Court finds accused guilty of false pretences for fraudulent representation of licence ownership with intent to defraud.

[*1524] 1971. September. 9

(G. PIKIS, D. J.)

IN THE DISTRICT COURT OF FAMAGUSTA

Police,

v.

Christophis Nicolaou Petrou alias Yiatros,

Accused.

(Case No. 3353/71).

Criminal Law - False pretences - Essential ingredients of the offence - "Intent to defraud" - False representation should act in the mind of the complainant.

False pretences - See under "Criminal Law".

Police Sergeant HadjiChristos, for the Prosecution.

M. Papas, for the Accused.

JUDGMENT

The following judgment was delivered by:-

PIKIS, D.J. : At the close of the case for [*1525] the prosecution the accused, with the leave of the Court, pleaded guilty to count 2, a charge of stealing by agent contrary to Section 210(b) of Cap. 154. Considering the evidence I believe he was well advised to change his plea.

I find the accused guilty on count 2. Count 1 charges the accused with the offence of false pretences, the pretences being that whereas the accused was not in possession of a public carrier's licence he represented to the complainant that he was in possession of such a licence which he undertook to transfer in the name of the complainant.

Some preliminary observations must be made in relation to a charge of false pretences and the form it may take. More than one pretence may be relied upon to support the charge. The charge will be sustained even in the absence of proof of the falsity of each one of the pretences provided the falsity of the substance of the pretences is established. If, however, one pretence is made comprising more than one representation the prosecution must prove the pretence as a whole to be false. The representation must be of an existing fact. A promise in future will not do. However, a representation of an existing fact coupled with a promise to do something at a future date is sufficient to support a charge. [*1526]

An expression of opinion cannot be made the subject matter of a charge of false pretences. The Court will not, however, leave unpunished a representation presented in the form of an opinion designed to mislead the representee into believing into the correctness or existence of certain facts which are in fact false. A good illustration is the recent decision of the English Court of Appeal in R. v. Bassett Jeff 51 Cr. App. R. 29. This decision also illustrates that the Courts will look at the substance of the thing, which is the punishment of fraudulent conduct in the form of false pretences.

The false pretences must be accompanied by an intent on the part of the representor to defraud. The concept of intent to defraud is canvassed at length in R. v. Moon (1967)3 All E.R. 962 where the notion of intent to defraud is distinguished from that of intent to deceive - intent to defraud "It seems that it must generate a course of action leading to 'injury'; 'detriment' or 'prejudice' of the actor subject to the de minis rule". The matter is also discussed in Archbold - 36th edition - Para. 1961. Intent to defraud may be inferred from the facts of the case. It remains throughout an essential ingredient of the offence.

Another vital ingredient of the offence is that the goods or money subject of the charge must have been

obtained because the false pretences in question operated [*1527] on the mind of the complainant who because of wholly or partly

relying on the false pretences was induced to part with his money or property. In a recent decision it was emphasized that evidence of inducement must be direct and only on rare occasions indirect evidence will be allowed to support the charge. This is understandable because we are concerned with the mental state of the complainant - See R. v. Laverty (l970) 3 All E.R. 432.

It is the story of the complainant that on 2.12.71 he had a discussion with accused in the course of a chance meeting near the government District Offices at Famagusta. In the course of this discussion the complainant told the accused of his unsuccessful efforts to obtain a public carrier's licence for his lorry and his eagerness to obtain such licence. It is the contention of the complainant that the accused told him without any reservations that he had such a licence and was willing to transfer it in his name for a fee of £40. To this complainant agreed and paid £20 later that day and the balance in two or three days time.

Accused was not forthcoming with the licence and complainant took up the matter with him to be told that the matter was being taken up with the Licensing Authority. In the, meantime accused demanded an additional sum of money. Complainant eventually paid £57.700 mils for this licence and £27.300 mils for the circulation [*1528] licences, the subject matter of count 2. Accused maintained that he was in need of all relevant papers regarding the lorry of complainant and in this way extracted from the complainant £27.300 mils to renew the circulation licence, a thing he never did. As the complainant told the accused, and kept telling him, the licence would be issued to him. The long delay led the complainant eventually to report the matter to the police. The story of the accused is different from that of the complainant. It is his contention that the complainant specifically approached him and asked to buy a public carrier's licence that he had learned accused was in possession. According to the accused, he informed him that he had a licence for a small lorry that he would endeavour to transfer to him if the transfer was approved by the licensing authority. He refuted the contention of the complainant that he made a representation that was in a position to furnish the complainant with a public carrier's licence without any reservation. In the year 1966 the accused applied to the licensing authority for a public carrier’s licence for a small lorry so as to be in a position to convey the luggage of passengers of rural buses coming to Famagusta. In this same application the accused informed the licensing authority that if a permit was granted, he would purchase such a small lorry that would be put in circulation - see exhibit 1. On the 28th March, 1966 the application was approved and the accused was invited to state the registration number of [*1529] the vehicle he would put in circulation. Since the year 1966 the accused took no steps whatever to acquire a public carrier's licence in respect of a small lorry. It is the contention of the accused that in the month of December, 1970, he was labouring under the impression that he was in possession of a public carrier’s licence and thought he could transfer same.

P.W.2, an official of the licensing authority, explained to the Court the procedure their department follows in licensing public service vehicles and stated that public carrier's licences are not transferable. The matter is regulated by law 16/64. From a perusal of the law it is evident that the granting of a public carrier's licence falls within the discretion of the appropriate authority, who must exercise their discretion with a view to serving the public and protect interests already vested in public carriers. Despite the legal position it is in theory possible for one to be mistaken about the effect of a given law and labour under a misapprehension. In such a case provided the belief is honestly and reasonably held, the defence of Section 10 of Cap. 154 is open to the accused. The defence of honest and reasonable belief is now firmly established under English law - See the decision in Sweet and Parsely (1969) 1 All E.R. 347. Moreover, on a charge of false pretences if it appears to the Court that a false representation is made in the honest [*1530] belief that it is true, then the presence of such a finding would negative the presence of an intent to defraud on the part of the representor.

I have examined the evidence before me with extreme care. It is evident from an examination of the evidence in its totality that the accused did not show anything like a diligent concern to secure the licence in the name of the complainant. In his statement to the police he maintained that he made enquiry on one occasion in the month of January of an official of the licensing authority without any concrete results; this, according to his statement, is the only effort he made to ensure the transfer of the "T" licence in the name of the complainant.

It is surprising how accused came in the course of time to demand of the complainant an additional sum of £10 for the transfer of the licence without in any way making certain that the transfer in the name of the complainant was feasible. The behaviour of the accused in telling the complainant to let him renew his circulation licence in the circumstances described by the complainant gives us an insight into the mind of the accused. The accused impressed me very poorly in the witness box. The complainant on the other hand, left a very favourable impression with me and I accept his evidence without any hesitation.

I find as a fact that the accused represented to the complainant without any reservation that he was the owner of a public carrier’s licence that [*1531] he could transfer to the complainant in relation to his lorry. This representation was false. The complainant, relying upon this false representation and in consequence of it, parted with the sum of £57.700 mils.The presence of a contract between accused and the complainant does not vitiate a charge of false pretences. What remains to be decided is whether accused was possessed of an intent to defraud at the time of making the above false representations.

A long time had elapsed since 1966 when accused received exhibit 5. There is no indication whatever that accused made any enquiries of the licensing authority whether the decision to grant him a licence for a small lorry was still in force or had lapsed. It is evident from exhibit 1 that accused was aware that for a public carrier’s licence to be issued the purpose for which the licence is required is an essential consideration. Therefore he should have at least doubts whether it was feasible to transfer the licence referred to in exhibit 6 to another carrier, who was offering different services with a lorry.

The letter, exhibit 5, referred to a small lorry and not a lorry which was the car of the complainant.

On the totality of the evidence before me I find that accused made this false representation with an intent to defraud. The complainant parted with the sum of money in question in consequence of this representation. I find the accused guilty as charged.