England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		22/06/2012

Lord Justice Toulson:

1. This is an appeal against the dismissal by DJ Purdy of a request for the extradition of the respondent for alleged offences described in the request as giving cheques in bad faith and fraud.
2. The judge dealt with the cheque charge as one of four cases, including that of Amanda Allen, in which we heard a simultaneous appeal and have given a separate judgment [2012] EWHC ………(Admin). That judgment sets out the relevant legislative framework.
3. In his judgment in all four cases the judge said:

"All four had lived in the UAE and all four entered into agreements involving loans from local banks with, in each case, post-dated cheques which, following default on repayments, were presented and returned [due to] insufficient funds leading to individual requests from the UAE for passing dud cheques in bad faith."

4. The facts of Mr Amir's case were rather different. The documents provided in the extradition request were not well organised, but it is possible with some difficulty to extract from them a coherent if incomplete story.
5. The judge dealt with the fraud charge in a supplemental written judgment on 26 January 2012, without further oral submissions. He accepted that the conduct alleged would amount to one of two offences if committed in England, theft or fraud, but he concluded that the evidence provided by the appellant was not sufficient to establish a prima facie case.
6. There were two complainants, a Mr Geoveridi (whose name is variously spelled in different documents) and a Mr Askari. Their complaints were about abortive property transactions.
7. The respondent was the owner of a one bedroom flat identified as unit 2904 South Retiz Tower, Near Bourj Khalifa, in Downtown Dubai. There is evidence that it was bought by him with a mortgage in May 2008. Mr Geoveridi made a complaint to the police on 20 July 2009. He said that he was contacted by the respondent in June 2009 saying that he had some property units for sale in the Downtown area. Mr Geoveridi agreed to buy a property unit in South Retiz Tower for Dhs 850,000 and an agreement was signed (which is not before the court). Mr Geoveridi gave the respondent an advance payment of Dhs 200,000. He did not identify the address in the evidence contained in the extradition request, but he described it as a one bedroomed flat, which he said was registered in the respondent's name, and the file opened in his case includes a copy of a certificate relating to the respondent's purchase of unit 2904 in May 2008. The evidence therefore tends to suggest that it was the relevant property.
8. Mr Geoveridi said that the respondent gave him two cheques, each post-dated 15 July 2009. One was for Dhs 200,000 (i.e. the amount of the deposit paid by Mr Geoveridi) and the other was for Dhs 150,000. He said that the cheque for Dhs 200,000 given to him by the respondent was by way of security for his performance of the contract. It was agreed that the property would be transferred to Mr Geoveridi within a month, and that if the respondent failed to do so Mr Geoveridi would be able to recover his deposit by presenting the post-dated cheque. He said that the cheque for Dhs 150,000 was a guarantee against an advance payment by Mr Geoveridi for another property unit, although Mr Geoveridi did not suggest that he made a second down payment. Mr Geoveridi did not give the date of the agreement, except that it was in June, but if the cheques were post-dated buy a month it would seem likely that the agreement was made in or by mid June.
9. Mr Geoveridi said that some time after the agreement the respondent contacted him to say that unfortunately there were difficulties and that he was unable to complete the transaction, but that he would repay the deposit. However, when pressed, he became evasive.
10. Mr Geoveridi duly presented both cheques but they were returned with the endorsement "refer to drawer". Mr Geoveridi thereupon went to the police.
11. Mr Askari's complaint to the police was made on 28 June 2009. His complaint did not involve a dishonoured cheque because he was never given a cheque by the respondent. His evidence was that he met the respondent on 21 June and agreed to buy unit 2904 for Dhs 650,000. A written contract was signed on 22 June, a copy of which was included in the extradition request. Mr Askari said that he paid Dhs 100,000 by cheque to the respondent as a down payment, but that two days after the cheque had been cleared he received a phone call from a person called Asad, whom he did not know. Mr Asad asked whether he had just agreed to buy the respondent's flat. Mr Askari confirmed that he had and asked how Asad had obtained his number. Mr Asad said that he obtained it from the security staff at the Tower and that Mr Askari was the latest in a line of people, including Mr Asad, who had agreed to buy the flat.
12. Mr Asad had said that he understood that there were three others, including an Italian whose name he did not know. After that conversation Mr Askari went to the police to complain that he had been duped by the respondent of Dhs 100,000.
13. Ms Hill properly submitted that what Mr Askari said that he had been told by Mr Asad that he had been told by other people was inadmissible second or third hand hearsay. Leaving that aside, I consider that the extradition request contains sufficient information to raise a prima facie case that the respondent defrauded Mr Askari of Dhs 100,000, as he complained to the police. The events described by Mr Askari have to be seen in the context of the events described by Mr Geoveridi. It seems likely, although not certain, that the property which the respondent agreed to sell to each of them was the same. Even if they were talking about separate flats in the same block, the similarity of Mr Geoveridi's experience to that of Mr Askari is still relevant in considering whether there is a prima facie case that the respondent was dishonest in his dealing with Mr Askari.
14. That is the only issue in relation to the charge regarding Mr Askari, because the district judge accepted that the alleged conduct satisfied the dual criminality requirements of the Act, and there is no appeal against that part of his ruling.
15. I have found it a more difficult question whether the judge was right in his ruling on the charge relating to the cheques given by Mr Geoveridi. It would have been simpler if the charge had been one of fraud, as in the case of Mr Askari. If on proper analysis the charge against the respondent in relation to Mr Geoveridi was purely that the cheques were dishonoured on presentation, I would have upheld the judge's decision, for the same reasons as in the case of Amanda Allen. Failing to honour a cheque is not an offence within s2 of the Fraud Act, as distinct from an earlier dishonest representation.
16. However, I have come to the conclusion that the particulars of the offence specified in the extradition request, although not as clear as they might be, on a fair reading do amount to an allegation that the giving of the cheques was part and parcel of a fraudulent deception by which the respondent induced Mr Geoveridi to pay him Dhs 200,000. This emerges from the minutes of investigation which form part of the extradition request. Mr Geoveridi there said:

"He cheated me by the way that he received an amount of AED 200,000 from me as an advanced payment for purchasing a property unit in South Retiz Tower in Down Town area and an agreement of contract was signed between me and him on the basis that within a month he must transfer the flat in my name and in case he fails to transfer the flat in my name I have the right to present the cheques to the bank…"

17. On that basis it seems to me that the specified offence would fall within s2 of the Fraud Act.
18. The evidence is also in my view sufficient to establish a prima facie case. The dishonouring of the cheques in the circumstances described by Mr Geoveridi itself gives rise to a case to answer. Ms Hill referred to the fact that on Mr Geoveridi's own evidence the respondent contacted him to say that unfortunately he was unable to complete the transaction. So he did, but he did not suggest that there was any reason that would prevent him from repaying the deposit. There is in the circumstances a case to answer that he never intended to do so, and his conduct towards Mr Askari provides additional support for the case against him.
19. I would allow the appeal.

Mr Justice Griffith Williams:

20. I agree.