REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
APPEAL JUDGMENT
Case Title:
Cheng Li Appellant
and
The State Respondent
| Case No: HC-MD-CRI-APP-CAL-2024/00025 | |||
Division of Court: Main Division | ||||
Heard on: 6 December 2024 | ||||
Heard before: Shivute J et Claasen J | Delivered on: 7 February 2025 | |||
Neutral citation: Li v S (HC-MD-CRI-APP-CAL-2024/00025) [2025] NAHCMD 29 (7 February 2025) | ||||
Order: The appeal against conviction is dismissed. | ||||
Reasons for order: | ||||
SHIVUTE J (CLAASEN J concurring):
[1] The appellant was charged in the Magistrate’s Court sitting in Swakopmund with forgery and uttering a forged instrument knowing it to be forged alternatively, fraud. He tendered a plea of not guilty on the charges. However, at the end of the trial, he was convicted of uttering a forged document knowing it to be forged.
[2] Dissatisfied with the decision of the court a quo, he lodged this appeal against the conviction.
Grounds of appeal [3] Overall it was contended that the court a quo had misdirected itself in finding that the appellant had uttered a false instrument knowing it to be forged. As a consequence of an acquittal of forgery and alternative charge of fraud, the court a quo must have found that the essential elements of uttering were absent for the following reasons:
Background [4] On 11 April 2019, the appellant approached Sergeant Goagoses at Swakopmund Police Station. The appellant handed to her an original temporary driving licence as well as the copies of the temporary driving licence for certification. When she inspected the original document, she noted that the photo on it appeared to be blurred and the said document had no signature. Sergeant Goagoses became suspicious of the document and consulted her colleagues. An inquiry was made at the Municipal Traffic Office, Swakopmund and it came to light that the appellant was not registered as a licence holder on the system. He had no driving licence or temporary driving licence. An inquiry was made with the appellant. The appellant informed the police that someone couriered the temporary driving licence to him from Windhoek.
[5] There was further evidence from Mr Bamm who worked at NATIS that the temporary driving licence had an indication that it was issued in Windhoek. He put the identification number that was on the temporary driving licence on the system, but it showed that the person whose particulars were on that document had no driver’s related record on the system, which was a clear indication that the document was forged. He, further, testified that the badge on a temporary driving licence would be on a particular spot. However, the badge on this particular licence overshadowed the code. The picture on the licence was lighter than it was supposed to be. There was no signature on the temporary driving licence. In normal circumstances, the appellant would be asked to sign at the counter and the signature would be verified.
[6] The appellant’s version was that, he is a Chinese National who obtained his driving licence in 2008/2009 in Beijing, China. It was translated and converted to an international driver’s licence. He had it with him when he came to Namibia in 2013. Thereafter, he decided to obtain a Namibian driving licence. He handed his documents from China twice to NATIS for conversion of his licence into a Namibian driving licence but he was never issued with a receipt by NATIS. He then approached a certain Mr Dahai who claimed to be an agent of NATIS for Chinese nationals in Namibia. They met at China Town. The appellant handed over all his documents relating to this licence to Mr Dahai. He accompanied Mr Dahai to NATIS office to take a photo in order for his driving licence to be processed. At NATIS office, his photo was taken and he also signed. He paid N$15 000 to Mr Dahai for his licence to be processed. [7] He was told to wait for his licence. However, he decided to leave the office. Later on, he received a call informing him to collect his temporary driving licence from China Town. He was informed that he would be issued with the card licence after two weeks. After he collected his temporary driving licence he drove back to Swakopmund. After one to two months, he did not get his card licence. He inquired from Mr Dahai but all was in vain. During March 2019, he was informed by Mr Dahai that he could not get a card licence because, the licence was not on the system. Mr Dahai told him to send the temporary licence back as he wanted to rectify the situation. Before he sent it back, he went to the police station for the copies to be certified and this resulted in his arrest.
Argument by counsel [8] It was argued on behalf of the appellant that the court misdirected itself by convicting the appellant on a charge of uttering, yet he was acquitted on the charge of fraud, when the two crimes share common elements which were found lacking under the fraud charge but deemed to have been proved for the charge of uttering. Counsel further argued that, the appellant did not commit the crime of uttering because, he did not know that the temporary driving licence was false and could, therefore, not have passed it off with an intention to deceive.
[9] Counsel for the appellant again argued that, had the appellant been convicted of both fraud and forgery the two former grounds of appeal would not have existed. I pause here to state that, it appears counsel for the appellant is labouring under a mistaken belief that it is possible to convict the appellant on both the main and alternative counts. Such view by counsel is untenable as it is impermissible in our law to convict on both main and alternative counts.
[10] Counsel for the appellant argued that, although the appellant had passed off the document, he did not know it was forged. He was made to believe by Mr Dahai that the document was genuine. The court’s acquittal of the appellant on forgery is an indication that he did not forge the document. Therefore, no inference could be drawn that he knew the instrument was false. Counsel further argued that by drawing inferences from circumstantial evidence, the court a quo applied the test wrongly as the two cardinal rules of logic as set out in R v Blom 1939 AD at 188 were not satisfied, are articulated as follows:
‘The inference sought to be drawn must be consistent with all the proved facts. If it is not, then the inference cannot be drawn. The proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn. If they do not exclude other reasonable inferences, then there must be doubts whether the inference sought to be drawn is correct.’
[11] It was again a point of criticism that the court a quo convicted the appellant on insufficient evidence because, the State failed to prove the elements of intention to deceive and actual or potential prejudice to a third party.
[12] On the other hand, counsel for the respondent argued that even though there is no direct evidence of the appellant forging the document, from the evidence adduced before the court a quo, the only inferences to be drawn is that, when the appellant approached the police station in order to have the copy certified, he knew that there was something wrong with the temporary licence. It should have been suspicious to him as to why and how his licence is not on the system, especially after having paid a substantial amount of N$15 000. The appellant was aware of the fact and possibility that the driver’s licence he uttered to Sergeant Goagoses was a false instrument and as a result, intended to misrepresent to the Sergeant that it was a genuine driving licence. The moment it came to the appellant’s attention that there was something wrong with the temporary driving licence and that it was not on the system, he should not have taken any further steps to use the driver’s licence.
[13] Furthermore, counsel for the respondent contended that the inconsistency in the explanations given by the appellant on how he came to possess the licence shows that his version could not have been reasonably possibly true. Firstly, he informed Sergeant Goagoses that the licence was couriered to him from Windhoek to Swakopmund and secondly, he explained during his testimony in court that he picked up the licence from China Town in Windhoek.
[14] Again, counsel for the respondent argued that, the appellant failed to give a reasonable explanation on a balance of probabilities to satisfy the court that he did not have the necessary mens rea. The appellant was under a duty to make sure that the licence that was in his possession and which he uttered was not false. The appellant in his testimony testified that he was informed by Mr Dahai that since his licence was not on the system, he must courier it back to Windhoek for it to be rectified or corrected. If that explanation was true, then he would not have gone ahead to make copies and attempt to have them certified. Although, the appellant alleged to have paid Mr Dahai N$15 000 to get his driver’s licence, he was not issued with a receipt for such payment. It was counsel’s further argument that given all the evidence placed before the court a quo, the appellant knew that the driver’s licence he uttered was forged and urged the court to dismiss the appeal.
[15] Both counsel referred us to authorities in support of their propositions which I have had the occasion to consider.
Applicable legal principles and conclusion. [16] The central issue to be determined concerns whether the appellant committed the offence of uttering a forged document. C R Snymann on Criminal Law, 6th edition at 535 defines the offence of uttering as follows:
‘Uttering consists in unlawfully and intentionally passing off a false document to the actual or potential prejudice of another.’
[17] The same author stated further that, ‘uttering, like forgery, is merely a species of fraud, and the elements of prejudice and intention to defraud are similar to the corresponding elements in the crime of fraud. The requirement of a false document is the same as in the crime of forgery. The only element in the definition of this crime which does not form part of the definition of forgery is the “passing off” of the document. This phrase means that the document is communicated to another person by, for example an offer, delivery or attempt to make use of it in some or other way. The person who utters the document must present it as genuine.’
[18] There is no doubt that the appellant uttered documents to Sergeant Goagoses, one of the documents was an original temporary driving licence and others were copies of the temporary driving licence. The purpose for these documents to be handed to Sergeant Goagoses was for the copies to be certified as true copies of the original document. The appellant’s version was that, before he took the documents for certification and before he uttered them to Sergeant Goagoses, he was informed by a certain Mr Dahai who was involved in obtaining the driving licence for him, that he should courier back the temporary driving licence to Windhoek for it to be rectified or corrected because, there was something wrong with it and that the original temporary driving licence was not registered on the NATIS system. It is a notorious fact that NATIS is the entity responsible for issuing driving licences in Namibia.
[19] However, despite the appellant being told that there was something wrong with the licence and it was not registered on NATIS system, he proceeded to utter the said document to a police officer for certification purposes. Furthermore, the appellant testified that when he was taken to NATIS by Mr Dahai for his licence to be processed, his photo was taken and he also signed.
[20] However, the temporary licence that was uttered by the appellant did not bear a signature. The temporary licence had three anomalies that made it to be suspicious as mentioned earlier. One of those anomalies was a lack of signature of the licence holder.
[21] An intention is a state of mind and it can be proven from the accused’s actions or omissions. This court, having assessed all the evidence in its totality and considering the learned magistrate’s reasons as contained in her judgment, is of the view that the court a quo was not wrong to draw inferences from the proven facts.
[22] As we pointed out in paragraphs 18 - 20 of this judgment, all indicators are that the appellant unlawfully and intentionally uttered or passed off a false document to the potential prejudice of another. The appellant himself might not be the person who forged the document, but the evidence shows that he was aware that the document or temporary driving licence was not genuine. His explanation that he lacked mens rea and unlawfulness to cause actual or potential prejudice cannot be reasonably possibly true, under the circumstances. Therefore, the court a quo was justified to reject it as false beyond reasonable doubt. We therefore, find no misdirection on the part of the court a quo to warrant this court’s intervention. If follows that this appeal is bound to fail.
[23] In the result, the following order is made:
The appeal against conviction is dismissed. | ||||
| ||||
N N SHIVUTE JUDGE | C M CLAASEN JUDGE | |||
Counsel: | ||||
Appellant | Respondent | |||
S Morwe Appellant Morwe & Associates Incorporated, Windhoek | A Amukugo Respondent Office of the Prosecutor-General, Windhoek | |||