R. v.TSE CHUNG-FAT

HEADNOTE

Defence of bona fide claim of right is not raised by a contractor who has forged a cheque to obtain payment for extras in circumstances where he has not presented any itemised account in relation thereto and has not obtained approval either express or implied with regard to the amount claimed therefor.

Date of Hearing: 29 & 30 October 1992

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J U D G M E N T

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Power, J.A.:

1. This is the judgment of the Court.

2. The applicant faced a charge of obtaining property by deception, contrary to s.17(1) of the Theft Ordinance, a count of forgery of document, contrary to s.72(1) of the Crimes Ordinance, and a count of uttering a forged document, contrary to s.74(1) of the Crimes Ordinance. He pleaded not guilty to all three charges and was, after trial before Deputy Judge Ma in the District Court, found not guilty of the 1st count and guilty on the 2nd and 3rd counts. He was sentenced to 10 months imprisonment on each count to be served concurrently. He now appeals against those two convictions and sentences.

3. The particulars of the 2nd count were that on or about the 18th of July 1990, at an unknown place in Hong Kong with intent to defraud, he forged a document,. namely a withdrawal slip of Yien Yieh Commercial Bank of $12,000Hong Kong currency, purporting to be $412,000- Hong Kong currency. The particulars of the 3rd were that he, on the 18th day of July 1990, at Yien Yieh Commercial Bank Limited, No.491 Ground Floor, Castle Peak Road, Kowloon, uttered a withdrawal slip drawn on Yien Yieh Commercial Bank for the sum of $412,000- Hong Kong currency, knowing the same to be forged and with intent to defraud.

4. It was the Crown case that the Building Authority required the owners of Nos. 22, 24, 26 and 28 Pak Tai Street to carry out specified renovations and repairs to their building. The owners of No. 22 carried out their repairs. The management committees of buildings Nos 24, 26 and 28 formed a Joint Management Committee which, after negotiation with the applicant, who was the proprietor of the Wing Tai Engineering Company Limited, contracted with that company to carry out the necessary repairs and renovations for a total agreed fee of $894,000. 'There was a separate contract for each building. As these contracts are for practical purposes identical it is necessary to look only at the contract that relates to No.28. It states:

"The following contract is made upon agreement of both parties after numerous discussions relating to the whitewashing of the exterior and interior walls, renovation, water piping, drainage, communal metal-wares, communal antenna and major repairing and installation of the door-phone system of the Pak Tai Building at No. 28 Pak Tai Street, Kowloon."

It goes on to identify the parties as the Owners Incorporation of No. 28 and the Wing Tai Engineering Company Ltd. It specifies a "Total Works charge" of $298,600. After specifying the "Scope of Works", it sets out ten "Remarks". We are concerned primarily with Remark No. 8 which reads as follows:

"Payments: The Owners Incorporation must authorize and assist our Company to collect the works charge direct from the occupants and it is to be deposited into our Company's (bank) account. Occupants must pay the works charge in full within ten days upon signing the contract. Our Company would collect the payments by four stages: (1) first payment of 358 would be collected upon the delivery of scaffolding bamboos to the works site, (2) payment of 308 upon completion of half of the drainage works and the interior renovation, (3) payment of 308 upon completion of works and (4) the balance of 58 be collected after dismantling of the scaffolding and after six months(sic). Our Company would open a temporary joint account (with a bank) specially for this contract of works. Withdrawal of money should be affected by four signatures, including my own signature: other than myself who must give signature, two representatives each from No.24, 26 and 28 should be nominated and one of the two of them from each block should give signature. Abiding to the payment conditions, payments must be made punctually and not be overdue for more than two days (counting from the day of payment advice). if any member of Owners Incorporation of any block deliberately delay or refuse to give signature and such is found unreasonable upon assessment of appointed person, that particular Owners Incorporation and its member(s) has to pay compensation."

5. Pursuant to the agreement, a bank saving account was opened at the Lai Chi Kok Branch of the Yien Yieh Commercial Bank on 29th March 1990. Owners of each unit made deposits into that account as from 7th April and on 10th April the work commenced. On 23rd April 358 of the total contract price was paid to the defendant, being the specified first instalment in the sum of $311,850. The next instalment, being 308 of the Total Works Charge, was payable on completion of half of the drainage works and the interior renovation.

6. On 17th July 1990, at about 9 p.m. representatives of the Joint Management Committee held an extraordinary meeting inside the conference room on the rooftop of one of the buildings. During this meeting, the applicant arrived, having been informed by some members of the Committee that it was taking place. We will later look in detail at the applicant's evidence about this meeting. Suffice for the moment to say that the applicant asked for payment of the second instalment, being $260,000, and for payment of a further sum of $12,000 for the demolition of a chimney. He. had brought with him withdrawal slips made out in those two sums. The representatives of the Joint Management Committee refused to sign the slips alleging that the second instalment was not due as the second stage of works had not been completed. The applicant said that the second stage was complete or virtually complete and he confirmed this in his evidence. Eventually, the Committee agreed to pay $130,000, that being half of the second instalment, and' the $12,000 and agreed that the balance of the second instalment was to be collected before 25th July 1990. The applicant then completed a bank withdrawal slip in the sum of $130,000 and the parties signed the two slips. The applicant also signed a receipt acknowledging that he had received the two sums. The applicant in his evidence admitted that shortly thereafter, he altered the slip for $12,000 so that it read $412,000 and that he then withdrew that amount using the slip. It was from these actions that the charges arose.

7. Mr. Sedgwick Q.C., who appears with Mr. Nguyen, has argued five grounds of appeal:

"l.    The Learned Judge erred in finding that there was a case to answer in respect of the 2nd charge, namely: forgery of a document contrary to Section 72(1) of the Crimes Ordinance, Chapter 200, Laws of Hong Kong in that there was no evidence that the Appellant forged the document which was the subject matter of the charge."

Mr. Sedgwick submitted that until the applicant himself gave evidence, there was no sufficient evidence to establish that it was applicant who had forged the document. We do not intend to dwell upon this ground suffice to say that we are satisfied that there was ample evidence from which the District Court judge could infer that it was the applicant who perpetrated the forgery.

8. Ground 2:

"2.    In respect of the 2nd charge (being forgery of a document contrary to Section 72(1) of the Crimes Ordinance, Chapter 200, Laws of Hong Kong), and of the 3rd charge (being uttering a forged document contrary to Section 74(1) of the Crimes Ordinance, Chapter 200, Laws of Hong Kong), the Learned Judge erred in finding that the appellant had an intent to defraud having regard to the fact that he claimed that he was entitled to the sums withdrawn and failed to consider this defence."

This ground was amended without objection into its present form in the course of the hearing. Its thrust is that the trial judge wholly failed to address himself to the defence of bona fide claim of right. He would, of course, if such a defence arose out of the evidence, be required to address himself to it. He would have to be satisfied before convicting that the Crown had proved beyond reasonable doubt that the applicant did not hold any such bona fide claim. Such a claim was certainly not adverted to in terms by the trial judge and as there is no transcript of defence counsel's address, it remains uncertain whether it was raised by him. Mr. Sedgwick, while he concedes that such a defence may not have been specifically raised, submits that it did arise in the evidence and that it was incumbent upon the judge to consider it. Mr. Sedgwick submits that, when the evidence of the applicant is examined, it is clear that he was making a bona fide claim of entitlement to an amount in excess of the $412,000 which he obtained.

9. To see whether this is so we must now look with care at the evidence of the applicant. Mr. Sedgwick submits that the evidence of the applicant disclosed a bona fide claim to entitlement not only to the second instalment of $260,000 and to the payment of $12,000 but also to additional payments which raised the figure owed to him to an amount in excess of $500,000. He undoubtedly gave evidence claiming that he was owed the amounts of $260,000 and the $12,000 a total of $272,000. He also, however, said that he had agreed that the payment of $130,000 of that amount was to be "collected before 25.7.1990" - seven days after he presented the forged withdrawal slip and obtained the $412,000. It would certainly be arguable that he agreed thereby that the Committee had up to 25th July to pay that amount and that he would defer action to obtain it until after that date. If that were so, it might be further argued that no bona fide claim of right could exist for the amount of $130,000 prior to 25th July. The prosecution did not, however, seek to put the matter upon that basis. As the matter was argued, the real question for our determination was whether the applicant gave evidence which raised a bona fide claim for the difference between that $272,000 and the $412,000 which he obtained.

10. He said that the first instalment had been paid to him late as the Joint Management Committee had not honoured its word and he told of the difficulties between himself and Mr. Hon Keung who he said had made numerous objections from the outset. He said that by June, he had done sufficient work to entitle himself to the payment of the second instalment and that he had asked for it in mid-June but that the Joint Management Committee was "pushing the matter about". He said that four of the members, including Hon Keung, objected to the things that had been done and that even though some members of the Committee "were minded to make payments Hon would scold them". The other members were quite submissive to him because they said Hon was a Kung Fu master and a rather fierce man. He said that all of the drainage work which, it appeared included additional drainage work, was completed by early July and that he had also installed "an extra column of drainage pipe" in No. 28. He said that he paid his drainage sub-contractor on 17th July 1990 and that he went in the evening to the Committee Meeting. The relevant evidence given by him thereafter is as follows:

"Q. What money did you ask?

A. Second instalment.

Q. Only second instalment?

A. Second instalment and also some other money for additional work."

We pause here to note that, on his own evidence, Hon and three others were complaining as to some of the work done which was to have been paid for by the second instalment.

Q. In July, what other money that you asked?

A. The money were say, installation of cameras in the lifts - they said at least four robberies in the lifts in the buildings. They said (sic) me to make preparations for the installation of cameras in the lift.

They also asked me to look for second hand surveillance cameras, because a new system was costly. And I get the request from them that if I came across a second hand system I should purchase for them first.

It so happened, I could find three such systems which costs $12,000 each system. I purchased three systems for them, the equipment including a camera and a monitor. The three Owners' Incorporation of 24, 26, 28 were not on good terms with that of No.22

They had a plan of relocating the caretaker office from No.22 to underneath the staircase of No. 26. This plan was decided by them. The three monitors were to be installed at No.26 in future.

Their main office is now situated at No.26 under the staircase. The place was occupied some people. Re-possession of the place was done through legal means. The arrangements were prepared by me on their behalf. The metal gates at the three entrances of the building, according to initial plan, the gates were to be repainted only, then at a later stage, there was a change of mind, the gates were to be replaced with stainless steel gates.

Q. What additional work?

A. The drainage pipes hidden in concrete, according to customs of our trade, are not included in the contracted work, unless there is a specific instruction to work on those parts.

Q. What else?

A. There were two pipes not included. Their Mr. Tsang spoke to one of my workers - saying that those drain pipes had to be replaced first and the fees chargeable would be paid for sure.

Q. Was it included in contract?

A. Not included.

Q. Up to 17.7.90, how much money had you spent on labour and materials?

A. I spent at least $500,000."

It seems to us clear from this evidence that he had never quantified the amount which he said was owed for the additional work. His evidence continues:

"Q. How come you joined their meeting on 17.7.90?

A. There was someone from their (sic) telephoning me to attend  the meeting.

Q. Whof

A. Mo and Tsang.

Q. What happened at meeting? What did you say?

A. When I arrived, I said to them the work has reached the stage when the 3rd installment  was done, why the 2nd instalment was still owing to me?

Q. What works still undone?

A. Communal antenna, intercom, letter boxes. Letter boxes were not installed, therefore there had been a change of ideas. Originally the boxes were of aluminium, later they wanted stainless steel boxes. I already placed order for aluminium letter boxes. I did not take delivery of the boxes. I had to wait for their final decision whether they wanted to change to stainless-steel letter boxes.

Q. Any change of price?

A. Very much, the costs of stainless-steel was nearly three times the costs of aluminium.

Q. Did you discuss with them?

A. I did.

Q. What did you ask?

A. In the meeting, I asked them to settle the 2nd instalment first before further discussion about other additional costs.?"

The witness here appears to be saying that, while he was more than entitled to the second instalment as he had done work that went beyond what was covered by it, there would have to be "further discussion about other additional costs".

"Q. What happened?

A. I meant to ask them to pay me the' whole sum of 2nd installment. Hon appeared to refuse to pay anything.

Q. Did anyone member indicate you should be paid?

A. Yes.

Q. Hon's reaction?

A. Hon became rough. He scolded Mr. Tsang. He accused Tsang if he had a share from what I earned.

Q. Then?

A. I pushed them for settlement of payment. Committee members had arguments. I noticed the members were quite afraid of Hon. Tsang did not say further.

Q. What did you do?

A. Then at end of argument he said a number of them said that. Hon started the 1st one, 'It is now unknown if there was sufficient fund in the account let the payment be made in the sum of $130,000 first.

Q. Did they sign on withdrawn-slip for $130,000?

A. Yes.

Q. Was the slip prepared at the beginning of meeting?

A. No, it was a blank new one.

Q. When that was filled in, had you agreed with them about additional work?

A. No, not yet.

Q. P.4 - receipt for $130,000.

Q. Did you write this receipt?

A. Yes.

Q. Left column?

A. Yes, my hand writing.

Q. What did you write down?

A. All drainage work to be completed. The balance of 2nd instalment to be collected before 25.7.1990.

Q. When you write the 1st part what percentage of drainage work was undone?

A. 100  percentage, all had already been completed.

Q. Why write before 25.7.1990?

A. It was like this, the drainage work was done and this receipt was just written in the form of a draft for them in the meeting. Why the amount of $130,000. It was therefore they were not sure if there were sufficient fund in the bank account.

Q. Why did you (say) (sic) to their suggestion?

A. I said I had already done a lot of work. I had done work to the worth of several hundred of thousands of dollars.

Q. Why 25.7.1990?

A. Yes. At that stage, I needed to be paid by at least several $100,000 more. They were not sure of bank balance. The Bank passbook was kept by me. I could remember by 25.7.1990, the fund in the account should be sufficient to settle my fees.

At that time^-, I said the fees due to me to the time of several $100,000, there were also extra charges due to me. On top of contractual sum. The whole sum of money should belong to me at end of day. They also agreed that the money belonged to me.

Q. Then?

A. I said all right, just put down a sum of money on the slip first. On due day, when bank account had sufficient fund I will draw the money. If fund were not sufficient, then I would not present the slip for payment.

Q. Had the slip been written out?

A. Yes, $130,000 already put down.

Q. Did you suggest a figure?

A.  I named several $100,000.

Q. What was the response?

A. Hon raised the^- strongest objection. I also gave them a reminder that their signatures on withdrawal slip only served as a means of supervision this was only a matter of formalities as according to our agreement, they were' not held responsibilities for those moneys. I also said to them in case they posed so much obstruction in making payment; the works would hardly be completed, not to mention those additional work. A lot of material had been purchased and other moneys spent. I also reminded them, it was dated in the contract that any wilful obstruction, coupled with numerous breaches of contract, I had the right to take legal action against them. So finally those people did not say anything further.

Q. Slip of $12,000?

A. They said money due to work done for No.24 was to be separately treated money was for removal of chimney. There was other additional costs for the removal of chimney, i.e. clearance of debris, it was quite a large sum of money to clear debris. The chimney was 2 x 2' so the bricks was large enough for 15 trucks to carry away each truck would cost $700.00 that chimney was ten storey high.

Q. Other money?

A. Yes, when I made out the slip, I put down $12,000. I did not have any more withdrawal slip. I got only two slips. It was suggested the other money for the chimney would be considered later.

Q. Did you tear off any slip on 17.7.1990 meeting?

A. No.

Q. What did you (do) then?

A. After the slip of $12,000, 1 asked them to settle further payment in the time several $100,000.

Q. Why you asked them?

A. Therefore the work I had done on the project had exceeded the worth of 2nd instalment and additional work was done for them. And 2nd instalment was due to me in June. Additional charges would be above $200,000.

Q. What was their reaction?

A. I had given reminding warning that I could take legal action against them. Many of them were silent.

Q. Then?

A. Then I left the meeting.

Q. What did you think was the main cause of your difficulty?

A. The main cause that several of them had such an idea that they were not concerned if money could be collected or not. If money was not collected sufficiently, it would be my bad luck. They were only afraid of one thing i.e. if they withheld signing the withdrawal slip wilfully, I would take legal action against them."

Later in the examination in chief there appeared the following exchange:

Q. When you added those figures, did you have anything in mind, as to who would object to it?

A. On evening of 17.7.1990 I had had a word with them with the exception of Hon, none of the members would have any objection to my withdrawal from the account the several $100,000 more.

"Q. Up to 17.7.1990, how much did you spend on material, how much did you spend on labour?

A. Material and labour together were about $500,000.

Q. After 17.7.1990, how much did you spend on material-and labour?

A. About $300.000 some expenditures were deferred but orders were placed for those things. Some material were left over from previous works .........."

11. Under cross-examination, the following exchange occurred:

Q.    There were additional work to the tune of  several $100,000? Oral agreement only? Yes.

A. About $200,000.

Q. You agreed that a written contract could protect you?

A. In our trade, it is a custom for those miscellaneous items. As a matter of fact, work done to the worth of $200,000 is not a large sum.

Q. Notwithstanding Hon Keung being obstructive, you were still prepared to buy material to the tune of $200,000?

A. I was of the opinion that after this project was completed. If they refused to admit or make me the money for the additional work. I would take out a series of legal actions to claim against them. The Owner's Incorporation - the people who gave me instructions to do those work."

Q. Shown P.8 - letter from solicitor. In October, you went to see your solicitors?

A. Yes.

Q. Your solicitors wrote a letter to the Owner's Incorp.?

A. Yes.

Q. There was no mention of additional work to the tune of $200,000 in the letter?

A. At that time, there had not been a proper computation as to how much the total was. Those extra charges.

Q. Between 18.7.1990, and November 1990, you never ascertain the total value of the additional work?

A. Because continually a lot of extra items of work could have to be done."

We think it significant that, in the applicant's own words, there was, in October, no "proper computation" of the total of the extra charges.

12. The law as to bona fide claim of right is in our respectful view correctly stated in Kastratovic [1985] 19 A.Crim.R. 28 by White J. when he said, at.p.55:

"The cases of Lopatta, Langham, Smith, Salvo, Brow and Bonollo and many others constitute clear authority for the proposition that honest belief in a claim of right is a complete defence and entitles the accused to an acquittal, if that claim is accepted as a reasonable possibility by the jury, no matter how extravagant or unreasonable or dishonest the means used."

13. Mr. Sedgwick contended that this evidence squarely raised the issue of bona fide claim of right and that the conviction is flawed as the judge failed to consider it.

14. Mr. Bruce for the Crown submitted that what the evidence did, at best, was to indicate that the applicant had, when negotiating, in order to press home his demand, made mention of an additional claim which would, at some future time, be quantified and presented. He submitted that such evidence could never raise a bona fide claim of right.

15. He relied upon the evidence that the applicant went to the meeting with the intention of making two claims: one for $260,000, being the second instalment, and the other for $12,000: He submitted that, on the applicant's own evidence,, what he did when he found difficulty in obtaining agreement to pay these two amounts was to point out to the meeting that he had an entitlement to them under the agreement and that he sought, by way of argument, to reinforce the merit of his claim by pointing out that he had already incurred further expenses for extras. He submitted that it was plain from the applicant's evidence that there was neither submission of accounts in relation to the extras nor agreement as to the amount owed therefor. King C.J. in Kastratovic sets out the law with regard to bona fide claim of right as follows:

"The application of the principles which I have derived from the authorities appears to lead to the conclusion that a person is not defrauded if he is caused to do no more than pay his just debt. If no more occurs than that, he cannot be said in any true sense to have acted to his detriment or to have been prejudiced in any lawful right, interest, opportunity or advantage. He has been caused to do no more than perform his lawful obligation. The only case in the books which directly decides the point decided it in that sense: Williams [1836] 7 Car & P 354; 173 ER 132. The accused was charged with obtaining two sacks of malt from a debtor of his employer by falsely pretending to the debtor's wife that his employer had purchased the malt from her husband. The accused took the malt to his employer to enable him to pay himself the debt. Coleridge J. in summing up to the jury said:

'yet if, in this case, you are satisfied that the prisoner did not intend to defraud Peter Williams, but only to put it in his master's power to compel him to pay a just debt, it will be your duty to find him not guilty. It is not_. sufficient that the prisoner knowingly stated that which was false, and thereby obtained the malt; you must be satisfied that the prisoner at the time intended to defraud Peter Williams.'

It would seem then that an intent to do no more than procure the payment of a debt which is presently due and payable to the accused, or which the accused believes to-be presently due and payable, by the alleged victim is not an intent to defraud and is not converted into an intent to defraud by the employment of dishonest means or the means. which are forbidden by the statute. That proposition, however, should not be understood in a wider sense than intended. It can apply only to a belief that the debt is presently due and payable. An intent to procure by dishonest means the payment of a debt at a date which is earlier than the due date to the detriment of the debtor would be an intent to defraud. Moreover I think that the proposition must be confined to a state of mind which excludes any belief that there is a genuine dispute about or reasonably available defence to the accused's claim."

We refer particularly to the words "an intent to do no more than procure the payment of a debt which is presently due and payable to the accused, or which the accused believes to be presently due and payable ......". We have no hesitation in holding that in circumstances such as this, a person who has never presented a quantified bill for the extras and who has never obtained agreement as to the amounts which he seeks to charge cannot be held to have raised the "possibility" that he had a bona fide belief that he had an immediate entitlement to be paid therefor. A bona fide claim of right to payment could, in such circumstances, only arise after presentation of a quantified bill, or the equivalent thereof, to which there was either express or tacit agreement. A suggestion of the existence of unquantified amounts owed for extras which will in due course be made specific, in our view, falls considerably short of raising a bona fide claim of right. The trial judge was, therefore, not called_. upon to consider any such claim.

16. Mr. Sedgwick next submitted that, when considering whether there had been an intent to defraud, the trial judge had failed to apply the second limb of Ghosh, that is to ask himself whether or not he was satisfied that the defendant had realized that what he was doing was contrary to the standards of honesty of ordinary reasonable people. This in our view is plainly not so as the trial judge specifically found that "the defendant himself must have realized that what he was doing was by those standards dishonest."

17. Ground 3:

"3.  That if this Honourable Court grants leave to call Mr. Victor Chan, a competent officer of the Yien Yieh - Commercial Bank, that evidence will reveal that the bank account known as 'Wing Tai Engineering Co' was an account maintained with the Yien Yieh Bank by the Appellant's sole proprietorship firm and that moneys held in that account were choses in action belonging to the Appellant's sole proprietorship firm and no one else and that the Appellant could, without the authority of other co-signatories, have removed them from' his mandate to the bank and that the bank was never defrauded of the moneys referred to in the charges and that by reason of that evidence; the Appellant's appeal against convictions on both counts ought to be allowed."

The application to call Mr. Chan was withdrawn, however, the thrust of this ground was maintained as Mr. Sedgwick argued that the accounts and the moneys therein belonged in law to the applicant as the account was in the name of the company of which he was the sole proprietor. We are satisfied that this submission is, given the words of the contract which were that the parties would open 'a temporary joint account', untenable.

18. Ground 4. Under this ground Mr. Sedgwick argued that the judge had failed to take into account the evidence which was relevant to show lack of mens rea on the part of the applicant. Mr. Sedgwick submitted that the trial judge had failed to bear in mind that it had been agreed between the parties that it was the applicant who would pursue defaulting owners, and that the applicant undoubtedly believed himself to be entitled to $260-,000, the second payment. Mr. Sedgwick argued that the trial judge had not only failed to take these matters into account, but that he had equated the duplicity involved in forgery with the intent to defraud which was required to be proved in each charge. He submitted that the judge being satisfied that the applicant had duplicitously forged the withdrawal slip, proceeded without further consideration, to the finding that he had an intention to defraud. He relied-particularly upon two passages in the Reasons for Verdict:

"I find that he knew the members of the committee would not consent to paying to him an amount of $412,000 on the 17.7.90. In complete disregard of the rights of the authorized signatories, he decided to take the law into his own hand."

"I find that it is proved beyond reasonable doubt that the Defendant knew at all material times that, he had no right to alter the figure on the withdrawal slip and he had no right to prejudice the interests of the committee members and the Bank."

19. Mr. Sedgwick submits that these show that the trial judge was really concerning himself with the duplicity involved in the forgery and not with whether the applicant was dishonest in a way which would establish intent to defraud. Mr. Bruce contends that when the judgment is read as a whole it is clear that the trial judge rejected the defendant's evidence that he did not have any dishonest intention and that he made a positive finding, having referred to Ghosh, 75 Cr.App.R. 154, "that the defendant had acted dishonestly by the standards of ordinary and decent people and I also find that the defendant himself must have realized that what he was doing was by those standards dishonest."

20. The findings of the judge, in our view, make it clear that he was satisfied that the defendant was dishonest and had an intent to defraud both when he forged the cheque and when he presented it for payment. We do not accept either that the judge failed to consider relevant evidence or that he somehow confused the duplicity involved in forgery and the dishonesty involved in an intent to defraud.

21. The fifth ground argued was that the conviction was overall unsafe and unsatisfactory.--we have given anxious consideration to this whole matter as clearly the difficulties which arose were ones which might, had the parties not adopted such confrontational stances, have been resolved by negotiation or, at worst, by a civil action. Having said that, we are nonetheless quite satisfied that the defendant was guilty of both-offences as charged-, and that the trial judge was right so to find, and that the convictions are neither unsafe nor unsatisfactory.

22. The applications for leave to appeal against the convictions are dismissed.

Re Sentence:

23. We do not repeat the facts generally as they are already set out in the judgment which we have just delivered. We do, however, stress the observations in the penultimate paragraph of that judgment in which we observed that had the parties not adopted such confrontational stances they might have resolved the matters by negotiation or at worst by a civil action. What the applicant did was high handed and unlawful but we are satisfied that he acted on the spur of the moment out of a keenly felt sense of grievance which he had considerable justification for holding. We are satisfied in all the circumstances that custodial sentences were not called for. We therefore grant the application, order that the hearing of the application to be the hearing of the appeal. We quash these two sentences of 10 months imprisonment, and we impose in place therefore suspended sentences of 10 months, suspended for 12 months, which are to run from today.