 11th May, 1960, to get the cash. Mr. Van Dyck promised that he would. But after the first accused had left the flat Mr. Van Dyck said that he became suspicious of the first accused’s conduct and had a foreboding of some fraudulent transaction.
On 11th May, 1960 Mr. Van Dyck went to Kumasi and informed the district manager of the bank about his suspicion and consequently the police were informed. He then returned to Bekwai.
At about 10 a.m. on the 12th May, 1960, the first accused went to the office of Mr. Van Dyck and enquired about certain bills of exchange which he held for his company. Whilst conversation was going on in the
[p.71] of [1962] 2 GLR 67
office, the second and third appellants and also the other person who had not appealed (second accused at the trial) entered the main office of bank and the events which took place there were vividly narrated by the cashier, Henry Kwasi Gyan, who deposed as follows: “On the 12th May, 1960, the second, third and fourth accused came to the counter in front of my cage. I was busy writing when I saw all accused by the cage. I cannot say whether they came individually or in a group. All the accused had cover cloths on. The second accused presented a Ghana government cheque drawn on Barclays Bank, Bekwai, for payment. I took possession of the cheque and passed it on for reference. [Witness handed identification 3. Witness continues:] I recognise identification 3 as the photostat copy of the cheque presented to me by second accused. I date stamped it with the bank stamp and as I said passed it for reference. In due course identification 3 was returned to me, passed for payment and bearing the manager’s initials. I then got ready to pay out. I called out the name of the payee as appears on the cheque. I called out aloud ‘Kwasi Kordieh’. The second accused answered to the name ‘Kwasi Kordieh.’ Second accused said ‘Yes Sir’. I asked second accused how much he was withdrawing. He said £3,700. I spoke to second accused in Twi and he replied in Twi. Identification 3 was endorsed at the back. The signatures at the back resembles one of the two signatures on the body of the cheque. I take this to mean that one of the signatures has identified the payee. I believed the second accused was the person whose name was mentioned on the cheque. I was prepared to pay in that belief. I actually commenced to pay the second accused. When I asked the second accused about the amount he had come to withdraw and appeared to be satisfied, the third and fourth accused then each presented a cheque to me for payment. I stamped both cheques and passed them out for reference. I handed £G700 to second accused and found I was short of cash. I asked him to hold on with that while I made requisition for extra cash. As soon as I handed the money to the second accused, a certain man in N.T. smock and cap seized the money from the second accused. I learnt later that that man was a policeman. I can identify the two other cheques presented to me by third and fourth accused if I see them. [Witness handed identifications 1 and 2. Witness continues:] I identify these as the photostat copies of the cheques presented to me by the third and fourth accused. There are endorsements at the back of these similar to those on exhibit 3. There are also the words “Payee known to me,’ Identifications 1 and 2 did not come back to me from reference before the police pounded on the accused. If the police had not intervened at that stage and had the cheques come back to me passed for payment, I would have followed the same procedure that I adopted with regard to the second accused. Before the police intervened I myself had no reason to believe that the cheques were spurious ones. The signatures on the cheques presented by the third and fourth accused were similar to the signatures on the cheques presented by the second accused.
Apart from the names and amounts all the three cheques were similar in all respects.”
In an able and detailed judgment in which adequate and fair consideration was given to the defence, the learned trial judge had no hesitation in coming to the conclusion that the originals of exhibits B, C and D which the second and third appellants and the other accomplice presented to the cashier were forged and therefore worthless. He entertained no doubt whatsoever that the second and third appellants knew at the time that the cheque which each presented for payment was fictitious.
With regard to the first count of conspiracy the learned trial judge made the following findings of fact: “Although it is obvious that the conspiracy charge was hatched at a time much earlier than the 12th May, 1960, and although it is probable that the accused might have become parties before that date, the evidence
[p.72] of [1962] 2 GLR 67
leaves me in no doubt that the second, third and fourth accused joined it, at the latest, on the morning of the 12th May, with full knowledge of its criminal purpose and I find that they tendered the false cheques to the bank in furtherance of it. I accordingly find all the accused guilty of conspiracy to defraud by false pretences as charged in count 1”
He then made the following crucial decisive finding: “I find the truth to be as indeed the second accused testified⎯first accused gave each of the second, third and fourth accused exhibits D, C and B and directed them to present them at the bank”
At the hearing of this appeal, counsel for the first appellant asked leave⎯and this was granted by the court to argue ⎯ the following additional grounds of appeal:
“1. That the learned trial judge was wrong in holding that the first appellant conspired with the others to commit the offence.
2. The sentence was harsh.”
A similar application for leave by counsel for second and third appellants to argue an additional ground was also granted. This ground was in these terms: “That the sentences against second and third appellants are harsh.” In the case of the first appellant, this court has carefully considered the evidence on the record and it is satisfied that there was abundant evidence in support of the learned trial judge’s findings and there is no ground on which this court can interfere and his appeal against conviction is therefore dismissed.
As to his appeal against sentence the court is of the opinion that the first appellant was the evil genius behind this elaborate fraud and it is necessary in a serious case of this nature that a heavy sentence be imposed in order to check the defrauding of banks of such huge sums of money.
In sentencing the first appellant, the learned trial judge made the following order: “Court: On each of counts 1 and 3, first accused sentenced to 3 years I.H.L. and in addition fined £G200 or in default 9 months I.H.L.”
There can be no doubt that the learned trial judge considered the case of the first appellant so flagrant as deserving the maximum sentence of three years prescribed by the law at the time. He found himself, however, powerless to impose a heavier sentence as he would have wished and he therefore resorted to the special discretion conferred on the court by section 297 (1) of the Criminal Procedure Code, 1960.1(1) This section reads: “Where a person is convicted of any felony or misdemeanour or any offence punishable by imprisonment (other than an offence for which the sentence is fixed by law) the Court may, in its discretion, sentence him to a fine in addition to or in lieu of any other punishment to which he is liable.”
In the opinion of this court the sentence imposed by the learned trial judge did not violate any principle and was not sufficiently severe for a serious offence of this kind. The appeal by the first appellant against sentence is therefore dismissed.
[p.73] of [1962] 2 GLR 67
With regard to the second and third appellants the only argument advanced in support of their appeals which on the face of it is worthy of consideration is the submission by Mr. Adade that the person who could be deceived was the manager of the bank and not the cashier to whom the forged cheques were presented. In support of this submission Mr. Adade relied on section 132 of the Criminal Code, 1960.2(2) This section reads as follows: “A person is guilty of defrauding by false pretences if, by means of any false pretence, or by personation he obtains the consent of another person to part with or transfer the ownership of anything.”
The argument seemed to be that the cashier, Henry Kwasi Gyan, could not part with or transfer the “ownership” of moneys belonging to the bank to others. But the answer to this argument is that Barclays Bank, D.C.O. is a corporate personality and it functions only through its servants with express or implied authority. The rule of the common law is expressed in the well-known maxim qui facit per alium facit per se, and in the normal course of banking business it is the duty of a cashier to transfer to anyone who presents a genuine cheque not only the possession but also the ownership of the cash represented by such cheque.
In this case there can be no doubt that both the second and third appellants went to Barclays Bank and presented stolen cheques bearing names other than their own and with forged signatures. They were each charged on counts 4 and 5 respectively with attempt to defraud by false pretences, and in order to secure conviction the prosecution must only show that the second and third appellants took certain definite steps with the intention to procure the consequence that in law amounted to fraud by false pretences. “Steps on the way to the commission of what would be a crime, if the acts were completed, may amount to attempts to commit that crime, to which, unless interrupted, they would have led . . .”
See per Birkett, J. (as he then was) in R. v. Dalton.3(3) In this case but for the timely intervention of the police, the cashier would have paid to the second and third appellants the various huge amounts represented by the faked cheques.
It is not an essential element in the offence of attempting to obtain goods or anything by false pretences that the mind of the prosecutor shall have been affected by the false representations. The ownership in the property must not pass, but the acts committed by the accused must be immediately connected with the full offence of fraud by false pretences and indicate beyond reasonable doubt the end towards which they were directed. The gravamen of the charge is the intention to defraud and therefore in this present case it was sufficient if the intention of the second and third appellants was to induce the cashier to do something contrary to what it would have been his duty to do, had he not been deceived, see R. v. Welham.4(4)
In the view of the court the conclusions of the learned trial judge are fully justified by the evidence and there is no merit in any of the grounds of appeal argued on behalf of the second and third appellants. Their appeals against conviction are accordingly dismissed.
[p.74] of [1962] 2 GLR 67
As regards the appeal against their sentences the court is of the opinion that there was nothing wrong in principle with the sentence of two and a half years and the appeals against sentence by second and third appellants are also dismissed.
DECISION
Appeals dismissed.
