Sukit Pachimsawat Kamalee Pachimsawat v. The Hongkong and Shanghai Banking Corporation and Another
Read the full judgment text of CACV 4/1981 on BabelCite. This Court of Appeal judgment.
1. Between August 1976 and May 1977 the Plaintiffs deposited with the Defendants large sums of money in United States dollars. During July and August 1977 the Defendants transferred the whole of these sums to the Bank of America, at its branch office at the Bank of America Building, Kowloon, from which branch all the monies have been withdrawn. The Plaintiffs sued the Defendants, claiming that the transfers were wrongful and made on the strength of forged documents. The Defendants denied their c
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CACV000004/1981
----------------- Coram: Sir Alan Huggins, V.-P., Zimmern and Barker, JJ. Date of Judgment: 11th August, 1981. ----------------- JUDGMENT ----------------- Barker, J. : 1. Between August 1976 and May 1977 the Plaintiffs deposited with the Defendants large sums of money in United States dollars. During July and August 1977 the Defendants transferred the whole of these sums to the Bank of America, at its branch office at the Bank of America Building, Kowloon, from which branch all the monies have been withdrawn. The Plaintiffs sued the Defendants, claiming that the transfers were wrongful and made on the strength of forged documents. The Defendants denied their claim, alleging that they were part of a massive and ingenious fraud. The Judge dismissed the Plaintiffs' claim, from which judgment they now appeal. 2. It is conceded by the Defendants that the onus of proving that the Plaintiffs were party to the fraud lies upon them. It is a heavy onus. As Hodson L.J. said in Hornal v. Neuberger Products Ltd.(1) at page 263, quoting with approval, Denning L.J. in Bater v. Bater(2):
3. It is difficult to imagine a more serious charge of fraud than the one levelled by the Defendants against the Plaintiffs in this case. The degree of probability therefore required to be established against them is in consequence very high. The question in this appeal is whether the Defendants have achieved the requisite proofs. 4. Two further propositions of law must be borne in mind at all times. First, a Court of Appeal should allow an appeal only if it is satisfied that the judge below was wrong. (See eg. Colonial Securities Trust Company Limited v. Massey 1896 1 QB 39). Secondly, a Court of Appeal should be slow to differ from the assessment by the trial judge, who had the opportunity which the Court of Appeal did not have, of observing the behaviour and demeanour of the witnesses in the box, as to their veracity or otherwise. (See eg Onassis and Calogeropoulos v. Vergottis 1968 2 Ll. L.Rep. 403). Nevertheless, as Lord Greene M.R. said in Yuill v. Yuill(3) (cited with approval by Lord Morris in the Onassis' case at p.419):
5. The trial Judge, having carefully observed the demeanour of the Plaintiffs and taking into account the content of their evidence, came to the conclusion that they were not telling him the truth. But, in arriving at that conclusion, he made a number of mistakes, and also, at least on the face of it, failed to take into account certain factors. 6. The first mistake was in regard to the handwriting experts, two of whom, Mr. Edgley and Mr. Radley were called on behalf of the Plaintiffs and one, Mr. Renshaw, was called for the Defendants. All the experts were agreed that the forgeries to the Defendants were not perpetrated by the Plaintiffs. The Plaintiffs' experts were satisfied that they did not commit the forgeries in respect of the Bank of America. Mr. Renshaw, though finding the matter one of great difficulty, came to the conclusion that the relevant Bank of America signatures were disguised versions of the 2nd Plaintiff's signatures written by the 2nd Plaintiff herself. Mr. Renshaw was forced to admit, as indeed commonsense demanded, that if the 2nd Plaintiff was not in Hong Kong at the relevant time she could not have committed the forgeries. She, and her husband, gave evidence to the effect that they did not visit Hong Kong between May and November 1977, and she produced her passport which, if genuine and used by her at all material times, substantiated the evidence. The Judge observed, correctly, at page 17 of this judgment, that it was not for the 2nd Plaintiff to prove that the chops in her passport were genuine. Moreover, Mr. Renshaw had examined the passport, and had made no adverse comments as to the authenticity of its contents. Finally, it was not suggested to the 2nd Plaintiff that she had two passports, or that someone else had been using her passport. Thus, there was only one finding the Judge could, and should, have made (but did not) which was that the 2nd Plaintiff was not in Hong Kong at the time of the Bank of America forgeries, and therefore did not commit them, and that Mr. Renshaw's evidence was wrong. What the Judge in fact said as to the expert evidence was at page 17 of the judgment:
But, given the finding of fact the Judge should have made, the expert evidence was all one way, namely that the 2nd Plaintiff was not and could not have been concerned with any of the forgeries. 7. The matter does not end there. The 2nd Plaintiff was exhaustively and exhaustingly cross-examined, and to the very end of her cross-examination it was suggested to her by counsel for the Defendants that she forged the disputed Defendants' documents. This allegation totally failed, on the Defendants' expert evidence, but it may well have affected the 2nd Plaintiff's demeanour and the Judge's assessment of it. Yet it was a matter to which he did not advert in his judgment. 8. Again, at page 20 of the judgment, the Judge says:
and earlier at page 18, the Judge said:
Clearly the Judge placed great stress by the letter of 7th July, and by the alleged fact that it had actually been sent to and received at Lock Road. But there was no evidence whatsoever that this was the case. All that Mr. Crook's affidavit said was that he gave instructions that a copy of the letter of 7th July 1977 to the Bank of America be sent to the Plaintiffs at Lock Road, and that it was placed in the filing tray for dispatch. He did not say to whom he gave the instructions, there was no proof of dispatch and the receipt of the letter was hotly denied by the Plaintiffs. 9. The learned Judge, moreover, appears to have held against the Plaintiffs matters which were never put to them. Thus at page 20, the Judge said:
And again at page 21
But none of this was ever suggested to the Plaintiffs or either of them. 10. The Judge then turned to the matter of coincidence. He said at page 21
(I pause here to say that is not an entirely accurate statement. The Plaintiffs took a copy of the mandate form, which she partially filled in but did not sign).
If the Judge was of the view, as apparently he was, that her explanation was reasonable, how can any adverse inference be drawn from what occurred. The second coincidence is the fact that the Plaintiffs went to Europe on 7th July 1977. But, given the fact that they actually went, and that they perpetrated none of the forgeries personally, why should any adverse inference be drawn against them from that quarter. 11. Finally, the Judge said at page 22:
The Judge mentioned this in the context of their shopping around for Banks in August 1975 or May 1976, but this was an incorrect observation. They did not get to know Mr. Brown until November 1977. 12. For these reasons, I am of the view that the Judge has not "checked his impression on the subject of demeanour by a critical examination of the whole of the evidence". 13. In my judgment the learned Judge was not justified in concluding that the Plaintiffs were lying. He found it suspicious that they opened an account at the Bank of America at all, inferring that they did this to find out if they could open an account without providing means of verifying their true identity. But they could have found this out, if such had been their purpose, without actually opening an account. A cursory enquiry could have revealed all they wanted to know. The Judge was further of the view that the use of the Lock Road address was the key to the matter, and was proof of their dishonesty. I disagree. There was no reason for them to have used the Lock Road address. They could simply have used the Austin Avenue address to which the Bank willingly sent the Certificate of Balance in answer to the letter of the 16th June 1977. Why should they create links with Mr. Hui and Mr. Yeung which could be checked? Moreover the danger in having the Lock Road address was in making the change to Austin Avenue. This could well have (but did not) led to an enquiry on the part of the Defendants. 14. If the Judge was wrong, as I think he was, in concluding that the Plaintiffs were lying, the Defendants clearly did not satisfy the burden of proof which was on them, and the Plaintiffs would be entitled to succeed. 15. The Judge found that there was no doubt that there was a plot to defraud the Defendants, and of course this was clearly right. He thereafter went on to discuss a number of possibilities as to how this fraud could have been committed. 16. It is entirely proper for a Judge to act on circumstantial evidence. Indeed, given the proper foundation, such evidence can be as compelling as direct evidence, if not more so. 17. However, as Mr. Sherrard, in my judgment, correctly submitted, there is a difference between evaluating probabilities on the basis of a substratum of direct or substantive evidence, and speculating in a vacuum on a footing wholly unsupported by evidence or suggestion in the case. 18. It is extremely difficult to extract from the judgment any findings of primary fact, save that there was a fraud and that the Judge was satisfied that the Plaintiffs were lying. He did not, for example, find as I think he was compelled to do, that the Plaintiffs were not in Hong Kong when the Bank of America forgeries were perpetrated, or that the woman who withdrew the monies from the Bank of America could not have been and was not the 2nd Plaintiff. 19. He ended his judgment by saying -
For the reasons I have given earlier in this judgment, I consider that the Judge was not justified in concluding that the Plaintiffs were lying. But even if they were, his premise does not justify the conclusion. 20. The Defendants' case involves the proposition that the conspiracy began in August 1975, when the Plaintiffs signed the first mandate; that it was continued in August 1976 when the third mandate was signed, from a copy of which the experts are agreed the forgeries to the Defendants were taken even though the Plaintiffs could not possibly have anticipated that Mr. Dargie was going to ask unnecessarily for a third mandate and though it was never even suggested to them that they had a photocopy of the signatures; and that no attempt to cash in on the situation was made until July 1977. Such patience on the part of crooks is, in my judgment, beyond belief, especially as it was unnecessary. 21. Furthermore, it was the Bank's case that the Plaintiffs had a two fold object, namely (a) to keep the matter secret from the Thai Exchange Control authorities and (b) to defraud the Bank. By attempting to carry out (b) they were bound to fail in (a), because it was agreed on all sides that, once the fraud came to light, a massive enquiry was inevitable, and so it turned out. 22. The Judge made much play, in dismissing the theory that the Bank's staff, with the help of one or more outsiders, were the culprits, of the suggestions that (a) the Bank's staff would have anticipated that the Plaintiffs would come to Hong Kong in August 1977 and yet the last massive withdrawal of cash was in the month and (b) that the withdrawals were spread over so long a period as to present an unnecessary risk. Neither point in my judgment bears examination. As to (a) it is true that the Plaintiffs had been in Hong Kong in August 1975 and 1976, and that their evidence was that they tried to fit in their trips to the Colony to coincide with the Thai public holidays. But they had not come to Hong Kong in October 1975 or May 1976 Thai public holidays, and there was no evidence to suggest that either of them had ever told any member of the Bank's staff anything about such holidays. As to (b) of course, the spread of time over which the withdrawals were made constituted a risk but it constituted a risk to whomsoever committed the fraud. 23. Moreover, there are other possibilities, equally consistent with the evidence, so far as it goes, which were not canvassed by the Judge. It is possible, for example (and I wish to make it abundantly clear that I am not saying it was the case) that a close relative of the 2nd Plaintiff, totally familiar with her signatures and with her movements was acting in league with one or more of the Bank's staff, and without the knowledge or consent of the Plaintiffs or either of them. And the written submissions of Mr. Yorke, for the Defendants, so far from clearing up the mystery, in my view only deepen it. 24. As I said almost at the outset of this judgment, quoting Hornal's case "Sc. a civil court when considering a charge of fraud does require a degree of probability which is commensurate with the occasion". In my judgment, in this case the Defendants have not met that requirement, and in consequence I would allow the appeal. 25. It was suggested that if this was to be the view of the Court, we should order a new trial. I disagree. The case was set down for hearing in March 1980, and was adjourned so that further investigation could be made. It was not heard until November 1980. The Defendants had ample opportunity to marshal their expert and factual evidence, and chose to call the barest minimum of the latter. They should not in my view be given two bites of the cherry. 26. I would give judgment for the sums claimed with interest from the appropriate dates at the appropriate rates. Sir Alan Huggins, V.-P. : 27. I have had greater difficulty in this case than the other members of the Court. 28. The approach of the trial judge was this. He recognised that the burden of proving fraud on the part of the Plaintiffs was on the Defendant and that the standard of proof had to be commensurate with the gravity of the allegation. He was satisfied that the documents used to obtain the money from the Defendant were forged and that the documents used to obtain the money from the Bank of America were also forged, but not by the 2nd Plaintiff. He contemplated that only three persons or groups of persons could have committed the fraud: (1) one or more members of the Defendant's staff with the help of others who did not include the Plaintiffs; (2) the Plaintiffs with the help of others; and (3) some person or persons entirely independent of both the Plaintiffs and the Defendant. He first eliminated the third group and then decided on a balance of probabilities that the fraud was committed by the second group. 29. For my part I see no fallacy in that overall approach. What has caused me concern is whether he was justified in eliminating the third group and then in fixing blame on the Plaintiffs. He gave three reasons for rejecting the possibility that the fraud could have been committed by persons wholly independent of both Plaintiffs and Defendant. The first was that no one other than the Plaintiffs and the Defendant knew (i) of the existence of the Plaintiffs' deposit account with the Defendant, (ii) that only one signature was necessary to operate that account and (iii) that the one signature needed was that of the 2nd Plaintiff using her maiden name. Whilst it is true that the Plaintiffs were unlikely to broadcast the existence of the account in view of possible repercussions from the Thai exchange control authorities and that the 2nd Plaintiff was adamant that no one other than the Bank knew of the account, I have great doubts about the validity of the findings on which the conclusion is based. How the 2nd Plaintiff could be so certain that no one else knew of the existence of the account is not clear : all she could properly say was that she had not told anyone about it and that she had taken precautions to keep knowledge of it from others and, possibly, also that no one could have overheard her talking about the account. I am not sure what the Judge meant when he said :
Whoever was guilty of the fraud, there was a possible explanation for the writing of that letter. Even if the 2nd Plaintiff did not tell anyone about the account, it was always a possibility that some unauthorized person had obtained access to her papers without her knowledge. Such papers would not, however, have disclosed who was entitled to draw on the account nor what signature was to be used, though someone acquainted with the 2nd Plaintiff might know that she always used her maiden name. There was some force in this reason but not as much as the Judge thought. 30. The second reason he gave was that it would be impossible for a third party to copy the 2nd Plaintiff's signature so exactly unless he had the mandate form dated 12th August 1976, which was in the possession of the Defendant, or an almost exact copy. What has troubled me throughout is the ready assumption which was made on all sides that the forged signatures were copied from that mandate form or from a copy of that form. It is pure guess work that there ever was a copy of that document. All the experts agreed that the signature was not copied directly from that on the mandate and it seems to me just as probable that the forger used a signature on an unconnected document as that he used that on a poor copy of this mandate which no-one has seen. The Judge himself mentioned that :
Even when one assumes that the forger used a copy of the mandate any difficulty which arose from the fact that the mandate itself never left the bank disappears. This second reason, therefore, was without solid foundation. 31. The third reason was that no one other than the Plaintiffs themselves could have known that the Plaintiffs would not communicate with the Defendant either in person or in some other way during the period when the fraud was being perpetrated, i.e. between 6th July 1977 (when the letter of 4th July was received) and 22nd August (when the final balance was withdrawn from the Bank of America in Kowloon). The Judge also relied upon this fact as indicating the involvement of the Plaintiffs rather than the staff of the Bank. On the face of it the argument has some force, but it is only if one ignores the possibility that someone very well acquainted with the Plaintiffs and their plans was party to the fraud that the risk becomes appreciable. That possibility cannot be ruled out and it follows that this third reason carries little weight. 32. The result is that the vital link in the chain of the Judge's argument has nothing approaching the strength which he thought it had. In this connection he based himself solely upon the probability and not upon the truthfulness of the witnesses, and we are in as good a position as he was to assess the probabilities. I am by no means persuaded that the fraud could not have been committed by some person or persons independent of both the Plaintiffs and the Defendant. 33. Even if I am wrong as to the first step in the argument, I still have difficulty in accepting the rest of the Judge's reasoning. That is not to say that there is not, inevitably, strong ground for suspecting that the Plaintiffs were responsible for the fraud, but only that I do not think the evidence was sufficiently strong. 34. The learned Judge said that the key to the mystery lay at 27 Lock Road. By this he apparently meant that, if the Plaintiffs had not been involved in the fraud, the person who sent the letter of 4th July 1977 was unlikely to have known of the copy of the Bank's letter of 7th July 1977, which copy was said to have been sent to 27 Lock Road, the registered address of the Plaintiffs in Hong Kong, and not to the address indicated as their address for the purpose of this transaction. Prima facie that is perfectly logical. It does, however, presuppose that the letter of 7th July was delivered to 27 Lock Road and that the sender of the earlier letter knew that it had been so delivered. These presuppositions are open to criticism, for there was no direct evidence that the letter was so delivered or even that it was despatched to that address. What we do have is an affidavit by Mr. Crook, the Officer-in-Charge of the International Deposits Department, in which he says, first, that he gave instructions that a copy of the letter of 7th July to the Bank of America enclosing a cashier order be sent to the 1st Plaintiff and that "the letter .... was placed in the filing tray for despatch to the registered address". By "the letter" I take it he meant the copy of the letter. He did not indicate how the "instructions" were given or to whom they were given. There was no evidence as to the ordinary practice as to despatch of mail from the Bank. (Secondly, Mr. Crook says that he gave instructions for a letter - which I think must have been the Bank's letter of 12th August 1977, although that is not what he says - to be sent to the specified address and not to the registered address. Again he does not say how the instructions were given or to whom they were given.) At best it can be said that Mr. Crook intended the copy letter to go to 27 Lock Road. It could have been intercepted by someone involved in the fruad before it left the Bank. If it did reach its supposed destination, it is not impossible that someone at that address was involved in the fraud. The learned Judge thought "it would be too much of an unhappy coincidence if [Mr. Hui] was a guilty party". It would, indeed, be an unhappy coincidence but I am not clear why it would be too much of an unhappy coincidence : it seems to me no less probable an explanation of the mystery than any other which has been suggested. The Judge came to the conclusion that the exploitation of the Lock Road address by the villain was a blind - a clever false trail laid in order to cast suspicion on an innocent party. He was, of course, justified in considering that possibility but in my view the evidence did not justify any conclusion as to who the villains were. 35. The Judge had some ground for questioning the evidence of the Plaintiffs as to the reason for giving a correspondence address at all, because the only correspondence likely to go there consisted of documents of very minor importance which could well have been kept at the Bank for collection. If any of the documents had been necessary evidence to prove their deposit, I would not have accepted that it was ridiculous not to trust the Bank's employees, but the vital documents were always in the Plaintiffs' possession before they left Hong Kong. Therefore the contention that the Bank should not have custody of documents which might be vital evidence against itself did not ring true. It may well have been more convenient for the Plaintiffs to collect correspondence from Lock Road than from the Bank, although the Judge discarded that explanation. He did so because of his disbelief of the Plaintiffs generally, a matter to which I shall return. If one accepts that they did lie as to the reason for giving the Lock Road address, there is some force in the argument that, when the Judge asked himself why they had lied, his answer must have been that they knew that an address outside the Bank had been necessary to enable them to perpetrate the fraud. If, as the Defendant suggests, the Plaintiffs were planning the fraud at the time they opened the account in 1975, it is hard to understand why they did not give an accommodation address from the start. 36. The Judge remarked that "two important coincidences loom large in this case". It is apparent that he placed considerable weight on them as being unnatural coincidences. The first was that of all the many documents signed by the Plaintiffs the only one of which a copy was taken was the mandate of 12th August 1976. However, the Judge thought the 2nd Plaintiff's explanation of that was reasonable. What seems to have struck him as odd was that the 2nd Plaintiff should have taken the trouble to fill in the blanks on the mandate form rather than to ask for a photocopy and, secondly, that the 1st Plaintiff completed the form rather than that the 2nd Plaintiff should do so. If filling in the blanks was odd, I cannot see that any sinister significance can be attached to it : nor can I see anything sinister in the fact that the husband inserted the information required. 37. The second coincidence was the departure of the Plaintiffs for Europe on 7th July 1977, after the letters of 16th June 1977 and 4th July 1977 had been sent to the Bank and the accounts with the Bank of America in Kowloon had been opened, and their return before the final transfers and withdrawals were made. This might have been sinister if they could not have taken some step in the fraud while they were in Europe which they could take when they were in Bangkok. Nothing of the kind has been suggested. As we have seen, much has been made of the risk to anyone else committing the fraud if the Plaintiffs communicated with the Bank between 6th July and 22nd August. The Judge accepted the Defence's suggestion that an August visit should have been expected by the staff of the International Deposits Department. The only reason for such expectation would be that the Plaintiffs had visited Hong Kong during August in 1975 and 1976. It seems to me that to assume, on the basis of that alone, that they would be likely to come again in August 1977 would have been unjustified even if the coincidence of their previous visits had struck anybody : it is conceded that there was no evidence that they had told the Bank's staff why they had chosen August for those visits. 38. The learned Judge criticised the Plaintiffs for not ascertaining from the Chartered Bank in 1975 what rates of interest it was offering, because they had a contact with that bank. In this he was in error : the contact had not been established in 1975. It is a minor error. 39. In the end the Judge said : "Mr. Pachimsawat was as bad a witness as his wife was a good one". In the light of that one would expect that the wife would be believed, but she was not. Even in relation to the husband the Judge appears to have based his disbelief in part upon his "repetition and plain stupidity", which are equally consistent with credibility. The wife, also, was accused of repetition. The Judge was satisfied that on one occasion when the wife broke down in tears "this was not ... orchestrated for the benefit of the Court" and yet he thought "a feeling of outrage was missing from her demeanour". A sense of outrage can produce different manifestations in different persons. The Judge made an adverse inference from the fact that she "seemed to be challenging the Court to prove her wrong", when she might well have been challenging the Defendant to prove her wrong and the Court to find her wrong. Since the burden of proof was on the Defendant that is hardly surprising :
It was submitted on behalf of the Bank that this was not a case where this Court, applying the principles laid down in Onassis v Vergottis 1968 2 Lloyd's Rep. 403, could properly interfere with the findings of the trial judge. Undoubtedly we have to be satisfied that the Judge was plainly wrong in his findings and that he did not check his impression on the subject of demeanour by a critical and accurate examination of the whole of the evidence. It is only when a judge of trial has been moved by considerations which cannot be brought fully, if at all, before an appellate court that that court must defer to his judgment. As was said in Christie v Lyburn (1913) S.C. 1077 at p. 1078 :
40. Of course, once one assumes the Plaintiffs' guilt everything fits into place, but it does not follow that their guilt has been established. Even if they were not believed upon such matters as the reason for opening the deposit account with the Defendant and the account with the Bank of America in 1975 - and their explanations were very lame - so that the Judge could fairly suspect that guilt was the motive for their lies, the lies could still be nothing more than confirmatory evidence of no great weight : ".. by destroying .. evidence you do not prove its opposite" : Hobbs v C.T. Tinling & Company Limited 1929 2 K.B. 1, 21. Mr. Yorke submitted that it was the Plaintiffs' own evidence which inevitably drove the Judge to find that the fraud had been proved, but in the absence of any admission by them either of involvement in the fraud or of facts from which such involvement could properly be inferred that contention cannot be sustained. There was no such admission and I think the Judge's conclusion cannot be supported. I do not overlook the difficulty facing any party who alleges fraud, but that difficulty is no justification for applying a lower standard of proof. 41. There has been much discussion of the possible reason why the forged letters of 4th July 1977 and 6th August 1977 to the Defendant were endorsed "Registered Air Mail". The first of these was in fact proved to have been sent by local registered mail and the second appears not to have come by post at all. As I understand it, the Defendant alleges that the endorsement indicates that the letters were in fact drafted in Bangkok by the Plaintiffs. It seems to me that the whole matter is one of valueless conjecture. If the Plaintiffs were responsible, this was a careless mistake - a repeated mistake - inconsistent with the skill with which the rest of the fraud was carried out. Anyone else, whether connected with the Bank or not, might have hoped that suspicion would be directed towards the Plaintiffs, as it has in the event, even though the letters could in fact not be connected with them. There was no reason to expect that the Bank would be alerted to the possibility of fraud even if someone noticed that the letters had not come by air mail. 42. Mr. Yorke indicated that if we were to allow the appeal he would ask us to order a new trial. I agree with Barker, J. that such a course would be inappropriate, although earlier in the hearing I had contemplated that it might turn out otherwise. In my view the evidence was never more than would arouse suspicion against the Plaintiffs. The Defendant had ample time to find evidence to support his allegation of fraud and it would not be right to put the Plaintiffs to the trouble and expense of a new trial at which the Defendant would inevitably fail again unless new evidence were forthcoming. 43. I also would allow the appeal. Zimmern, J. : 44. This is an appeal by a husband and wife against the judgment of Bewley, J. dismissing their claim against the Hong Kong & Shanghai Banking Corporation (the Bank) for the repayment with interests thereon of five deposits in United States Dollars totalling US$2,204,477.29 with the Bank. 45. The Bank admitted the deposits but said that they were all transferred to the Bank of America (B.A.) in accordance with the express instructions contained in three letters signed by the wife (Mrs. P.) and if she did not sign those instructions then they will contend that
The sums transferred to B.A. having been withdrawn by a woman whom I shall call "Madam X" the Bank joined B.A. in the action as a third party. 46. Madam X opened a current account and a US$ savings account with B.A. in the name of Mrs. P. A forged passport was used for the purpose of identity. She was the one who withdrew all the funds transferred including on the last occasion over $5,000,000 in cash packed in a cardboard box and vanished. 47. Mrs. P. in respect of the five deposits with the Bank signed all documents in her first and maiden names "Kamalee Sukosol" whereas Madam X with B.A. signed the name "Kamalee Pachimsawat" (the married name of Mrs. P.) with the penultimate "a" missing. 48. With this bare outline without even the mention of a single date I wish to deal with an important aspect of this case. 49. We were told that at the trial the Bank contended to the very end that Mrs. P. was "Madam X". Three handwriting experts were called by the parties. They all agreed, with ample specimens of Mrs. P's signature, that she neither signed nor auto-forged her signature on the letters of instructions to the Bank. It was on Madam X's signatures on documents with B.A. that they differed. I quote from the judgment:
50. The learned Judge after a lengthly and meticulous review of the evidence of the three expert witnesses went on to another matter and came back to it a few pages later and said:
51. This declaration of a draw between contesting experts - "They cancel each other out" - was criticised by counsel not without good ground. The learned Judge having seen and heard the witnesses ought to have if he were able to come to a finding instead of leaving the matter to be decided on burden of proof. The important issue was whether Madam X was in fact Mrs. P. Mr. Renshaw was not impressed that at time of the B.A. episode Mrs. P's passport showed that she was not in Hong Kong. There was more cogent evidence. Madam X had been well identified by officials of B.A. After all, she was the woman who had opened the two accounts and signed documents before B.A. 's officials. She had upon a day's notice withdrawn over five million dollars in cash and packed the notes into a cardboard box. She was seen off B.A. by an official and escorted to a taxi. An official of B.A. gave a vivid description of Madam X to the police which included her height, appearance, eye brows, eye lids, mouth, finger nails yet Mrs. P. was in the witness box for a long time and no evidence was given on behalf of B.A. identifying her as Madam X. That speaks for itself that she was not and she could justifiably feel aggrieved that there was no such positive finding. 52. This disposes of the Defendant's contentions set out above save for (d). I need only repeat the main head of particulars in support.
Then
The "following matters" set out cover some nine allegations the totality of which, even if proved, could not amount to an affirmative case that the Plaintiffs were privy to the fraudulent instructions to transfer to and the withdrawals from B.A. The Judge found that the Plaintiffs had lied and held that as there was no reason to lie to the Court unless they had attempted to defraud the Defendant their claim failed. 53. As I understand the reasoning of the judgment it would appear that the learned Judge was of the opinion (I say opinion because he made no finding of primary facts) no doubt prompted by the particulars pleaded by the Bank that the Plaintiffs conceived the intent to defraud the Bank firstly by opening an US$ deposit account with the B.A. branch at St. George's Building Hong Kong and another with the Bank at No. 1 Queen's Road mail for collection at the bank's collection centre on the same date in August 1975. 54. Then carried it through secondly by closing the B.A. 's account in May 1976 and thereafter uplifting the US$ deposit account with the Bank and depositing with the Bank's I.D.D. department large sums in Eurodollars as follows:
55. Thirdly by giving the Bank's I.D.D. department a Thailand address for mail in August 1976 and changing it in September to a Hong Kong address, namely c/o Mr. Yung Siu-fai Ming Loong Trading Co. Ltd. 27 Lock Road, Ground floor, Kowloon. 56. Fourthly in August 1977 by Mrs. P. causing three letters bearing her forged signature to be sent to the International Deposit Department of the Bank with the legend:
instructing the Manager to transfer their deposits to her named accounts with the B.A. 's branch at the Peninsula Hotel. 57. Fifthly, in August 1977 by causing such accounts to be opened with B.A. by Madam X to receive such deposits and upon receipt withdrawing same. Of the Plaintiffs the learned Judge said:
and later:
58. The Bank did not call any evidence save that of a Miss Chan who worked in the I.D.D. department at material times. An affidavit sworn to by a Mr. Crook the Manager of the Department at the time the transfers were made was admitted in evidence. 59. In respect of the accounts opened by the Plaintiffs with the Bank and B.A. in 1975 the learned Judge said:
and later:
60. In respect of their certification to the Bank of the change of address from Thailand to Lock Road, the learned Judge said:
61. I need to add that all the experts were of the opinion that the forged signature of Mrs. P. on each of the 3 letters emanating from Austin Avenue was copied from either Mrs. P. signature on a Mandate in the possession of the Bank at all times or a copy thereof. There was no evidence that Mrs. P. ever received a copy of the Mandate and indeed the evidence was to the contrary. In this regard the learned Judge said:
62. There is no doubt in this case a massive fraud had been perpetrated against the Bank. The Judge mentions in his judgment four possible parties or combination of parties who might have done it, and whittled them down to the Defendants as prime suspects and rested his judgment on the ground that they had lied when if innocent they had no reason for lying. 63. Mr. Sherrard attacked the judgment on various grounds. 64. First he said the Bank case collapsed after it failed to prove that the instructions to transfer were signed by her or were auto forgeries and that Mrs. P. and Madam X were one and same person. Second that fraud must be distinctly alleged and as distinctly proved. That it was not permissible for the learned Judge to speculate on the case nor should he have allowed himself to be drawn into a consideration of the case based on competing theories whether it was more likely that "the staff of the bank" on the one hand or the appellants on the other were the culprits. 65. Mr. Yorke supported the judgment on the grounds firstly fraud is seldom proved by direct evidence and circumstantial evidence will often suffice (Compania Naviera Martiartu v. Royal Exchange Assurance Corp. [1924] Lloyd's Lists Reports 95). Secondly the three letters written by the forger showed the writer knew certain matters which were privy to Mrs. P. such as the deposits were with I.D.D., it was a joint account, a single signature was enough to operate the account and Mrs. P. signed in her maiden name and the Lock Road address. The Judge never lost sight of the burden of proof and had found the Plaintiffs to have lied. The Judge found that the documents and the cross-examination of the Plaintiffs had proved the fraud. He said apart from lies, and it was up to the Judge and jury to decide on the reasons for the lies, (R. v. Chapman [1973] 2 W.L.R. 876) it was open to the Judge to speculate on probabilities. Mr. Yorke relied heavily on the speech of Lord Summer in Hontestroom (Owners) v. Sagaporack (Owners)(1) cited by Lord Guest in Onassis & another v. Vergottis(2) at pp 428, 429:
Finally he submitted in writing ten items in a List of Factors suggesting that the Plaintiffs were linked with fraud, and seven items Factors negativing Insider Involvement as opposed to Plaintiffs. 66. I cannot accept Mr. Yorke's arguments. Looking at the course of the trial and the whole substance of the judgment I am satisfied that the learned Judge misdirected himself on the evidence. 67. I have dealt with the experts' evidence which proved that Mrs. P. neither signed nor auto-forged the letters of instructions. The Bank failed to prove that Mrs. P. was Madam X or that she has been identified with the B.A. transactions. The onus on the Bank was a high one and though he mentioned that onus a few times in his judgment the trial Judge does not appear to me to have applied it. He said:
and later:
Having said that the accusation of privity to the fraud was an affirmative allegation which must be proved the trial Judge did not revert to the important fact that the Bank called no evidence which directly or circumstantially supported this aspect of its case. 68. In quest of where the truth lay he decided on the possible suspects and tried to whittle them down. If this was a legitimate way of deciding on the issue whether the Plaintiffs were privy to the fraud, and I make no comment about that, then the elimination of any suspect must be supported by evidence. Speculation will not do. As Mr. Sherrard rightly said there is a difference between evaluation based on a substratum of direct or circumstantial evidence and speculating in a vacuum. To me the elimination of suspects one by one on probabilities or likelihood without a solid foundation of direct or circumstantial evidence and then point a finger of guilt at the Plaintiffs is singularly unattractive and quite unacceptable. This is implicit in that part of the judgment dealing with the Lock Road address which I have set out and in other parts. Then he weighed matters against the Plaintiffs again on speculation. In regard to the Plaintiffs opening the accounts with the Bank and B.A. in 1975 which the Bank alleged was the first step towards the perpetration of the fraud, I have set out above what the learned Judge said. I fail to understand his reasoning and how the opening of the accounts could lead to a false trail and suspicions. Mr. Yorke said the purpose was to test the various banks in Hong Kong to determine what sort of identification was required to open an account in preparation for the intended coup. Mr. Sherrard retorted the Plaintiffs could have obtained the same information by attending at the banks and asking without opening any account - an intending robber does not leave behind his calling card on a reconnaissance. 69. Next is the forging of the three Sukosol signatures on the letters of instructions to the Bank. The experts were all agreed that they were copied from Mrs. P's signature on the Bank's mandate form signed in the I.D.D. Department and kept by the Bank in a cabinet within that department or a copy of that master signature probably the latter. There was no evidence that the Plaintiffs ever had a copy of that master signature. It was open to the trial Judge to make a finding whether the forged signatures were copied from the master signature or a copy thereof. He did not do so. The Bank knew before trial of their own experts' opinion of the relationship between the forged signatures and the master signature yet the Bank called no evidence to substantiate any proposition that the Plaintiffs could have taken a copy of that master signature. Accordingly the Judge's assertions that "The defendant had the original; the only other people who might have had a copy were the plaintiffs" and "but I bear in mind that there is no reason why 2nd Plaintiff should not, on a previous occasion, have asked for a blank copy of a mandate form and have signed it with the particular signature before going to the Bank on 12th August" were unjustified and not supported by any evidence. 70. I have considered Mr. Yorke's contentionsin writing. With respect, they would have just added more fuel to the speculative fire. 71. The penultimate paragraph of the judgment reads :
That if I may say so with no disrespect is a bold conclusion. Throughout the judgment there is not shown a single finding of fact that the Plaintiffs had lied in any material particular. We are not told what part of their story was accepted as true and what part otherwise. Lies by themselves cannot create an affirmative case for the opposite party until and unless they are told to counter the affirmative case of the opposite party. Here, in the last issue of the case the Plaintiffs had nothing to prove and the Bank's affirmative case never materialised. The Plaintiffs made no admission. 72. At the end of the day the most that can be said was that the Judge was suspicious of the Plaintiffs but it has been well said before that all the suspicions in the world do not amount to a grain of evidence. 73. Both sides relied on the various observations of their Lordships in Onassis v. Vergottis ([1968] 2 Lloyd's Law Report 403) on appeal to the House of Lords in regard to the function of an appellate court hearing an appeal on findings of fact. I have of course borne those observations in mind. Save for the expert evidence which I have dealt with separately, there was virtually no conflict of evidence between witnesses called by the opposing parties for the trial Judge to evaluate. He hardly made any findings. In my view and for the reasons I have given the trial Judge misdirected himself on the evidence and this Court can and will interfere. 74. Mr. Yorke at the end raised the issue of a re-trial. I can see no justification for this as the Bank has fairly and squarely lost the issue that Mrs. P. was Madam X and had no affirmative evidence that the Plaintiffs were privy to the fraud. 75. I would allow the appeal and pronounce judgment for the Plaintiffs. 11th August, 1981. Representation: (1) [1957] 1 QB 247 (2) [1951] P.35, 36 and 37 (3) [1945] P.15 at p.20 (1) [1927] A.C. 37; (1926) 25 Ll.L.Rep. Rep. 377 (2) [1968] Lloyd's Law Reports at pp 428, 429 |