Pearson v R

• Jurisdiction: Cayman Islands
• Judge: (Zacca, P., Georges and Rowe, JJ.A)
• Judgment Date: 02 May 2000
• Date: 02 May 2000
• Court: Court of Appeal (Cayman Islands)

Court of Appeal

(Zacca, P., Georges and Rowe, JJ.A)

C.A. PEARSON

and

R.

D.T. McGrath for the appellant;

A. Akiwumi, Crown Counsel, for the Crown.

Cases cited:

(1) R. v. Hilton, [1997] 2 Cr. App. R. 445; [1997] Crim. L.R. 761, applied.

(2) R. v. KohnUNK(1979), 69 Cr. App. R. 395; [1979] Crim. L.R. 675.

(3) R. v. ParsonsUNK, [1998] 2 V.R. 478; (1997), 97 A Crim R 267; on appeal, sub nom. Parsons v. R.UNK(1999), 73 A.L.J.R. 270; 160 Aust. L.R. 531, followed.

(4) R. v. Preddy, [1996] A.C. 815; [1996] 3 All E.R. 481, distinguished.

(5) R. v. Shivpuri, [1987] A.C. 1; [1986] 2 All E.R. 334, applied.

Legislation construed:

Interpretation Law (1995 Revision) (Laws of the Cayman Islands, 1963, cap. 70, revised 1995), s.3(1):

‘In this Law and in all … Laws … relating to the Islands … the following words shall have the meanings hereby assigned to them respectively…

“property” includes money, goods, things in action, land and every description of property, whether real or personal…’

Penal Code (1995 Revision) (Law 12 of 1975, revised 1995), s.223(1):

‘A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.’

s.229: ‘Whoever commits a theft is guilty of an offence and liable to imprisonment for ten years.’

s.235(1): ‘Whoever by deception dishonestly obtains property belong-ing to another with the intention of permanently depriving the other of it is guilty of an offence and liable to imprisonment for ten years.’

s.305: ‘Whoever conspires with another … to commit any offence … is guilty of an offence and liable, if no other punishment is provided, to imprisonment for seven years…’

Criminal Law-theft-property belonging to another-by virtue of Inter-pretation Law (1995 Revision), s.3(1), credit balance in bank account (as chose in action) is ‘property’ belonging to another for purposes of Penal Code (1995 Revision), s.223-sufficient that extinguished or reduced by act of appropriation

Criminal Procedure-sentence-co-accused-sentencing of accused by Magistrate may establish sentencing parameters for co-accused later convicted by jury of same offence-Grand Court to ensure parity even if heavier sentences otherwise appropriate for both offenders

The appellant was charged in the Grand Court with conspiracy to steal.

The appellant, P, conspired with M, a friend employed by a bank, to steal from the bank. The thefts were committed by debiting the accounts of customers, lodging the proceeds in a fictitious account and then drawing on that account to transfer funds into accounts with other banks in the name of the appellant”s niece. M completed the necessary documentation within the bank and passed the drafts from the fictitious account to P. The scheme was devised by M, who was in financial difficulties, but benefited both conspirators.

M pleaded guilty before the Magistrate”s Court, and was sentenced to 18 months” imprisonment, with 6 months suspended, and ordered to repay all the unrecovered money. P pleaded not guilty and elected to be tried by a jury. She submitted that there was no case to answer on the basis that the Crown had failed to establish that she had dishonestly appropriated ‘property belonging to another’ as required by s.223 of the Penal Code (1995 Revision) defining theft. The Grand Court rejected this submission. P was convicted and sentenced to 2½ years” imprisonment and ordered to pay compensation and costs.

Seeking leave to appeal against conviction and sentence, P submitted that (a) the court had wrongly rejected her submission of no case to answer, since the bank accounts were not property belonging to others but choses in action, which had been reduced or extinguished when debited and recreated as new choses when transferred; and (b) it was unjust that she had been sentenced to a heavier sentence than M, who had devised and substantially perpetrated the alleged thefts and had breached the trust of her employer.

The Crown submitted in reply that (a) since in the Cayman Islands a ‘thing in action’ was included in the definition of ‘property’ by s.3(1) of

the Interpretation Law, the charge of conspiracy to steal the balances of bank accounts was properly framed; and (b) the sentence imposed was not manifestly excessive in view of the scale of the theft.

Held, allowing the appeal against sentence:

(1) The court had properly rejected P”s submission, since a bank balance was a chose in action and constituted ‘property’ (as defined by the Interpretation Law (1995 Revision), s.3(1)) belonging to another for the purposes of s.223 of the Penal Code (1995 Revision). The fact that in theory the credit balance was extinguished or reduced by the act of appropriation (and a new credit balance created elsewhere) was sufficient for the commission of the offence of theft. In any event, since the charge against P was one of conspiracy to steal, and all the elements of a conspiracy to do an unlawful act had been proved against her, she had properly been convicted under s.305 regardless of the proper construction of s.223 (page 416, line 42 – page 417, line 33).

(2) However, the sentence imposed on her would be set aside, since it was...