England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM the Crown Court at Birmingham
T20077898 HHJ Inman and HHJ Mayo

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/01/2012

Mr JUSTICE HOLROYDE:

1. There are before the court five applications for leave to appeal against sentence. Each of the applicants was convicted by a jury of a conspiracy to cheat the public revenue, the nature of that conspiracy being what is commonly referred to as a MTIC carousel fraud relating to the VAT on sales of mobile phones during 2005. Three of the applicants were convicted in June 2010 at the conclusion of a trial before HHJ Inman QC and a jury. Of the remaining two applicants, one had been severed from the first trial. In relation to the other, the jury at the first trial had been unable to agree upon a verdict. There was a second trial before HHJ Mayo, which ended in March 2011 in the conviction of those applicants.
2. The five applicants, in the order in which they were originally indicted, are as follows:

a. Bhabdeep Singh Chahal (also referred to as Bobby Chahal) was born on 09.07.79 and so is now aged 32. He was convicted at the second trial and sentenced to 14 years' imprisonment. HHJ Mayo initially ordered that he be disqualified as a director for 20 years. It was subsequently brought to the attention of the judge that by virtue of s2(3)(b) of the Company Directors Disqualification Act 1986, the maximum permissible period of disqualification was 15 years, and in circumstances which we will consider shortly the judge varied his order by reducing the period of disqualification to one of 14 years. This application for leave to appeal against sentence was referred to the full court by the single judge solely because of a concern about the way in which that variation was made.

b. Charanjit Singh Chahal (also referred to as Charlie Chahal) was born on 08.12.76 and so is now aged 35. He was convicted at the first trial and sentenced to 15 years' imprisonment. He was initially disqualified as a director for 17 years, but that period was later varied to 14 years, and subsequently varied again to 12 years. No point arises in that regard. He renews his application for leave to appeal against sentence following refusal by the single judge.

c. Jaspal Singh Chahal was born on 04.09.79, and so is now aged 32. He was convicted at the first trial and sentenced to 10 years' imprisonment. The judge ordered that he be disqualified as a director for 12 years. He renews his application for leave to appeal against sentence following refusal by the single judge.

d. Jagprit Randhawa was born on 30.04.78, and so is now aged 33. He was convicted at the first trial. He too was sentenced to 10 years' imprisonment, and disqualified as a director for 12 years. He renews his application for leave to appeal against sentence following refusal by the single judge.

e. Philip Mallourides was born on 10.03.69 and so is now aged 47. He was convicted at the second trial, and sentenced to 6 years 6 months imprisonment. The judge ordered that he be disqualified as a director for 10 years. He renews his application for leave to appeal against sentence following refusal by the single judge.

3. Bhabdeep Chahal and Charanjit Chahal are cousins. In the spring of 2004 they jointly committed offences of conspiracy to launder the proceeds of criminal conduct, and conspiracy to use false instruments. In August 2008 (after the period of this conspiracy) they were both convicted of those offences, and sentenced to terms of imprisonment. They had no other previous convictions. None of the other three applicants had ever previously been convicted of any offence.
4. We do not think it necessary to go into any detail as to the nature of the conspiracy. It has been described in an earlier judgment in respect of the applications for leave to appeal against conviction which we have considered. It was of a kind which has become unhappily familiar to the courts over a number of years, involving rapid sequences of wholly artificial transactions relating to the sale and purchase of mobile phones, the true purpose of which - as the two juries found – was to enable those involved to cheat HM Revenue out of enormous sums of money.
5. Each of the applicants submits that his sentence of imprisonment was manifestly excessive in length. Save for the issue which arises in the case of Bhabdeep Chahal, no grounds of appeal are put forward against the periods for which each applicant respectively was ordered to be disqualified from holding any directorship.
6. The grounds of appeal against the sentences of imprisonment raise a number of points which are common to all of the applicants. First, it is submitted that both the starting point which HHJ Inman adopted in respect of Charanjit Chahal, and the starting point which HHJ Mayo adopted in respect of Bhabdeep Chahal, were excessive when compared with those passed in other cases of MTIC fraud, and that as a consequence the starting points in respect of the other applicants were also too high. This issue became the subject of detailed submissions before us, in particular by Mr Blaxland QC on behalf of Bhabdeep Chahal, and we are grateful for the assistance we received from counsel.
7. Secondly, each applicant submits that his own role in the conspiracy has been overstated by the judge, with the result that his sentence is too high.
8. As we have said, the applicants Randhawa, Singh and Mallourides were of previous good character. Each of them submits that the judge failed to give sufficient weight to that and to other features of his personal mitigation.
9. It is appropriate in our view to begin with a reminder that each of the applicants was convicted on overwhelming evidence of being a party to the conspiracy charged in the indictment. It is important to remember that the judges in passing sentence had to have regard to the overall scale of the conspiracy as well as to the individual role of each applicant within that conspiracy, and to the amount which the conspirators intended to obtain as well as the amount which they actually obtained. It was rightly described by both trial judges as a conspiracy on a vast scale.
10. HHJ Inman noted that the combined sum of fraudulent outputs of the companies controlled by the applicants who were tried before him was in excess of £300 million. Although those companies were for the most part used as buffer companies in the fraudulent carousels, each of them did in addition act on occasions as the exporter of the goods concerned, and thus made a dishonest claim for repayment of VAT. The judge indicated that during the indictment period of less than a year, the three companies of which Bhabdeep and Charanjit Chahal were directors had made VAT repayment claims approaching £16m, of which about £5m had been paid by the Revenue before their arrest. The company with which Randhawa and Singh were concerned had reclaimed VAT of some £3.2m, of which they had received about £2.3m. The judge observed that those figures related only to the transactions in which the applicants' companies acted as exporters, and did not include their sales to other fraudulent companies which made the exports.
11. Although it was not possible to calculate with precision the total losses to the revenue, HHJ Inman (in his sentencing remarks at p5B) concluded:

"On the basis of that evidence, I am sure this was a vast conspiracy designed to cheat the revenue of tens of millions of pounds, and by the time of your arrest had cost the revenue tens of millions of pounds. The agreement extended throughout Europe, the Middle East and the Far East"

12. HHJ Mayo similarly referred to the fact that the invoices total for the three Chahal companies was over £258 million. He went on to say (at p2C of his sentencing remarks):

"The starting point in attempting to assess the loss must of course, in my judgment, be the total VAT reclaims of those three companies … just under £19 million over the period of this indictment, namely 2005; although for reasons which all present here understand, that cannot be said to be the final figure of loss either occasioned by or intended by the parts played by [the applicants before him] in this conspiracy".

13. It should be noted that in the period between the two trials the investigating officers had continued their efforts to quantify the loss caused to HM Revenue. At the hearing before us, it was helpfully agreed between counsel that in relation to the conspiracy as a whole the identifiable reclaims of VAT amounted in total to £18.9 million, of which HM Revenue had actually repaid £7.8 million. Although those figures differ to some extent from the corresponding figures to which each of the judges below referred, it is not suggested that the difference is of any significance to the outcome of these applications.
14. On behalf of the prosecution, Mr Munday QC pointed out that in a sophisticated carousel fraud such as this, the reclaims of VAT are not always made by any of the companies which can be associated with a defendant: artificial trade transactions may be created in order to achieve a position in which an apparently unrelated company was able to reclaim VAT. The purpose of such an arrangement, as Mr Munday explained, is to minimise the risk that HM Revenue might be able to link the reclaim to a trader suspected of fraud, and on that ground refuse to pay it. The possibility therefore arises that reclaims of VAT may successfully be made by apparently "clean" traders who are not identified as participants in a suspected fraud. Hence our reference above to the value of the identifiable reclaims, by which we mean the reclaims identifiable as being made by a trader involved in the conspiracy.
15. Submissions have been made by Mr Blaxland (and adopted by other defence counsel) to the effect that HHJ Inman was in error in his assessment of the overall scale of the conspiracy, and that his error led to an unduly high starting point for sentence which was wrongly adopted by HHJ Mayo. The criticism of HHJ Inman is that in reaching his total of over £300 million he wrongly added up all the transactions made by the conspirators, overlooking the fact that in many instances they were artificially selling to and buying from one another, and so arrived at a total figure which far exceeded both the real loss to HM Revenue and the real gain to the conspirators.
16. We see considerable force in those submissions. Those who engage in a fraud of this nature have as their dishonest aim the obtaining of public money by way of reclaims of VAT. The carousel system of artificial transactions by which that aim is achieved will inevitably generate a large number of intermediate transactions, each of which should in principle be included in the calculation of the VAT returns completed by the traders concerned. But in broad terms, many of those returns will substantially cancel one another out, and will in themselves give rise at most to a modest reclaim of VAT. The substantial loss to HM Revenue, and the substantial gain to the fraudsters, come at the end of each sequence of artificial transactions.
17. For that reason, we accept the submission that the total value of identifiable VAT reclaims made or intended to be made, and the total amount actually paid out by way of VAT reclaim, will in most cases provide the most reliable starting point for sentencing. It will also provide the most reliable basis for a comparison with sentencing decisions in other cases, though we would emphasise that sentencing decisions are inevitably fact-specific and that a "like for like" comparison between cases will often be particularly difficult in frauds of this nature. However, it should not be thought that the total value of the transactions is irrelevant: on the contrary, it will assist the court to gauge the overall size, complexity and sophistication of the conspiracy. Nor should it be thought that the total value of reclaims and repayments will always be a reliable indication of the true gain to the fraudsters or the true loss to HM Revenue: for the reasons which we have mentioned above, a sophisticated carousel fraud may involve successful VAT reclaims which HM Revenue are unable to identify as linked to the conspirators. There is, plainly, a risk that a focus on the total amount of identifiable VAT reclaims and repayments might understate the true seriousness of a particularly sophisticated conspiracy. As a matter of principle, therefore, it does not seem to us to be possible to say that the courts must invariably focus upon the amount of VAT reclaimed and repaid: there may be circumstances in which that approach will not assist the court in its assessment of the seriousness of the crime. But in general, we are persuaded that such a focus will best assist the court both to assess the seriousness of a particular case and to set it into the context of sentencing decisions in other cases. We return to this point below.
18. In their respective sentencing remarks, each of the two judges considered the individual roles of the applicants within the overall conspiracy. Each of them did so with the benefit of having heard all the evidence in a long trial.
19. In relation to Charanjit Chahal, HHJ Inman found that his involvement included taking an active role in arranging the introduction of finance to assist the fraud, and concluded that he was "…at the very heart of this fraud, along with others both here and in Europe, orchestrating it, transferring funds both to maintain the fraud and to skim part of it off and to recruit others". The judge further concluded that on the evidence he had heard Charanjit Chahal's level of involvement and responsibility was equal to that of his cousin and co-director Bhabdeep Chahal.
20. It is submitted on Charanjit Chahal's behalf that the judge was wrong to take that view, because the evidence clearly demonstrated that it was Bhabdeep, not Charanjit Chahal, who was in control of the fraudulent activity. We reject that submission. We can see no basis on which there could be any challenge to the conclusion reached by the judge after weeks of listening to the evidence. It may well be that there were others, not arrested or charged, who could be said to be even higher than Charanjit Chahal in the chain of organisation; but the judge was nonetheless entitled to make the finding he did as to the importance of Charanjit Chahal's role.
21. So far as Randhawa and Singh are concerned, HHJ Inman noted that their company Letting Solutions UK Ltd played an important role in the conspiracy, including making some of the exports. He described that role as follows:

"What was revealed in the evidence is that the vast majority of fraudulent transactions you entered into were with companies other than a Chahal company – in other words, you were not simply a subservient company to those run by Charanjit Chahal: you were involved in circles of transactions which did not have to involve him or his companies" (p8C).

22. The judge pointed out that Randhawa and Singh's company had received warnings from the Revenue about the seriousness of MTIC fraud, but they had carried on regardless. He concluded:

"[You] were heavily involved in the running of this conspiracy. You were also not only well aware of its scope but each personally involved in the detailed finances of it and recipients of the overall profits … I consider, however, that your role was less overall than that of Charanjit Chahal and that you would have joined in what he and his co-director were doing rather than the other way round. I accept, therefore … that Letting Solutions UK was not set up for the purposes of fraud and that you joined in an existing conspiracy. But, as I have said, having joined it I am quite satisfied that thereafter you took a lead, not a subservient, role in it" (p10B).

23. Again, those conclusions are disputed by the applicants. Both submit the judge has overstated their respective roles. Again, however, we can see no basis on which there could be any challenge to the careful findings made by the judge at the end of a long trial.
24. HHJ Mayo concluded that Bhabdeep Chahal was an equal partner with his cousin Charanjit Chahal. They were among the controlling minds of the conspiracy. He noted that Bhabdeep Chahal had been arrested in 2004 in relation to the allegations which eventually resulted in his conviction in 2008, and was therefore on bail during the entirety of this conspiracy. As the judge observed "This makes his involvement in this fraud even more brazen". We are not persuaded that there was any arguable error in that assessment of Bhabdeep Chahal's role.
25. A specific point is taken on Bhabdeep Chahal's behalf that in the course of his sentencing remarks HHJ Mayo commented that it was entirely the applicant's fault that he was tried 12 months after his co-conspirators, because he had sought to derail the trial process by dismissing his legal representatives shortly before the first trial, and by thereafter refusing to accept service of the prosecution papers. We see force in counsel's complaint that he had no notice that the judge was going to make such a finding, and therefore no opportunity to make submissions as to why the finding was wrong. However, we are not persuaded that any error by the judge in this regard had any significant effect on the sentence which he passed.
26. The applicant Mallourides ran a company used by other conspirators as a freight forwarder. The judge found, and was entitled to find, that his company "was certainly established for a wholly fraudulent purpose", nearly all of its trade being in mobile phones. The judge accepted counsel's submission that only about one-eighth of the overall corrupt trade of the conspiracy passed through Mallourides' company; but it seems to us that that point is of little assistance to Mallourides in the light of the judge's finding that his business was wholly fraudulent from its inception. At p5G of his sentencing remarks, the judge added that Mallourides recruited staff, set up premises, established a document handling system dedicated almost entirely to MTIC fraud, knew that the goods were circulating to and from the continent, and supplied a vital service to his co-conspirators. He observed that Mallourides hid behind his respectability and cool professionalism to play a pivotal role.
27. Again, we can see no basis on which any of those conclusions of HHJ Mayo could successfully be challenged after the judge had heard all the evidence in the course of the trial. We have considered the other points made to us by Mr Bott QC on behalf of this applicant, but we are not persuaded that there is any matter of mitigation which the judge failed properly to take into account.
28. A further ground of appeal advanced on behalf of those convicted at the first trial relates to the refusal of HHJ Inman to make any reduction in the sentences on the ground of delay. It is submitted that almost 5 years passed between the arrest of the applicants and their eventual sentence, that the delay had been largely due to the prosecution and was not the fault of any defendant, and that their sentences should have been reduced for that reason. Reliance is placed on the cases to which we refer below, because many of the offenders in those cases did have the benefit of a reduction on that ground. The judge had that point well in mind, but correctly observed that the giving of a discount on grounds of delay was a matter for the discretion of the sentencing judge. In R v Castillo [2010] EWCA Crim 658 Griffith Williams J, giving the judgment of the court, said at para 25:

"Delay of itself may not justify a discount from sentence. In cases such as these it is inevitable that there will be delay. Much of that delay is the responsibility of the offender who took part in skilful and criminally-minded enterprises designed to frustrate the authorities in trying to detect the crime".

29. In the circumstances of this case, we regard this ground of appeal as unarguable. The applicants were of course entitled to have their trial. Their sentences were not a day longer because they did so. But having contested the trial, they have no ground for asking that their sentences be reduced because the proceedings took a long time. This fraud was deliberately made as complicated as possible in order to make it as hard as possible for the prosecuting authority to obtain the necessary evidence and to prove their guilt. That was the whole purpose of the use of buffer companies. We can see no ground on which it could be argued that the applicants, having been knowing parties to that deliberate complexity, can now seek a reduction in their sentences.
30. It follows that in our judgment each judge was entitled to reach the conclusions he did as to the amount of the identifiable VAT reclaims and repayments made in the course of the conspiracy, and as to the individual roles of these applicants within that conspiracy. We turn to consider whether it can be argued that the judge nonetheless took too high a starting point, or otherwise fell into error, in determining the appropriate sentences.
31. A number of decided cases have been drawn to our attention. On behalf of Bhabdeep and Charanjit Chahal, it is submitted that their sentences of 14 and 15 years were far too high, and that a sentence of less than 10 years was appropriate in the light of AG's Reference No 136 of 2007, R v Johnson & Others [2007] EWCA Crim 2837, R v Glover, Cox and Issitt [2008] EWCA Crim 1782, and R v Castillo [2010] EWCA Crim 658. Both submit that their respective positions cannot be equated with that of the appellant Hening in R v Hening & Senatore [2008] 1 Cr App R (S) 54, for whom a sentence of 15 years' imprisonment was upheld in this court. On behalf of Randhawa and Singh, it is submitted that the sentences of 10 years were too high and that the appropriate range was 6 – 8 years in the light of AG's references nos 88, 89, 90 and 91 of 2006, R v Meehan & Others [2006] EWCA Crim 3254, [2007] 2 Cr App R (S) 28. On behalf of Mallourides it is submitted that the starting point should not have exceeded 5 years.
32. We make the following observations. In AG's references nos 88, 89, 90 and 91 of 2006, R v Meehan & Others, the offenders were men who were not involved in the planning, organisation or running of the conspiracy. That was the category of offender for whom the bracket of 6 – 8 years was appropriate. This court made clear that those who organise the fraudulent activity, in cases involving sums such as the £38 million in that case, must expect sentences well into double figures.
33. In R v Glover, Cox and Issitt, Castillo and Hening this court dismissed appeals against sentences for this type of fraud, or renewed applications for leave to appeal. Thus in each of those cases this court simply found that in the particular circumstances the sentence imposed below was neither wrong in principle nor manifestly excessive. There is a limit to how far any of these applicants can be assisted by decisions of that nature.
34. In Johnson, this court had to consider both an application for leave to appeal against sentence, and an application by the Attorney General for leave to refer that sentence as unduly lenient. The offender had been involved in two MTIC frauds, by which the Revenue had been cheated of very large sums of money. Having considered the several issues which arose in that case, this court neither reduced nor increased a total sentence of twelve and a half years. Hughes LJ, giving the judgment of the court, said of that total sentence (at paragraph 20) "… it could have been longer, but we are quite satisfied that it could not be said to be unduly lenient".
35. In the course of submissions about those previous decisions of this court, a particular problem emerged. We have indicated above our view that in general, a focus on the total value of identifiable VAT reclaims made or intended to be made, and the total amount actually paid out by way of VAT reclaim, will best assist the court to assess seriousness. On reading the earlier cases, however, it was not apparent whether such a focus had been adopted, and it was therefore difficult to ascertain whether figures quoted in the judgments were the sums reclaimed or the total value of transactions. We therefore reserved our judgment to allow Mr Munday an opportunity to obtain detailed instructions as to the amounts of VAT reclaimed and repaid in earlier cases.
36. It appears from Mr Munday's researches that in both Johnson and Henning the figures referred to by the court had been calculated by adding up the total amount of VAT which could be identified as having been paid by those who nominally purchased the mobile phones from the missing traders. Plainly, that is not the same basis of calculation as we have felt it appropriate to take as the starting point for sentencing purposes. Some indication of the difficulty of achieving a "like for like" comparison in these cases is given by the submissions made to us in the light of Mr Munday's researches: Mr Munday submits that if the Johnson and Henning approach were adopted in this case, it would show a loss to HM Revenue of about £48 million, whereas Mr Blaxland submits that such an approach would show a loss of about £35 million. Those contrasting submissions show the difficulty of achieving a true "like for like" comparison, and strengthen us in our view that the starting point which we have suggested above should in future be adopted.
37. We therefore take as our focus the identifiable VAT reclaims totalling £18.9 million and the VAT repayments totalling £7.8 million. Having regard also to the overall scale and sophistication of the fraudulent transactions involved in this conspiracy, we have to consider whether it is arguable that sentences of 14 years and 15 years for Bhabdeep and Charanjit Chahal were manifestly excessive.
38. There are no sentencing guidelines applicable to this case. The guidelines for statutory offences of fraud (carrying a maximum of 10 years' imprisonment) do not extend to offences of cheating, or conspiring to cheat, the public revenue, for which the penalty is at large. Such offences are reserved for the most serious cases, where a sentence in excess of the statutory maximum for other offences may be appropriate. This is, on any view, a most serious case, in which very large sums of money have been obtained by a sophisticated fraud carried on over a period of nearly a year.
39. In our judgment, the sentences of 15 years for Charanjit Chahal and 10 years for Randhawa and Singh were within the range properly open to HHJ Inman in the light of the findings he had made. Similarly, in our judgment, the sentences of 14 years for Bhabdeep Chahal, and six and a half years for Mallourides, were within the range properly open to HHJ Mayo in the light of the findings he made. It cannot be argued that any of the sentences was manifestly excessive in length.
40. That being so, can it assist Charanjit Chahal to point to the fact that at the second trial HHJ Mayo shared the view of HHJ Inman that the two cousins were equally involved but nonetheless passed a somewhat shorter sentence on Bhabdeep Chahal? It is unfortunate that HHJ Mayo did not expressly state why he did so. In our judgment, there is no necessary reason why HHJ Inman's sentence, proper in itself, should be altered because of the sentence passed by another judge some 8 months later. We do however think that in a case in which there is every reason to treat the two Chahals in the same way, it is unsatisfactory that they should end up serving different sentences. Without in any way criticising the sentence imposed by HHJ Inman, we think that justice will be done if we reduce Charanjit Chahal's sentence by one year so that it is the same as that imposed on his cousin.
41. With that exception, we see no reason to interfere with any of the prison sentences imposed.
42. We turn finally to the issue concerning the period of Bhabdeep Chahal's disqualification as a director. It arose in this way. The 20-year period of disqualification originally ordered was in excess of the jurisdiction of the court. We were informed by Mr Blaxland that the error was subsequently brought to the attention of the court, and it was that which prompted HHJ Mayo to exercise his power under s155 of the Powers of Criminal Courts Act 2000 to vary his order. However, the role of the defence in raising the point was not apparent on the face of the papers considered by the single judge, who was understandably concerned that the applicant had not been given the necessary opportunity to make representations and to attend or to be represented at a hearing in open court. In the light of what Mr Blaxland has told us, that concern can to some extent be allayed. There remains however a concern that there was no opportunity for submissions to be made as to the length of the disqualification which should be imposed by way of variation. Having regard to the decision of this court in Shacklady (1987) 9 Cr App R (S) 258, and to the provisions of rule 42.4 of the Criminal Procedure Rules 2011, we do not regard any procedural error into which the judge fell as rendering his variation a nullity. It does however give rise to a ground of appeal, and we have come to the conclusion that the period of disqualification should be the same in Bhabdeep Chahal's case as it is in the case of his cousin.
43. In the result, our decisions are as follows: we grant leave to each of the applicants and (with the consent of their counsel) treat the hearing of the applications as the hearing of the appeals. We grant representation orders for leading and junior counsel who appeared before us. In the case of Bhabdeep Chahal, we allow his appeal only to the extent that we quash the existing period of disqualification from being a director, namely 14 years, and substitute for it a period of 12 years. In the case of Charanjit Singh, we allow his appeal only to the extent of reducing his sentence of imprisonment from 15 years to 14 years, with an order that any days on remand which counted towards his original sentence should continue to count towards our sentence. In all other respects, the appeals fail and are dismissed.