Chapter 22
OFFENCES UNDER THE THEFT ORDINANCE
(CAP 210)
Michael Chai
Sect.
I.
II.
III.
IV.
V.
VI.
VII.
VIII.
IX.
X.
XI.
XII.
XIII.
XIV.
XV.
XVI.
XVII.
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . .
Theft . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Robbery and assault with intent to rob . . . . . . . . . . . .
A.
Robbery . . . . . . . . . . . . . . . . . . . . . . . . B.
Assault with intent to rob . . . . . . . . . . . . . . . Burglary and aggravated burglary . . . . . . . . . . . . . . A.
Burglary . . . . . . . . . . . . . . . . . . . . . . . . B.
Aggravated burglary . . . . . . . . . . . . . . . . . . Removal of articles from places open to the public . . . . .
Taking conveyance without authority . . . . . . . . . . . . A.
The simple offence . . . . . . . . . . . . . . . . . . Abstraction of electricity . . . . . . . . . . . . . . . . . . . Dishonest use of public telephone or telex system . . . . . Fraud . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Obtaining by deception . . . . . . . . . . . . . . . . . . . .
A.
Obtaining property by deception . . . . . . . . . . .
B.
Obtaining pecuniary advantage by deception . . . . C.
Sections 18A, 18B, 18C and 18D . . . . . . . . . . . D.
Obtaining services by deception . . . . . . . . . . . E.
Evasion of liability by deception . . . . . . . . . . . F.
Making off without payment . . . . . . . . . . . . . G.
Procuring entry in certain records by deception . . .
False accounting . . . . . . . . . . . . . . . . . . . . . . . .
Offences relating to companies and company directors . . . . Suppression, etc of documents . . . . . . . . . . . . . . . .
A.
Statute . . . . . . . . . . . . . . . . . . . . . . . . . B.
Destroying a will . . . . . . . . . . . . . . . . . . . . C.Procuring the execution of a valuable security by
deception . . . . . . . . . . . . . . . . . . . . . . . .
D.
Jurisdiction . . . . . . . . . . . . . . . . . . . . . . .
Blackmail . . . . . . . . . . . . . . . . . . . . . . . . . . . Handling stolen goods . . . . . . . . . . . . . . . . . . . . Going equipped to steal . . . . . . . . . . . . . . . . . . . Theft Ordinance (Cap 210) enforcement and procedure . . . A.
Search for stolen goods . . . . . . . . . . . . . . . . B.Evidence and procedure on charge of theft,
handling stolen goods and obtaining by deception . . . .
C.
Orders for restitution . . . . . . . . . . . . . . . . . D.
Husband and wife . . . . . . . . . . . . . . . . . . . E.
Verdict . . . . . . . . . . . . . . . . . . . . . . . . . F.
Effect on civil proceedings and rights . . . . . . . . G.Effect on existing law and construction of
references to offences . . . . . . . . . . . . . . . . . H.
Mode of trial . . . . . . . . . . . . . . . . . . . . . . I.
Transitional provisions . . . . . . . . . . . . . . . . 407
Para.
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22–1
Offences Under the Theft Ordinance
[Chap. 22
I. INTRODUCTION
Theft Ordinance (Cap 210)
22–​1
The Theft Ordinance is based upon and closely follows the equivalent English legislation, namely the 1968 and 1978 Theft Acts. The 1968 Act is based on “a fundamental reconsideration of the principles underlying this branch of the law” (Criminal
Law Revision Committee, Eighth Report, Cmnd 2977). The 1978 Act was intended to
remedy perceived defects in the 1968 legislation. The offences created by the Theft
Act 1978 have been incorporated in Hong Kong by way of amendment to the Theft
Ordinance (Cap 210).
II. THEFT
(1) Definition
Theft Ordinance, ss 2 to 7
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Basic definition of “theft”
2.—​(1) A person is guilty of theft if he dishonestly appropriates property belonging
to another with the intention of permanently depriving the other of it; and “thief” and
“steal” shall be construed accordingly.
(2) It is immaterial whether the appropriation is made with a view to gain, or is made
for the thief’s own benefit.
(3) Sections 3-​7 shall have effect as regards the interpretation and operation of this
section (and except as otherwise provided by this Ordinance shall apply only for purposes of this section).
3.—​“Dishonesty”, see para.22-​18, below.
4.—​“Appropriates”, see para.22-​25, below.
5.—​“Property”, see para.22-​41, below.
6.—​“Belonging to another”, see para.22-​51, below.
7.—​“With the intention of permanently depriving the other of it”, see para.22-​61, below.
(2) Indictment
(a) General
Itemising the property
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Where it is possible to itemise the property stolen, this should be done and expressions
such as “and other goods” should be avoided: R v Yates, 15 Cr App R 15, CCA. Vague
expressions such as “a quantity of money” or “a quantity of watches” may fall foul of the
Indictment Rules, rule 3(1) (subsidiary legislation to the Criminal Procedure Ordinance
(Cap 221) as not giving “reasonable information as to the nature of the charge”, and, in
any event, it is undesirable that upon conviction, the record should provide no indication
of whether the defendant stole, for example, HK$5 or HK$5,000. When a number of
stolen goods of the same kind, for example, mobile phones, are involved in a number of
charges of theft, the particular stolen goods should be identified clearly in each charge,
for example, with reference to the colour, manufacturer and model number, HKSAR v
Chen Xiangdong (CACC 121/​2016, 12 May 2017). However, where the particulars make reference to money, it is not necessary to itemise any specific coin(s) or banknote(s): section
20 of the Criminal Procedure Ordinance. If the exact amount stolen is unknown, then
suitable words can be used (eg “approximately” or “valued together at between HK$500
and HK$750”). Where out of necessity, a less precise form of wording is used, but the
evidence subsequently clarifies the issue, the indictment should be amended to accord
with the evidence.
It is not necessary to prove all the articles mentioned in the indictment to have been
stolen; if it is proved that the defendant stole any one of them, it is sufficient: Machent
v Quinn [1970] 2 All ER 255, DC; R v Parker, 53 Cr App R 289, CA (per Donaldson J
at 289). The jury must be agreed on which particular article was stolen (see R v Brown
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(K), 79 Cr App R 115, CA, para.4-​201 et seq, above) and the sentence should relate only
to the articles proved to have been stolen.
Charge distinct takings
As to the general rule that only one offence should be charged in a single count,
see para.1-​91 et seq, above. As to the “continuous offence” and “general deficiency”
exceptions in allegations of theft, see para.1-​133 et seq, above.
Whether the facts constitute one offence or more than one offence is a question of fact
and degree: R v Wilson (R), 69 Cr App R 83, CA (a case of taking articles from different
departments of the same store, para.1-​137, above). The court clearly contemplated that in
some cases it will still be the right course to charge separate offences in respect of separate
takings from the same store. Many aspects of the defendant’s conduct may be relevant to
the determination of this question, but the most important consideration will normally
be the extent to which the takings were separated in time and place. See also Heaton v
Costello [1984] Crim L R 485, DC, where the defendant had selected various items in a
department store and, upon going through the check-​out, paid the correct price for certain items, paid a reduced price for a bottle of cider having swapped the price label and
did not pay at all for two other items. It was held to be proper to include in one charge of
theft the two articles not paid for and the bottle of cider because the defendant’s conduct
was properly described as constituting a single activity.
Where an employee is alleged to have stolen various items from his employer, and it
is apparent to the prosecution that the items were stolen on different occasions and that
different defences may be advanced in relation to different items, there should be separate counts: R v Jackson (The Guardian, 20 November 1991, CA (91 05435 X3)). Jackson was
distinguished in Barton v DPP [2001] 5 Archbold News 2, DC (para.1-​134, above).
22–​4
Amendment
Where the evidence discloses that more than one offence of theft was committed
and the general deficiency point, above, does not arise, a count that alleges a single
offence of theft involving articles that were the subject of more than one offence,
should be amended by deleting all but the articles involved in a single offence.
Ordinarily, there could be no objection to a further amendment by way of adding
one or more counts that would relate to the other independent thefts or transfer: R
v Radley 58 Cr App R 394, CA, para.1-​140, above. As to the principles that govern the
amendment of an indictment, see para.1-​139, et seq, above.
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(b) Alternative counts
General
The relationship between theft and other offences under the Theft Ordinance has
given rise to a number of legal, practical and academic problems. Most of these problems
have arisen out of the relationship between theft and handling. However, they do not only
arise as between the offences of theft, simpliciter, and handling stolen goods. The offence
of robbery, contrary to section 10(1) of the Theft Ordinance (para.22-​66, below), by definition includes an allegation of theft, and the offences of burglary contrary to section
11(1) (para.22-​82, below) and aggravated burglary contrary to section 12(1) of the Theft
Ordinance (para.22-​95, below) will frequently include such an allegation. Robbery and
aggravated burglary carry a higher maximum penalty (life) than handling stolen goods
(14 years); burglary carries the same maximum penalty. The penalties for theft, robbery,
burglary, aggravated burglary and handling stolen goods are provided for by sections 9,
10(2), 11(4), 12(3) and 24(2) respectively: para.22-​66, 22-​82, 22-​95 and 22-​215, below.
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Theft and handling
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See para.22-​215 to 22-​250, below.
Theft and obtaining property by deception
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See para.22-​126 to 22-​153, below.
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Offences Under the Theft Ordinance
[Chap. 22
Alternative counts of theft
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In R v Dowdall and Smith, 13 Cr App R (S) 441, CA (following R v Young, 12 Cr App
R (S) 29, CA), it was held to have been inappropriate to have alternative counts with
varying particulars to cater for different possibilities as to how the defendant stole the
property in question. One count had alleged theft of a purse from the victim’s handbag (reflecting the prosecution’s case), with a second count alleging theft by finding
(the defendant’s version). The court rejected a suggestion in R v Devall [1984] Crim L
R 429, CA, that this was appropriate. Alternative averments that particularise different
methods of appropriation are immaterial averments, and in effect leave to the jury
questions that are not for them to determine. If sentence turns on which version is
right, a judge can either accept the defence account or try an issue as to the circumstances, in accordance with R v Newton, 77 Cr App R 13 (para.5-​11, above).
(3) Alternative verdicts
Under the Theft Ordinance
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On an indictment for theft under section 9 of the Theft Ordinance, the defendant
may be convicted, where appropriate, of any of the following offences: taking conveyance without authority (section 14), obtaining property by deception (section 17),
obtaining pecuniary advantage by deception (section 18), obtaining services by deception (section 18A), evasion of liability by deception (section 18B), making off without
payment (section 18C), false accounting (section 19), handling stolen goods (section
24), or going equipped for stealing (section 27); see schedule to the Theft Ordinance.
Generally
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For alternative verdicts generally, see para.4-​263 et seq, above and section 51 of the
Criminal Procedure Ordinance (Cap 221). Where reliance is placed upon section
51(2) of the Criminal Procedure Ordinance, the alternative offence must be expressly
or impliedly disclosed in the charge or indictment. Whether an alternative is impliedly
included in the indictment depends on the mode of pleading (R v Wu Tao-​sheung
[1991] 1 HKLR 599; R v Mandair [1994] 2 WLR 700; [1995] 1 AC 208) or where it is a
statutory offence, the language of the statute (R v Mandair [1994] 2 WLR 700; [1995]
1 AC 208). Also see section 27 of the Magistrate Ordinance (Cap 227).
(4) Sentence
Generally
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Theft as an offence covers a broad range of criminal conduct and sentences
imposed vary. See also Chapter 5 on sentencing.
Maximum
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The maximum sentence for theft upon conviction on indictment is 10 years’ imprisonment: Theft Ordinance, section 9.
In respect of offences committed in connection with motor vehicles (ie stealing a motor
vehicle, an offence under section 14(1) of the Theft Ordinance in respect of a motor
vehicle, an offence under section 27 of the Theft Ordinance committed with reference to
the theft or taking of motor vehicles), the court may, under section 69 of the Road Traffic
Ordinance (Cap 374), order the defendant to be disqualified from driving for such period
as the court thinks fit. See Chapter 34 on motor vehicle and driving offences.
(a) Guidelines
Breach of trust
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Typical breach of trust cases relate to situations where a person is, by virtue of the trust
reposed in him, authorized to deal with property belonging to another and, in abuse of
that rust, dishonestly misappropriates that property. (HKSAR v Lam See Chung Stephen
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[2013] 5 HKLRD 242). In HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242, it was
held that the employer’s stealing and using of the post-​natal carer’s credit card, which
was left in the baby’s room while she was working, was an opportunistic exploitation of
circumstances and an abuse of position instead of an abuse of trust. In HKSAR v Cheung
King [2001] 3 HKLRD 68, a letter of credit fraud case, the Court of Appeal held that the
fact that the system generally adopted in business for letters of credit largely depended
upon trust did not make the case a breach of trust case. In HKSAR v Chik Wai Wan Stephen
(CACC 254/​2008, [2009] HKEC 410), the applicant deceived his friend to invest into a
company to which he was a shareholder by handling and handing to his friend a financial
report of the company, which was a forgery. The Court of Appeal held that being one
who handled the detailed accounts of the company and thereby being privy to its financial position did not make the applicant’s act of deceiving his friend a breach of trust.
In cases involving breach of trust, immediate imprisonment is almost inevitable, save
in very exceptional circumstances or where the amount of money obtained is minute.
Matters that the court should have regard to when determining the proper sentence
include: (a) the quality and degree of trust reposed in the offender including his rank;
(b) the period over which the fraud or the thefts have been perpetrated; (c) the use to
which the money or property dishonestly taken was put; (d) the effect upon the victim;
(e) the impact of the offences on the public and public confidence; (f) the effect upon
fellow employees or partners; (g) the effect on the offender himself; (h) the offender’s
history; (i) matters of mitigation special to the offender such as illness, being placed
under great strain by excessive responsibility or the like, and any help given by him to the
police: see R v Barrick, 81 Cr App R 78. However, an offender’s occupational status is not a
mitigating factor, per se, as there is no proper basis for distinction amongst breach of trust
cases simply on the basis of the offender’s occupation. “Professional men should expect
to be punished as the others; in some cases more severely” (per Lord Lane LJ in Barrick).
In SJ v Wong John [2014] 2 HKLRD 278, in considering SJ’s application to withdraw the
application for review of sentence, which was granted, the Court of Appeal noted that a
sentence of community service order and fine in that case, involving substantial amount,
breach of trust and lengthy time over which the offence was committed, was not appropriate despite the distinguished career of positive good behaviour of the respondent.
The Court of Appeal, however, in light of a combination of exceptional positive good
character and the fact of re-​compensation, further noted that the court “might be persuaded not to have taken issue with a suspension of a sentence of … imprisonment”.
The sentencing principles and guidelines in Barrick were followed in the case of R
v Chan Wing-​chan (CACC 525/​1989, [1990] HKLY 462) and have been further considered and applied since R v Clark [1998] 2 Cr App R 137 and remain applicable in
Hong Kong: see Secretary for Justice v Wong Kay Din (CAAR 7/​1998, [1999] HKEC 499);
HKSAR v Leung Shuk Man (CACC 230/​2001, [2002] HKLRD (Yrbk) 377), CA. Secretary
for Justice v Chiu Chun Wai (CAAR 1/​2007, [2007] HKEC 2109).
The tariffs have been considered and converted into Hong Kong dollar bands. See
HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776, subsequently revised in HKSAR v Ng
Kwok Wing [2008] 4 HKLRD 1017, CA: (a) involving $15 million or more: 10 years or
above; (b) involving $3 million to $15 million: 5 to 10 years; (c) involving $1 million
to $3 million: 3 to 5 years; (d) involving $250,000 to $1 million: 2 to 3 years; and
(e) involving $250,000 or less: below 2 years.
The guidelines of HKSAR v Cheung Mee Kiu and HKSAR v Ng Kwok Wing have been
referred to in many cases, irrespective of whether the charge was one of theft, fraud, or
conspiracy to defraud when the defendant was shown to be in a position of trust, but
care must be exercised in less straight-forward cases where the amount stolen or benefit
obtained cannot readily be ascertained. In HKSAR v Leung Chun Hei [2023] 2 HKLRD
391 (CA), the victim company, upon the suggestion of the defendant (a senior sales
manager), implemented a scheme such that a particular promotion fund of the victim
company could be used to subsidise certain customers who met particular sales targets,
which, as a result, $9.3 million was provided from such fund to a company controlled and
owned by the defendant’s wife. The victim company would not have agreed to the defendant’s suggestion if the relationship between the defendant and the company was known.
The Court of Appeal considered that the $9.3 million could not be directly taken as the
“money stolen”, or “benefit obtained” but it was a sum calculated on a commercial basis, a
mere pointer of the scale of fraud instead of the actual loss.
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Offences Under the Theft Ordinance
[Chap. 22
(5) Elements of the offence of theft
Four elements
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“Theft … involves four elements: (a) a dishonest (b) appropriation (c) of property
belonging to another (d) with the intention of permanently depriving the owner of
it”: per Megaw LJ in R v Lawrence, 55 Cr App R 73, 78, CA. The House of Lords specifically approved this and added that there is not to be implied a further requirement
that the dishonest appropriation must be without the consent of the owner: Lawrence
v Metropolitan Police Commissioner [1972] AC 626, HL; R v Gomez [1993] AC 442, HL.
The appropriation, the dishonesty and the intention to permanently deprive must
coincide: R v Vinall (George Alfred) [2012] 1 Cr App R 29.
(a) Dishonesty
Theft Ordinance (Cap 210), s 3
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3.—​(1) A person’s appropriation of property belonging to another is not to be
regarded as dishonest—​
(a) if he appropriates the property in the belief that he has in law the right to
deprive the other of it, on behalf of himself or of a third person; or
(b) if he appropriates the property in the belief that he would have the other’s
consent if the other knew of the appropriation and the circumstances of it; or
(c) (except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom
the property belongs cannot be discovered by taking reasonable steps.
(2) A person’s appropriation of property belonging to another may be dishonest not-​
withstanding that he is willing to pay for the property.
The test of dishonesty
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Dishonesty is a specific ingredient not only of theft but also of a number of other
offences under the Theft Ordinance. The offences are: abstracting electricity (s. 15,
para.22-119, below); dishonest use of public telephone or telex system (s. 16, para.22122, below); obtaining property by deception (s. 17, para.22-129, below); obtaining a
pecuniary advantage by deception (s. 18, para.22-158, below); obtaining services by
deception (s. 18A); evasion of liability by deception (section 18B); making off without payment (s. 18C); procuring entry in certain records by deception (s. 18D); false accounting
(s. 19); suppression, etc, of documents (s. 22); procuring the execution of a valuable
security by deception (s. 22(2)); and handling stolen goods (s. 24). In addition, the
offences of burglary and aggravated burglary (ss. 11 and 12, para.22-82, 22-98, below) will
very often include a theft; the offence of robbery (s. 10, para.22-67, below) presupposes
an offence of theft; and the offence of going equipped (s. 27, para.22-264, below) will
nearly always involve an intent to commit an offence, an ingredient of which is dishonesty. There is no doubt that the test of dishonesty will be the same in all these offences.
The leading authority is R v Ghosh [1982] QB 1053; 75 Cr App R 154, CA. Having
reviewed many of the earlier (difficult to reconcile) authorities, Lord Lane concluded
that there were two aspects to dishonesty, the objective and the subjective, and that
the tribunal of fact, in determining the issue, would have to go through a two-​stage
process before it could convict the defendant. He held at 1064:
In determining whether the prosecution has proved that the defendant was acting dishonestly, a jury must first of all decide whether according to the ordinary standards of
reasonable and honest people what was done was dishonest. If it was not dishonest by
those standards, that is the end of the matter and the prosecution fails. If it was dishonest by those standards, then the jury must consider whether the defendant himself
must have realised that what he was doing was by those standards dishonest. In most
cases, where the actions are obviously dishonest by ordinary standards, there will be no
doubt about it. It will be obvious that the defendant himself knew that he was acting
dishonestly. It is dishonest for a defendant to act in a way which he knows ordinary people consider to be dishonest, even if he asserts or genuinely believes that he is morally
justified in acting as he did. For example, Robin Hood or those ardent anti-​vivisectionists
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who remove animals from vivisection laboratories are acting dishonestly, even though
they may consider themselves to be morally justified in doing what they do, because they
know that ordinary people would consider these actions to be dishonest.
In relation to the “ordinary standards of reasonable and honest people” in the first
limb, in R v Hayes (Tom Alexander) [2016] 1 Cr App R (S) 63, a case concerning manipulation of the LIBOR rate, the English Court of Appeal held that the jury should not be
directed to take into account the standards of the market. The objective standards of
honesty were not set by a market, but from time to time the markets have been shown to
adopt patterns of behaviour which were dishonest by the standard of honest and reasonable people. However, such matter was relevant to the second limb; the subjective limb.
R v Ghosh has been applied in Hong Kong: R v Sze Sing-ming [1991] 2 HKLR 481, CA;
HKSAR v Tsun Shui Lun [1999] 3 HKLRD 215; HKSAR v Goh Swee Yan [2000] 3 HKLRD
342, CA; cf Mo Yuk Ping (2007) 10 HKCFAR 386. Whether a Ghosh direction needs to be
given will depend on the circumstances of each case: HKSAR v Cheng Wai Chun (CACC
258/2000), CA. There is no need to give a Ghosh based direction unless the defendant has
raised the issue that he did not know that anybody would regard what he did as dishonest:
R v Roberts (W) (1987) 84 Cr App R 117, CA. See also R v Price (RW) (1990) 90 Cr App R
409, CA (a Ghosh direction need only be given where the defendant might have believed
that what he was alleged to have done was in accordance with the ordinary person’s idea of
honesty). When a Ghosh direction is to be given , it is wise to use the actual words of Lord
Lane CJ: R v Vosper (The Times, 26 February 1990), CA; R v Ravenshead [1990] Crim L R 398,
CA; R v Green [1992] Crim L R 292, CA; R v Hyam [1997] Crim L R 440, CA.
Section 3(1) of the Theft Ordinance applies only to the offence of theft; its significance in the context of Ghosh is submitted to be as follows: if the jury conclude that the
defendant had, or may have had, one of the beliefs set out in paras (a), (b) and (c) of
s 3(1), then they must as a matter of law answer the first of the two questions in Ghosh
in favour of the defendant. See also R v Woolven, para.22–22.
In Ivey v Genting Casinos (UK) Ltd (trading as Crockfords Club) [2017] 3 WLR 1212, a case
involving a civil claim made by a professional gambler for the sums which he had won,
where the defendant contended that the claimant had cheated, the UK Supreme Court,
by way of obiter, rejected the second limb of R v Ghosh. Although the Supreme Court has
concluded that dishonesty is not a legal element of cheating, the Supreme Court has nevertheless examined the test of dishonesty in R v Ghosh. It has been held that the second
limb of R v Ghosh does not correctly represent the law and the directions based upon it
ought no longer to be given. The objective test adopted in civil cases (Royal Brunei Airlines
Sdn Bhd v Tan [1995] 2 AC 378 and Barlow Clowes International Ltd v Eurotrust International
Ltd [2006] 1 WLR 1475) is preferred: When dishonesty is in issue, the fact-​finding tribunal must first ascertain subjectively the actual state of the individual’s knowledge or belief
as to facts. Having established the actual state of mind as to knowledge or belief as to
facts, the question whether the conduct was honest or not is to be determined by applying the objective standard of ordinary decent people. There is no requirement that the
individual must appreciate that what he has done is dishonest by the objective standard.
In R v Barton [2020] 3 WLR 1333, the England and Wales Court of Appeal has held that
the decision in Ivey is correct and to be applied as the law of England and Wales. The test
is (a) what was the defendant’s actual state of knowledge or belief as to the facts; and (b)
was their conduct dishonest by the standards of ordinary decent people? Whilst for the
time being R v Ghosh remains good law in Hong Kong, it may be a matter to be considered by the Hong Kong courts when opportunity arises.
Ignorance of the law
The fact that a defendant did not know what was criminal and what was not or that
he did not understand the relevant principles of the law could not save him from
conviction if what he did, coupled with his state of mind, satisfied the elements of the
offence of which he was accused. However, where the defence is that no dishonesty
had been involved, it may be necessary to explain to the jury the clear distinction
between a defendant’s lack of knowledge of the law, and his appreciation that he was
doing something which, by the ordinary standards of reasonable and honest people,
was regarded as dishonest: R v Lightfoot, 97 Cr App R 24, CA.
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Offences Under the Theft Ordinance
[Chap. 22
Claim of right
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To come within the terms of section 3(1)(a) of the Theft Ordinance, the defendant must believe that in law he has the right to deprive the other of his property: R
v Bernhard, 26 Cr App R 137, CCA; Harris v Harrison [1963] Crim L R 497, DC. It is
immaterial that there exists no basis in law for such belief: Bernhard, above; R v Turner
(No 2), 55 Cr App R 336, CA; R v Tsang Ming Hung (CACC 118/​1986, [1986] HKLY
273), CA. Belief in moral right is no defence: Harris v Harrison, above. In Bernhard,
the court approved the following passage in Stephen’s History of the Criminal Law of
England, Vol III, p 124:
“Fraud is inconsistent with a claim of right made in good faith to do the act complained of. A man who takes possession of property which he really believes to be his
own does not take it fraudulently, however unfounded his claim may be. This, if not
the only, is nearly the only case in which ignorance of the law affects the legal character of acts done under its influence.”
As to the importance of referring to section 3(1)(a) where a claim of right is raised:
see R v Falconer-​Atlee, 58 Cr App R 348, CA. In R v Woolven, 77 Cr App R 231, CA, it was
said that a direction on dishonesty based on Ghosh (para.22-​20, above) would be likely
to cover all occasions where a section 3(1)(a) type direction might otherwise have been
desirable. Woolven, however, was a case on section 15 of the English Theft Act 1968 (the
Hong Kong equivalent is section 17 –​obtaining property by deception) (para.22-​126,
below) to which section 3 does not apply. In cases involving an allegation of theft simpliciter, burglary or robbery, it is submitted that it would still be necessary to give a section
3(1)(a) direction because, if the case comes within that provision, the jury must as a matter of law determine the first of the two questions in Ghosh in the defendant’s favour. See
also R v Wootton [1990] Crim L R 201, CA, and R v Wood [1999] 5 Archbold News 2, CA.
In HKSAR v Chan Boon Ning (2004) 9 HKFCAR 439 it was held that there is no conflict between Ghosh and s 3(1)(a). The former was cited for dishonesty, the latter an
example of what was not dishonest. A properly directed jury could reject the claim of
right and apply the Ghosh tests for dishonesty.
Belief in consent of corporation
22–​23
In Att-​Gen’s Reference (No 2 of 1982) [1984] QB 624, the Court of Appeal held that
a person in total control of a limited liability company, by reason of his shareholding
and directorship, or two or more such persons acting in concert, were capable in law
of stealing the property of the company. The court rejected a submission that there was
no issue in relation to dishonesty, as the respondents were the sole will and directing
mind of the company, and that the company was therefore bound to consent to all to
which they themselves consented. The court referred to Belmont Finance Corporation Ltd
v Williams Furniture Ltd [1979] Ch 250, CA (Civ Div), in which Buckley LJ said at 261:
“ … the directors of the … company must then have known that the transaction
was an illegal transaction. But in my view such knowledge should not be imputed
to the company, for the essence of the arrangement was to deprive the company
improperly of a large part of its assets. As I have said, the company was a victim of
the conspiracy. I think it would be irrational to treat the directors, who were allegedly parties to the conspiracy, notionally as having transmitted this knowledge to
the company … ”.
Kerr LJ giving the judgment on the reference said there was no reason why the
position in the criminal law should be any different. A defendant’s “belief that he
would have the other’s consent” must be an honest belief in a true consent, honestly
obtained: see R v Lawrence, 55 Cr App R 73 at 80, CA, per Megaw LJ.
Abandonment
22–​24
Property that has been abandoned cannot be stolen. If property had not been abandoned, but the defendant believed that it had, he cannot be convicted of theft, whether
his belief was reasonable or unreasonable. He would not be acting dishonestly: R v
414
Sect. II]
Theft
22–27
Small, 86 Cr App R 170. The relevance of reasonableness of the belief is as to whether
it was actually held: ibid, see also R v Cheung Chung-​yau [1985] 2 HKC 35, CFI. When
the prosecution seeks to meet the defence by evidence and submissions to the effect
that that defence is incredible as it is patently unreasonable for him to have believed
the goods to have been abandoned, the jury should be specifically reminded that even
an unreasonable belief may nevertheless be an honest one. Whereas they could, if they
saw fit and if they were sure, infer a lack of honest belief from the unreasonableness of
that belief, it was to the defendant’s subjective understanding of the situation and not
to the objective facts that they had to pay their attention. (R v Peter Wood [2002] EWCA
Crim 832, cf. HKSAR v Chan Sze Wing (HCMA 351/​2009, 7 January 2010).
(b) “Appropriates”
Theft Ordinance (Cap 210), s 4
4.—​(1) Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without
stealing it, any later assumption of a right to it by keeping or dealing with it as owner.
(2) Where property or a right or interest in property is or purports to be transferred
for value to a person acting in good faith, no later assumption by him of rights which
he believed himself to be acquiring shall, by reason of any defect in the transferor’s title
amount to theft of the property.
22–​25
Any assumption of the rights of the owner
In order to constitute an “appropriation” within section 4(1) of the Theft
Ordinance, it is not necessary to demonstrate an assumption by the accused of all the
owner’s rights; it is enough for the prosecution to show the assumption of any of the
rights of the owner of the goods in question: R v Morris [1984] AC 320, HL, per Lord
Roskill at p 331. That dictum was specifically approved by the House of Lords in the
majority opinion delivered by Lord Keith in R v Gomez [1993] AC 442 at p 458, HL.
In R v Pitham and Hehl, 65 Cr App R 45, CA, it was held that the definition of theft
in section 1(1) of the English 1968 Theft Act (section 2(1) of Hong Kong’s Theft
Ordinance) comprised a dishonest appropriation, “appropriation” being defined in
section 4(1) of Cap 210, the final words of that subsection being words of inclusion,
and the general words at the beginning of that subsection being wide enough to cover
any assumption by a person of the rights of an owner. In that case, M, who knew
that a particular householder was in prison, took P and H to the house in order to
sell them some of the furniture. P and H, having been convicted of handling stolen
goods, appealed on the ground that their handling was “in the course of the stealing”,
and that, therefore, they could not be guilty of the offence contrary to section 24 of
the Theft Ordinance (para.22-​215, below). It was held that M had assumed the rights
of the owner within section 4(1) when he took P and H to the house and showed
them the furniture and invited them to buy what they wanted, and at that moment
he appropriated the goods to himself; thus there was no question of P and H dealing
with the goods “in the course of the stealing”. In Att-​Gen of Hong Kong v Daniel Chan
Nei-​keung [1987] 1 WLR 1339, [1988] 1 HKLR 70, PC, it was held that whilst the sale
of the property of the principal by an agent within the scope of his authority is not
an assumption of any rights of the owner, an agent can have no authority to sell dishonestly against the owner’s interest and therefore, if an agent in purported exercise
of his authority dishonestly sold the principal’s property to a third party at an undervalue, he exceeded his authority and thereby assumed the right of the owner in a way
which could amount to an appropriate. In two recent decisions the Court of Appeal
of Hong Kong have ruled on questions of appropriation. In HKSAR v Chan Chin Hung
(CACC 163/​2003, 1 February 2005) it was held that there had been appropriation of
a chose in action, the funds in a bank account (a debt therefore a chose in action)
held in trust by them for another when they pledged those funds to obtain an overdraft facility for themselves. In HKSAR v Cheung Ying Kit, Vicky (CACC 202/​2004, 3
December 2004) it was held that there had been an appropriation of a debt when the
defendant cashed or paid cheques into his own account which were supposed to be
used to make refunds to customers of a company of which he was a 50 per cent owner.
415
22–​26
22–​27
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[Chap. 22
“Appropriation” is an objective description of the act done irrespective of the mental state of either the owner or the accused. Hence, the fact that a transfer of money
was effected with the victim’s consent did not preclude the act from being an appropriation: see HKSAR v Wong Cho Sum [2001] 3 HKLRD 76 in which DPP v Gomez [1993]
AC 442; R v Hinks [2001] 2 AC 241 were followed.
The position has now been confirmed in HKSAR v Leung Wai Yip [2008] 4 HKLRD
697 where the Court of Appeal rejected the conclusion in R v Briggs [2004] 1 Cr
App R 34, CA that “appropriation” implies a physical taking of property belonging
to another. The Court followed the approach in HKSAR v Wong Cho Sum [2001] 3
HKLRD 76 and R v Gomez (above) and held that there appropriation exists where the
defendant by deception caused the victim to transfer funds to him.
Appropriation and consent
22–​28
Section 2(1) of the Theft Ordinance is not to be construed as though it contained
the words “without the consent of the owner”, and accordingly it is not necessary
for the prosecution to prove that the appropriation was without the owner’s consent: Lawrence v Metropolitan Police Commissioner [1972] AC 626, HL. In Lawrence, the
House of Lords considered the question of the extent to which consent was relevant
to the issue of whether or not there had been an appropriation within the meaning
of section 3 of the Theft Act (section 4 of the Theft Ordinance). Viscount Dilhorne,
delivering an opinion in which the other Law Lords concurred, said at 632:
“Section 3(1) states that any assumption by a person of the rights of an owner
amounts to an appropriation … Section 2(1) [section 3(1) of the Theft Ordinance in
Hong Kong] provides, inter alia, that a person’s appropriation of property belonging
to another is not to be regarded as dishonest if he appropriates the property in the
belief that he would have the other’s consent if the other knew of the appropriation
and the circumstances of it. A fortiori, a person is not to be regarded as acting dishonestly if he appropriates another’s property believing that with full knowledge of
the circumstances that other person has in fact agreed to the appropriation … When
Megaw LJ said that if there was true consent, the essential element of dishonesty was
not established, I understand him to have meant this. Belief or the absence of belief
that the owner had with such knowledge consented to the appropriation is relevant
to the issue of dishonesty, not to the question whether or not there has been an
appropriation. That may occur even though the owner has permitted or consented
to the property being taken.”
In consequence of the subsequent decision of the House of Lords in R v Morris
[1984] AC 320, there was confusion for several years as to the status of the decision
in Lawrence. In Morris, the House of Lords acknowledged that there could be theft
although the owner of the property in question had consented to the acts done by the
defendant, but decided that to be within the Theft Act 1968, an appropriation had to
be an unauthorised appropriation.
In R v Gomez [1993] AC 442, Lord Keith stated (at 464) that R v Skipp [1975] Crim
LR 114, CA, and R v Fritschy [1985] Crim L R 745, CA, were inconsistent with Lawrence
and were wrongly decided. Hence, Gomez effectively overrules all of those cases that
proceeded upon the basis that appropriation required an act not authorised by or
consented to by the owner. These include R v Meech [1974] QB 549; 58 Cr App R 74,
CA; Kaur v Chief Constable of Hampshire, 72 Cr App R 359, DC; and Eddy v Niman, 73 Cr
App R 237, DC. See also HKSAR v Wong Cho Sum [2001] 3 HKLRD 76; and HKSAR v
Leung Wai Yip [2008] 4 HKLRD 697.
Gifts
22–​29
The acquisition of an indefeasible title to property is capable of amounting to an
appropriation of property belonging to another for the purposes of section 1(1) of
the Theft Act 1968 (section 4(1) of the Theft Ordinance): R v Hinks [2000] 3 WLR
1590, HL. It follows that where the defence to a charge of theft is that the property
was a gift, the validity of the gift is not an issue for the jury. Belief or lack of belief that
the owner consented to the appropriation is relevant only to the issue of dishonesty.
416
Sect. II]
Theft
22–31
The House of Lords rejected the argument that the word “appropriates” should be
interpreted as if the word “unlawfully” preceded it so that only an act that is unlawful
under the general law can be an appropriation:
“If the law is restated by adopting a narrower definition of appropriation, the outcome is likely to place beyond the reach of the criminal law dishonest persons who
should be found guilty of theft. The suggested revisions would unwarrantably restrict
the scope of the law of theft and complicate the fair and effective prosecution of theft.
In my view the law as settled in Lawrence and Gomez does not demand the suggested
revision. Those decisions can be applied by judges and juries in a way which, absent
human error, does not result in injustice. … In practice the mental requirements of
theft are an adequate protection against injustice” [per Lord Steyn at pp 1600, 1601].
Later assumptions of a right of the owner by the thief
Once goods have been stolen, they cannot be appropriated again within section
4(1) by the same thief exercising the same or other rights of ownership over them: R
v Atakpu, 98 Cr App R 254, CA. Aliter, if the goods have been restored to lawful possession or custody (see Metropolitan Police Commissioner v Streeter, 71 Cr App R 113 at
119, DC, per Ackner LJ). Similarly, if the goods are stolen from the original thief, it
is submitted that a retaking of the goods by him would be a second offence by him.
22–​30
Later assumptions of a right of the owner by others
There may be an “appropriation” within section 4(1) not only by a bailee, but also
by an innocent finder or by a person who acquires property through the mistake of
another.
D was in possession of a tape recorder as bailee and, knowing that he had no right
to do so, he dishonestly offered it for sale. Held, the complete offence of theft had
been committed: Rogers v Arnott [1960] 2 QB 244, DC.
“If I am lent property, and then determine in my own mind to sell it for my own benefit contrary to the terms of the bailment, I have determined that in relation to the
property I will no longer be a borrower but an owner, and an owner who wishes to sell.
When I proceed to carry that intention into effect by offering the property for sale,
I am standing in the owner’s shoes in relation to that property and exercising an owner’s right. In these circumstances I have, in my view, already converted the property
to my own use whether the attempted sale takes place or not” [per Donovan J at 251].
Where an agent in purported exercise of his authority dishonestly sells the principal’s property to a third party at undervalue, he clearly exceeds his authority and
thereby assumes the rights of the owner in a way that amounts to an appropriation: Att-​
Gen of Hong Kong v Nai-​Keung [1987] 1 WLR 1339, PC.
The possession of goods for a period may give rise to an inference that the possessor has assumed the rights of an owner: Broom v Crowther (The Times, 15 May 1984).
The appellant was convicted of theft of property that had been previously stolen and
which he had bought at a considerable undervalue. The justices found as a fact that
when he bought it, he suspected it was stolen, and therefore concluded he was not a
bona fide purchaser in good faith and that section 3(2) of the Theft Act (section 4(2)
of the Theft Ordinance) did not protect him. Subsequently, he found out that the
property was stolen and a week after that, he was arrested. The justices found that
during that week he had simply kept the property, he had not used it and had not
made up his mind what to do with it. Goff LJ, delivering a judgment with which Mann
J agreed, said:
“I have no doubt that there may be cases in which having regard to all the circumstances of the case and the fact that an accused person has kept goods which have
been stolen for a period of time after he has discovered that they are stolen, the inference by the court will properly be that he was keeping them as owner.”
On the facts found, however, the court concluded that during the week since
he found out that the property was stolen he had not assumed a right to keep it
as owner.
417
22–​31
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Offences Under the Theft Ordinance
[Chap. 22
Similarly, the dishonest appropriation by a parent of property brought home by a child
under the age of criminal responsibility (see para.22-​239, below) will amount to theft.
Innocent purchasers
22–​32
By virtue of s 4(2) of the Ordinance (para.22-​25, above), a bona fide purchaser for
value of stolen goods, who subsequently discovers them to be stolen, does not commit
theft if he keeps them for himself, sells them or otherwise deals with them: R v Wheeler,
92 Cr App R 279, CA. There is, however, no exemption for the bona fide purchaser
who dishonestly retains a wrongful credit, although the prosecution still has to prove
dishonesty in such circumstances.
Assuming the rights of an owner
22–​33
Although assumption of any of the rights of an owner amounts to appropriation,
there must still be a taking or assumption of one or more of such rights. The word
appropriation in isolation is an objective description of the act done, irrespective of
the mental state of either the owner or the accused: R v Gomez [1993] AC 442 at 495,
HL, per Lord Browne-​Wilkinson.
This dictum was referred to with approval in R v Gallasso, 98 Cr App R 284, CA, in
which it was said that whilst it is no answer that the owner consented, neither does
a dishonest motive turn an action that is not an appropriation into an appropriation. However, it is difficult to reconcile the actual decision in Gallasso with Gomez.
The appellant was a nurse who had been in charge of the finances of a number of
her severely mentally handicapped patients. She was the sole signatory on their trust
accounts. In the case of one patient, she had opened a second bank account in his
name. When a substantial cheque arrived, she paid it into that account. Thereafter she
withdrew money therefrom on a regular basis. She was charged, inter alia, with theft
of the cheque. The conviction was quashed because her conduct did not constitute
an appropriation of the cheque. It is submitted with respect that this overlooks the
essence of the decision in Gomez, which was to underline that the 1968 Act refers to
an “appropriation” not a “misappropriation”; the protection for the defendant lies
in the overriding requirement that the appropriation is dishonest. It was because of
a series of decisions of the courts in the years following Lawrence (para.22-​28, above)
that approached the interpretation of the Act as if the word was “misappropriation”
that there was so much confusion, which, it was to be hoped, had been eliminated by
the decision in Gomez. Gallasso threatens to reintroduce the former muddle. As to the
significance of use of the word “appropriation” as opposed to “misappropriation”, see
the speech of Lord Browne-​Wilkinson in Gomez at 495.
Appropriation as a continuing act
22–​34
Before R v Gomez [1993] AC 442, the authorities indicated that an act of appropriation did not suddenly cease; it may be a continuous act and it is for the jury to decide
whether or not the act of appropriation has finished: R v Hale, 68 Cr App R 415, CA. In
R v Gregory, 77 Cr App R 41, CA, which was in a sense a mirror image of the situation in
R v Pitham and Hehl, 65 Cr App R 45, CA, the defendant was convicted of burglary upon
the basis that someone else had originally burgled the premises and he had gone there
as a receiver. It was argued, relying on Pitham and Hehl, that the appropriation was complete and therefore he could only have been convicted of handling stolen goods. The
Court of Appeal rejected this argument, saying that not only may an “appropriation” be
a continuous act but there may also be more than one appropriation.
The effect of Gomez on the question whether appropriation was a continuing
act was considered in R v Atakpu, 98 Cr App R 254, CA. The court stated that
on a strict reading of Gomez, any dishonest assumption of the rights of the owner
made with the necessary intention constituted theft, which left little room for a
continuous course of action. However, such restriction and rigidity might lead to
technical anomalies and injustice, and the court preferred to leave it to the common sense of the jury to decide that an appropriation could continue for so long
as the thief could sensibly be regarded as being in the act of stealing, or, in more
418
Sect. II]
Theft
22–37
understandable words, so long as he was “on the job”. As the matter was not strictly
necessary for their decision, the court specifically left the question open for further
argument. For a case in which Atakpu was considered in relation to theft of money
by means of a computer, see R v Governor of Brixton Prison, Ex p Levin [1997] 1 Cr
App R 335, DC, para.22-​38, below.
Appropriation through the act of an innocent agent
Property may be appropriated through the acts of an innocent agent: R v Stringer,
94 Cr App R 13, CA.
22–​35
Where appropriation takes place
Where property is appropriated outside the jurisdiction, no offence is committed
within the jurisdiction: R v Atakpu, para.22-​30, above. In R v Tomsett [1985] Crim L R
369, CA, the court held that there can be no conviction of theft where the appropriation occurs outside the jurisdiction, albeit that the acts of the defendant are done
within the jurisdiction. In R v Governor of Pentonville Prison, Ex p Osman, 90 Cr App R 281,
the Divisional Court did not regard itself as bound by Tomsett on the ground that the
Crown in Tomsett declined to argue that the act of the defendant within the jurisdiction
could constitute an appropriation and the court had deliberately left the point open.
In Tomsett, the court said that prima facie theft takes place where the property stolen is
appropriated and prima facie appropriation takes place where the property is situated.
In Ex p Osman, however, it was held that where a person within the jurisdiction does an
act constituting an assumption of the rights of the owner of property situated outside
the jurisdiction (telexing instructions to a foreign bank), the theft takes place within
the jurisdiction. To the extent that this precludes the courts in the place where property is situated from having jurisdiction to try cases where the offender has operated
from outside the jurisdiction, it is likely to cause great inconvenience. It is also contrary
to common sense, which strongly suggests that the essence of the offence being the
appropriation of property, takes place at the location of the property at the time of the
appropriation. Ex p Osman was followed in R v Ngan [1998] 1 Cr App R 331, CA, where
the property was in England, the defendant was at all material times in England, the
only act done by her was done in England, but it was held that the act that constituted
the appropriation was done by her accomplice in Scotland, and, therefore, the English
courts had no jurisdiction. These facts illustrate the unsatisfactory nature of the conclusion in Ex p Osman (which the Divisional Court was anxious to avoid in R v Governor
of Brixton Prison, Ex p Levin [1997] 1 Cr App R 335, para.22-​38, below). As to the conclusion in Ngan that the appropriation took place in Scotland, see para.22-​37, below.
As to jurisdiction generally, see Chapter 2, above.
22–​36
Appropriation of choses in action
As to choses in action generally, see para.22-​43, below.
Transfer of funds from a victim’s account to another account could amount to
appropriation if the victim’s rights as owner of the chose in action were interfered
with. There is interference if the chose in action is diminished or extinguished: see
HKSAR v Wong Cho Sum [2001] 3 HKLRD 76 in which DPP v Gomez [1993] AC 442 and
R v Hinks [2001] 2 AC 241 were followed.
Where a person steals monies held in a bank account by means of appropriating
a cheque, then that person may be charged with theft of a chose in action, namely,
the monies held in the account: R v Kohn, 69 Cr App R 395, CA. However, Lane LJ’s
observation in Kohn that “the completion of the theft does not take place until the
transaction has gone through to completion” was obiter: R v Navvabi [1986] 1 WLR
1311; R v Governor of Pentonville Prison, Ex p Osman, para.22-​36, above (where the court
declined to follow it).
In Ex p Osman, it was held that a theft of funds in a bank account is complete when
a cheque is dishonestly drawn on the account without authority. The theft is complete in law even though it might not be complete in fact until the funds have been
debited. It would not matter if the account was never in fact debited. In rejecting the
419
22–​37
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Offences Under the Theft Ordinance
[Chap. 22
observation of Lane LJ in Kohn, above, as obiter, the court stated that it preferred the
direction of the trial judge in R v Wille, 86 Cr App R 296, which was approved by the
Court of Appeal. The direction was to the effect that if a person drew a cheque on
an account on which he had no authority to draw, the act of drawing the cheque and
issuing it constituted an appropriation of the debt owed by the bank to the account
holder. In R v Hilton [1997] 2 Cr App R 445, CA, it was held that appropriation takes
place when a person does an act, such as faxing instructions or signing a cheque,
which causes a transfer to be made and the offence of theft could be committed even
though the appropriation had the effect of destroying the property.
In R v Ngan [1998] 1 Cr App R 331, CA, it was held that where a person, knowing
that his bank account in England had been mistakenly credited with a large sum of
money, signs a blank cheque and sends it to his accomplice in Scotland who is aware
of the amount of the mistaken credit and completes the cheque, as the account holder
anticipates, in an amount that can only be paid by reference to the mistaken credit,
and “presents” the cheque for payment in Scotland, the account holder is not guilty
of theft because the appropriation has taken place outside the jurisdiction (for a criticism of this decision as being out of line with both R v Wille and Ex p Osman, see
Criminal Law Week 97/​28/​21).
It is immaterial that the end result of the transaction may be a legal nullity, for it is
not possible to read into section 4(1) any requirement that the assumption of rights
there envisaged should have a legally efficacious result: Chan Man-​sin v Att-​Gen of Hong
Kong [1988] 1 WLR 196, PC.
Where a person receives a cheque from another, which he then presents and which
is honoured, he causes the other’s credit balance to be diminished and thereby appropriates it; and if he is acting dishonestly he may be convicted of theft: R v Williams (Roy)
[2001] 1 Cr App R 23, CA (following Kohn, above).
Appropriation can exist when the defendant by deception caused a transfer of
funds to him: HKSAR v Leung Wai Yip [2008] 4 HKLRD 697, where the Court of
Appeal followed the approach in HKSAR v Wong Cho Sum [2001] 3 HKLRD 76 and R
v Gomez [1993] AC 442, but did not follow R v Naviede [1997] Crim LR 662 and R v
Briggs [2004] 1 Cr App R 34. In R v Darroux [2018] 2 Cr App R 21, the English Court
of Appeal also considered that the decision in R v Naviede and R v Briggs, that where
a victim caused a payment to be made in reliance on misrepresentation or deceptive
conduct of the defendant, there was no “appropriation” by the defendant, should not
be taken as an inflexible statement of principle of invariable application but, depending on circumstances, there might be cases where a deceptive representation inducing an account holder to make payment out of his bank account could constitute
an appropriation. In R v Darroux, the defendant submitted falsely inflated claims to
a company who provided payroll services and was permitted to operate the victim’s
bank account. The English Court of Appeal held that conduct which ultimately was
causally operative in reducing a bank balance did not necessarily became an assumption of rights of the owner with regard to the bank balance simply and solely because it
was causally operative. It was held that what the defendant did was too far removed to
be an act of appropriation with regard to the bank account and the defendant did not
assume any rights of the owner with regard to the bank account: the forms submitted
by the defendant could not be equated with cheques, such forms conferred no rights
on the defendant with regard to the bank account, the defendant had no contact with
the bank at all and she had no control over the bank account. The defendant only did
what she was employed to do.
It is inappropriate to charge a person with theft of the cheque form, for there will
be no intention to permanently deprive the drawer of the cheque form, which would
on presentation for payment be returned to the drawer via his bank: R v Preddy and
Slade; R v Dhillon [1996] AC 815, HL, para 22-​62 and 22-​43 below. See also: HKSAR v
Goh Swee Yan Angelina [2000] 2 HKC 711.
Theft of a credit by means of a computer
22–​38
In R v Governor of Brixton Prison, Ex p Levin [1997] 1 Cr App R 335, DC, the court
held, distinguishing Ex p Osman, above (telexing of instructions), that where a person
by using a computer terminal in one country operates a computer in another country,
420
Sect. II]
Theft
22–41
he may be said to be acting in the second country. (This aspect of the court’s decision
was not the subject of appeal to the House of Lords [1997] AC 741).
Appropriation of company assets
In R v Gomez [1993] AC 442, HL, Lord Browne-​Wilkinson at 496, in a speech with
which the majority concurred, said:
22–​39
“Where a company is accused of a crime, the acts and intentions of those who are the
directing minds and will of the company are to be attributed to the company. That is
not the law where the charge is that those who are the directing minds and will have
themselves committed a crime against the company: see Att-​Gen’s Reference (No 2 of 1982)
78 Cr App R 131, applying Belmont Finance Corporation Ltd v Williams Furniture Ltd [1979]
Ch 250. In any event, your Lordships’ decision in this case, re-​establishing as it does the
decision in Lawrence, renders the whole question of consent by the company irrelevant.
Whether or not those controlling the company consented or purported to consent to
the abstraction of the company’s property by the accused, he will have appropriated the
property of the company. The question will be whether the other necessary elements
are present, viz, was such appropriation dishonest and was it done with the necessary
intention of permanently depriving the company of such property?”
Lord Browne-​Wilkinson went on to approve the concession made by counsel (that
there had been an appropriation) in Att-​Gen’s Reference (No 2 of 1982), above, and the
decision in both that case and R v Phillipou, 89 Cr App R 290, CA; R v Roffel [1985] VR
511 and R v McHugh and Tringham, 88 Cr App R 385, CA, were specifically disapproved.
Other examples of appropriation
Mere forcible tugging on a handbag in an effort to release it from its owner’s grasp
is an act of appropriation: Corcoran v Anderton, 71 Cr App R 104, DC. In R v Morris
[1984] AC 320, HL, it was held that replacing price tags on goods in a store with one
of a lower price constituted an act of appropriation. In R v Monaghan [1979] Crim L
R 673, CA, a checkout operator who receives money from a customer tendered in the
payment but does not ring up the transaction on the register was held to have committed an act of appropriation.
22–​40
(c) “Property”
Theft Ordinance (Cap 210), s 5
5.—​(1) “Property” includes money and all other property, real or personal, including
things in action and other intangible property.
(2) A person cannot steal land, or things forming part of land and severed from it by
him or by his directions, except in the following cases, that is to say—​
(a) when he is a trustee or personal representative, or is authorised by power of
attorney, or as liquidator of a company, or otherwise, to sell or dispose of land
belonging to another, and he appropriates the land or anything forming part
of it by dealing with it in breach of the confidence reposed in him; or
(b) when he is not in possession of the land and appropriates anything forming
part of the land by severing it or causing it to be severed, or after it has been
severed; or
(c) when, being in possession of the land under a tenancy, he appropriates the
whole or part of any fixture or structure let to be used with the land.
(3) For purposes of subsection (2)—​
“land” does not include incorporeal hereditaments;
“tenancy” means a tenancy for years or any less period and includes an agreement for
such a tenancy, but a person who after the end of a tenancy remains in possession
by virtue of any Ordinance or otherwise is to be treated as having possession under
the tenancy, and “let” shall be construed accordingly.
(4) A person who picks mushrooms growing wild on any land, or who picks flowers,
fruit or foliage from a plant growing wild on any land, does not (although not in possession of the land) steal what he picks, unless he does it for reward or for sale or other
commercial purpose.
421
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Offences Under the Theft Ordinance
[Chap. 22
(5) For purposes of subsection (4) “mushroom” includes any fungus, and “plant”
includes any shrub or tree.
(6) Wild creatures, tamed or untamed, shall be regarded as property; but a person
cannot steal a wild creature not tamed nor ordinarily kept in captivity, or the carcass of
any such creature, unless either it has been reduced into possession by or on behalf of
another person and possession of it has not since been lost or abandoned, or another
person is in course of reducing it into possession.
Little or no value
22–​42
The fact that the property has little or no value is irrelevant since the maxim de minimus non curat lex has no application: A-​G v Tsang Pui-​yee [1988] 1 HKLR 406.
Things or choses in action
22–​43
A chose in action is a legal expression used to describe all personal rights over
property that can only be claimed or enforced by action, and not by taking physical
possession: per Channel J in Torkington v Magee [1902] 2 KB 427 at 429, DC. It does not
include a right of action such as a right to recover damages for breach of contract or
a legal right to recover damages arising out of an assault: per Rigby LJ in May v Lane
(1894) 64 LJQB 236 at 238, CA. However, a debt is a chose in action. Similarly, in R v
Baruday [1984] VR 865 Vict FC, it was held that the right to the return of an insurance
premium was a chose in action.
In respect of bank and similar accounts, monies paid into the account belong to the
bank, but the bank owes a debt (a chose in action) to the crediting customer, which it
undertakes to repay on demand: Joachimson v Swiss Bank Corporation [1921] 3 KB 110
at 127.
In R v Kohn, 69 Cr App R 395, CA, K drew cheques on the bank account of P Ltd,
of which he was a director, in favour of various third parties. The cheques, however,
were intended for the benefit of K rather than the company and accordingly he was
charged, in relation to each of a number of such payments, with (a) theft of a chose
in action, namely a debt owed to P Ltd by the bank; and (b) theft of a cheque, the
property of P Ltd. Some of the withdrawals occurred when the account was in credit,
some when it was overdrawn but within the agreed facility, and one withdrawal when
the account was over the agreed limit. It was held that where the account was either
in credit or overdrawn within the agreed limit, the bank had an obligation to meet
cheques drawn on it, which could be enforced by action. The customer therefore had
a right of property, a chose in action. As to the count that related to the period when
the agreed overdraft limit was exceeded, there was then no relationship of debtor and
creditor, even notionally, and so the bank had no duty to the customer to meet the
cheque: even if it did so as a matter of grace, that did not retrospectively create any
personal right of property in the customer and did not create any duty retrospectively
in the bank. The conviction on that count was quashed. The decision in relation to the
charges of theft of the cheque forms has been impliedly overruled by R v Preddy and
Slade; R v Dhillon [1996] AC 815, HL. (See para.22-​37, above). Kohn was considered
by the Court of Appeal in R v Doole [1985] Crim L R 450, CA, in which the need to
establish an existing, as opposed to a contingent, liability was emphasised.
Where an apparent credit balance on a bank account is created by fraud this will
not be property within section 5(1) because it is not a chose in action: any action to
enforce the apparent liability would be capable of immediate defeasance as soon as
the fraud is pleaded: R v Thompson (Michael), 79 Cr App R 191, CA; HKSAR v Cheng Lap
Shun Patrick [2001] 4 HKC 524, CA. It is submitted that this situation is now covered
by s 18D of the Theft Ordinance (procuring an entry in certain records by deception
(para.22-​174, below)).
Intangible property
22–​44
Confidential information per se does not come within the definition of “property”
in section 4: Oxford v Moss, 68 Cr App R 183, DC (student who obtained, read and
returned the proof of an examination paper; charged with the theft of confidential
422
Sect. II]
Theft
22–49
information). In Dixon v R [2014] 3 NZLR 504, the Court of Appeal of Wellington
followed Oxford v Moss and held that digital footage stored on computer was indistinguishable in principle from pure information. But in view of the definition of “property” in s 2 of the Crimes Act and the history of the legislation, whether Dixon v R
is applicable in Hong Kong is open for argument. In Att-​Gen of Hong Kong v Daniel
Chan Nei-​keung [1987] 1 WLR 1339, [1988] 1 HKLR 70, PC, it was held specifically in
relation to the Hong Kong provisions per s 5(1) of the Theft Ordinance that export
quotas that were transferable for value on a temporary or permanent basis were “property”. Although they were not a chose in action, they did come within the words “other
intangible property”.
Gas, water and electricity
At common law, a thing could not be larcenable unless (a) it was tangible, (b) it was
movable, (c) it was of some value, and (d) it had an owner (Russ Cr, 12th edn, 1964,
pp 887 to 891). However, even under common law, it was held that there was nothing
in the nature of gas to prevent it being the subject of larceny: R v White (1853) 3 C &
K 363. See also R v Firth (1869) 11 Cox 234. Water supplied by a water company and
standing in the consumer’s pipes, could also be the subject of larceny at common
law: Ferens v O’Brien (1883) 11 QBD 21.
Electricity is subject to specific statutory provisions: see section 15 of Cap 210,
para.22-​116, below. Electricity is not appropriated by switching on a current and could
not be described as “property” within the meaning of section 5: Low v Blease [1975]
Crim L R 513, DC.
As to dishonest use of a telecommunications system, see the Telecommunications
Ordinance (Cap 106), Part V.
22–​45
Plants
Although section 5(4) excludes flowers, fruits, foliage or mushrooms growing
wild on any land, from the definition of property that may be stolen, unless done for
reward or sale or other commercial purpose.
22–​46
Wild creatures
The exemption in section 5(6) of the Theft Ordinance will not apply to any creature that has been tamed or that is ordinarily kept in captivity.
Wild creatures can only be stolen if there is sufficient evidence of a reduction into
possession: R v Howlett [1968] Crim L R 222, CA.
22–​47
Corpses
At common law there is no property in a corpse: 2 East PC 652; Dobson v North
Tyneside Health Authority [1997] 1 WLR 596, CA (Civ Div). Larceny could only be committed in respect of things that were the subject of property, and, therefore, there
could be no larceny of a corpse. In R v Kelly and Lindsay [1999] QB 621, CA, the common law rule was confirmed, subject to the exception (following Doodeward v Spence
(1908) 6 CLR 406) that if a corpse or part thereof had undergone a process of skill
with the object of preserving it, for example for the purpose of medical or scientific
examination, it thereby acquired a usefulness or value and was capable of becoming
property and of being stolen. The court said the common law did not stand still and
it might be that in the future a court would hold that body parts were property even
without the acquisition of different attributes, if, for example, they were required for
use in an organ transplant.
22–​48
Property in Unlawful Possession
“Property” is defined in section 5. Save where expressly excluded, it covers all
property. What would otherwise constitute or be regarded as “property” for the
purpose of the Theft Ordinance does not cease to be so because its possession or
423
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Offences Under the Theft Ordinance
[Chap. 22
control is unlawful, illegal or prohibited (R v Smith, Plummer and Haines [2011] 1
Cr App R 30).
Identifying property
22–​50
There must be some specific property that is alleged to have been stolen. It is sufficient, however, to allege the appropriation of an unascertained part of an ascertained
whole (this view has been endorsed in HKSAR v Lam Chi Kong (CACC 115/2016, 31
August 2017)) although there is a dictum in Lacis v Cashmarts [1969] 2 QB 400, DC,
below, which does not accord with this proposition.
In R v Tideswell [1905] 2 KB 273, CCR, D was in the habit of buying from a company
portions of the accumulated ashes from its works. The only agreement between the
company’s managing director and D was as to the price per ton, D being free to take as
much as he wanted, upon the understanding that the amount of the purchase in each
case should be determined as ascertained by the company’s weigher. It was the latter’s
duty to enter in a book a record of the weights of the ashes purchased: he fraudulently,
and in collusion with D, delivered to D 32 tonnes, 13 cwt of the ashes and entered the
weight in the book as being 31 tonnes, 3 cwt only. It was held that D had been rightly
indicted for larceny of 1 tonne, 10 cwt.
“It was contended that what took place was an arrangement whereby the property
passed to [D]‌. If there had been a completed contract … covering all the goods in
the trucks, then no doubt the property would have passed, and no subsequent fraud
would make the receipt of the goods larceny. The offence in such a case would be
only a conspiracy to defraud the sellers of part of the price. But here there was no
intention to pass the property except in such goods as should be ascertained by the
weighing –​that is to say, in the smaller quantity. Consequently there was a larceny of
the balance” [per Kennedy J at 278].
(d) “Belonging to another”
Theft Ordinance (Cap 210), s 6
22–​51
6.—​(1) Property shall be regarded as belonging to any person having possession or
control of it, or having in it any proprietary right or interest (not being an equitable
interest arising only from an agreement to transfer or grant an interest).
(2) Where property is subject to a trust, the persons to whom it belongs shall be
regarded as including any person having a right to enforce the trust, and an intention to
defeat the trust shall be regarded accordingly as an intention to deprive of the property
any person having that right.
(3) Where a person receives property from or on account of another, and is under
an obligation to the other to retain and deal with that property or its proceeds in a particular way, the property or proceeds shall be regarded (as against him) as belonging to
the other.
(4) Where a person gets property by another’s mistake, and is under an obligation
to make restoration (in whole or in part) of the property or its proceeds or of the value
thereof, then to the extent of that obligation the property or proceeds shall be regarded
(as against him) as belonging to the person entitled to restoration, and an intention not
to make restoration shall be regarded accordingly as an intention to deprive that person
of the property or proceeds.
(5) Property of a corporation sole shall be regarded as belonging to the corporation
notwithstanding a vacancy in the corporation.
Property belonging to any person
22–​52
In Lawrence v Metropolitan Police Commissioner [1972] AC 626, HL, Viscount Dilhorne
said that the words “belonging to another” in s 2(1) of the Theft Ordinance (theft)
and in s 17(1) (obtaining property by deception, para.22-​126, below) signify no more
than that at the time of the appropriation or the obtaining, the property belonged to
another with the words “belonging to another” having the extended meaning given by
s 6. Considerations as to whether ownership passed from the victim to the defendant
as a result of the transaction were therefore irrelevant.
424
Sect. II]
Theft
22–52
In HKSAR v Wong Sui Ching (2012) 15 HKCFAR 199, a case involving criminal damage,
the Court of Final appeal examined the meaning of “property belonging to another” in the
context of ss.59 and 60 of the Crimes Ordinance (Cap.200). Having considered also the
extended meaning of “property belonging to another” under s.6(1) of the Theft Ordinance
(Cap.210) and the various theft cases in which the owners were found to have stolen their
own properties, the Court of Final Appeal held that an unqualified approach, such that it is
irrelevant that the offender may enjoy superior proprietary right under the law of property,
should be adopted in Hong Kong. Given the reasoning of the Court of Final Appeal, the
same approach appears to be applicable to s.6(1) of the Theft Ordinance (Cap.210).
In HKSAR v Lee Oi Lin Irene [2012] 4 HKLRD 212 CA, X had given the raw material
for 220 pieces of jewellery to D. D was under an obligation to return the finished products. The jewellery was not returned and D was convicted of theft. On appeal she argued
that a small part of the value of the jewellery was attributable to the labour cost owed to
her and so it was not X’s property. Yeung V-​P rejected this argument. Theft can be committed against someone whose interest in the property are less than that of an owner. It
can even be committed against another thief. The objective of the Ordinance is to keep
the peace, not to vindicate private property rights. Here D was under an obligation to
return the jewellery to X and so the property should be regarded as belonging to X.
In Edwards v Ddin [1976] 1 WLR 942, DC, D drove into a garage and asked the attendant to fill his car up with petrol. The attendant did so and D drove off without paying.
At no time during the transaction was there any mention of payment by either man. D
was acquitted of theft. Upholding the Justices’ decision, the Divisional Court explained
that the transaction had to be considered in the light of the Sale of Goods Act 1893 (now
repealed and replaced by the Sale of Goods Act 1979): property passes under a contract
of sale when it is intended to pass. In transactions such as the sale of petrol at a garage
forecourt, ordinary common sense would say that the garage and the motorist intend
the property in the petrol to pass when it is poured into the tank and irretrievably mixed
with the petrol that is already there (s 18, rule 5 of the 1893 Act). In such circumstances
it could not be asserted that the owner, as a term of the contract of sale, had reserved the
right of disposal, nor was it possible to see how effect could be given to such a term. The
moment of the alleged appropriation was when the car was driven away. As, by then, the
ownership of the petrol had passed to D, he had not committed theft. Similarly, where
a meal has been consumed in a restaurant there can be no question of theft of the meal
after it has been consumed: Corcoran v Whent [1977] Crim L R 52, DC. These forms of
conduct are covered by the deception offences and the offence of making off without
payment within the Theft Ordinance: para.22-​126 to 22-​176, below.
In the case of a self-​service petrol station, there is unlikely to be any deception, but,
provided that the dishonest intent has been formed at the time the petrol is put in the
tank, the facts will plainly amount to theft: R v McHugh, 64 Cr App R 92, CA. It is submitted that the offence of making off without payment, s 18C of the Theft Ordinance,
should also be considered.
In Davies v Leighton, 68 Cr App R 4, DC, it was held that a customer who, in a self-​
service store, had acquired possession of fruit from an assistant who had weighed and
bagged it at the customer’s request, did not acquire the property in it before paying the
price for it at the check-​out. Giving the leading judgment, Ackner J said that the law
is well settled in relation to purchases in supermarkets (referring to Lacis v Cashmarts
[1969] 2 QB 400, DC). The intention of the parties is the fundamental issue, and, in the
case of a supermarket, the intention of the parties is clearly that the property shall not
pass until the price is paid. His Lordship also referred approvingly to a dictum of Winn LJ
in Martin v Puttick [1968] 1 QB 82, DC, to the effect that the counter assistant’s authority
is limited to wrapping and handing over the goods and does not extend to dealing with
any transfer of property in the goods from the shop to the customer. Ackner J pointed
out that there was no reference to the assistant being in a managerial or other special
category “where a special situation might possibly arise” (Davies v Leighton at 8).
In Att-​Gen’s Reference (No 2 of 1982) [1984] QB 624; 78 Cr App R 131, CA, the court
held that a person in total control of a limited liability company, by reason of his shareholding and directorship, or two or more such persons acting in concert, were capable
in law of stealing the property of the company. The court rejected the submission made
on behalf of the respondents to the reference that since they were the sole owners of
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Offences Under the Theft Ordinance
[Chap. 22
the company and, through their shareholding, the sole owners of all its property, they
could not in effect be charged with stealing from themselves. See para.22-​23, above.
In R v Gilks, 56 Cr App R 734, CA, D placed a bet on several horses in a betting shop. His winnings amounted to £10.62. The bookmaker, believing that D had
backed a certain successful horse when he had not, handed D £117.25. D was aware
of the bookmaker’s mistake but accepted the money and kept it. He was charged
with stealing £106.63 from the bookmaker. It was held that property in the £106.63
never passed to D. Where a mistake resulted in the overpayment of a sum of money,
the person accepting the overpayment with knowledge of the mistake was guilty of
theft. For the proposition that property never passed, the court seemed to rely on R
v Middleton (1893) LR 2 CCR 38. It has been suggested (see the commentary on Gilks
in [1972] Crim L R 585, and Smith, The Law of Theft, 8th edn, p 56), that Middleton,
a case itself the subject of much criticism, ought not to have been relied upon in
Gilks, and that, in any event, its ratio was inapplicable because in that case the mistake was one of identity, either of the payee or of what was being paid, and that,
whilst under the civil law such a mistake as to identity may prevent ownership from
passing, there was no such mistake involved in Gilks. Therefore, there was nothing
to prevent ownership from passing as it was undoubtedly the bookmaker’s intention
that property should pass. In any event, on the authority of Lawrence v Metropolitan
Police Commissioner and R v Gomez, para.22-​28, above, such a taking plainly constitutes
an “appropriation”. It is doubtful whether Gilks would be followed in Hong Kong.
Abandoned property
22–​53
Things of which the ownership has been abandoned are not capable of being stolen: R v White, 7 Cr App R 266, CCA. See also para.22-​24 above.
Treasure
22–​54
The Antiquities and Monuments Ordinance (Cap 53) now regulates “treasure
trove” in that all relics created before 1800 are the property of the Government.
Appropriation of relics (defined in section 2 of the Antiquities and Monuments
Ordinance) may amount to theft, provided all the ingredients are present.
Owner unknown
22–​55
It is not necessary to identify the owner of the property alleged to have been stolen. A conviction of theft of property belonging to an unknown person is possible provided that the
property must have belonged to someone and that the defendant knew that it belonged to
someone other than himself; that the property is stolen may be proved on circumstantial
evidence: R v Burton (1854) Dears 282; R v Mockford (1868) 11 Cox 16; Noon v Smith, 49 Cr
App R 55, DC; Sturrock v DPP (The Times, 9 February 1995), DC (a prosecution under section
14 of the Theft Ordinance, para.22-​104, below). See also R v Sbarra, 13 Cr App R 118, CCA,
and R v Fuschillo, 27 Cr App R 193, CCA, both cases on receiving stolen goods.
“Possession or control”
22–​56
See section 6(1), para.22-​51, above.
There is no basis for qualifying the words “possession or control” in any way; it is
sufficient if it is found that the person from whom the property was appropriated was
at the time in fact in possession or control: see R v Turner (No 2), 55 Cr App R 336, CA
where the owner of a car was charged with theft from the garage where the car had been
left for repair. It is not necessary to prove that the person’s possession or control was
lawful: R v Kelly and Lindsay [1999] QB 621 at 631, CA. Both Turner (No 2) and Kelly were
considered in HKSAR v Wong Sui Ching (2012) 15 HKCFAR 199: see para.22–52 above.
A person in control of a site, by excluding others from it, is prima facie also in control
of articles on that site, it being immaterial that he was unconscious of their existence:
R v Woodman [1974] QB 754; 59 Cr App R 200, CA. Where a person has possession
of house or land, with a manifest intention to exercise control over it and the things
which may be upon or in it, then if something is found on that land, whether by an
426
Sect. II]
Theft
22–58
employee of the owner or by a stranger, the presumption is that the possession of that
thing is in the owner of the locus in quo. However, there is no such control if the intention is not manifest, such as in the case where an article was found in the public part of
a shop and the same was delivered to the shopkeeper in order that he might advertise
it, there is no such control or possession by the shopkeeper: South Staffordshire Water
Co. v Sharman [1896] 2 QB 44, cf. the judgment of Kempster JA (sitting as an additional Judge of the High Court) in R v Ng Kam-​chuen [1986] HKLR 1202 (HC).
“Any proprietary right or interest”
See s 6(1), para.22-​51, above.
22–​57
Partners have a proprietary right in partnership property: R v Bonner, 54 Cr App
R 257, CA. Accordingly, provided all the other ingredients of theft are present, one
partner can steal partnership property from another: ibid. The same applies to co-​
owners who are not partners. The circumstances surrounding the passing of goods
“on consignment” may show that a person no longer holds a “proprietary interest” in
them: HKSAR v Hung Fan Kit [2013] 1 HKLRD 958, [14], [15] and [19].
Secret profits
A public house manager employed by brewers contracted with them to sell on their
premises only goods supplied by them and to retain and deal with such sales for the brewers’ benefit. He bought beer from a wholesaler and intended, by selling it to customers on
the brewers’ premises, to make a secret profit, as he had done for some time past. He was
charged with stealing sums of money belonging to the brewers in respect of the secret profit
from beer sales. The trial judge ruled that there was no case to answer. On a reference by
the Attorney-​General to the Court of Appeal it was held: (a) that the property in the form of
money from beer sales over the counter was received by the manager not on account of the
brewers but on his own account as a result of his private venture; so that while the manager
was doubtless under a civil obligation to account to the brewers at least for the profit from
beer sales, the argument for the Attorney-​General based on section 5(1) (section 6(1) of the
Theft Ordinance; see para.22-​50, above) was misconceived; (b) that a person in a fiduciary
position who uses that position to make a secret profit for which he will be held accountable is not a trustee of that secret profit and, therefore, does not come within section 6; and
(c) that since the brewers would not have been able to sue the customers for the price of the
beer, they could not be said to have a “proprietary interest” in the proceeds of sale or any
part of it: Att-​Gen’s Reference (No 1 of 1985) [1986] QB 491; 83 Cr App R 70, CA.
The Court of Appeal further held that if, contrary to their view, section 5(1) (section 6(1)
of the Theft Ordinance) does import the constructive trust into the Theft Act, on the facts
of the case the brewers still obtained no proprietary right or interest in any of the money.
The reason for this particular ruling was that no trust will come into existence until the trust
property is identifiable as a particular fund: here the secret profit element for which the
manager would have been liable to account never had any identifiable separate existence.
In delivering the court’s judgment, Lord Lane CJ referred, among other authorities, to Lister v Stubbs (1890) 45 Ch D 1, and to R v Governor of Pentonville Prison, Ex p
Tarling, 70 Cr App R 77, DC and HL, in which Lord Wilberforce said at 110:
“The transactions would … appear, prima facie, to amount to cases of persons in a fiduciary capacity making a secret profit at the expense of their companies –​conduct for
which there exist classical remedies in equity. … Breach of fiduciary duty, exorbitant
profit-​making, secrecy, failure to comply with the law as to company accounts … are
one thing: theft and fraud are others”.
Lord Lane also said that the concept of theft, by importing the equitable doctrine
of the constructive trust, is so abstruse and so far from ordinary people’s understanding of what constitutes stealing that it should not amount to stealing.
However, the ruling in Att-​Gen’s Reference (No 1 of 1985), in so far as relying on Lister and
Co v Stubbs, must be considered with caution in light of the later decision AG for Hong
Kong v Reid [1994] 1 AC 324 (PC, from Court of Appeal of New Zealand) and the recent
decision FHR European Ventures LPP v Cedar Capital Partners LLC [2014] 3 WLR 535 (SC).
In Lister v Stubbs, the Court of Appeal held that although the person would be liable to
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22–​58
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Offences Under the Theft Ordinance
[Chap. 22
account to his employer for the commission obtained corruptly by him in relation to
his employer’s business, his relationship with the employer in relation to such money
was one of debtor and creditor, as opposed to trustee and cestui que trust. In Att-​Gen’s
Reference (No 1 of 1985), the Court of Appeal relied on Lister and Co v Stubbs and took the
view that the draftsmen of the Act of 1968 must have had Lister and Co v Stubbs in mind
when considering the wording of section 5 (equivalence of s 6 of the Theft Ordinance).
It further considered that there is in principle no distinction between bribe and secret
profit in this respect. Lister and Co v Stubbs has been disapproved in AG for Hong Kong v
Reid. In FHR European Ventures LPP v Cedar Capital Partners LLC, the Supreme Court held
that a bribe or secret commission accepted by an agent is held on trust for his principal.
AG for Hong Kong v Reid was applied and Lister and Co v Stubbs was overruled.
Section 16A (fraud) or conspiracy to defraud contrary to the common law may also
apply to cases involving secret profits. See para.22-​122 to 22-​125, below.
An obligation to retain and deal with property in a particular way
22–​59
See section 6(3), para.22-​51, above.
Section 6(3) is a deeming provision. Two conditions have to be satisfied before
property or its proceeds can be regarded as belonging to someone other than the
defendant under it. First, the defendant must have received property from or on
account of another. Secondly, the defendant must have been under an obligation
to the other to retain and deal with that property or its proceeds in a particular way.
(HKSAR v Goh Swee Yan [2000] 3 HKLRD 324, CA)
The “obligation” must be a legal one, as opposed to a social or moral obligation: R v
Gilks, 56 Cr App R 734, CA; R v Hall (G) [1973] QB 126; 56 Cr App R 547, CA; Wakeman
v Farrar [1974] Crim L R 136, DC; R v Klineberg and Marsden [1999] 1 Cr App R 427,
CA; and see also Floyd v DPP [2000] Crim L R 411, DC. The obligation of the defendant must be one of which he was aware: knowledge of an agent cannot be imputed to
the principal for the purposes of the criminal law, whatever may be the position in civil
law: R v Wills, 92 Cr App R 297, CA.
The issue is frequently whether the accused in receiving money from a client, did so
under an obligation to retain the money in a separate client account and not to mix it
with his own money or that of his business. For cases on either side of the line, see R v
Hall, above (no evidence that travel agents were expected by their clients to retain and
deal with their money in a particular way), and R v McHugh, 97 Cr App R 335, CA (investment monies). In McHugh, the court said that a jury should be directed that section 5(3)
of the Theft Act (section 6(3) of the Theft Ordinance) only applies, where there is no
written agreement, if both parties clearly understood that the investment or its proceeds
was to be kept separate. In Hall, the court emphasised a number of general points.
(1) Each case turns on its own facts.
(2) Dishonesty should be present at the time of the appropriation. “We are alive to the
fact that to establish this could present great … difficulties when sums are on
different dates drawn from a general account” (per Edmund Davies LJ at 131).
(3) The judge’s direction to the jury should contain a careful exposition of the
subsection.
Mixed questions of law and fact may call for consideration in deciding whether, in
a particular case, the Crown has succeeded in establishing an “obligation” of the kind
coming within section 5(3) of the Theft Act (section 6(3) of the Theft Ordinance).
If the transaction is wholly in writing, it will be for the judge to direct the jury as to
the legal effect thereof: ibid. In any other case, if the facts relied upon by the prosecution are in dispute, the judge should direct the jury to make their findings as to the
facts and should add that if they find certain facts, then, as a matter of law, the defendant was under a legal obligation to which section 5(3) of the Theft Act (section 6(3)
of the Theft Ordinance) applies: R v Dubar [1995] 1 Cr App R 280, Ct-​MAC, following
R v Mainwaring and Madders, 74 Cr App R 79, CA. The opposite view on this point, see
R v Hall, above, and R v Hayes, 64 Cr App R 82, CA.
See also Wakeman v Farrar [1974] Crim L R 136, DC; R v Brewster, 69 Cr App R 375,
CA; Davidge v Bunnett [1984] Crim L R 297, DC; R v Breaks and Huggan [1998] Crim L
R 349, CA, and Re Kumar [2000] Crim L R 504, DC. In Brewster, it appears that, despite
the references to section 5(3) of the Theft Act (section 6(3) of the Theft Ordinance),
428
Sect. II]
Theft
22–60
the decision that the property in question, insurance premiums, “belonged to
another” did not depend upon the application of that subsection.
Although there must be a legal obligation, there need not be a legally enforceable one.
That the obligation might have become impossible of performance or of enforcement on
grounds of illegality or of public policy is irrelevant: R v Meech [1974] QB 549; 58 Cr App R
74, CA. The obligee would not have been able to enforce performance because of his own
fraud. However, at the time of entering into the obligation, the defendant was unaware of
the fraud; it seems the court regarded this feature as important and that the conclusion may,
therefore, have been different had the defendant been aware from the outset of the fraud.
A person who collects money for charity is subject to an obligation in respect of
the money or its proceeds by reason of the donor’s intention to give money to the
charity, which is sufficient to impose a trust; accordingly the property or proceeds is to
be regarded as belonging to the beneficiaries: R v Wain [1995] 2 Cr App R 660, CA,
overruling Lewis v Lethridge [1987] Crim L R 59, DC.
The subsection may be applied, even where the recipient is, throughout, the legal
owner of the property, if by agreement he recognises a legal obligation to retain and
deal with the property in the interest and/​or for the benefit of the transferor: R v
Arnold [1997] 4 All ER 1, CA (for the facts, see para.22-​62, below).
In DPP v Huskinson (1988) 20 HLR 562, DC, it was held that there was no legal obligation upon a recipient of housing benefit to use that benefit directly for payment for
rent. It was given in the expectation that the recipient would use it to pay his rent as he
had a legal obligation to his landlord to pay the rent, but there was not an obligation
upon him to apply the cheque directly for the rent.
Property obtained by another’s mistake
See section 6(4), para.22-​50, above.
The “obligation” to make restoration must be a legal one: R v Gilks, above; R v Hall
(G), above; Att-​Gen’s Reference (No 1 of 1983) [1985] QB 182; 79 Cr App R 288, CA.
In Att-​Gen’s Reference (No 1 of 1983), above, an overpayment had been made through
the direct debiting system, thereby crediting the respondent’s bank account with an
extra £74, which her employer had mistakenly believed was due to her in respect of
overtime. In the Crown Court and in the Court of Appeal it was assumed that her
bank account was in credit. The Court of Appeal accordingly held that she had “got”
property by another’s mistake, the property being the debt owed to her by her bank.
Lord Lane CJ at 189, delivering the opinion of the court, said:
“Was she under an obligation to make restoration of either the property or its proceeds or its value?’ We take each of those in turn. ‘Was she under an obligation to
make restoration of the property?’ –​the chose in action. The answer to that is ‘no.’
It was something which could not be restored in the ordinary meaning of the word.
‘Was she under an obligation to make restoration of its proceeds?’ The answer to
that is ‘no.’ There were no proceeds of the chose in action to restore. ‘Was she under
an obligation to make restoration of the value thereof?’ –​the value of the chose in
action. The answer to that seems to us to be ‘yes’ ”.
Having said that it was the court’s opinion that “restoration” in section 5(4) of the
Theft Act (section 6(3) of the Theft Ordinance) had the same meaning as “making
restitution”, his Lordship at 189 continued:
“One therefore turns to see whether, under the general principles of restitution, this
respondent was obliged to restore, or pay for, the benefit which she received: generally speaking the respondent, in these circumstances, is obliged to pay for a benefit
received when the benefit has been given under a mistake on the part of the giver as
to a material fact. The mistake must be as to a fundamental or essential fact and the
payment must have been due to that fundamental or essential fact. The mistake here
was that this [respondent] had been working on a day when she had been at home
and not working at all. The authority for that proposition is to be found in Norwich
Union Fire Insurance Society Ltd v Wm H Price Ltd [1934] AC 455.”
Where the payee of a cheque exchanges that cheque with a third party for cash
before the cheque is presented, the cash received represents the “proceeds” of the
429
22–​60
22–60
Offences Under the Theft Ordinance
[Chap. 22
cheque for the purposes of section 6(4): R v Davis (G.), 88 Cr App R 346, CA. Where
a person who is entitled to one cheque is sent two cheques by mistake, the prosecution, on a charge of theft of the proceeds of one cheque, is not obliged to identify the
cheque to which the charge relates: ibid.
(e) “With the intention of permanently depriving the other of it”
Theft Ordinance (Cap 210), s 7
22–​61
7.—​(1) A person appropriating property belonging to another without meaning the
other permanently to lose the thing itself is nevertheless to be regarded as having the
intention of permanently depriving the other of it if his intention is to treat the thing as
his own to dispose of regardless of the other’s rights; and a borrowing or lending of it
may amount to so treating it if, but only if, the borrowing or lending is for a period and
in circumstances making it equivalent to an outright taking or disposal.
(2) Without prejudice to the generality of subsection (1) above, where a person, having possession or control (lawfully or not) of property belonging to another, parts with
the property under a condition as to its return which he may not be able to perform, this
(if done for purposes of his own and without the other’s authority) amounts to treating
the property as his own to dispose of regardless of the other’s rights.
Treating thing as own to dispose of
22–​62
There has been much debate as to the scope of the equivalent UK section to s 7(1),
namely s 6(1) of the Theft Act. But it now appears settled that what it requires is a state of
mind which is equivalent of an intention permanently to deprive: R v Vinall (George Alfred)
[2012] 1 Cr App R 29. As for the first limb of s 6(1), where the defendant has the “intention
to treat the thing as his own to dispose of regardless of the other’s rights”, the restrictive
interpretation, namely that it was aimed at cases of ransoming the owner’s good, has been
rejected. Section 6(1) is expressed in general terms and is not limited to specific exceptions.
Section 6 may apply in situations where a person deals with another’s property in such
a manner that he knows he is risking its loss: R v Fernandes [1996] 1 Cr App R 175, cited
in HKSAR v Hsu Ming Mei [2013] 1 HKLRD 286.
In R v Fernandes it was held that s 6(1) of the Theft Act should not be given the
restricted interpretation which, it was argued, resulted from the decisions in R v
Warner, 55 Cr App R 93, CA, and R v Lloyd, Bhuee and Ali [1985] QB 829; 81 Cr App
R 182, CA. The appellant was a solicitor who had transferred funds from his clients’
account to his bookkeeper, R, for investment in a firm of licensed backstreet moneylenders of which R was a partner. The money disappeared. The appellant contended
that he did not intend permanently to deprive the owner of the money. The judge
directed the jury in accordance with the words of the first part of s 6(1) of the Act,
that he could be regarded as having the requisite intention if his intention was to treat
the thing as his own to dispose of, regardless of the other’s rights. On appeal, it was
argued that the prosecution had to prove an unwatered down intention permanently
to deprive and reliance was placed on the decisions in Warner and Lloyd, Bhuee and Ali.
In Warner, Edmund-​Davies LJ said (at 96, 97) that s 6(1) did not water down the need to
prove an intention permanently to deprive, but merely illustrated what could amount to
such an intention. In Lloyd, Lord Lane CJ said (at 836) that the first part of the subsection
was aimed at the sort of case where a defendant took goods and then offered them back
to the owner to buy if he wished. The second part of the subsection was concerned with
borrowing, which, ex hypothesi, was not something done with an intention permanently to
deprive. That part of the subsection was intended to make it clear that a mere borrowing was never enough to constitute the necessary guilty mind unless the intention was to
return the “thing” in such a changed state that it could truly be said that all its goodness
or virtue had gone. The court in Fernandes rejected the appellant’s submissions and held:
“In our view, s 6(1), which is expressed in general terms, is not limited in its application to the illustrations given by Lord Lane CJ in Lloyd.…The critical notion, stated
expressly in the first limb and incorporated by reference in the second, is whether a
defendant intended ‘to treat the thing as his own to dispose of regardless of the other’s rights’. The second limb of subsection (1), and also subsection (2), are merely
specific illustrations of the application of that notion. We consider that s 6 may apply
430
Sect. II]
Theft
22–63
to a person in possession or control of another’s property who, dishonestly and for
his own purpose, deals with that property in such a manner that he knows he is risking its loss. In the circumstances alleged here, an alleged dishonest disposal of someone else’s money on an obviously insecure investment, we consider that the judge was
justified in referring to s 6” [per Auld LJ at 188].
In the case when the return of the “borrowed” item is conditional, if the condition is
one which would not be fulfilled or not be fulfilled in the foreseeable future, then the
circumstances may well amount to an intention permanently to deprive. If, however, the
condition can readily be fulfilled and may be fulfilled in the near future, the jury may
well conclude that intention to deprive has not been made out. (Coffey [1987] Crim.L.R
498; R v Sian Waters [2015] EWCA Crim 402) “Abandonment” cases need to be carefully
examined. In R v Mitchell [2008] All ER (D) 109 (Apr), a robbery case, the court held
that there was no intention to permanently deprive where the appellant had violently
taken a car and used it as a getaway vehicle before abandoning it. Likewise in R v Vinall
(George Alfred) [2012] 1 Cr App R 29 the robbery conviction was quashed. The prosecution case was that a cyclist was punched from his bicycle and chased away, and Ds then
walked away with the bicycle which was found abandoned by a bus shelter some 50 yards
away. Appropriation and intention to deprive must coincide. While the later abandonment in a robbery case is capable of being evidence from which Ds’ intention at the
time of taking to treat the bicycle as their own to dispose of can be inferred, an intention
formed at the time of abandonment was fatal to the allegation of robbery. The directions had not made this clear. In R v Zerei [2012] EWCA Crim 114, the Court of Appeal
held that the judge’s failure to draw the distinction between an intention permanently
to deprive and taking of the possession of the car which merely defeated the rights of the
owner for a short period of time amounted to a misdirection. However in Chief Constable
of Avon and Somerset Constabulary v Smith (20 Nov 1984) there was evidence to support
the s 6(1) intention. In that case Ds broke into a car, removed a briefcase and an attaché
case, and left the briefcase in a nearby hedge and the attaché case in a public lavatory.
Valuable security
In R v Arnold [1997] 4 All ER 1, CA, A had drawn a 180 day bill of exchange on B,
who, having accepted it, had redelivered it to A on the understanding that it was to be
retained as security for B’s obligations under a franchising agreement until the maturity date when the proceeds would be repaid to B against delivery of a replacement
bill. In breach of his obligation to retain the bill, A discounted it. It was held (following Fernandes) that even though the bill would eventually be returned to the acceptor
via his bank when presented for payment on the due date, A had an intention permanently to deprive; by the time of its return, it would have lost its value and identity as a
valuable security; A had intended “to treat the thing as his own to dispose of regardless
of the other’s rights”. (In his commentary at [1997] Crim L R 834, Sir John Smith
QC points out that the appellant was charged with stealing a valuable security, not
the paper itself. The paper returned to the victim was not a valuable security, merely
a piece of paper. He had in fact been wholly deprived of the valuable security and it
is suggested that there was, therefore, no need to resort to the tortuous provisions of
section 6(1) of the Act (section 7(1) of the Theft Ordinance) to find an intention to
permanently deprive).
It had been held in R v Duru, 58 Cr App R 151, CA, that where cheques were
obtained by deception, section 6(1) of the Theft Act (section 7(1) in Hong Kong)
came into play. In R v Downes, 77 Cr App R 260, CA, it was held, applying Daru, that
the defendant committed theft when he sold vouchers which belonged to the Inland
Revenue, and were made out in his name, to third parties in circumstances in which
he knew that they would be submitted, and thereby returned, to the Revenue so as to
obtain tax advantage. In R v Arnold, above, the court referred to Downes as providing
an example of the operation of section 7(1) [in the United Kingdom, section 6(1)]
and did not suggest that it was no longer good law because of the decision in Preddy.
It stated that there was good reason, where the factual situation permits, to give effect
to the rationale behind R v Duru that the “substance” of a cheque or valuable security
lies in the right to present it and obtain the benefit of its proceeds, rather than in its
character as a mere piece of paper with a message on it.
431
22–​63
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Offences Under the Theft Ordinance
[Chap. 22
However, the legal position in Duru was modified by R v Preddy and Slade, and confirmed
in R v Dhillon [1996] AC 815, HL, which held that where a person obtains a cheque dishonestly from another intending to present the cheque for payment, neither a charge of
theft of the cheque form nor a charge of obtaining property (the cheque form) by deception contrary to section 15(1) of the 1968 Act (section 17 of the Theft Ordinance) will
succeed, for there will be no intention to permanently deprive the drawer of the cheque
form, which would on presentation for payment be returned to the drawer via his bank.
The lacuna created by Preddy has now been filled by section 15A of the 1968 Act: the
offence of “obtaining money transfer by deception”. However, no equivalent statutory
amendment has been made in Hong Kong.
In HKSAR v Wong Cho Sum [2001] 3 HKLRD 76, the Court of Appeal rejected the
submission on the basis of R v Preddy, ibid; R v Graham [1997] 1 Cr App R 302 and
HKSAR v Goh Swee Yan [2000] 3 HKLRD 324, that A who effects the transfer of funds
from B’s account could not be guilty of theft of the chose in action that is represented
by B’s bank account. It would therefore appear that Preddy is restricted to charges
involving an “obtaining”, per Stock JA in Wong Cho Sum, ibid, commenting on Preddy:
“those credits constituted a chose in action, namely, the right in the mortgagor to
demand from the bank in which the mortgagor held the credited account, payment
of the sum credited. That was not a thing in action which belonged to another. It
belonged to the mortgagor, the defendant.”
Also see HKSAR v Cheng Lap Sun Patrick (CACC 296/​2000, [2001] HKEC 1236) in
which the court commented, per Stock JA, that Preddy may only assist those defendants charged with obtaining the chose in action. It is submitted that in the context
of Hong Kong, a charge under section 18 (obtaining pecuniary advantage by deception –​this offence being differently drafted from its English equivalent), section 18A
(obtaining services by deception), section 16A (fraud), or a common law conspiracy to defraud, would potentially be appropriate charges to be laid depending upon
the circumstances of the case, given the absence of the specific offence of obtaining
money transfer by deception (section 15A of the 1968 Act) in Hong Kong.
In R v Marshall, Coombes and Eren [1998] 2 Cr App R 282, CA, it was held that a
person who acquired another’s unexpired ticket and sold it on could be guilty of
theft, where the ticket was issued on terms that it could be used only by the purchaser.
The fact that the ticket would be returned eventually to the issuer, with its usefulness
exhausted, was nothing to the point. There was evidence that the appellants had an
intention to treat the tickets as their own to dispose of, regardless of the issuer’s rights
(Fernandes followed). See the article on this decision by Professor Sir John Smith QC
in [1998] Crim L R 723.
Conditional appropriation
22–​64
A conditional appropriation will not suffice to constitute the offence of theft. If the
appropriator has it in mind merely to deprive the owner of such of his property as, on
examination, proves worth taking and then, finding that the booty is valueless to him,
leaves it ready to hand to be repossessed by the owner, he has not committed theft: R v
Easom [1971] 2 QB 315; 55 Cr App R 410, CA (where the allegation was of theft of a list
of specified property). Easom was applied in R v Hussein, 67 Cr App R 131, CA, and R
v Hector, 67 Cr App R 224, CA. In both cases the allegation had been one of attempted
theft of specific articles.
In such cases, an allegation of attempting to steal unspecified property will be un-​
objectionable, as the prosecution need only prove a general intent to steal, the same
intent as is required on a charge of burglary under section 11 of the Theft Ordinance
(in the United Kingdom: section 9(1)(a) of the 1968 Act (para.22-​82, below)): Att-​
Gen’s References (Nos 1 and 2 of 1979) [1980] QB 180; 69 Cr App R 266, CA.
Giving the judgment on the references, Roskill LJ said:
“Plainly it may be undesirable in some cases to frame indictments by reference
to the theft or attempted theft of specific objects. Obviously draftsmen of indictments require the maximum latitude to adapt the particulars charged to the facts
of the particular case, but we see no reason in principle why what was described in
432
Sect. III]
Robbery and Assault with Intent to Rob
22–68
argument as a more imprecise method of criminal pleading should not be adopted,
if the justice of the case requires it, as for example, attempting to steal some or all
the contents of a car or some or all of the contents of a handbag … It may be that
in some cases further particulars might be asked for and if so the prosecution could
in a proper case no doubt give them without difficulty. The important point is that
the indictment should correctly reflect that which it is alleged that the accused did,
and that the accused should know with adequate detail what he is alleged to have
done” [at 194].
See also R v Smith and Smith [1986] Crim L R 166, CA, in which the indictment
appears to have been based on the suggested formula of Roskill LJ, above. However,
the Court of Appeal seems to have suggested that while there is nothing wrong with
this form of wording it could have been drafted in even less precise terms. The court
appears to have been hinting at a form of wording such as that suggested by Professor
JC Smith in his commentary on this case in the Criminal Law Review (p 167). The suggestion is that any difficulties as to what has to be proved could be avoided by simply
charging the defendant with “attempting to steal from a handbag”.
(f) Other definitions
Theft Ordinance (Cap 210), s 8
Other Definitions
8.—​(1) Section 5(1) and section 6(1) shall apply generally for the purposes of this
Ordinance as they apply for the purposes of section 2.
(2) For the purposes of this Ordinance—​
“gain” and “loss” are, except in section 16A, to be construed as extending only to
gain or loss in money or other property, but as extending to any such gain or loss
whether temporary or permanent; and—​
(a) “gain” includes again by keeping what one has, as well as a gain by getting
what one has not; and
(b) “loss” includes a loss by not getting what one might get, as well as a loss by
parting with what one has; (Amended 45 of 1999 s 2)
“goods” except in so far as the context otherwise requires, includes money
and every other description of property except land, and includes things
severed from the land by stealing.
22–​65
(6) Attempted theft
Section 159G of the Crimes Ordinance (Cap 200) –​attempts –​per section 159G(2)
states that it is no longer necessary for the prosecution to prove that there, in fact,
exists any property capable of being stolen.
22–​66
III. ROBBERY AND ASSAULT WITH INTENT TO ROB
A. Robbery
(1) Statute
Theft Ordinance (Cap 210), s 10
Robbery
10.—​(1) A person is guilty of robbery if he steals, and immediately before or at the
time of doing so, and in order to do so, he uses force on any person or puts or seeks to
put any person in fear of being then and there subjected to force.
(2) A person guilty of robbery, or of an assault with intent to rob, shall on conviction
on indictment be liable to imprisonment for life.
22–​67
(2) Indictment
Where for example a bank cashier is robbed of the bank’s money, or a lorry driver
of his load or a shop manager of his takings, it is unnecessary to name the actual owner
433
22–​68
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Offences Under the Theft Ordinance
[Chap. 22
since property is regarded as belonging to any person having possession or control of
it: section 6(1) “belonging to another”, para.22-​50, above.
As to the inclusion of a count under the Firearms and Ammunition Ordinance (Cap 238),
where the use of a firearm is an incident of an offence of robbery, see Chapter 25, below.
(3) Sentence
Maximum
22–​69
The maximum sentence is imprisonment for life: s 10(2) of the Theft Ordinance,
para.22-​66, above. As robbery is an excepted offence (Schedule 3 of the Criminal
Procedure Ordinance (Cap 221)), a sentence of imprisonment cannot be suspended: section 109B of the Criminal Procedure Ordinance. The restriction on imprisonment of young persons between 16 and 21 years of age also does not apply: section
109A of the Criminal Procedure Ordinance.
(4) Alternative verdicts
22–​70
A person charged with robbery may, as an alternative, be convicted of theft (s.9);
assault with intent to rob (s.10); blackmail (s.23(1)); handling stolen goods (s.24); common assault. See Schedule to the Theft Ordinance at para.22–272.
(5) Elements of the offence of robbery
“Steals”
22–​71
To prove a theft, appropriation of the property is sufficient whether it has been taken
away or not. As to what constitutes “appropriation”, see para.22-​26 to 22-​40, above.
Claim of right
22–​72
Claim of right negatives theft and, therefore, it may negative robbery: R v Skivington
[1968] 1 QB 166; 51 Cr App R 167, CA; R v Robinson [1977] Crim L R 173, CA.
“Immediately before or at the time of doing so and in order to steal”
22–​73
22–​74
The force or threat of the use of force must be immediately before or at the time of
the stealing and for the purpose of stealing.
Force used after a theft is complete will not amount to a robbery, although that
force may constitute a separate criminal act. The offence of theft will be complete
as soon as there is an assumption of the rights of an owner, which is dishonest and is
accompanied by an intention permanently to deprive.
So, where A picked B’s pocket and B did not realise the fact until he saw the purse
in A’s hand and upon his remonstrating with A he was threatened, this was not, and
would not now be, robbery since the threats were not used in order to steal and the
theft was complete: R v Harman (1620) 1 Hale 534. See also Criminal Law Revision
Committee, 8th Report, Cmnd 2977, para 65.
Difficult questions may arise as to when the theft is complete. In R v Hale, 68 Cr App R
415, CA, the appellant, H, and another man had forced their way into the house of a woman
who had answered the door to their knock. H had then put his hand over her mouth to stop
her screaming while the other man went upstairs and returned carrying a jewellery box,
then asked “where the rest was”. A neighbour who had heard a scream had then telephoned
to ask if everything was all right. Under threat from H, she replied that it was. She was again
asked where she kept her money and before leaving the house they tied her up and threatened what would happen to her child if she informed the police within five minutes of their
leaving. It was submitted that the theft was complete when the jewellery box was seized and
that the direction to the jury was such that it was left open to them to convict of robbery on
the basis of force used after the theft was complete. The Court of Appeal held that it had
been open to the jury to convict of robbery on the basis of the force used when the men first
entered the house. However, it was also held that the jury would have been entitled to act
434
Sect. III]
Robbery and Assault with Intent to Rob
22–80
upon the evidence of the later force. The act of appropriation does not suddenly cease. It is
for the jury to decide whether the theft is complete. See also para.22-​34, above.
The force must be used or threatened in order to steal; thus it would seem that
where a man attempted to rape a woman and she, in order to get him to stop, gave
him money that he pocketed (cf R v Blackham (1787) 2 East PC 711), this would not
constitute robbery since the force was not used in order to steal.
22–​75
Use or threat of force
It must be proved that the defendant used force on any person or put or sought to 22–​76
put any person in fear of being then and there subjected to force. In R v Dawson and
James, 64 Cr App R 170, the Court of Appeal said that in directing a jury where the
charge is robbery the judge should direct his attention to the words of the statute and
not refer to old authorities, for the object of the Theft Act was to get rid of all the old
technicalities of the law of larceny and put the law in simple language that juries would
understand and that they themselves would use. Whether the defendant used force on
any person in order to steal is an issue that should be left to the jury. The court held
that the judge had properly left it to the jury to decide whether the jostling of a person
to an extent that caused him to lose his balance amounted to a use of force within s 8
(s 10 of the Theft Ordinance).
Where threats are used, they must amount to threats of then and there, subjecting the
victim or some other person to force. A less immediate threat of force might constitute
blackmail under s 23 of the Theft Ordinance: see para.22-​204, below. If the defendant
by his words or conduct has sought to make the victim or some other person apprehend
that he would be subjected to force, it is not necessary that he actually be afraid that the
force will be used. Section 10(1) of the Theft Ordinance refers to the use of “force on
any person” or putting “any person in fear of being then and there subjected to force” –​
which require that force is used on a person. The question of what amounts to the use
of force on a person when the force is minimal is for the trial court to decide. However,
the mere snatching of a cigarette from between the fingers of a person, without making
contact with the person, was not sufficient to amount to the use of force on his person,
although it would amount to theft: P v Director of Public Prosecutions [2013] 1 WLR 2337.
On any person
The use or threat of force must be directed to the person. Hence a threat of “$1000
or I will burn your house” may not amount to robbery but may be blackmail under
section 23 of the Theft Ordinance. The force may be directed at a person who is not
the victim of the theft if such force is used in order to effect the theft.
22–​77
B. Assault with Intent to Rob
Indictment
It is submitted that “assault with intent to rob” is a common law offence that carries a statutory penalty under section 10(2) of the Theft Ordinance. As a matter of
practice, it is prudent to include a reference to section 10(2) in the statement of
offence: see R v Harrow JJ, Ex p Osaseri [1986] QB 589, DC.
22–​78
Alternative verdict
Other offences of which the defendant may be found guilty are theft (section 9);
robbery (section 10); blackmail (section 23(1)); and common assault: see Schedule
to the Theft Ordinance.
22–​79
Sentence
Imprisonment for life: Theft Ordinance, section 10(2), para.22-​66, above. For guidance as to the appropriate sentence, see para.22-​13 to 22-​71A, above and Chapter 5
on sentencing.
435
22–​80
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Offences Under the Theft Ordinance
[Chap. 22
Elements of the offence
22–​81
To support this charge or indictment, the prosecution must prove the assault, and
that it was coupled with an intent to rob. As to what constitutes an assault, see para.20-​
188 et seq, above.
In R v Venna [1976] QB 421; 61 Cr App R 310, CA, it was held that on a charge of
assault the necessary mens rea was established by proof of recklessness, and that it was
unnecessary to prove intention. However, for the purposes of the offence of assault
with intent to rob, it is difficult to see how, in practice, a reckless assault could possibly
be sufficient, because if the assault was not intended, it cannot sensibly be said to have
been committed with the intention of committing robbery.
The intent to rob must, of course, be proved from the surrounding circumstances
and any admission or confession made by the defendant. No actual demand of money,
etc is necessary to support this indictment: R v Trusty and Howard (1783) 1 East PC 418;
R v Sharwin (1785) 1 East PC 421.
IV. BURGLARY AND AGGRAVATED BURGLARY
A. Burglary
(1) Statute
Theft Ordinance (Cap 210), s 11
22–​82
11.—​(1) A person commits burglary if—​
(a) he enters any building or part of a building as a trespasser and with intent to
commit any such offence as is mentioned in subsection (2) below; or
(b) having entered any building or part of a building as a trespasser he steals
or attempts to steal anything in the building or that part of it or inflicts or
attempts to inflict on any person therein any grievous bodily harm.
(2) The offences referred to in subsection (1)(a) are –​(a) stealing anything in the
building or part of a building in question; (b) inflicting on any person therein any grievous bodily harm or raping any woman therein; and (c) doing unlawful damage to the
building or anything therein.
(3) References in subsections (1) and (2) to a building shall apply also to an inhabited
vehicle or vessel, and shall apply to any such vehicle or vessel at times when the person
having a habitation in it is not there as well as at times when he is.
(3A) The reference in subsection (2)(c) to doing unlawful damage to anything in a
building includes—​
(a) unlawfully causing a computer in the building to function other than as it has
been established by or on behalf of its owner to function, not withstanding that
the unlawful action may not impair the operation of the computer or a programme held in the computer or the reliability of data held in the computer;
(b) unlawfully altering or erasing any programme, or data, held in a computer in
the building or in a computer storage medium in the building;
(c) unlawfully adding any programme or data to the contents of a computer in the
building or a computer storage medium in the building.
(4) Any person who commits burglary shall be guilty of an offence and shall be liable
on conviction upon indictment to imprisonment for 14 years.
(2) Indictment
Indictment for burglary (entering with intent)
22–​83
Statement of Offence
Burglary, contrary to section 11(1)(a) of the Theft Ordinance (Cap 210).
Particulars of Offence
AB, on or about the _​_​_​_​day of _​_​_​_​_​, 20_​_​, in Hong Kong, entered as a trespasser
a building [or “part of a building”], being a dwelling known as __​ _​ _​ _​ _​ _​ ​with the intent
436
Sect. IV]
Burglary and Aggravated Burglary
22–88
to steal therein, [or “to inflict grievous bodily harm on CD, a person therein”] [or “to
rape a woman therein”] [or “to do unlawful damage to the said building or anything therein”].
Indictment for burglary after having entered a building
Statement of Offence
Burglary, contrary to section 11(1)(b) of the Theft Ordinance (Cap 210).
22–​84
Particulars of Offence
AB, on or about the __​ _​ _​ ​day of __​ _​ _​ _​ ​, 20__​ ​, in Hong Kong, having entered as a trespasser
a building [or “part of a building”], being a dwelling known as _​_​_​_​_​_​_​stole therein _​_​_​_​
_​_​_​_​[or “attempted to steal therein”] [or “attempted to inflict grievous bodily harm on CD, a
person therein”]  …
It appears that it is not necessary or desirable to specify any person as owner of the
building.
22–​85
(3) Alternative verdict
Upon a charge of burglary contrary to s.11, the court or jury may acquit of burglary
but convict of the statutory alternatives per the Schedule to the Theft Ordinance,
namely: : Theft (s.9); Handling stolen goods (s.24); Going equipped for stealing
(s.27); or Inflicting grievous bodily harm. See para.22–272.
In addition to the statutory alternatives, upon a charge contrary to section 11(1)(b)
alleging entry as a trespasser plus the infliction of grievous bodily harm, the jury may
convict of assault occasioning actual bodily harm: R v Wilson; R v Jenkins [1984] AC 242,
HL. Upon a charge contrary to section 11(1)(b) of having “entered and stolen” the jury
may convict of “entering with intent to steal” contrary to section 11(1)(a): R v Whiting,
85 Cr App R 78, CA. See also R v Lee Shiu Chung (HCMA 1183/​1996, [1997] HKLY 212).
22–​86
(4) Sentence
Maximum
The maximum sentence is 14 years upon conviction: section 11 of the Theft
Ordinance, para.22-​82, above.
22–​87
(5) Elements of offence of burglary
The building
Any building or part of a building may be the subject of burglary; also an inhabited
vehicle or vessel, whether the occupier is there or not at the time of the offence (section 11(3)). This includes houseboats and caravans that are regularly inhabited even
if empty at times.
The word “building” being an ordinary word of the English language and the context not being such as to show that the word is used in an unusual sense, its meaning is
a question of fact not law: see Brutus v Cozens [1973] AC 854, HL. It is for the tribunal
of fact to decide whether in the whole circumstances, the words of the statute do or
do not as a matter of ordinary usage of the English language apply to the facts that
have been proved: ibid. For a further discussion on this topic, see Smith, The Law of
Theft, 8th edn, pp 196-​200, in which the view is taken that an unfinished building may
in some circumstances be a “building”: see also R v Manning (1871) LR 1 CCR 338,
where an unfinished house of which all the walls, external and internal, had been
built, the roof was on, a considerable part of the flooring laid, etc, was held to be “a
building” under section 6 of the Malicious Damage Act 1861. It was held that the issue
had been properly left to the jury, and that their finding upon the issue was conclusive.
“Such words as those in the section must be interpreted in their ordinary sense. And
it would certainly not have been a departure from ordinary language to have asked,
‘Who built that structure?’ ” [per Byles J at 340].
437
22–​88
22–88
Offences Under the Theft Ordinance
[Chap. 22
“I do not think four walls erected a foot high would be a building” [per Lush J at 341].
The offence of burglary is complete once the burglar has entered the premises. The fact
that he has done so by a trick (deceiving two young children) is irrelevant: HKSAR v Lui
Yuen Shun (CACC 322 of 2006) [2007] HKEC 224. In the same case it was stated that if
property of considerable value were taken this could enhance the sentence.
Entry as a trespasser
22–​89
The definition of trespass comes from the law of tort, ie any intentional, reckless or
negligent entry into a building will constitute a trespass if the building is in the possession of another person who does not consent to the entry. However, such an entry
must be accompanied by mens rea: the defendant must know or be reckless as to the
facts that make the entry a trespass: R v Collins [1973] QB 100; 56 Cr App R 554, CA. In
R v Smith and Jones, 63 Cr App R 47, CA, James LJ cited Collins and Hillen and Pettigrew
v ICI (Alkali) Ltd [1936] AC 65, as authority for the proposition that:
“a person is a trespasser for the purpose of [Hong Kong, section 11(1) of the Theft
Ordinance] … if he enters premises of another knowing that he is entering in excess of
the permission that has been given to him, or being reckless as to whether he is entering in excess of the permission that has been given to him to enter, providing the facts
are known to the accused which enable him to realise that he is acting in excess of the
permission given or that he is acting recklessly as to whether he exceeds that permission, then that is sufficient for the jury to decide that he is in fact a trespasser” [at 52].
The occupier’s son had a general permission to enter the house. However, he
exceeded that permission when he entered with an accomplice and with an intent to
steal, and, accordingly, he committed burglary.
In Collins, above, it was argued that it was not open to a person, in that case the
occupier’s daughter, other than the owner, tenant or occupier of premises to extend
an effective invitation to enter. The argument was dealt with summarily by Edmund-​
Davies LJ at 107: “Whatever be the position in the law of tort, to regard such a proposition as acceptable in the criminal law would be unthinkable”. However, it is submitted
it would be trespass for a person to enter in response to an invitation that the person
entering knew was extended without any authority or in excess of a limited authority.
The common law doctrine of trespass ab initio has no application to burglary under
the Theft Act in England: R v Collins, above, and by extension in Hong Kong under
the Theft Ordinance. A prima facie case of trespass may be established without direct
evidence from the occupier: R v Maccuish [1996] 6 Archbold News 2, CA.
Also see HKSAR v Tiongson Patricia Manalad [2002] 1 HKLRD 681, CA.
Entry for a purpose alien to a licence to enter, or under false
pretences
22–​90
There is abundant authority for the proposition that a person who has the right of
entry on the land of another for a specific purpose commits a trespass if he enters for
any other purpose: Taylor v Jackson (1898) 78 LT 555; Hillen and Pettigrew v ICI (Alkali)
Ltd [1936] AC 65; Farrington v Thomson and Bridgland [1959] VR 286; Strong v Russell
(1904) 24 NZLR 916; R v Ma Pui-​ying [1998] HKLRD 41, CA. A fortiori, it would seem
that where a consent to entry is obtained by fraud, the entry will be a trespass; whether
or not the consent can be said to be vitiated by the fraud, situations such as that where
a person gains entry by falsely pretending he has come to read the gas meter can
clearly be brought within the principle for which the foregoing cases are authority.
The entry
22–​91
The Court of Appeal, in R v Collins [1973] QB 100; 56 Cr App R 554, said it was
unnecessary to consider the old authorities: what had to be proved was that the
defendant made an “effective and substantial” entry into the building (per Edmund-​
Davies LJ at 562). In R v Brown (V) [1985] Crim L R 212, CA, the court said that the
438
Sect. IV]
Burglary and Aggravated Burglary
22–92D
word “substantial” in Edmund-​Davies LJ’s dictum in Collins did not assist. However, it
might equally be said that “effective” does not help either: what is effective for one
purpose may be wholly ineffective for another. Whether an “entry” has been proved,
entry being a separate ingredient of the offence, cannot admit a different answer
according to what the defendant’s purpose was.
R v Brown and R v Collins were discussed by the Court of Appeal in HKSAR v Khan
Asif [2010] 1 HKLRD 404. The Court held [para 27] that the Theft Ordinance
reflected the common law rule that the insertion of any part of the body, however
small, is sufficient to constitute burglary. The act against which s 11(1)(a) of the Theft
Ordinance is directed is a deliberate and uninvited intrusion upon private premises
with an intention to steal or to commit one of the other offences referred to in ss (2).
In HKSAR v Emran [2012] 3 HKLRD 535, [2012] 5 HKC 221, the Court of Appeal
held that “entry” must be given its ordinary meaning. D placed a ladder against an
outside wall and used it to climb onto the flat roof of a church and remove copper
wiring from the air conditioning unit. It was held that D had not committed burglary.
A person does not enter a building if he climbs an outside wall on the roof. That exercise involves no ingress or invasion of premises. D remained always on the outside of
the building. A conviction of theft was substituted.
Burglary is a continuing offence and includes the escape from burgled premises: R
v Bristow [2013] EWCA Crim 1540, [22].
The ulterior intent: s 11(1)(a)
The intention must be to commit one of the offences specified in section 11(2).
The intent laid in the indictment must be proved as laid: R v Pearson, 4 Cr App R 40,
CCA. Where the intent is at all doubtful, it may be laid in the alternative –​either in
the same count, or in different counts.
Where a person attempts to enter premises as a trespasser intending to commit
one or other of the offences set out in section 11(2), that is sufficient to constitute the offence of attempted burglary. It is not necessary to prove an attempt to
carry out the ulterior offence (in this case, rape): R v Toothill [1998] Crim L R
876, CA.
22–​92
Stealing, contrary to s 2 of the Theft Ordinance
Where a person enters a building as a trespasser with an intention to steal it is no
defence that he only intends to steal if he finds anything worth stealing, or that in
the building or part of a building that he enters there is, in fact, nothing to steal: R v
Walkington, 68 Cr App R 427, CA; Att-​Gen’s References (Nos 1 and 2 of 1979) [1980] QB
180; 69 Cr App R 266, CA.
22–​92A
Inflicting grievous bodily harm
If a person enters a building intending to inflict grievous bodily harm on a person inside the building, then he has done so with the intention of committing an
offence contrary to s 17 of the Offences Against The Person Ordinance (Cap
212): para.20-​215, above.
22–​92B
Rape
If a man enters a building as a trespasser intending to have intercourse with a person therein, if possible with consent, but if not, then by committing rape, this will,
it is submitted, constitute a sufficient intent. As to the mens rea required for rape,
see: para.21-​24 et seq, above.
22–​92C
Unlawful damage
Offences of damaging property are contained in the Crimes Ordinance (Cap 200).
See also Chapter 24.
439
22–​92D
22–93
Offences Under the Theft Ordinance
[Chap. 22
The ulterior offence: section 11(1)(b)
Theft or attempted theft
22–​93
This must be proved in the manner directed: para 22-​2 to 22-​65, above.
Inflicting or attempting to inflict grievous bodily harm
22–​94
The statute does not expressly say that the infliction of grievous bodily harm must
constitute an offence, but it is submitted that this is in fact a requirement. The minimum, therefore, that the prosecution must prove is the commission of an offence
contrary to s 19 of the Offences Against The Person Ordinance (Cap 212) (para.20-​
228, above), or an attempt to commit such an offence.
(6) Recent possession
The “rule”
22–​95
There appears to have been widespread misunderstanding of the so-​called doctrine of recent possession. The “rule” is no more than the application of common
sense, eg see HKSAR v Wong Wai Ping (CACC 478/​2002, [2003] HKEC 610). It
is merely a principle concerning how a judge or jury makes inference from facts
and there is no magic in any given length of time. Every case depends on its own
facts: HKSAR v Choi Heung Yee [1995-​2000] HKCLRT 249; HKSAR v Mohammad
Amjad (CACC 423/​2011, 20 Sept. 2012); HKSAR v Tran Thi Hoai Huong (CACC
127/​2014, 30 October 2014). It is essentially just an inference that can be drawn
from suspicious facts that call for an explanation: HKSAR v Cheng Chi Wai [2012]
4 HKLRD 360.
It has been held that where it is proved that premises have been entered and property stolen therefrom and that very soon after the entry the defendant was found
in possession of the property, it is open to the jury to convict him of burglary: see
R v Loughlin, 35 Cr App R 69, CCA; R v Seymour, 38 Cr App R 68, CCA. This applies
equally to thefts other than in the course of a burglary, whether a pick-​pocketing or an
armed robbery. However, where recent possession is literally the only evidence, it will
be impossible to exclude the possibility that the defendant was merely a receiver of the
stolen property: in such cases, a count of burglary ought not to be left to the jury. In
other words, it is not permissible to draw an inference of guilt on the basis of recent
possession alone. But the reality is that in the great majority of cases there are other
pieces of evidence that tend to point the case one way or the other, such as the time
and place of the theft, the type of property stolen, the type of property stolen, the likelihood of it being sold on quickly, the circumstances of the defendant, whether he has
any connection with the victim or with the place where the theft occurred, anything
said by the defendant and how that fits in or does not fit in with the other available
evidence: HKSAR v Mohammad Amjad (CACC 423/​2011, 20 Sept 2012); HKSAR v Tran
Thi Hoai Huong (CACC 127/​2014, 30 Oct. 2014).
Handling
22–​96
In R v Smythe, 72 Cr App R 8, CA, the court stressed that it is a misconception to
think that recent possession is a material consideration only in cases of handling. It
adopted the following passage from Cross on Evidence, (now 9th edn, p 38):
“If someone is found in possession of goods soon after they have been missed, and
he fails to give a credible explanation of the manner in which he came by them, the
jury are justified in inferring that he was either the thief or else guilty of dishonestly
handling the goods, knowing or believing them to have been stolen … The absence
of an explanation is equally significant whether the case is being considered as one
of theft or handling, but it has come into particular prominence in connection with
the latter because persons found in possession of stolen goods are apt to say that
they acquired them innocently from someone else. Where the only evidence is that
the defendant on a charge of handling was in possession of stolen goods, a jury may
440
Sect. IV]
Burglary and Aggravated Burglary
22–97
infer guilty knowledge or belief (a) if he offers no explanation to account for his possession, or (b) if the jury are satisfied that the explanation he does offer is untrue.”
Every case depends on its own facts. There is no magic in any given length of
time. However, it is submitted that in many cases where the only evidence is that of
recent possession, it will be impossible to exclude the possibility that the defendant was merely a receiver of the stolen property: in such cases, a count of burglary
ought not to be left to the jury. However, that applies where recent possession is
literally the only evidence. The reality is that in the great majority of cases there
are other pieces of evidence that tend to point the case one way or the other. It
would be impossible to compile a definitive list of circumstances that might be
relevant. They will include, however, the time and place of the theft, the type of
property stolen, the likelihood of it being sold on quickly, the circumstances of
the defendant, whether he has any connection with the victim or with the place
where the theft occurred, anything said by the defendant and how that fits in or
does not fit in with the other available evidence. This paragraph was described as
“instructive” in HKSAR v Mohammad Amjad (CACC No 423 of 2011, [2012] HKEC
1278). At 320am a taxi driver was robbed of his mobile phone and bag by four passengers of South Asian ethnicity. About 1½ hours later D and one of the identified
robbers were found in a bush near the scene of the crime. D had the phone with
him and the bag was nearby. D argued, on appeal, that his possession was more
consistent with handling than robbery. This was rejected. There were other factors
which entitled the Judge to find that D committed the robbery and did not merely
handle the phone.
In HKSAR v Cheng Chi Wai [2012] 4 HKLRD 360, [2012] 4 HKC 590, D ran a motor
vehicle workshop at which the police had found six stolen cars. Section 24(1) of the
Theft Ordinance (Cap 210) requires that the handling be “otherwise than in the
course of stealing”. It was argued on appeal that the evidence was as consistent with
stealing as with receiving. This argument was rejected. First, the inference drawn by
the doctrine that D was the guilty handler included the inference that he was not the
actual thief. In recent possession cases there is no further burden on the prosecution
to prove the handling was “otherwise than in the course of stealing”. Second, the
overwhelming evidence was that D was a “fence of stolen motor vehicles”. The issue
whether he was receiving the cars otherwise than in the course of stealing them simply
did not arise.
In R v Greaves (The Times, 11 July 1987), the Court of Appeal rejected an argument
to the effect that because the Court of Appeal had said in R v Cash [1985] QB 801;
80 Cr App R 314 that it would be impossible to infer participation in a burglary from
possession of some of the stolen property nine days later, it was automatically wrong
for the trial judge to have left it open to the jury to convict of burglary where the
time lapse was 17 days. It is submitted that the position expressed in Greaves is plainly
correct although on the particular facts of the case, the Court of Appeal quashed the
conviction for burglary on the basis that the case should not have been left to the jury
and substituted a verdict of guilty of handling.
There is, however, a difficulty with the decision in Greaves to substitute a conviction
for handling. The point is closely connected with the discussion above, as to the relationship between the offences of theft and handling stolen goods. The indictment
contained an alternative allegation of handling stolen goods to which the defendant
pleaded guilty. The plea was not acceptable. The jury were not put in charge in respect
of that matter and, there having been a conviction of burglary, no sentence was passed
upon it. The Court of Appeal, however, substituted a verdict of guilty of handling
under s 3 of the Criminal Appeal Act 1968 (the Hong Kong equivalent being s 83A of
the Criminal Procedure Ordinance (Cap 221)): see para.7-​75, above. But that section
applies in England as it does in Hong Kong only where (a) “the jury could on the
indictment have found him guilty of some other offence”, and (b) “on the finding of
the jury it appears to the Court of Appeal that the jury must have been satisfied of facts
which proved him guilty of the other offence”. As to the first requirement, it is difficult to see how the jury could on the indictment have found him guilty of handling if
they were never put in charge on that count. That may be technical: more substantial
441
22–​97
22–97
Offences Under the Theft Ordinance
[Chap. 22
is the fact that the jury –​by convicting of burglary –​were clearly not satisfied of facts
that proved him guilty of handling. R v Dolan, 62 Cr App R 36, CA, suggests that the
Court of Appeal could simply have sentenced the appellant under s 4 of the Criminal
Appeal Act 1968 (s 83B of the Criminal Procedure Ordinance) on the basis of his plea
of guilty to handling; but s 4 (s 83B of the Criminal Procedure Ordinance) depends
on there being a conviction, and a plea of guilty without sentence being passed is not
a conviction (R v Cole [1965] 2 QB 388; 49 Cr App R 199, CCA. R v Cole cited with
approval in Wong Cho Kui v R [1965] HKLR 575 at 577, that “a plea of guilty … only
ranks as a conviction when the defendant is sentenced”).
As to the proper course when the evidence is as consistent with handling as with
burglary or theft, see para.22-​215 to 22-​230, below.
B. Aggravated Burglary
Statute
Theft Ordinance (Cap 210), s 12
22–​98
12.—​(1) A person commits aggravated burglary if he commits any burglary and at
the time has with him any firearm or imitation firearm, any weapon of offence, or any
explosive.
(2) For the purposes of subsection (1)—​
“explosive” means any article manufactured for the purpose of producing a practical
effect by explosion, or intended by the person having it with him for that purpose;
“firearm” includes an airgun or air pistol;
“imitation firearm” means anything which has the appearance of being a firearm,
whether capable of being discharged or not;
“weapon of offence” means any article made or adapted for use for causing injury to or
incapacitating a person, or intended by the person having it with him for such use.
(3) Any person who commits aggravated burglary shall be guilty of an offence and
shall be liable on conviction on indictment to imprisonment for life.
Indictment
22–​99
Where the burglary consists of having committed an offence after entry, as under
section 11(1)(b) of the Theft Ordinance (para.22-​82, above), the particulars of the
offence should follow the precedent set out at para.22-​83, above, and conclude “and
at the time of the said offence had with him”, etc.
It appears not to be necessary or desirable to specify any person as the owner of the
building.
Alternative verdict
22–​100
A person charged with aggravated burglary may, as an alternative, be convicted of
theft (section 9); burglary (section 11); handling stolen goods (section 24); going
equipped for stealing (section 27); inflicting grievous bodily harm; possession of arms;
possession of imitation firearms; and possession of explosives: see Schedule to the
Theft Ordinance. See para.2-​262, below.
Sentence
22–​101
The maximum sentence upon conviction on indictment is imprisonment for
life: section 12(3) of the Theft Ordinance. See also para.22-​86, above.
Evidence
22–​102
The prosecution is required to prove (a) the burglary as directed (para.22-​88
to 22-​91, above) and (b) that at the time thereof the defendant had with him the
firearm, weapon of offence or explosive particularised in the indictment. Where the
burglary arises under section 11(1)(a) the “time thereof” will clearly be the time
442
Sect. V]
Removal of Articles From Places Open
22–103
of entry: under section 11(1)(b) it will be the time of commission of the ulterior
offence: R v Francis [1982] Crim L R 363, CA; R v O’Leary, 82 Cr App R 341, CA
(defendant armed himself with a knife from within burgled premises but before
committing ulterior offence).
Where the principal in an offence of burglary does not have with him at the time
of commission of the offence a firearm, weapon of offence, etc, but a secondary party
(ie not a joint principal) does, neither party is guilty of the offence of aggravated burglary: R v Klass [1998] 1 Cr App R 453, CA.
The expression “firearm” is given a wide meaning in section 2 of the Firearms and
Ammunition Ordinance (Cap 238) (para.25-​2, below), which will afford useful guidance to a court in construing the meaning of “firearm” in section 12(2) of the Theft
Ordinance. However, it is submitted that the definition in section 2 of the Firearms
and Ammunition Ordinance should be taken as providing no more than guidance: to
give the word “firearm” in this context a meaning wider than that which it naturally
bears would be contrary to the general rule that criminal statutes are to be construed
restrictively. It may be that articles that only fall within the extended definition in section 2 of the Firearms and Ammunition Ordinance will nevertheless come within the
definition of “weapon of offence”.
In the case of articles made or adapted for use for causing injury to or incapacitating a person, the prosecution need prove no more than that the article was so made
or adapted. In the case of any other article it must be proved that the defendant had
it with him intending to use it for the purpose of causing injury to or incapacitating a
person. It is submitted that it would be wholly irrelevant that the defendant hopes he
will not have to use the article at all because he hopes he will not be disturbed; if he
intends to use it for either of the stated purposes if the need arises, that is sufficient.
To hold otherwise would, it is submitted, be contrary to both the plain meaning of
the statute and its intent, and would be inconsistent with the decisions of the Court of
Appeal in R v Walkington, 68 Cr App R 427 and Att-​Gen’s References (Nos 1 and 2 of 1979)
[1980] QB 180; 69 Cr App R 266, CA, para.22-​91, above.
It is sufficient that the defendant was carrying a weapon of offence during the burglary with the intention of using it on some person, albeit that person might be unconnected with the premises burgled: R v Stones, 89 Cr App R 26, CA.
On the analogy of R v Cugullere, 45 Cr App R 108, CCA (para.24-​110, below), it
would appear that the prosecution must prove that the defendant knowingly had with
him the article that was in fact a weapon of offence. Whether it must also be proved
that he knew that the article possessed those characteristics that rendered it a weapon
of offence is perhaps an open question: it is, however, submitted that on such a serious
charge as this the general principles of criminal responsibility will render it incumbent on the prosecution to prove full mens rea.
V. REMOVAL OF ARTICLES FROM PLACES OPEN TO THE PUBLIC
Statute
Theft Ordinance (Cap 210), s 13
13.—​(1) Subject to subsections (3) and (4), where the public have access to a building
in order to view the building or part of it, or a collection housed in it, any person who
without lawful authority removes from the building or its grounds the whole or part of
any article displayed or kept for display to the public in the building or that part of it
or in its grounds, shall be guilty of an offence and shall be liable on conviction upon
indictment to imprisonment for 5 years.
(2) For the purposes of subsection (1)—​
“collection” includes a collection got together for a temporary purpose, but references in this section to a collection do not apply to a collection made or exhibited for the purpose of effecting sales or other commercial dealings.
(3) It is immaterial for the purposes of subsection (1) that the public’s access to a
building is limited to a particular period or particular occasion; but where anything
443
22–​103
22–103
Offences Under the Theft Ordinance
[Chap. 22
removed from a building or its grounds is there otherwise than as forming part of, or
being on loan for exhibition with, a collection intended for permanent exhibition to the
public, the person removing it does not thereby commit an offence under this section
unless he removes it on a day when the public have access to the building as mentioned
in subsection (1).
(4) A person does not commit an offence under this section if he believes that he has
lawful authority for the removal of the thing in question or that he would have it if the
person entitled to give it knew of the removal and the circumstances of it.
Indictment
22–​104
22–​104A
Statement of Offence
Removing article from place open to the public, contrary to s
ection 13(1) of the Theft Ordinance (Cap 210).
Particulars of Offence
_
_
_
_
AB, on or about the ​ ​ ​ ​day of __​ _​ _​ _​ ​, 20__​ ​, in Hong Kong, without lawful authority
or excuse, removed from __​ _​ _​ _​ _​ ​, a building to which the public had access in order to view a
collection of [paintings] housed therein, _​_​_​_​_​displayed to the public therein.
Where the article removed was in the building otherwise than as forming part of, or
being on loan for exhibition with, a collection intended for permanent exhibition to
the public, there should be added the words “on the said day” after the word “public”
where it first appears in the above precedent.
Sentence
22–​105
Imprisonment not exceeding five years: section 13(1) of the Theft Ordinance,
above.
Elements of the offence
22–​106
The prosecution must prove (a) the removal; (b) from a building or the grounds of
a building; (c) to which building the public have access; (d) in order to view it or part
of it or a collection or part of a collection housed in it; (e) of the whole or part of any
article; (f) displayed or kept for display to the public; (g) in the building or that part
of it or the grounds of the building.
A collection that is made or exhibited for the purpose of effecting sales or other
commercial dealings is not within the ambit of this provision. However, it seems that
where items are collected principally for exhibition but also for “sale” the collection
will be covered.
A local authority owned an art gallery that was open to the public on weekdays but
closed on Sundays. Only part of the collection of pictures owned by the authority was
on view at any one time but the pictures were all shown at least once a year, sections
of the collection being exhibited at various times of the year for short periods. Early
one Sunday morning, D removed a painting from the collection then on view at the
gallery. It was submitted to the Court of Appeal that the picture did not form part of
“a collection intended for permanent exhibition to the public”, since each picture
in the collection was only seldom exhibited. It was held that the words “a collection
intended for permanent exhibition to the public” meant simply a collection intended
to be permanently available for exhibition to the public. That intention was sufficiently manifested by the local authority’s settled practice of periodically displaying to
the public at the gallery the pictures in their permanent collection: R v Durkin [1973]
1 QB 786; 57 Cr App R 637, CA.
Where the issue has been raised whether the defendant believed that he had lawful authority for the removal, or that he would have had it if the person entitled to
authorise the removal had known of the removal and its attendant circumstances,
the burden is on the prosecution to prove the lack of bona fides on the part of the
defendant.
444
Sect. VI]
Taking Conveyance Without Authority
22–111
VI. TAKING CONVEYANCE WITHOUT AUTHORITY
A. The Simple Offence
(1) Statute
Theft Ordinance (Cap 210), s 14
14.—​(1) Subject to subsections (2) and (3) any person who, without having the consent of the owner or other lawful authority, takes any conveyance for his own or another’s use or, knowing that any conveyance has been taken without such authority, drives it
or allows himself to be carried on or in it, shall be guilty of an offence and shall be liable
on conviction upon indictment to imprisonment for seven years.
(2) Subsection (1) shall not apply to pedal cycle or rickshaws, but, subject to subsection (3), any person who, without having the consent of the owner or other lawful
authority, takes a pedal cycle or rickshaw for his own or another’s use, or rides the pedal
cycle or rickshaw knowing it to have been taken without such authority, shall be guilty of
an offence and shall be liable on conviction to a fine of HK$500.
(3) A person does not commit an offence under this section by anything done in the
belief that he has lawful authority to do it or that would have the owner’s consent if the
owner knew of his doing it and the circumstances of it.
(4) For purposes of this section—​
“conveyance” means any conveyance constructed or adapted for the carriage of
a person whether by land, water or air, except that it does not include a conveyance constructed or adapted for use only under the control of a person not
carried in or on it, and “drive” shall be construed accordingly; and
“owner”, in relation to a conveyance which is the subject of a hiring agreement or
hire-​purchase agreement, means the person in possession of the conveyance
under that agreement.
22–​107
(2) Indictment
The particulars should include the date, time, place and sufficient information concerning the identification of the conveyance.
22–​108
(3) Alternative verdict
The defendant may be convicted of an offence under section 27 (going equipped
for stealing): see Schedule to the Theft Ordinance.
22–​109
(4) Sentence
For the taking of a pedal-​cycle or rickshaw, the maximum penalty is a fine of
HK$500. For other forms of conveyance, the maximum penalty is a sentence of imprisonment not exceeding seven years.
In addition, an offence or attempt to commit an offence in respect of a motor vehicle under s.14 carries discretionary driving disqualification: s.69 of the Road Traffic
Ordinance, also see Chapter 34.
22–​110
(5) Elements of the offence of taking a vehicle
General
Proof that the defendant took the conveyance named in the indictment for his own
use or for the use of another person. Only a “taking” is required to be proved, however, and the prosecution need not show that the defendant “took” and “drove away”.
It must also be established that the owner did not consent to the taking of the
vehicle by the defendant. “Owner” includes a person in possession of the conveyance under a hiring or hire-​purchase agreement (section 14(4) of the Theft
Ordinance).
445
22–​111
22–112
Offences Under the Theft Ordinance
[Chap. 22
“Conveyance”
22–​112
See section 14(4), para.22-​
104, above. As to pedal-​
cycles, see section 14(2),
para.22-​104, above.
Mens rea
22–​113
Self-​induced intoxication is no defence to a charge of taking a conveyance without
authority: R v MacPherson [1973] RTR 157, CA.
Where an issue has been raised as to whether the defendant took the conveyance
in the belief that he had lawful authority to take it, or that he would have had the
owner’s consent if the owner had known of the taking and its attendant circumstances,
the burden rests on the prosecution to prove that the defendant did not have such
belief: ibid.
MacPherson was considered in R v Gannon, 87 Cr App R 254, CA. The trial judge had
ruled that if a belief in lawful authority arises as a result of self-​induced intoxication
it is not a belief that affords a defence under section 12(6) (in Hong Kong, section
14(3) of the Theft Ordinance). The Court of Appeal found it unnecessary to rule on
this issue. However, the decision in Jaggard v Dickinson [1981] QB 527; 72 Cr App R
33, DC, on a similar provision in the Criminal Damage Act 1971 (to which the court
was referred in argument), would suggest that the ruling of the judge in the instant
case was wrong.
It is, in fact, questionable whether section 14(3) of the Theft Ordinance had any
relevance at all: the belief that the defendant was supposed to have had was a belief
that the car he took was his own. It is submitted that where someone innocently takes
the wrong car he is not guilty of an offence contrary to section 14 because he lacks
basic mens rea, ie knowledge that he is taking a car without the consent of the owner or
recklessness as to the fact that it is being taken without the owner’s consent. It is artificial to say that he believes he has lawful authority because he thinks it is his own: lawful
authority relates to situation where the taker knows it is not his own but for one reason
or another nevertheless believes he has lawful authority to take it.
Consent
22–​114
There is no general principle that fraud vitiates consent. Section 14 was intended
to deal with the situation where vehicles are taken without any attempt to obtain the
owner’s consent and where, in the majority of cases, the owner was not consulted at
all. The commission of an offence does not depend on whether the possession of the
vehicle had been obtained by fraud, but upon whether the effect of the fraud was
such that it precluded the existence of objective agreement to part with possession of
it: Whittaker v Campbell [1984] QB 318; 77 Cr App R 267, DC (dictum of Sachs LJ in R v
Peart [1970] 2 QB 672 at 676; 54 Cr App R 374, CA, applied). In Whittaker v Campbell,
the appellants had hired a van using a stolen driving licence; their convictions were
quashed.
Where a person borrowed a vehicle subject to an implied limitation, of which he
knew, as to the purpose for which it was to be driven, he did not have “the consent
of the owner” to drive it for a purpose outside the implied limitation: Singh v Rathour
(Northern Star Insurance Co Ltd, Third Party) [1988] 1 WLR 422, CA (Civ Div), distinguishing Whittaker v Campbell and Peart, above.
“takes”
22–​115
Evidence that there has merely been an unauthorised taking of possession or control adverse to the rights of the owner is not sufficient to found a conviction for the
full offence. Some element of movement is implicit in the word “take” and semble,
the movement must be caused by a voluntary act done with the intention of putting
the vehicle in motion, see Blayney v Knight, 60 Cr App R 269, DC. In the absence of
any evidence of movement there may nonetheless be sufficient evidence to found a
conviction for attempt: R v Bogacki [1973] 1 QB 832; 57 Cr App R 593, CA. See R v
Pearce [1973] Crim L R 321, CA, where P took an inflatable rubber dinghy, put it on
446
Sect. VI]
Taking Conveyance Without Authority
22–117
a trailer and drove it away –​conviction upheld. However, merely being on board a
moored motor launch does not amount to being carried on it for the purposes of the
section: R v Miller [1976] Crim L R 147, CA, applied in R v Diggin, 72 Cr App R 204,
CA. Getting into the driving seat of a car with the intention of taking it may constitute
an attempt to take the vehicle. It is for the judge to say whether it is capable of constituting an attempt and for the jury to decide whether they are satisfied that there was
an attempt: R v Cook, 48 Cr App R 98, CCA.
Where the defendant borrowed a motor vehicle with the owner’s consent for a
specific purpose, but failed to return it on completion of that purpose, and used it
thereafter for a wholly different purpose without the owner’s consent and without a
reasonable belief that the owner would have given his consent to the further use, if
asked, it was held on appeal that the subsequent use after the termination of the specific purpose constituted an offence. His passenger, who had knowledge of the facts,
was guilty of allowing himself to be carried in the vehicle: R v Phipps and McGill, 54 Cr
App R 300, CA.
In considering R v Phipps and McGill, the Divisional Court observed in McKnight v
Davies [1974] RTR 4, that it is difficult to define the kind of unauthorised activity by a
driver, originally in lawful control of the vehicle, which amounted to an unlawful taking under section 14. Not every brief, unauthorised diversion from his proper route by
an employed driver in the course of his working day would necessarily involve a “taking”. If, however (as in R v Wibberley), he returned to the vehicle after he had parked
it for the night and drove it off on an unauthorised errand, he was clearly guilty.
Similarly, if in the course of his working day or otherwise while his authority to use the
vehicle was unexpired, he appropriated it to his own use in a manner that repudiated
the rights of the true owner and showed that he had assumed control of the vehicle
for his own purpose, he could properly be regarded as having taken the vehicle (preferring R v Phipps and McGill to Mowe v Perraton). See also Singh v Rathour (Northern Star
Insurance Co Ltd, Third Party), para.22-​111, above. However, having in mind that this is
a criminal statute, there are obvious limits to an artificial construction of “taking” to
bringing it within the definition of “theft”.
Where a vehicle is unlawfully taken and then abandoned, if it is subsequently taken
without authority, a further offence is committed: DPP v Spriggs [1994] RTR 1, DC.
“for his own or another’s use”
In R v Bow, 64 Cr App R 54, CA, B and others were approached by a gamekeeper
who, suspecting they were poachers, asked for their names and addresses, which they
refused to give. The gamekeeper then parked his Land Rover so as to block the exit of
their car from the lane in which it was then parked. B (the gamekeeper having refused
to move the Land Rover), then got into it, released the handbrake and coasted 200
yards down the lane to enable his vehicle to be driven away. In rejecting B’s appeal
against conviction (the ground of the appeal being that he had not taken the vehicle
for his own use), the court held that although the phrase “for his own or another’s
use” involved something more than the mere movement of the vehicle, namely that
it should be used as a conveyance, ie as a means of transport, it did not follow that
the moving of an obstructing vehicle so that it ceased to be an obstruction could not
involve the use of the vehicle as a conveyance. The vehicle was, in the ordinary sense
of the English language, driven 200 yards (no point being taken as to the fact that the
engine was not used) and that inevitably involved using it as a conveyance –​B’s motive
for so using it was immaterial. Aliter, had the vehicle been pushed out of the way for a
yard or two. The facts of the removal must be examined in each case.
It is not essential that the vehicle taken has actually been used as a conveyance:
R v Pearce [1973] Crim L R 321, CA; R v Marchant and McAllister, 80 Cr App R 361, CA.
22–​116
(6) Attempt
As to proof of an attempt to commit this offence, see Jones v Brooks, 52 Cr App R 614,
DC. As to the distinction between the full offence and an attempt to commit it, see R
v Marchant and McCallister, 80 Cr App R 361, CA. Also see section 159G of the Crimes
Ordinance (Cap 200). See generally para.38-​83 et seq, below.
447
22–​117
22–118
Offences Under the Theft Ordinance
[Chap. 22
(7) Driving vehicle taken without consent
22–​118
A person cannot be said to be the driver of a vehicle unless he is in the driving
seat or in control of the steering wheel and also has something to do with the propulsion: R v Roberts [1965] 1 QB 85; 48 Cr App R 296, CCA. An activity is not to be
described as “driving” (see para.34-​11, below) if the activity is something that could
not be accepted as driving in any ordinary use of the word in the English language: R v
MacDonagh, 59 Cr App R 55, CA (a decision in relation to the offence of driving whilst
disqualified); Blayney v Knight, 60 Cr App R 269, DC.
VII. ABSTRACTION OF ELECTRICITY
Statute
Theft Ordinance (Cap 210), s 15
22–​119
15.—​Any person who dishonestly uses without due authority, or dishonestly causes to
be wasted or diverted, any electricity shall be guilty of an offence and shall be liable on
conviction upon indictment to imprisonment for five years.
Sentence
22–​120
Imprisonment not exceeding five years: s 15, above. Where straightforward unauthorised reconnection of domestic electricity supply is concerned, a fine is appropriate: HKSAR v Bullen (HCMA 74/​2009, [2009] HKEC 836). Factors relevant to
sentence may include degree of sophistication; damage to supply system; and danger
to other residents/​occupants of building.
Elements of the offence
22–​121
The prosecution must prove that the defendant dishonestly used a quantity of electricity and that he did so without due authority, see HKSAR v Bullen (HCMA 74/​2009,
[2009] HKEC 836); or that he dishonestly caused to be wasted or diverted a quantity
of electricity. Dishonesty is separate ingredient of the offence required to be established, such that a person who intended that electricity would be paid would not be
guilty of the offence even if he knowingly used electricity without the authority of
the electricity board: Boggeln v Williams [1978] 1 WLR 873 (QBD), see also, generally,
para.22-​19 to 22-​24, above and para.22-​149 to 22-​150, below.
Where it was discovered that a meter in a house had been tampered with so as
to not record the electricity being consumed and the two occupants had been convicted of dishonestly using electricity, the Court of Appeal held in R v Hoar and
Hoar [1982] Crim L R 606, that their convictions should be quashed because of an
insufficient direction on joint enterprise. Watkins LJ, delivering the judgment of the
court, said:
“The jury … should have been specially directed that in order to convict this husband and wife of theft [sic] on the basis that they stole [sic] electricity as the result
of participating in a joint enterprise, they should be satisfied that (1) each of them
agreed to obtain for use in their home electricity for which neither of them would
pay, (2) each of them knew the means to be adopted to achieve that end … (3) one
of them, to the knowledge of the other, who was ready to assist if needed, tampered
with the meter so that electricity could be obtained without payment and (4) each of
them knew that thereafter electricity which had not been paid for and which neither
of them intended to pay for was being used in their home.”
Assuming that the reference to theft was just a slip, it is nevertheless difficult to disagree with the commentary in the Criminal Law Review that on a charge of “using” this
direction is far more elaborate than is necessary. It would seem that on a joint charge
of “causing to be wasted or diverted” such a direction might be called for, as participation in the act that caused the electricity to be wasted or diverted would have to be
proved. Where, however, the charge is “using”, it is submitted it would be sufficient to
448
Sect. IX]
Fraud
22–125
prove the use of electricity knowing that it was not being recorded and, therefore, was
not going to be paid for.
Hoar and Hoar was considered in Collins and Fox v Chief Constable of Merseyside [1988]
Crim L R 247, DC. The facts were similar and the appellants were jointly charged with
dishonestly using electricity without due authority. Bingham LJ, giving a judgment
with which Mann J agreed, stated that the elaborate direction suggested in Hoar and
Hoar need only be resorted to where the case is put forward as one of joint enterprise
and that complications would perhaps be avoided if more attention were directed to
the simple ingredients of the offence and less to the more complicated concept of
joint enterprise. It is submitted that this is plainly correct: where “use” is charged, as
opposed to “causing to be wasted or diverted”, joint enterprise has little relevance.
In R v McCreadie and Tume, 96 Cr App R 143, CA, it was held that the offence of dishonestly using electricity without authority did not necessarily involve tampering with
the meter. It is sufficient to prove that electricity was used without the authority of the
electricity supplier by persons who had no intention of paying for it.
VIII. DISHONEST USE OF PUBLIC TELEPHONE
OR TELEX SYSTEM
Statute
Theft Ordinance (Cap 210), s 16
16.—​Any person who dishonestly uses a public telephone or telex system with intent
to avoid payment shall be guilty of an offence and shall be liable on conviction to imprisonment for two years.
22–​122
Sentence
The maximum sentence is two years imprisonment: section 16 of the Theft
Ordinance, above.
22–​123
Elements of the offence
It is necessary for the prosecution to prove that the defendant dishonestly used a
public telephone system or telex with intent to avoid payment. As to the requirement
of dishonesty, see generally, para.22-​19 to 22-​24, above.
22–​124
IX. FRAUD
Statute
Theft Ordinance (Cap 210), s 16A
16A.—​(1) If any person by any deceit (whether or not the deceit is the sole or main 22–​125
inducement) and with intent to defraud induces another person to commit an act or
make an omission, which results either—​
(a) in benefit to any person other than the second-​mentioned person; or
(b) in prejudice or substantial risk of prejudice to any person other than the first-​
mentioned person,
the first-​mentioned person commits the offence of fraud and is liable upon conviction
on indictment to imprisonment for 14 years.
(2) For the purposes of subsection (1), a person shall be treated as having an intent to
defraud if, at the time when he practises the deceit, he intends that he will by the deceit
(whether or not the deceit is the sole or main inducement) induce another to commit
an act or make an omission, which will result in either or both of the consequences
referred to in paragraphs (a) and (b) of that subsection.
(3) For the purposes of this section—​
“act” and “omission” include respectively a series of acts and a series of omissions;
“benefit” means any financial or proprietary gain, whether temporary or permanent;
449
22–125
Offences Under the Theft Ordinance
[Chap. 22
“deceit” means any deceit (whether deliberate or reckless) by words or by conduct
(whether by any act or omission) as to fact or as to law, including a deceit relating to the past, the present or the future and a deceit as to the intentions of the
person practicing the deceit or of any other person;
“gain” includes a gain by keeping what one has, as well as a gain by getting what
one has not;
“loss” includes a loss by not getting what one might get, as well as a loss by parting
with what one has;
“prejudice” means any financial or proprietary loss, whether temporary or
permanent.
(4) This section shall not affect or modify the offence at common law of conspiracy
to defraud.
Indictment
22–​126
22–​126A
Statement of Offence
Fraud, contrary to section 16A of the Theft Ordinance (Cap 210).
Particulars of Offence
AB, on or about the _​_​_​_​day of _​_​_​_​_​, 20_​_​, in Hong Kong, by deceit, namely by falsely representing to the Hong Kong and Shanghai Banking Corporation Limited that __​ _​ _​ _​ _​ _​ _​ _​ _​ _​ ​,
and with intent to defraud, he induced the bank to_​_​_​_​_​_​_​_​_​_​_​_​, which resulted in benefit to
himself or in prejudice or a substantial risk of prejudice to the bank.
In R v Chan Kang-​to [1997] HKLRD 412, CA, the court held that the term “to
defraud” is not self-​explanatory and that the nature of the prosecution case must be
sufficiently particularised on the face of the indictment.
Sentence
22–​127
The maximum sentence is 14 years imprisonment, s 16A(1), above.
Elements of the offence
22–​128
The elements of the offence are (1) a deceit practised by the defendant (whether
by deliberate or reckless words or conduct) (2) with intent to defraud (3) which
induced another person (V) to do or not do something (4) resulting in benefit
to someone other than V, or prejudice (or a risk of it) to someone other than the
defendant (HKSAR v Ho Ka Keung [2009] 1 HKC 61 (CA)).
Regarding the Court of Appeal’s holding that ‘deceit’ incorporates the element
of dishonesty and the prosecution must prove that the Defendant had been dishonest (HKSAR v Ho Ka Keung [2009] 1 HKC 61, [37]), in HKSAR v Chan Kam Ching
[2022] HKCFA 7 the Court of Final Appeal held that s.16A does not incorporate the
element of dishonesty (at [146]). Defraud and dishonesty are different and independent concepts (at [147]). The Court held that HKSAR v Ho Ka Keung should
not be followed on this point (at [150]). “Deceit” in s.16A includes “words or by
conduct (whether by any act or omission)”. To deceive is to induce a man to believe
that a thing is true which is false, and which the person practising the deceit knows
or believes to be false (HKSAR v Chan Kam Ching [2022] HKCFA 7, [147], citing In
Re London and Globe Finance Corp Ltd [1903] 1 Ch 728, 732). For a concealment of
facts to be transformed into a false representation, through “omission”, the pre-condition is that the concealing party be under a duty to disclose, ie they must have a
special relationship or are bound by contract of a special nature, the relevant facts
to the party from whom they are concealed: HKSAR v Chan Shu Hung [2001-2003]
HKCLRT 325, HKSAR v Cheung Chi Fai [2011] 3 HKLRD 193. There was an “omission” in Cheung Chi Fai when an employer, contrary to the staff code which required
disclosure, did not disclose his interest in two companies which he had induced his
employer to engage. See also the discussion on the meaning “deception”, which is
similar, in s 17 of the Theft Ordinance at para.22–129, below.
As to “intention to defraud” by virtue of s 16A(2) a person is treated as having
an ‘intent to defraud’ if he intends that by practising the deceit, he would induce
450
Sect. X]
Obtaining By Deception
22–130
another person to do or not do an act with the result set out in element (4) (HKSAR
v Ho Ka Keung [2009] 1 HKC 61, CA). It is submitted that the defendant must have
had the requisite intention to deprive a person of something that is his or to which
he is, or would be, or might be entitled to, or to injure some proprietary right of a
person Welham v DPP [1961] AC 103, HL; Scott v Metropolitan Police Commr [1975] AC
819, HL. The prosecution must therefore be able to prove that the accused appreciated that the course of action he had intended to and did take would potentially
injure the interests of the purported victim: Cheung Tse-​soon, Lawrence v R [1989] 1
HKLR 421, CA; R v Wong Chun-​loong (CACC 20/​1991, [1991] HKLY 190), CA.
Fraud involves more than the mere inducement of a course of action by deceit as
to “defraud” is not synonymous with “deceit”: Welham, above; R v Moon [1967] 3 All
ER 962, CA; R v Fan Wai Kit (CACC 361/​1988, [1989] HKLY 181), CA. However, an
inference of fraud may be drawn where it is found that the accused was dishonest: R v
Wong Kwok Sun (HCMA 942/​1987, [1988] HKLY 218). As to the meaning of “dishonesty”, it was confirmed in HKSAR v Tam SzeYan Cynthia (HCMA 1003/​2002, 11 June
2003) that the Ghosh test applied: see para 22-​19 to 22-​24.
The intended victim need not suffer any actual prejudice as section 16A(1)(b) provides that a substantial risk of prejudice will suffice.
In HKSAR v Cheng Hiu Fung Sunny (CACC 59/​2003, 6 November 2003), the
appellant was charged under section 16A for the presentation of letters from a
sham employer, which contained false information about the appellant, so that
the he could obtain either a credit card or a bank loan. It was held by the Court
of Appeal that it was irrelevant who signed or prepared the letter, so long as the
appellant supplied these documents knowing that the information was untrue and
that he had expected the letter to “reap results in the form of a loan or credit card
account”.
For offences related to fraud, see: Part X –​Obtaining by deception, below. For cases
involving the use of falsified bank documents, see: s 18D of the Theft Ordinance;
paras. 22–​174 to 22-​176, below.
X. OBTAINING BY DECEPTION
A. Obtaining Property by Deception
(1) Statute
Theft Ordinance (Cap 210), s 17
17.—​(1) Any person who by any deception (whether or not such deception was the
sole or main inducement) dishonestly obtains property belonging to another, with the
intention of permanently depriving the other of it, shall be guilty of an offence and shall
be liable on conviction upon indictment to imprisonment for 10 years.
(2) For purposes of this section a person is to be treated as obtaining property if
he obtains ownership, possession or control of it, and “obtain” includes obtaining for
another or enabling another to obtain or to retain.
(3) Section 7 shall apply for the purposes of this section, with the necessary adaptation
of the reference to appropriating, as it applies for purposes of section 2.
(4) For purposes of this section—​
“deception” means any deception (whether deliberate or reckless) by words or conduct as to fact or as to law, including a deception relating to the past, the present
or the future and a deception as to the intentions or opinions of the person using
the deception or any other person.
22–​129
Notes on section 17
For section 7, see para.22-​60, above.
Sections 5(1) (interpretation of “property”, para.22-41, above), 6(1) (interpretation of “belonging to another”, above, para.22-51) and 7 (interpretation of “with the
intention of permanently depriving the other of it”, above, para.22-61) apply generally
for the purposes of the Ordinance as they apply for the purposes of section 2.
451
22–​130
22–131
Offences Under the Theft Ordinance
[Chap. 22
(2) Indictment
22–​131
Statement of Offence
Obtaining property by deception, contrary to section 17(1) of the Theft Ordinance (Cap 210).
Particulars of Offence
_
_
_
_
AB, on or about the ​ ​ ​ ​day of __​ _​ _​ _​ ​, 20__​ ​, in Hong Kong, dishonestly obtained from CD
a sum of $__​ _​ _​ _​ _​ _​ _​ _​ _​ ​Hong Kong dollars with the intention of permanently depriving the said
CD thereof by deception, that is by falsely representing that............
Need for unanimity
22–​132
Where more than one deception is alleged the jury should be directed that although
it is sufficient to find any one deception proved there must be unanimity (subject to
the majority verdict provisions) as to at least one deception before there can be a conviction: HKSAR v Tse Koon-​kit (CACC 388/​1997, [1998] HKLRD (Yrbk) 219) applying
R v Brown (K), 79 Cr App R 115, CA.
False statements to obtain travel document
22–​133
Where a person has attempted to obtain any travel document by deception, the
prosecution has discretion as to whether or not to charge him under section 42 of the
Immigration Ordinance (para.27-​81, below).
(3) Class of offence and mode of trial
22–​134
This offence is triable either way: sections 91, 92 of the Magistrates’ Ordinance
(Cap 227) and section 14A the Criminal Procedure Ordinance (Cap 221).
(4) Sentence
Maximum
22–​135
The maximum sentence is imprisonment for 10 years: section 17(1), above.
Authorities
22–​136
See, in particular, HKSAR v Hui Siu Man [1999] 2 HKLRD 236; R v Barrick, 81 Cr
App R 78, CA, and R v Stewart, 85 Cr App R 66, CA.
(5) The relationship between obtaining
property by deception and theft
22–​137
The majority decision in R v Gomez [1993] AC 442, HL means that there is a
considerable degree of overlap between theft and obtaining property by deception. It does not follow, however, that charges may be equally preferred under
either section. Firstly, it is submitted that the sentencing principles are different
for the two offences and it is often the case that a conviction of theft carries a lesser
sentence than a conviction of obtaining by deception. See R v Chan Sui [1996] 2
HKCLR 128 for guidelines in credit card fraud cases. Secondly, it is submitted that
where there is a genuine case of obtaining of property by deception, to procure a
charge of theft may cause unnecessary complications. The lay view that “theft” is
taking without permission whereas “obtaining property by deception” is tricking
an owner into parting with his possession should be reflected in the charges where
possible. Lastly, it is submitted that it is important that the charge or charges preferred reflect the true criminality involved. There will be borderline cases, but
where a case is obviously a case of deception it should be charged as such, even
though it may, as a matter of law, also be a case of theft. See HKSAR v Wong Cho
Sum [2001] 3 HKLRD 76.
452
Sect. X]
Obtaining By Deception
22–140
(6) The elements of the offence
(a) Property
The section 5(1) interpretation of “property” (above, para.22-​41) also applies
to section 17. Section 5(1) of the Theft Ordinance defines property to include
things in action. In HKSAR v Goh Swee Yan Angelina [2000] 3 HKLRD 324, a case
involving cheques, it was held that once the property alleged to have been stolen
was categorised as a chose in action, the decision of the House of Lords in R v
Preddy and Slade; R v Dhillon [1996] AC 815, HL prevented the chose in action from
being capable of belonging to another. However, in Wong Cho Sum, Stock JA makes
it clear that “appropriation” is not to be equated with “obtaining”. A fraudster
who himself causes the transfer of money from the victim’s bank account obtains
a fresh chose in action belonging to himself. Only when there is an act of appropriation, by which the fraudster assumes the rights of the owner of the chose in
action, and the thing recoverable by action is diminished or extinguished by the
act of appropriation, is the fraudster guilty of theft as each element of the offence
as defined by section 2(1) is then made out. R v Preddy and Slade; R v Dhillon [1996]
AC 815, HL and R v Graham [1997] 1 Cr App R 302 considered. R v Kohn [1979]
69 Cr App R 395; R v Hilton [1997] 2 Cr App R 445; R v Roy Williams [2001] 1 Cr
App R 362 applied.
22–​138
(b) Deception
General
Section 17(4) provides that for the purposes of the section “deception” means any
deception (whether deliberate or reckless) by words or conduct as to fact or as to law,
including a deception relating to the past, the present or the future and a deception as
to the intentions or opinions of the person using the deception or any other person. It
is submitted that silence per se cannot constitute a deception within section 17(4): that
subsection states that the deception must be by words or conduct. Mere silence, it is
submitted, cannot sensibly be said to equate to “conduct”. However, silence allied to a
particular piece of conduct properly so called, however minimal, may well be held to
amount to a “deception”: see DPP v Ray [1974] AC 370 HL.
In Ray, a conviction for obtaining services by deception was upheld on the basis that
“on a commonsense and purposive construction of the word ‘conduct’, the defendant’s positive acquiescence in letting the work proceed amounted to ‘conduct’ for the
purposes of section 17(4)”. See also R v Firth, 91 Cr App R 217.
In R v Silverman, 86 Cr App R 213, CA, it was said that where there was a relationship of trust between customers and tradesmen, so that the customers relied on the
tradesmen to act fairly and reasonably towards them at all times, an offence might be
committed if a grossly excessive price was quoted and charged for work or services,
even if, apart from mentioning the price, nothing more was said and no pressure was
applied to encourage the acceptance of the quotation. See also R v Jones (I) (The Times,
15 February 1993), CA.
Where a person withdraws or seeks to withdraw money from a bank account the
presentation of the withdrawal slip is a representation that the bank is indebted (ie
lawfully owes) to him in the amount shown: R v Harrison, 92 Cr App R 54, CA. The
facts concerned withdrawals of money from accounts funded by means of forged
cheques. No cheques were involved in the obtaining or attempt at obtaining the
money. See also: R v Laverty, 54 Cr App R 495, CA and R v Rai [2000] 1 Cr App R
242, CA.
22–​139
“Future facts”
“Deception as to fact” in section 17(4) expressly includes future fact. An averment
of a pretence as to future fact can properly be included in the particulars of offence
of a count laid under section 17 of the Theft Ordinance. The subsection also provides
453
22–​140
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Offences Under the Theft Ordinance
[Chap. 22
that deception as to fact includes deception as to “intention or opinion”, which should
therefore be pleaded as such.
Burden of proof
22–​141
The burden of proving the falsity of the statement is on the prosecution and this is
so even when it involves proving a negative, see R v Mandry and Wooster, 58 Cr App R 27.
Cheques
Principle
22–​142
The representations that may as a matter of law be inferred from the mere act of
drawing a cheque are: (a) that the drawer has an account with the bank upon which
the cheque is drawn; and (b) that the existing state of facts is such that in ordinary
course the cheque will be met, ie on first presentation. There is clear judicial authority
supporting this as an accurate statement of principle: R v Gilmartin [1983] QB 953; 76
Cr App R 238, CA, see para.22-​140, below.
Authorities
22–​143
For the general nature of representations involved in the use of a cheque, see: R v
Page [1971] 2 QB 330; 55 Cr App R 184; R v Hazelton (1874) LR 2 CCR 134; Metropolitan
Police Commissioner v Charles [1977] AC 177.
For the offence to be proved it has, of course, to be established as a matter of
fact that it was as a result of the deception averred that the recipient of the cheque
was induced to part with the property in respect of which he looked to the bank for
payment:
“Whether an inference can be properly drawn is a matter of law; whether it should be
drawn is a question of fact for the jury. Whether or not the recipient of a cheque was
induced by a representation to accept it, is also a question of fact.”
Post-​dated cheques
22–​144
In R v Gilmartin, above, Goff LJ, giving the judgment of the Court of Appeal, said
that the act of drawing a post-​dated cheque generally implies a representation that the
drawer is a customer of the bank concerned and that “the courts should proceed on
the basis that by the simple giving of a cheque, whether post-​dated or not, the drawer
impliedly represents that the state of facts existing at the date of handing over the
cheque is such that in the ordinary course the cheque will, on presentation for payment on or after the date specified in the cheque, be met” (at 961). See also Nikkodo
(HK) Ltd v Lam Chiu Kau [2000] 1 HKLRD 204.
Credit cards
22–​145
In Att-​Gen v Chow Wai-​ming [1992] 1 HKCLR 214 and R v Yau Siu-​ming (CACC 351/​
1991), the defendant in each case had obtained goods using a credit card when he
knew that the cost of the goods was in considerable excess of the card’s credit limit.
Given that credit-​cardholders are required to use their card within the credit limit,
each defendant knew that their use was dishonest and deceptive, where such dishonest and deceptive use was clearly with a view to gaining the provision of goods or
services. Accordingly, both defendants were convicted under section 18D of the Theft
Ordinance.
Upon presentation of a credit card, the presenter of the card in effect makes a
representation to the person to whom the card is presented that: (a) he has actual
authority to enter into a contract with the person to whom the card is presented on
the bank’s behalf; and (b) the bank will honour the voucher. The only remaining
question was whether the person to whom the card was presented was induced by
the representation to complete the transaction. Had that person continued with the
454
Sect. X]
Obtaining By Deception
22–149
transaction with knowledge of the true situation he would have become a party to the
fraud upon the bank.
(c) Obtains by deception
Deception must be effective
The deception must operate on the mind of the person deceived: see R v Laverty,
54 Cr App R 459, CA and HKSAR v Leung Yuen Keung (CACC 211/​1998, [1998] HKEC
470). The making of the deception must precede the obtaining of the property: R v
Collins-​Smith [1971] Crim L R 716, CA.
22–​146
Remoteness
In R v Cheung Wai Wan [1994] 2 HKCLR 237, the defendant, who presented a
winning ticket that he knew belonged to others for payment of the prize money, was
convicted under section 17 of the Theft Ordinance. On appeal, it was argued that the
deception practised by the Defendant was not the effective cause of payment. Keith
J held that this argument was fallacious and the true test for whether the victim had
been induced (to act in reliance upon a false representation) is “whether he would
have acted as he did if he had known that the representation made by the defendant
was false”. This question (and not whether the victim believed the defendant, or why
the victim acted as he did) is therefore the question to which the evidence should be
directed. See also Commissioner of Police for the Metropolis v Charles [1977] AC 177 and R
v Lambie [1982] AC 449.
To establish that property had been obtained by deception, it is not necessary to
isolate the moment when the property is handed over to see if, at that time, the lies
told operated to deceive the victim. If, on the evidence taken as a whole, it can legitimately be said that the various deceptions alleged in the indictment were the cause
of the property being handed over, it is irrelevant that at the final moment the victim
suspected or even believed that he or she had been swindled: R v Miller (SH), 95 Cr
App R 421, CA. Also see: R v King and Stockwell [1987] QB 547; 84 Cr App R 357, CA.
22–​147
Proving the effect
Ordinarily, the fact that the deception operated on the mind of the person deceived
should be proved by direct evidence, see R v Chan Fuk Lee [1976] HKLR 756; R v Ng
Yin Han [1980] HKLR 878; R v Ko Wong Shuk Chu [1984] 1 HKC 142; R v Laverty, 54
Cr App R 495, CA; R v Lambie [1982] AC 449. However, the inducement need not be
proved by direct evidence if the facts are such that the alleged false pretence is the
only reason that could be suggested as having been the operative inducement: see R v
Lam Yuen Hon [1964] HKLR 552; R v Leong How Seng [1982] HKLR 245; R v Sullivan,
30 Cr App R 132, CCA. The proper way of proving these matters is through the mouth
of the person to whom the false representation is conveyed. For example, counsel
should ask the person alleged to have been defrauded: “Why did you part with your
money (or property)?” or at least: “Did you believe what the accused told you?”
It is the duty of the prosecution to call the person or persons said to have been
deceived by the alleged misrepresentations. However, in cases where direct evidence
of the witness is not and cannot reasonably be expected to be available, reliance upon
a dishonest representation can be sufficiently established by proof of facts from which
an irresistible inference of such reliance can be drawn: Att-​Gen v Li Fook Shiu Ronald
[1991] 2 HKLR 288.
22–​148
Proving the obtaining
Subject to the next paragraph, a charge contrary to section 17 must fail if it is not
proved that the property specified was obtained within the meaning of subsections
(1) and (2). For the purposes of section 17, “deception” has the same meaning as in
section 18.
455
22–​149
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Offences Under the Theft Ordinance
[Chap. 22
In R v Ko Wong Shuk Chu [1984] 1 HKC 142, the defendant when applying for a
vacant public office, falsely represented that she possessed the minimum period of
practical experience advertised as a requirement for the post. She was later charged
with and convicted of obtaining a pecuniary advantage by deception contrary to section 18 of the Theft Ordinance. On appeal, the conviction was quashed, but was substituted with a conviction for attempt to commit the offence. It was held that there was
insufficient evidence to support an irresistible inference that the appointment to the
office had been obtained by deception. Little weight was given to the evidence that
strongly suggested that the appellant was appointed because of her proven ability at
the oral and written examination and too much weight to the deliberately false representation made in the application form.
Proving what was obtained
22–​150
It is clear law that if a person is accused of stealing two articles, he can be convicted
if it be proved that he stole only one. There can be no distinction in principle where
the allegation made is that the articles were obtained by deception in contravention of
section 17. In Levene v Pearcey [1976] Crim L R 63, DC, the court held that a conviction
for contravening section 15 will be good even where it is not possible for the Crown to
prove the precise quantity obtained.
Conviction for attempt where operation of deception not proved
22–​151
If the defendant makes a deception to the victim to obtain some property and the
victim knows that the deception is false or for some other reason does not rely on it,
but nevertheless parts with the property, the defendant may be convicted of attempting to obtain property by deception: R v Hensler (1870) 11 Cox 570. This decision
was accepted by the House of Lords in Haughton v Smith [1975] AC 476: that it is still
good law after Haughton v Smith was confirmed by the Court of Appeal in R v Edwards
[1978] Crim LR 49. In R v Ko Wong Shuk Chu [1984] 1 HKC 142, above, the appellant’s
submission of her application with the deliberately false representation to the department in question, was held on appeal to be a sufficiently proximate act to constitute
an attempt to obtain a pecuniary advantage by deception.
Where the defendant has dishonestly obtained property belonging to another with
the intention of permanently depriving the other of it and has done so by means of
a representation that he believes to be false but which is, in fact, true, he cannot be
convicted of the full offence: R v Deller, 36 Cr App R 184, CCA. However, it is submitted that an attempt may be charged in the Deller situation as well as the Hensler situation and the law regarding attempting to commit an offence enshrined in Haughton
v Smith has been reversed. See, in particular, section 159G(1) and (2) of the Crimes
Ordinance, cf. R v Lin Kuo Liang, David [1997] HKLRD 694.
In R v Rozeik [1996] 1 Cr App R 260, CA, it was held that a person could not be convicted
of an offence contrary to section 17 in respect of property belonging to a company if someone, whose knowledge was to be attributed to the company, knew of the deception: this
was so even though other company employees had been deceived and had testified to the
effect that had they known the truth the property would not have been obtained by the
accused. The court did acknowledge that if the employee with knowledge was party to
the fraud, his knowledge would not be attributed to the company.
(d) Recklessness
22–​152
In R v Staines, 60 Cr App R 160, CA, James LJ said, with regard to the use of the word
“reckless”, that the court accepted it meant more than being careless or negligent, and
that it involved “an indifference to or disregard of the feature of whether a statement
be true or false” (at 162). This statement is not entirely consistent with what was said
by the House of Lords in R v Caldwell [1982] AC 341 and R v Lawrence [1982] AC 510,
which were concerned specifically with recklessness in the Criminal Damage Act 1971
and reckless driving under the Road Traffic Act 1972. Whereas there was once no
doubt that what was said as to the meaning of recklessness in those cases was intended
to be of general application in the criminal law –​see R v Seymour [1983] 2 AC 493, HL,
456
Sect. X]
Obtaining By Deception
22–153
per Lord Roskill at 506 –​this is no longer the case. Thus, in R v Morrison (LA), 89 Cr
App R 17, CA, Lord Lane CJ said (at 19) that there are now two types of recklessness
in English criminal law according to the nature of the crime charged.
It is not entirely clear which sort of recklessness would be held to apply to the
Theft Ordinance, but the trend of judicial opinion has moved away from Caldwell
and Lawrence. The language used by James LJ in Staines, above, is easily understood,
whereas directions based on Caldwell and Lawrence were notoriously difficult to follow.
In addition, there is the overriding ingredient of dishonesty; if the position is that the
jury concludes that the defendant made the representation recklessly, in the sense
that he was wholly indifferent (“couldn’t care less”) as to whether it was true or false,
they still have to make a determination as to whether that was dishonest. Where a
reckless deception is relied on, the necessity for stressing the extra ingredient of dishonesty, which has to be proved even where the deception is deliberate, will be that
much the greater: HKSAR v Hui Siu (CACC 207/​2007, 11 April 2008).
(e) Dishonesty
Deliberate deception
The leading authority on the test of dishonesty is R v Ghosh [1982] QB 1053; 75 Cr
App R 154, CA: see generally para.22-​20, above. In Ghosh (at 1060), Lord Lane CJ said:
“The difficulty with section 15 of the Theft Act [which corresponds to section 17 of
the Theft Ordinance] is that dishonesty comes in twice. If a person knows that he is
not telling the truth he is guilty of dishonesty. Indeed deliberate deception is one
of the two most obvious forms of dishonesty. One wonders therefore whether ‘dishonestly’ in section 15(1) adds anything, except in the case of reckless deception.”
In R v Kwok Yuen Sum [1985] HKLY 272, it was held that the element of dishonesty
in offences under the Theft Ordinance is proved if the court affirmatively answers the
two questions posed by the Court of Appeal in Ghosh:
(a) Was the defendant’s conduct dishonest by the standards of reasonable and
honest people?
(b) Did the defendant realise that it was dishonest by those standards?
It is obviously true that the two issues are closely connected but it is submitted that
there are two quite distinct issues and the jury need not trouble with the issue of dishonesty until they are satisfied that there has been an obtaining of property by virtue
of a deliberate or reckless deception: see R v Potger, 55 Cr App R 42, above, and R v
Waterfall [1970] 1 QB 148; 53 Cr App R 596, CA. In any event, it may not always be
so obvious that there has been dishonesty. In Pang Hei-​chung v R [1970] HKLR 80, it
was held (with Rigby CJ dissenting) that the word “dishonestly” as used in different
sections in the Theft Ordinance does not have a constant meaning, its connotations
vary according to the context. The meaning of “dishonestly” is a matter of law for the
court and not one of fact for the jury but in each case the court should indicate to the
jury the ambit covered by the term in relation to the charge before it and the facts as
proved.
Moreover, even where there has been a deliberate deception, a bona fide claim of
right is a complete defence. A person is no defrauded if he is caused to do no more
than pay his just debt which is, or which the accused believes to be, presently due and
payable (R v Tse Chun-fat [2001] 3 HKC 756), see also para.22-22, above.
It should be emphasised that each case is dependent on its own facts and it is not
the case that in either of the above examples there can be no offence as a matter of
law. In the case of a lie or lies told in order to obtain goods on credit, for example,
only cases where the instalments are not paid at all, or are intermittent and late will, in
practice, come before the court and any evidence relating to repayment history will,
of course, go towards proving that there never was any genuine intention to pay or
expectation of being able to pay, which in turn will tend to prove dishonesty. Where
all the instalments are paid on time, however, there is, in reality, little likelihood of
prosecution: if there were a prosecution it would be for the jury to say whether the
defendant was dishonest. In Hong Kong, it is trite law that a judge sitting alone without a jury need not remind himself of Ghosh.
457
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Offences Under the Theft Ordinance
[Chap. 22
Reckless deception
22–​154
As to the meaning of recklessness, see para.22-​148, above.
Dishonesty is a separate ingredient of the offence being additional to the requirement of a deliberate or reckless deception: HKSAR v Hui Siu (CACC 207/​2007, 11
April 2008). Even where there is a deliberate deception it does not inevitably follow
that there is dishonesty: a fortiori, where the deception is reckless only. In Hui Siu, the
Court of Appeal has stressed in that whether the deception was deliberate or reckless, the prosecution would still have to prove the ingredient of dishonesty, which is a
separate and additional requirement to deception. The Court of Appeal has further
affirmed the commentary of Archbold HK that where a reckless deception is relied
on, the necessity for stressing the extra ingredient of dishonesty, which as to be proved
even where the deception is deliberate, will be that much the greater.
There are dicta in two Court of Appeal decisions that confuse the two issues, reckless deception and dishonesty, and suggest that if there was a reckless deception there
would have been dishonesty: R v Page [1971] 2 QB 330 at 333; 55 Cr App R 184, per
Phillimore LJ and R v Greenstein and Green, 61 Cr App R 296 at 305, per Stephenson LJ.
These dicta are inconsistent with the general proposition in Potger, above, that dishonesty is a separate ingredient calling for a separate direction and they are inconsistent
with Ghosh, para.22-​20, above, as to the general approach to the test of dishonesty. It is
submitted that they can now be safely ignored.
In R v Feeny, 94 Cr App R 1, CA, the court stated that the combined effect of subsections (1) and (4) of section 15 (section 17 of the Theft Ordinance) that although any
relevant deception may be made recklessly or deliberately, however the deception is
made, the offence cannot be committed unless dishonesty is established as a separate
and essential ingredient. It is not enough for the prosecution to merely establish that
the defendant made a deception recklessly, as recklessness in relation to the deception
does not establish dishonesty in relation to the obtaining. The court observed that
the connection between recklessness and dishonesty, indeed the concept of reckless
dishonesty, will almost invariably cause considerable difficulty, but that the situations
where it should ever be necessary to embark on an investigation of recklessness in the
context of section 15 will be limited. Where such a course is necessary, it is essential
that there should be no risk that the jury might confuse recklessness with dishonesty,
or conclude that if recklessness has been established, then dishonesty would inevitably
follow.
(f) “With the intention of permanently depriving the other of it”
22–​155
Under subsection (3) of section 17 (para.22-​126, above), section 7 of the Theft
Ordinance relating to intention permanently to deprive an owner of property is
applied to section 17 with the necessary adaptation of the reference to “appropriating”: see para.22-​26 to 22-​40, above.
(7) Jurisdiction
Statute
22–​156
The offence of obtaining property by deception contrary to section 17(1) of the
Theft Ordinance is a “Group A” offence within section 2 of the Criminal Jurisdiction
Ordinance (Cap 461). In general, its effect is to extend the ability of courts in Hong
Kong to try persons for certain offences of fraud and dishonesty that have a connection with Hong Kong and another place: see Hong Kong Legislative Council, Reports
of Debates, 23 February 1994.
Common law
22–​157
Section 9 of the Criminal Jurisdiction Ordinance stipulates that nothing in any provision in that Ordinance applies to any act, omission or other event occurring before
the coming into force of that Ordinance. The common law rules will, therefore,
458
Sect. X]
Obtaining By Deception
22–158
continue to apply not only to prosecutions commenced before 8 March 1996, but
also to prosecutions commenced after that date in respect of events occurring before
that date.
In R v Remy Martins Duggam, [1995] 2 HKCLR 137, it was held by Yang CJ, Mortimer
JA (with Mayo JA dissenting) that the true construction of the Tokyo Convention Act
1967 (Overseas Territories) Order 1968, sections 1(1) and 1(3) of Schedule 1 provides
for jurisdiction but does not create any extraterritorial offence under the law in force
in Hong Kong. Acts taking place on board an aircraft that is not “British-​controlled”
in flight outside Hong Kong airspace were held not to be offences against the
law in force in Hong Kong. Proceedings below for “offences” on board a Qantas flight
outside Hong Kong airspace for acts which, if they happened in Hong Kong would
amount to offences against section 17(1) of the Theft Ordinance, were held on appeal
to be a nullity.
In HKSAR v Man Kwok Wan (CACC 48/​1999, [1999] HKEC 461), acts of the
defendant’s agent in Hong Kong in assisting with the processing of the release
of cars (which were found stolen in Japan) in Hong Kong were held to be the
acts of the applicant in Hong Kong. That was, of course, sufficient to establish
liability under the common law, but it was also sufficient to establish liability
under the Criminal Jurisdiction Ordinance since: (a) section 3(3) of the Criminal
Jurisdiction Ordinance provides that the Applicant could have been convicted if
any of the “relevant events” occurred in Hong Kong, and (b) a relevant event is
defined in section 3(1) as meaning “any act or omission or other event (including
any result of one or more acts or omissions) proof of which is required for conviction of the offence.”
As to where property is to be regarded as “obtained”, see R v Harden [1963] 1 QB 8;
46 Cr App R 90, CCA; and R v Tirado, 59 Cr App R 80. In Tirado, the Court of Appeal
treated the approach of the Court of Criminal Appeal in Harden to this question as
being the exception rather than the rule. In R v Baxter [1972] QB 1; 55 Cr App R 214,
however, the Court of Appeal appeared to take the view that Harden was the rule not
the exception.
As to attempts to obtain property by deception, where the attempt originated outside the jurisdiction, see Baxter, above, and DPP v Stonehouse [1978] AC 55, HL.
B. Obtaining Pecuniary Advantage by Deception
(1) Statute
Theft Ordinance (Cap 210), s 18
18.—​(1) Any person who by any deception (whether or not such deception was the
sole or main inducement) dishonestly obtains for himself or another any pecuniary
advantage shall be guilty of an offence and shall be liable on conviction upon indictment
to imprisonment for 10 years.
(2) The cases in which a pecuniary advantage within the meaning of this section is to
be regarded as obtained for a person are cases where—​
(a) he is granted by a bank or deposit-​taking company, or any subsidiary thereof
the principal business of which is the provision of credit—​
(i) a credit facility or credit arrangement;
(ii) an improvement to, or extension of, the terms of a credit facility or
credit management; or
(iii) a credit to, or a set off against, an account, whether any such credit
facility, credit arrangement or account—​
(A) is in his name or the name of another person; or
(B) is legally enforceable or not;
(b) he is allowed to borrow by way of overdraft, or to take out any policy of insurance or annuity contract, or obtains an improvement on the terms on which
he is allowed to do so, whether any such overdraft, policy of insurance or
annuity contract—​
(i) is in his name or the name of another person; or
(ii) is legally enforceable or not; or
459
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Offences Under the Theft Ordinance
[Chap. 22
(c) he is given the opportunity to earn remuneration or greater remuneration
in an office or employment, or to win money by betting. [Editor’s Note –​
section 18(2) of Cap 210 is wholly dissimilar from the equivalent English
provision].
(3) For purposes of this section—​
“bank” means—​
(a) a bank within the meaning of section 2(1) of the Banking Ordinance
(Cap 155); and
(b) a bank—​
(i) incorporated by or under the law or other authority in any place
outside Hong Kong, and in this respect “incorporated” includes
established; and
(ii) which is not a bank within the meaning of section 2(1) of the
Banking Ordinance (Cap 155);
“deception” has the same meaning as in section 17;
“deposit-​taking company” means a deposit-​taking company or restricted licence
bank within the meaning of section 2(1) of the Banking Ordinance (Cap 155);
“subsidiary” has the same meaning as in the Companies Ordinance (Cap 32).
22–​159
As to “deception”, see para.22-​129, 139 to 22-​145, above.
(2) Indictment
22–​160
22–​160A
Statement of Offence
Obtaining pecuniary advantage by deception, contrary to
section 18(1) of the Theft Ordinance.
Particulars of Offence
AB, on or about the _​_​_​_​day of _​_​_​_​, 20_​_​, in Hong Kong, (together with other persons
unknown), by deception, namely, by falsely representing that (1) the particulars contained in the
application form for two Gold Visa Cards of the XYZ Bank; and (2) the bank statements and the
notice of tax assessment attached to the said application form as income proof in the name of CD,
were accurate and genuine, dishonestly obtained for himself or another a pecuniary advantage,
namely, a credit arrangement granted by the XYZ Bank in the form of two credit card accounts
of account No __​ _​ _​ _​ _​ _​ _​ _​ _​ _​ _​ _​ _​ _​ _​ _​ _​ ​.
As to the requirement of unanimity where more than one deception is alleged, see
R v Brown (K), 79 Cr App R 115, CA, para.22-​129, above.
(3) Class of offence and mode of trial
22–​161
This offence is triable either way: sections 91 and 92 of the Magistrates Ordinance
(Cap 227) and Schedule 2 of the Magistrates Ordinance.
(4) Sentence
22–​162
The maximum sentence is imprisonment not exceeding 10 years: section
18(1), above.
(5) Elements of the offence
Obtaining of a pecuniary advantage
22–​163
The expression “pecuniary advantage” is given an exclusive definition in
subsection (2).
In DPP v Turner [1974] AC 537, the House of Lords held that the words “ … a pecuniary advantage … is to be regarded as obtained” meant that a pecuniary advantage
“is to be deemed to be obtained even if in fact there was no pecuniary advantage”.
A customer who is allowed to borrow from a bank on overdraft obtains a pecuniary advantage within subsection (2)(b) at the moment when the overdraft facility is
granted; it is unnecessary to prove that he drew on that facility: R v Watkins [1976] 1 All
460
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22–167
ER 578. In R v Waites [1982] Crim L R 369, CA, the defendant had used her chequebook and cheque card to create an overdraft of £850. She had made no arrangements
to over-​draw on her account. The argument that she had not been “allowed” to borrow by way of overdraft was rejected. See also R v Bevan, 84 Cr App R 143, CA, to the
same effect.
In R v McNiff [1986] Crim L R 57, CA, it was held that a man to whom brewers
granted a public house tenancy not to take effect until he became the premises’ registered holder of a justices’ licence, which he subsequently obtained, did not obtain
a pecuniary advantage by deception even though he made false statements in his tenancy application. The court added, on the assumption which it made, but without
deciding the point, that since the holder of a justices’ licence was the holder of an
office, the question arose as to whether the opportunity to apply for an office carrying
remuneration was the same as or equivalent to the opportunity to earn remuneration
in that office. The court thought it was not. An opportunity to apply for an office in
which a man would earn remuneration was a step away from an opportunity to earn
remuneration and was not equivalent to it.
The phrase “office or employment” in section 18(2)(c) is not confined to the narrow limits of a contract of service but is to be construed in a wider sense as a matter of
ordinary language: R v Callender, 95 Cr App R 210, CA. Accordingly, the provision of
services by a self-​employed accountant was properly described as employment within
the ambit of that paragraph. The Court of Appeal described McNiff, above, as a case
that falls to be considered in the light of its own peculiar facts, and which did not
purport to give general guidance as to the meaning of the words under consideration.
Obtained by deception
For the purposes of section 18, “deception” has the same meaning as in section
17: para.22-​126 to 22-​141 et seq, above. The deception must be effective in securing
the pecuniary advantage obtained: see Davis v Flackett [1973] RTR 8, DC, in which it
was doubted that it was possible for a deception to be practised without there being a
human mind to be deceived.
The deception must also be effective in securing the particular pecuniary advantage gained: see R v Aston and Hadley, 55 Cr App R 48, CA (a betting case). If there
is a causal connection between the deception used and the pecuniary advantage
obtained, it is irrelevant that the person deceived has suffered no loss arising from the
deception: R v Kovacs, 58 Cr App R 412, CA, approved in Metropolitan Police Commr v
Charles [1077] AC 177, HL.
22–​164
Dishonesty
See generally, para.22-19 to 22-24, above.
22–​165
(6) Jurisdiction
Statute
As to the effect of the Criminal Jurisdiction Ordinance, Part I (an offence contrary
to section 18 is a “Group A” offence), see para.22-​152 to 22-​153, above.
22–​166
C. Sections 18A, 18B, 18C and 18D
Introduction
The insertion of sections 18A, 18B and 18C into the Theft Ordinance, reflected the
passing of the Theft Act 1978 in England, which was implemented with some modifications, namely the recommendations of the Criminal Law Revision Committee in their
Thirteenth Report (Cmnd 6733). The Hong Kong legislation also includes an additional offence under section 18D of procuring entry in certain records by deception.
461
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Offences Under the Theft Ordinance
[Chap. 22
D. Obtaining Services by Deception
(1) Statute
Theft Ordinance (Cap 210), s 18A
22–​168
Obtaining Services by Deception
18A.—​(1) A person who by any deception (whether or not such deception was the
sole or main inducement) dishonestly obtains services from another shall be guilty of an
offence and shall be liable on conviction upon indictment to imprisonment for 10 years.
(2) It is an obtaining of services where the other is induced to confer a benefit by
doing some act, or causing or permitting some act to be done, on the understanding
that the benefit has been or will be paid for.
(3) For the purposes of this section, “deception” has the same meaning as in section 17.
Notes on section 18A
22–​169
The equivalent English legislation is section 1 of the Theft Act 1978. For the purposes of section 18A, “deception” has the same meaning as in section 17. For section
17 of the Theft Ordinance, see para.22-​129, above; as to deception see para.22-129,
139 to 22-145, above.
A person may be convicted of an offence contrary to section 18A of the Ordinance
although the service was obtained for another: R v Nathan [1997] Crim L R 835, CA.
There are two important differences between the English and Hong Kong legislation in respect of this offence. First, the additional words that appear in Hong Kong in
section 18A(1) viz “whether or not such deception was the sole or main inducement”
are not to be found in the English equivalent. The second difference is that Hong
Kong has not followed the amendments to section 1(3) of the Theft Act 1978, which
in England has had the effect of removing the obstacle that may, by virtue of the
English Court of Appeal’s decision in R v Halai [1983] Crim L R 624, have been placed
in the way of prosecuting mortgage frauds under section 1 of the 1978 Act (in Hong
Kong, section 18A of the Theft Ordinance).
In R v Halai, the Court of Appeal decided that the simple making of a loan could
not amount to a service. In addition, it was held that where a bank or a building
society was induced to open an account for a customer, no “service” was obtained by
the customer. In R v Graham (HK) [here being the defendant’s initials]; R v Kansal;
R v Ali (Sajid); R v Marsh [1997] 1 Cr App R 302, the Court of Appeal dealt with
a number of appeals arising from the decision in R v Preddy and Slade; R v Dhillon
[1996] AC 815, HL. Lord Bingham CJ adopted the remarks of Lord Lane CJ in R
v Teong Sun Chuah [1991] Crim L R 463 at 464, that the decision in Halai bore all
the hallmarks of having been decided per incuriam. The court said the decision had
been mere assertion, unsupported by reasoning and should no longer be regarded
as good authority.
The meaning of “services” in section 18A was wide enough to embrace professional
services, commercial services and financial services. The essential conditions were that
a service must confer a benefit and be rendered on the understanding that it has been
or will be paid for: R v Cooke [1997] Crim L R 436. See also R v Cummings-​John [1997]
Crim L R 660 and R v Naviede [1997] Crim L R 662, CA. R v Halai was overturned in R
v Sofroniov [2004] 3 WLR 161; [2004] Crim LR 381, CA where it was held that opening
a bank account and a credit card account were both services and that continuing use
of such accounts is also a service. The decision does not necessarily rely on section
1(3) of the Theft Act 1978 and is therefore of general application.
In R v Widdowson, 82 Cr App R 314, CA, it was said, obiter, that the obtaining of a
hire-​purchase agreement could in law amount to the obtaining of services since the
finance company conferred some benefit by doing some act, or causing or permitting
an act to be done, on the understanding that the benefit had been or would be paid
for within the meaning of section 1(2) (section 18A(2) of the Theft Ordinance); that
benefit was conferred by the delivery of possession of the goods hired to the hirer, or
by causing or permitting the retailer to do so, on the understanding that the hirer had
paid or would pay a deposit and subsequent instalments.
462
Sect. X]
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22–174
In R v Smith (Wallace Duncan) (No 4) [2004] 3 WLR 229, CA it was held that, where
services were obtained outside the jurisdiction, a [local] court had jurisdiction when a
substantial part of the deception occurred within the jurisdiction.
(2) Sentence
The maximum sentence on conviction upon indictment is 10 years’ imprisonment: section 18A(1), above.
22–​170
E. Evasion of Liability by Deception
(1) Statute
Theft Ordinance (Cap 210), s 18B
Evasion of Liability by Deception
18B.—​(1) Subject to subsection (2), where a person by any deception (whether or not 22–​171
such deception was the sole or main inducement)—​
(a) dishonestly secures the remission of the whole or part of any existing liability
to make a payment, whether his own liability or another’s;
(b) with intent to make default (whether the default is permanent or otherwise)
in whole or in part on any existing liability to make a payment, or with intent
to let another do so, dishonestly induces the creditor or any person claiming
payment on behalf of the creditor to wait for payment (whether or not the
due date for payment is deferred) or to forgo payment; or
(c) dishonestly obtains any exemption from or abatement of liability to make a
payment,
he shall be guilty of an offence and shall be liable on conviction upon indictment to
imprisonment for 10 years.
(2) For the purposes of this section “liability” means legally enforceable liability; and
subsection (1) shall not apply in relation to a liability that has not been accepted or
established to pay compensation for a wrongful act or omission.
(3) For the purposes of subsection (1)(b) a person induced to take in payment
a cheque or other security for money by way of conditional satisfaction of a pre-​
existing liability is to be treated not as being paid but as being induced to wait for
payment.
(4) For the purposes of subsection (1)(c) “obtains” includes obtaining for another or
enabling another to obtain.
(5) For the purposes of this section, “deception” has the same meaning as in section 17.
(2) Sentence
The maximum sentence on conviction upon indictment is 10 years’ imprisonment: section 18B(1), above.
22–​172
(3) Elements of the offence
The Criminal Law Revision Committee Report
Section 18B of the Theft Ordinance, though largely following the English legislation, namely section 2 of the Theft Act 1978 (repealed by the Fraud Act 2006, s 14(3)),
does nevertheless contain two significant differences both of which, it is submitted,
have the effect of broadening the scope of the offence. The first difference is the
addition of the words “whether or not the deception was the sole or main inducement” in section 18B(1). The second difference is the addition of the words “whether
the default is permanent or otherwise” under subsection (1)(b) which removes the
requirement for the prosecution to prove that that the default was to be a permanent
one. (SJ v Wong Sau Fong [1998] 2 HKLRD 254).
The Thirteenth Report of the UK Criminal Law Revision Committee (Cmnd
6733) said of this offence:
463
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Offences Under the Theft Ordinance
[Chap. 22
“Subsection (1)(a) [of section 18B of the Theft Ordinance] covers the deception
which dishonestly secures the remission of the whole or part of an existing liability to
make a payment. An example would be where a man borrows £100 from a neighbour
and, when repayment is due, tells a false story of some family tragedy which makes it
impossible for him to find the money; this deception persuades the neighbour to tell
him that he need never repay the loan.”
The Committee went on to say:
“Clause 2(1)(b) [section 18B(1)(b) of the Theft Ordinance] is concerned with the
stalling debtor. It provides that a debtor who by deception dishonestly induces his
creditor to wait for payment or to forgo payment is guilty of an offence if, and only
if, he intends to make permanent default in whole or in part of his liability to pay.”
This last comment in respect of permanent default is not applicable to the Hong
Kong legislation. It is submitted that the additional words in section 18B(2)(b) of the
Theft Ordinance broaden the scope of the equivalent English offence and includes
debtors who only seek to delay the repayment of the debt by deception. Thus the man
who issues a cheque in satisfaction of a debt knowing that the cheque will not be honoured upon presentation in order to delay the repayment but without any intention to
make a permanent default may still be guilty of the offence, provided of course that the
other requirements of the offence are satisfied: R v Tong Sze-​ming (Crim App 302/​1983).
The Committee continued:
“Subsection (2) makes it clear that the clause does not apply in relation to a liability
that has not been accepted or established to pay compensation for a wrongful act or
omission … We think that the dividing line is reached where liability is not disputed
even though the amount of that liability is  … ”.
The authorities
22–​175
In HKSAR v Ong Siu Kin, Kevin (HCMA 734-​735/​2009, [2011] HKEC 342), the
appellant befriended with three women and he thereafter obtained cash or goods and
also food and drink paid for by those women on the basis that they would be repaid.
He was found to have dishonestly induced them to wait for payment by deception,
namely by falsely representing that cheques he gave to them would be good and valid
orders for repayment if presented to a bank in ordinary course of business. In the
course of the trial, after hearing the evidence of the prosecution witnesses, the trial
magistrate amended the charges so as to allege approximate sums were owing to each
of those witnesses. CFI rejected the appellant’s argument that in order to establish a
“legally enforceable liability”, it is necessary to prove the liability in question beyond
reasonable doubt and it is necessary to establish with exactitude what the liability was
since it would be impossible in a civil court to enforce a claim for a debt of imprecise
amounts. CFI held that the use of the phrase “legally enforceable” is to distinguish
the liability from debts which could not be enforceable at law, such as gaming debts
or debts arising out of unlawful conduct. The prosecution has to prove beyond reasonable doubt that there was an enforceable liability, i.e. that the liability was capable
of being enforced. Section 18B does not impose upon the prosecution they duty to
prove an exact monetary liability and it is not the magistrate’s function to determine
the outcome of any civil proceedings as to quantum. The Appeal Committee (FAMC
22/​2011, 21 July 2011) refused to certify point of law of great and general importance,
stressing that the proof of an existing liability for a payment is a question of law and
fact for the Court. Furthermore, it is not necessary to plead the detail of an existing
liability and it is not necessary to prove a specific sum as long as an existing liability is
itself proved.
It is noted that the appellant in Ong Siu Kin, Kevin raised another point at CFI
that the “liabilities” would not be legally enforceable because there could have been
no intention to create legal relations and therefore no contract giving rise to the
“liability”. In the judgment, CFI held that it is not necessary that the prosecution to
prove, in a criminal trial, that there was an intention to enter legal relations, or that
there was a contract. It is submitted that the judgment should not be treated as a
general statement that the existence of contract and the existence of an intention to
464
Sect. X]
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22–175
enter into legal relations are always irrelevant. The judgment should be considered
in the context of the particular facts and evidence of the case that the appellant had
expressly acknowledged his liability to each of those women which formed the proper
basis of the finding of existing legally enforceable liability. It is submitted that, since
the proof of “existing liability” shall involve the proof of the legal basis of such liability,
in appropriate cases the prosecution would be required to prove the existence of a
valid cause of action which gives rise to the liability in question, such that the proof of,
for example, the existence of an enforceable contract or existence of an intention to
enter into legal relationship, etc., will be relevant and necessary.
The approach of the England and Wales Court of Appeal to the interpretation of
the subsection has been such that it must now be taken to be the law that there is substantial overlap between the three.
In R v Holt and Lee, 73 Cr App R 96, CA, the appellants, having had a meal in a
restaurant, decided to try to avoid payment by falsely claiming that they had already
paid. They put their plan into effect but were unsuccessful and were charged with an
attempt to commit the offence created by section 2(1)(b) (section 18B(1)(b) of the
Theft Ordinance). It was argued on their behalf in the Court of Appeal that section
2(1)(a) was the appropriate paragraph. It was held that an attempt to commit the
offence contrary to para (b) had been proved. It was also recognised that although the
three paragraphs create separate offences it may well be that particular conduct may
come within more than one paragraph.
In R v Sibartie [1983] Crim L R 471, CA, the appellant had tried to avoid paying his
fare on the underground by “flashing” in front of an inspector a season ticket that did
not cover his journey. He was convicted of attempting to obtain an exemption from a
liability to make a payment. The court said that the correct method of approach was
to ask whether, taking the words of section 2(1)(c) (section 18B(1)(c) of the Theft
Ordinance) in their ordinary meaning, one would say that what the appellant was
attempting to do fell within the ambit of the words. Applying that test, the court held
that his conduct came within the provision. The fact that he might also have been
guilty of an attempt to commit an offence contrary to section 2(1)(b) (section 18B(1)
(b) of the Theft Ordinance) was neither here nor there.
In R v Jackson [1983] Crim L R 617, CA, the appellant had used a stolen credit
card to pay for petrol. He was convicted of an offence contrary to section 2(1)(a)
(section 18B(1)(b) of the Theft Ordinance). It was argued that although he might
have committed an offence contrary to section 2(1)(b), he had not committed the
offence charged. Dismissing the appeal, the court held that the transaction of tendering a stolen credit card and having it accepted by a trader who forthwith would look
to the authority issuing the card for payment and not to the person tendering the
card, meant that that person had secured the remission of an existing liability. It was
unnecessary to consider whether the transaction could also have been brought within
section 2(1)(b).
In R v Firth, 91 Cr App R 217, CA, the defendant was a consultant gynaecologist. In
consequence of his not telling a hospital that certain patients were private patients,
either he or those patients were not charged for certain tests done or for inpatient
treatment. He was charged, inter alia, with four counts alleging evasion of a liability by
deception, contrary to section 2(1)(c) (section 18B(1)(c) of the Theft Ordinance).
His conduct was found to have been deliberate and dishonest, but it was argued on
appeal that there had to be some act of commission for the offence to be established.
This was rejected, the court saying that if it was incumbent on him to give the information to the hospital, and he deliberately and dishonestly refrained from doing so with
the result that no charge was levied, the wording of the section was satisfied.
It is not clear from the judgment whether any reference was made in argument to
the definition of “deception”. Certainly no reference was made to it by the Lord Chief
Justice in the course of his judgment. It is submitted that that subsection is relevant
to the issue of whether a deception must be by commission, as opposed to mere omission. The only statutory provision to which Lord Lane did refer was section 2 of the
Theft Act 1978 (section 18B of the Theft Ordinance –​evasion of liability by deception). His Lordship read out the material parts immediately after stating the nature of
the appellant’s submission.
465
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Offences Under the Theft Ordinance
[Chap. 22
It is tentatively submitted that this case should not be taken as authority for the
proposition that “mere silence” can constitute a deception. First, the court did not
deal with the definition of deception in section 17 of the Theft Ordinance (in the
United Kingdom: section 15(4) of the Theft Act 1968). Secondly, it seems likely that
the court would not have regarded the case as being one of pure omission or mere
silence. The defendant’s conduct, taken as a whole and including, of course, the failure to disclose the true status of his patients when such disclosure was to his knowledge expected, could surely be construed as a positive representation that they were
in fact NHS patients.
It was further held that for an offence contrary to section 2(1)(c) (in Hong Kong
section 18B(1)(c)) to be committed there need be no existing liability at the time
of the deception that results in the exemption from or abatement of liability being
obtained. Firth was considered in R v Rai [2000] 1 Cr App R 242. The Court of Appeal
expressed general approval of the foregoing treatment of the decision.
In R v Attewell-​Hughes, 93 Cr App R 132, CA, it was held that the opening words of
section 2(1)(b) (in Hong Kong section 18B(1)(b) of the Theft Ordinance), referred
only to a liability of the person whose liability it is. This, perhaps, seems obvious but
the case was apparently conducted on the basis that a person could intend to make a
default in respect of another person’s liability. It is the second limb of the paragraph,
viz “or with intent to let another do so”, that relates to the liability of a third person.
The deception alleged must operate on the mind of “ … the creditor or any person
claiming payment on behalf of the creditor”. The offence is not proved if it can only
be shown that the deception was made to a third party who was not the defendant’s
creditor (or a person claiming on the creditor’s behalf): R v Gee [1999] Crim L R
397, CA.
F. Making Off Without Payment
Statute
Theft Ordinance (Cap 210), s 18C
22–​176
Making Off Without Payment
18C.—​(1) Subject to subsection (3), a person who, knowing that payment on the spot
for any goods supplied or service done is required or expected from him, dishonestly
makes off without having paid as required or expected and with intent to avoid payment
of the amount due shall be guilty of an offence and shall be liable on conviction upon
indictment to imprisonment for three years.
(2) For the purposes of this section “payment on the spot” includes payment at the
time of collecting goods on which work has been done or in respect of which service has
been provided.
(3) Subsection (1) shall not apply where the supply of the goods or the doing of the
service is contrary to law, or where the service done is such that payment is not legally
enforceable.
Sentence
22–​177
The maximum sentence on conviction upon indictment is three years’ imprisonment: section 18C(1), above.
Alternative verdict
22–​178
Other offences of which the defendant may be found guilty are: theft (section 9),
obtaining property by deception (section 17), obtaining services by deception (section 18A), evasion of liability by deception (section 18B), blackmail (section 23(1)).
The elements of the offence
22–​179
In R v Brooks, 76 Cr App R 66, CA, the court observed that the words “dishonestly
makes off” were easily understandable by any jury, and in the majority of cases required
no elaboration in a summing-​up. The jury should be told to apply the words in their
466
Sect. X]
Obtaining By Deception
22–181
natural meaning and relate them to the facts of the case. “Making off” involved a
departure from the spot where payment was required. If the defendant is stopped
before passing that spot, the jury should be directed that the defendant’s actions may
constitute an attempt to commit the offence, provided the other ingredients are established. See also Moberly v Alsop (The Times, 13 December 1991, above).
In R v Allen [1985] AC 1029, HL, it was held that the following must be proved to
secure a conviction under section 3 (section 18C of the Theft Ordinance): (a) that
the defendant in fact made off without making payment on the spot; (b) knowledge
that payment on the spot was required or expected of him; (c) dishonesty; and (d) an
intent to permanently avoid payment of the amount due. An intention to delay or
defer payment does not suffice. See also HKSAR v Au Ngan Yi (HCMA 816/​2004, 3
November 2004).
The wording “on the spot” does not require payment to be made at any particular
spot: it means “there and then” and relates to the knowledge that the customer had to
have of when the payment was to be made: R v Aziz [1993] Crim L R 708, CA.
Where a person enters into an agreement with the supplier of goods or services that
“payment on the spot” need not be made, his subsequent making off without payment
on the spot does not constitute the offence, even though he had no intention of paying,
and the supplier’s agreement was obtained by deception; as a matter of fact, when the
customer makes off, payment on the spot is neither expected, nor required: R v Vincent
[2001] 1 WLR 1172, CA. See also Troughton v Metropolitan Police [1987] Crim L R 138, DC.
G. Procuring Entry in Certain Records by Deception
Statute
Theft Ordinance (Cap 210), s 18D
Procuring Entry In Certain Records By Deception
18D.—​(1) Any person who dishonestly, with a view to gain for himself or another or
with intent to cause loss to another, by any deception (whether or not such deception
was the sole or main inducement) procures the making, omission, altering, abstracting,
concealing or destruction of an entry in a record of a bank or deposit-​taking company,
or any subsidiary thereof the principal business of which is the provision of credit, shall
be guilty of an offence and shall be liable on conviction upon indictment to imprisonment for 10 years.
(2) For the purposes of this section—​
“bank” means—​
(a) a bank within the meaning of section 2(1) of the Banking Ordinance
(Cap 155); and
(b) a bank—​
(i) incorporated by or under the law or other authority in any place
outside Hong Kong, and in this respect “incorporated” includes
established; and
(ii) which is not a bank within the meaning of section 2(1) of the
Banking Ordinance (Cap 155); (Amended 49 of 1995 s 53)
“deception” has the same meaning as in section 17;
“deposit-​taking company” means a deposit-​taking company or restricted licence
bank within the meaning of section 2(1) of the Banking Ordinance (Cap 155);
(Amended 49 of 1995 s 53)
“record” includes—​
(a) any document or record used in the ordinary business of a bank or
deposit-​taking company, or any subsidiary thereof the principal business
of which is the provision of credit; and
(b) any document or record so used which is kept otherwise than in a legible
form and is capable of being reproduced in a legible form;
“subsidiary” has the same meaning as in the Companies Ordinance (Cap 32).
22–​180
Sentence
The maximum sentence on conviction upon indictment is 10 years’ imprisonment: Section 18D(1), above.
467
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Offences Under the Theft Ordinance
[Chap. 22
Elements of the offence
22–​182
The offence consists of the dishonest procuring by deception of the making of
an entry in a record of a bank with a view to gain or intent to cause loss. “Procuring”
involves causing the making of the entry and the defendant must have the intent
of procuring the relevant entry. The procuring must be dishonest with a view to
gain or intent to cause loss and the means employed to procure must be deception. If the means employed do not involve deception, the offence under s 18D(1)
would not be made out. There is no limitation on the type of person on whom the
deception is practised and there is no requirement that it must be practised on the
bank where the relevant entry is made. Where the deception by the defendant was
practised not on the bank but on another party, it is necessary to establish both that
the relevant entry in the record of a bank was procured as a matter of causation
and that the defendant intended by deception on that party to procure the relevant
entry. Therefore, in the case where a defendant, practising deception on a bank’s
customer, has no intent to procure an entry in the record of that bank, but an entry
is nevertheless made in the bank’s record on the customer’s initiative as a consequence of the deception, the offence is not made out because there is no relevant
dishonest intent to procure an entry in the bank’s record. (HKSAR v Cheung Kwun
Yin (2009) 12 HKCFAR 568)
“Dishonesty” has the same meaning as s 3: para.22-​19 to 22-​24, above; “deception”
has the same meaning as section 17: para.22-​129 to 22-​145, above. The section specifically provides that the making of the entry need not be for personal gain but may be
for the benefit of another.
The offence applies only to the altering of banking records, which includes
any records of a bank, or a deposit taking company or their subsidiaries,
provided that the subsidiary is itself involved in the business of providing
credit and that the provision of credit is that subsidiary’s “principal business”.
When considering what is or is not a “bank” within the meaning of sections 2
and 20 of the Evidence Ordinance (Cap 8), it was held in R v Law Ka-​Fu [1996]
2 HKCLR 8, per Power and Litton, VPP that “a banker’s record is, by definition,
wide enough to include any document used in the ordinary business of a bank”,
and therefore includes credit card sales slips. The definition in the Evidence
Ordinance is, it is submitted, further broadened by section 18D of the Theft
Ordinance.
In Attorney General v Chow Wai-​Ming; R v Yau Siu-​Ming [1992] 1 HKCLR 214 (CACC
292/​1991 and 351/​1991), it was found that each of the defendants had dis-​honestly
used a credit card in excess of the relevant credit limit with no real intention of ever
making repayment. The defendant had therefore procured the making of an entry in
a record of a bank (the relevant credit card statement) contrary to section 18D of the
Theft Ordinance. Per Yang CJ,
“The accused knew they had exceeded their credit limit. Given that the cardholder
is required to use his card within the credit limit each accused knew that this use was
dishonest and involved a deception, ie that he was entitled so to use the card. This
dishonest and deceptive use was clearly with a view to gain the provision of goods or
services. Each accused must have realised that this use would set in motion a chain
of events which would involve the making of an entry of the use in the books of
the bank. We had no doubt that they had procured the making of an entry in each
case and by deception within the terms of section 18D, and that they were properly
charged and properly convicted.”
XI. FALSE ACCOUNTING
(1) Statute
Theft Ordinance (Cap 210), s 19
22–​183
19.—​(1) Where a person dishonestly, with a view to gain for himself or another or
with intent to cause loss to another—​
468
Sect. XI]
False Accounting
22–188
(a) destroys, defaces, conceals or falsifies any account or any record or document made or required for any accounting purpose; or
(b) in furnishing information for any purpose produces or makes use of any
account, or any such record or document as aforesaid, which to his knowledge is or may be misleading, false or deceptive in a material particular;
he shall be guilty of an offence and shall be liable on conviction upon indictment to
imprisonment for 10 years.
(2) For purposes of this section a person who makes or concurs in making in an account,
record or document an entry which is or may be misleading, false or deceptive in a material particular, or who omits or concurs in omitting a material particular from an account,
record or document, is to be treated as falsifying the account, record or document.
(3) For the purposes of this section, “record” includes a record kept by means of a computer.
(2) Indictment
Count 1
Statement of Offence
False accounting, contrary to section 19(1)(a) of the Theft Ordinance (Cap 210).
Particulars of Offence
XY, on or about the _​_​_​_​day of _​_​_​_​, 20_​_​, in Hong Kong, dishonestly and with a view to
gain for himself or another or with intent to cause loss to another falsified a document required
for an accounting purpose namely, an account payment sheet, by making an entry therein which
was or may have been misleading, false or deceptive in a material particular in that it purported
to show that HK$__​ _​ _​ _​ _​ _​ _​ _​ _​ _​ ​had been paid to his employer AB Ltd by CD Ltd [or “omitting
or concurring in omitting from the said account payment sheet a material particular, namely,
the receipt on the said day of HK$__​ _​ _​ _​ _​ _​ _​ _​ _​ _​ ​from CD Ltd”].
22–​184
Count 2
Statement of Offence
False accounting, contrary to section 19(1)(b) of the Theft Ordinance (Cap 210).
Particulars of Offence
_
_
_
_
XY, on or about the ​ ​ ​ ​day of __​ _​ _​ ​, 20__​ ​, in Hong Kong, in furnishing information for a balance
sheet intended to be published by his employers, AB LTD, on the 31st day of March 20_​_​, dishonestly
and with a view to gain for himself or another or with intent to cause loss to another produced to his
said employers a record made by him the said XY for the purpose of the accounts of his said employers,
namely, a sales book that to his knowledge was or might be misleading, false or deceptive in a material
particular in that it purported to show that an order from CD LTD for the purchase of __​ _​ _​ _​ _​ _​ _​ _​ _​ ​
from his said employers had been cancelled by the said CD Ltd on the __​ _​ _​ _​ ​day of __​ _​ _​ _​ _​ ​, 20__​ _​ _​ ​.
22–​185
(3) Class of offence and mode of trial
This offence is triable either way: sections 91 and 92 of the Magistrates’ Ordinance
(Cap 227) and Schedule 2 of the Magistrates Ordinance.
22–​186
(4) Sentence
The maximum sentence is imprisonment of 10 years: section 19(1), above.
22–​187
(5) Elements of the offence
Any account or any record or document made or required for an
accounting purpose
The word “record” is wide enough to cover a mechanical account such as a meter
attached to a turnstile for recording the number of people passing through: Edwards v
Toombs [1983] Crim L R 43, DC; see also R v Solomons [1909] 2 KB 980.
469
22–​188
22–188
Offences Under the Theft Ordinance
[Chap. 22
In R v Mallett [1978] 1 WLR 820, CA, M was charged with an offence contrary to
s 17(1)(b) of the Theft Act 1968 (s 19(1)(b) of the Theft Ordinance): A document
required for an accounting purpose (a hire-​purchase agreement), contained an assertion that had been misleading or false in a material particular in that the document
purported to show that X had been a company director of a named company for
eight years. It was contended that the false statement had to be one that was material
to an accounting purpose. In rejecting that contention, the court held that once the
document in question qualified in the relevant respect (ie was made or required for
an accounting purpose), then, if it contained a false statement in a material particular
being a particular that was material for the purpose for which the document was being
brought into existence and used, the person who dishonestly furnished the information for that purpose contravenes s 17(1)(b). It might well be that in some cases,
but not this one, evidence would be required to show why a hire-​purchase company
wanted a particular piece of information and that without such evidence, the judge
or a jury might take the view that the matter complained of was not erroneous in a
material particular.
In Att-​Gen’s Reference (No 1 of 1980), 72 Cr App R 60, the Court of Appeal held that
the words “made or required” in s 17(1)(a) of the Theft Act 1968 (s 19(1)(a) of the
Theft Ordinance) indicated that a distinction should be drawn between documents
made specifically for accounting purposes and those made for some other purpose
but required for accounting purposes. Thus documents such as the personal loan
proposal forms with which the court was concerned would fall within s 17 (s 19 of the
Theft Ordinance) if they were merely required for accounting purposes as a subsidiary consideration and the fact that the falsified information was contained in a different part from that required for accounting purposes was irrelevant, for the document
must be examined as a whole.
A form claiming entitlement to housing benefit is a “document made or required
for an accounting purpose”: Osinuga v DPP, 162 JP 120, DC.
In R v Manning [1998] 2 Cr App R 461, CA, it was held that it is open to a court
to find that a document is a document required for an accounting purpose without
evidence to explain the actual use made of the document; in the circumstances, it had
been open to the jury to find that false insurance cover-​notes provided to the insured
were such documents, in that they set out the rate of, and dates on which, premiums
were to be paid. By contrast, in R v Sundhers [1998] Crim L R 497, CA, convictions
for false accounting based on dishonest insurance claim forms were quashed where
there was no evidence as to how the documents were “required for [an] accounting
purpose”; although only a little evidence as to the use made of the claim forms once
submitted would probably have sufficed for this purpose, it was not a matter that could
simply be left to the jury for them to draw their own conclusions.
In HKSAR v Wong Chung Yuen [2003] 2 HKC 695, (CFI), the defendant, in his application for Traffic Accident Victims Assistance, had dishonestly produced to the Social
Welfare Department sick-​leave certificates. On appeal, it was held that the sick-​leave
certificates were not documents that, on the face of the documents, were documents
made or required for an accounting purpose. As there was no evidence that they
were in fact such documents the conviction was quashed. In HKSAR v Tang Chi Ming
[2008] 2 HKLRD 225, CFI held the view that quotation did not fall into the category
of documents (such as invoices, receipts, ledgers, and journal) which were capable of
speaking for themselves as being made or required for accounting purpose such that
little or no further evidence is required to establish the fact. But in Tang Chi Ming,
there was other evidence proving the use to be made of the quotation so the requisite
element of the offence.
Although a decision whether to make a loan does not in itself amount to an
accounting purpose, it is open to a jury to find, without any further direct evidence
of the accounting practices of the lender, that a mortgage or loan application form
is a document required for an accounting purposessince such applications will, if
successful, lead to the opening of an account which will show as credits in favour
470
Sect. XI]
False Accounting
22–190
of the borrower funds received by the borrower and as debits funds paid out by the
lender to, or on behalf of, the borrower: R v O [2011] 1 WLR 2936. Ds had argued
that such reasoning meant “many of the cases … would have led to a different result
or to different and simpler reasons”. Nevertheless Hooper LJ accepted this simpler
solution, cautioned that it was “very difficult if not impossible to reconcile all the
cases on the point”, and said that this conclusion was not inconsistent with Att-​Gen’s
Reference (No 1 of 1980). It remains to be seen how this simpler approach will influence future decisions.
Falsification
In HKSAR v Yip Yiu-​wing (HCA 5382/​1993, [2001] HKEC 137), the defendant, a
franchisee, charged the franchiser a franchise fee substantially higher than the usual
rate. The court found that as a matter of contract and admission by the franchiser,
the defendant was entitled to charge a higher rate and the fact that the defendant
(through his own company) charged the franchiser a higher rate is not prima facie
“misleading”, false, deceptive or “dishonest”. The burden of proof was on the prosecution to adduce evidence to show that the higher rate charged was a falsification within
the meaning of section 19(1)(a).
In R v Shama, 91 Cr App R 138, CA, the appellant, an international telephone
operator, was required to record details of each call to an overseas subscriber on
one of a number of identical printed forms, which were later used for accounting
purposes. At his trial, on counts of contravening section 17(1)(a) (section 19(1)(a)
of the Theft Ordinance) by failing to complete the appropriate form, thereby omitting material particulars from a document required for an accounting purpose, a
submission that false accounting could not take place unless an account had actually
been brought into existence was rejected. It was held that as soon as the defendant’s
duty to complete a form arose, one of the standard forms became a “document …
required for (an) accounting purpose” so that an identifiable document existed for
the purposes of the section. The prosecution merely had to prove that the defendant had dishonestly, and for the required purpose, omitted material particulars from
such a document.
In R v Lancaster [2010] 1 WLR 2558, CA, it was held that in a non-​disclosure case,
the omission would be material if it had the effect that the document was liable to
mislead in a significant way. Whether the omission was significant would depend on
the nature of the document and the context. The test was objective. Where the document was an application form containing question, not every incomplete or incorrect answer constituting an omission to supply information required would amount to
omission of a material particular since an error or omission might be trivial and the
form might include questions which had no discernible bearing on the processing of
the application.
22–​189
With a view to gain, or with intent to cause loss
Theft Ordinance (Cap 210), s 8(2)
8.—​(2) For purposes of this Ordinance—​
“gain” and “loss” are, except in section 16A, to be construed as extending only to
gain or loss in money or other property, but as extending to any such gain or loss
whether temporary or permanent; and—​
(a) “gain” includes a gain by keeping what one has, as well as a gain by getting
what one has not; and
(b) “loss” includes a loss by not getting what one might get, as well as a loss by
parting with what one has;
“goods” except in so far as the context otherwise requires, includes money and
every other description of property except land, and includes things severed
from the land by stealing.
471
22–​190
22–191
22–​191
Offences Under the Theft Ordinance
[Chap. 22
In R v Goleccha and Choraria, 90 Cr App R 241, CA, it was held that where a
debtor falsifies documents required for an accounting purpose and does so dishonestly, intending thereby to induce his creditor to forebear from suing on the
debt, he does not have “a view to gain” within section 34(2) of the Theft Act 1968
(section 8(2) of the Theft Ordinance). A debtor did not possess any proprietary
rights; any money and/​or chose in action represented by the debt is owned by
the creditor.
However, in R v Siu Yin-​king [1994] 1 HKCLR 58, the appellant argued, relying on
Golechha and Choraria, that there was no offence disclosed by the facts as she had done
no more than obtain a forbearance to enforce an existing indebtedness. The Court of
Appeal decided that Golechha and Choraria was concerned only with the interpretation
of “gain” and did not involve any consideration as to whether the victim had suffered
loss in accordance with the terms of the Theft Ordinance. The Court of Appeal therefore held that where a person falsifies an account with the intention that another
will be tricked into refraining from suing on his chose in action to recover money to
which he is entitled, the person charged can properly be held to have done so with
intention to cause loss under section 19 of the Theft Ordinance. It was also held that
a false entry done with the view of enabling another to retain his employment and/​
or salaries could properly be held to have been done with “a view to gain” under the
Theft Ordinance.
The restriction to the decision in Golechha was considered to be justified by Lord
Woolf NPJ in the Court of Final Appeal decision in Ting James Henry v HKSAR (2007)
10 HKCFAR 730. His Lordship took the view that so far as the law of Hong Kong is
concerned, the decision in Golechha should not be regarded as an authority supporting the proposition that because a defendant seeks to avoid being sued, he is not also
acting with a view to gain or with the intention to cause loss for the purposes of s 19 of
the Ordinance. If a creditor is dishonestly persuaded not to seek to recover his debt,
there will be a beneficiary and if a defendant’s object is that at least temporarily to
retain the money which his creditor forbears from recovering he will receive a benefit
in being able to retain the money. Likewise the creditor can be, at least temporarily,
deprived of money which he would otherwise have recovered and accordingly can
temporarily suffer loss. When s 19(1) is read with s 8(2) and s 5 of the Ordinance,
dishonest conduct intended to have these consequences can constitute offences of
false accounting. A defendant can be taken to intend what will be the inevitable consequences of his intentional conduct.
In R v Eden, 55 Cr App R 193, CA, the court held that there were various forms of
temporary gain which could result in a verdict of guilty on a charge under section
17 of the Theft Act 1968 (which corresponds to section 19 of the Theft Ordinance),
including (on the facts of the case) a gain constituted:
“by putting off the evil day of having to sort out the muddle and pay up what may
have been in error kept within the sub-​post office when it ought to have been sent to
head office” [at 197].
“Gain” or “loss” must relate to money or other property. In the English case of R v
Masterton (30 April 1996, CA (94 02221 X5)), a company director was charged with
obtaining property by deception and false accounting. The deception counts were
described as being the springboard for the false accounting counts. The defendant
was acquitted of the deception counts at the close of the prosecution’s case, on
the direction of the judge. The false accounting counts were left to the jury. They
related to two false invoices that purported to show sales or services for large sums
of money by two companies that had been recently acquired by the company of
which the defendant was a director. The effect of the invoices was to improve the
apparent financial status of the acquired companies. The prosecution contended
that the defendant was seeking to mollify his co-​directors, who were dissatisfied
with the acquisitions. This was said to remove any chance of his having to use his
own financial resources to placate them, even though there was no legal obligation on him to do so. It was argued that this was done “with a view to gain for
472
Sect. XI]
False Accounting
22–194
himself” because it would enable him to “keep what he had”, namely his own financial resources. The Court of Appeal quashed the convictions and held that a desire
to improve relations with business partners did not involve monetary gain and an
intention to retain his own resources was an artificial concept when he was never at
risk vis-​à-​vis his co-​directors.
In Lee Cheung Wing v R [1991] 2 HKLR 220, the appellants were employees of
a company dealing in futures contracts. As such, they were not allowed to operate an account on their own behalf. They opened an account in a friend’s name
and were charged with false accounting by falsifying withdrawal slips to authorise
the release of the funds. It was argued that the admitted dishonest falsification
of the withdrawal slips was not done with a view to gain, as defined by section 8(2) of
the Theft Ordinance. It was contended that no gain resulted from the falsification
of the slips but only from the sale of the futures contracts and the company suffered
no loss since the money had always been that of the appellants. However, it was held
that a servant who uses his position of employment to make a personal profit is
bound to account to his master for such profit, regardless of whether the master had
suffered any loss as a result. The falsification of the withdrawal slips enabled them
to recover from the company funds, to which they were not entitled, and was done
“with a view to gain”.
See also R v Bevans, 87 Cr App R 64, CA, para.22-​212, below.
Dishonesty
See generally para.22-​19 to 22-​24, above. In R v Eden, 55 Cr App R 193, CA, above,
the appellant’s convictions were quashed, although he had acted “with a view to gain”,
because the jury had said after the verdicts had been returned that they found him
“not dishonest, but muddled”.
22–​192
(6) Theft and false accounting
22–​193
In R v Eden, above, Sachs LJ said:
“It seems to this Court to be rather odd that two counts, theft and false accounting,
should be put in a parallel setting, if it is the object of the prosecution to secure
a conviction on the first only if the second is proved, or on the second only if the
first is proved … It would be better in future that the prosecution should make
up its mind as to whether or not it really wants a conviction on a count for false
accounting only if theft is proved: if so, reliance should be placed on one count
only. On the other hand, there may be cases when it is wise to have a count for
false accounting; where, for instance, a temporary gain could be the object of the
dishonest act” [at 198-​199].
In Att-​Gen v Van Sou-​leng [1989] 1 HKC 27, the defendant was charged with three
counts of theft and a further three charges of false accounting. The trial judge dismissed the first three charges and in light of this, dismissed the remaining three
charges as well. On appeal by the Attorney-​General against the dismissal of the three
false accounting charges, it was held that it did not follow that because a defendant was not guilty of theft, he must also not be guilty of false accounting. The trial
judge should have gone on to consider whether the evidence revealed dishonesty and
whether the defendant had made a gain that was not necessarily a monetary one. R v
Eden applied.
(7) Jurisdiction
Statute
As to the effect of the Criminal Jurisdiction Ordinance, Part I (an offence contrary
to section 19 is a “Group A” offence), see para.22-​152 to 22-​153, above.
473
22–​194
22–195
Offences Under the Theft Ordinance
[Chap. 22
Common law
22–​195
As to jurisdiction generally, see para.22-​152 et seq, above.
In R v Governor of Pentonville Prison, Ex p Osman, 90 Cr App R 281, DC, Lloyd LJ, in
giving the judgment of the court, said:
“We do not think it possible to lay down any general rule as to the place where the
offence of false accounting is committed. In some cases it may be that it is at the
place where the account is to be used. But in the present case it would be artificial
to regard Malaysia as the place of making or concurrence, when the documents in
question were prepared and created in Hong Kong, and relate to a business carried
on by BMFL [the defendant’s company] exclusively in Hong Kong. In our view the
chief magistrate was right to hold that the offence of false accounting was complete
when the documents were falsified, or where the material particulars were omitted”
[at 299].
XII. OFFENCES RELATING TO COMPANIES
AND COMPANY DIRECTORS
(1) Statute
Theft Ordinance (Cap 210), s 20
22–​196
Liability of company officers for certain offences by a company
20.—​(1) Where an offence committed by a body corporate under section 17, 18, 18A,
18B, 18D, 19 or 22(2) is proved to have been committed with the consent or connivance
of any director, manager, secretary or other similar officer of the body corporate, or any
person who was purporting to act in any such capacity, he as well as the body corporate
shall be guilty of that offence, and shall be liable to be proceeded against and punished
accordingly.
(2) Where the affairs of a body corporate are managed by its members, this section
shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.
Theft Ordinance (Cap 210), s 21
22–​197
False statements by company directors
21.—​(1) Where an officer of a body corporate or unincorporated association (or person purporting to act as such) with intent to deceive members or creditors of the body
corporate or association about its affairs, publishes or concurs in publishing a written
statement or account which to his knowledge is or may be misleading, false or deceptive
in a material particular, he shall be guilty of an offence and shall be liable on conviction
upon indictment to imprisonment for 10 years.
(2) For the purposes of this section a person who has entered into a security for
the benefit of a body corporate or association is to be treated as a creditor of it.
(3) Where the affairs of a body corporate or association are managed by its members,
this section shall apply to any statement which a member publishes or concurs in publishing in connection with his functions of management as if he were an officer of the
body corporate or association.
XIII. SUPPRESSION, ETC OF DOCUMENTS
A. Statute
Theft Ordinance (Cap 210), s 22
22–​198
22.—​(1) Any person who dishonestly, with a view to gain for himself or another or
with intent to cause loss to another, destroys, defaces or conceals any valuable security,
any will or other testamentary document or any original document of or belonging
to, or filed or deposited in, any court or any government department shall be guilty
474
Sect. XIII]
Suppression, Etc of Documents
22–203
of an offence and shall be liable on conviction upon indictment to imprisonment for
10 years.
(2) Any person who dishonestly, with a view to gain for himself or another or with
intent to cause loss to another, by any deception (whether or not such deception was the
sole or main inducement) procures the execution of a valuable security shall be guilty
of an offence and shall be liable on conviction upon indictment to imprisonment for
10 years.
(3) Subsection (2) shall apply in relation to the making, acceptance, indorsement,
alteration, cancellation or destruction in whole or in part of a valuable security, and in
relation to the signing or sealing of any paper or other material in order that it may be
made or converted into, or used or dealt with as a valuable security, as if that were the
execution of a valuable security.
(4) For the purposes of this section—​
“deception” has the same meaning as in section 17; and “valuable security” means
any document creating, transferring, surrendering, or releasing any right to, in
or over property, or authorising the payment of money or delivery of any property, or evidencing the creation, transfer, surrender or release of any such right,
or the payment of money or delivery of any property, or the satisfaction of any
obligation.
Notes on section 22
Section 22 of the Theft Ordinance deals with two separate offences, both of which
assume the elements of “a view to gain” and “an intent to cause loss to another”.
“Gain” and “loss” are defined in section 8(2): para.22-​65, above. Dishonesty is also a
required ingredient of both offences: para.22-​19 to 22-​24, above. “Deception” in subsection (2) is given the same meaning by subsection (4) as in section 17 (para.22-​129
et seq, above); subsection (4) also defines “valuable security”.
22–​199
B. Destroying a Will
(1) Indictment
Statement of Offence
Destroying a will, contrary to section 22(1) of the Theft Ordinance (Cap 210).
Particulars of Offence
AB, on or about the _​_​_​_​day of _​_​_​_​, 20_​_​, in Hong Kong, dishonestly and with a
view to gain for himself or another or with intent to cause loss to another destroyed the will
of one CD.
22–​200
(2) Class of offence and mode of trial
This offence is triable either way: sections 91, 92 and Schedule 2 of the Magistrates
Ordinance. It is a “Group A” offence.
22–​201
(3) Sentence
The maximum sentence is imprisonment of 10 years: section 22(1), above.
22–​202
(4) Elements of the offence
Prove the destruction of the will by the defendant as stated in the indictment, and
also that he did it dishonestly for the purpose of gain for himself or another or of
causing loss to another as alleged. The purpose can, in most cases, be only a matter of
inference not capable of direct proof (see R v Morris (1839) 9 C & P 89); but the mere
destruction, unexplained by the defendant, is evidence from which the purpose of the
defendant may fairly be presumed.
475
22–​203
22–204
Offences Under the Theft Ordinance
[Chap. 22
C. Procuring the Execution of a Valuable Security by
Deception
(1) Indictment
22–​204
22–​205
Statement of Offence
Procuring the execution of a valuable security by deception, contrary to
section 22(2) of the Theft Ordinance (Cap 210).
Particulars of Offence
AB, on or about the _​_​_​_​day of _​_​_​_​, 20_​_​, in Hong Kong, with a view to gain for himself
dishonestly procured CD to accept a bill of exchange for HK$__​ _​ _​ _​ _​ _​ _​ _​ ​by deception, namely
by falsely representing that … etc.
For the requirement of unanimity where more than one deception is alleged, see R
v Brown (K), 79 Cr App R 115, CA, above.
(2) Class of offence and mode of trial
22–​206
This offence is triable either way: sections 91 and 92 of the Magistrates Ordinance
and Schedule 2 of the Magistrates Ordinance.
(3) Sentence
22–​207
The maximum sentence is imprisonment of 10 years: section 22(2) of the Theft
Ordinance, above.
(4) Elements of the offence
“Procure”
22–​208
“Procure” has no special meaning for the purpose of section 22(2); its most common meaning is to cause or bring about: R v Beck, 80 Cr App R 355, CA. In Beck, the
appellant had cashed in France a series of stolen Barclays Bank travellers cheques
and had used a stolen Diners Club card to obtain goods in France on several occasions. The cheques and the Diners Club bill were eventually returned to England
for payment by the bank and the club respectively. The appellant was charged with a
series of offences of procuring the execution of a valuable security in relation to the
acceptance of the cheques and the Club bill. The bank was aware that all the cheques
presented for payment were for-​geries, but it honoured them because, while it could
not claim to be legally obliged to do so, it considered itself liable to pay the agents
and correspondents who had handled them, providing the person who had cashed
them had acted prudently. There was no suggestion in any of the transactions that that
person had acted imprudently. Diners Club claimed to be under a legally enforceable
agreement to pay bills that had been incurred by the use of one of their stolen cards
provided the trader had complied with their conditions. None of the traders involved
had failed thus to comply. It was submitted that the appellant did not cause or bring
about the payments made by the bank and Diners Club, as they were not deceived
knowing that they were completing transactions that were dishonest at source. The
court disagreed with the submission that they need not, therefore, have made the payments. There was evidence of obligations to do so, upon which the jury were entitled
to act and to find that the appellant “procured” a situation in which both the bank and
the Club had no alternative for legal and/​or commercial reasons but to pay for their
valuable securities. The fact was that the appellant by his dishonesty set off a chain
of events with inevitable consequences. To say that he did not procure them was to
disregard the evidence and to defy logic. (On the issue of the meaning of “execution”,
Beck has now been overruled by the House of Lords in R v Kassim [1992] 1 AC 9: See
para.22-​201, below).
476
Sect. XIII]
Suppression, Etc of Documents
22–210
On the basis that “procure” means no more than “cause” or “bring about”, it was
held in R v Aston and N’Wadiche [1998] Crim L R 498, CA, that it is not necessary to
prove that the defendant intended to procure the execution of a valuable security; it
is enough that he was reckless as to this being the consequence of his deception. For
critical consideration of this conclusion, see Criminal Law Week, 98/​14/​29.
“Execution” of a valuable security
“Execution” means doing something to the face of the document, such as signing
it, or the due performance of all formalities to give it validity: it does not mean “to give
effect to” (as had been held in Beck, above): R v Kassim, above.
In Chiu Yu-​man v HKSAR [2001] 3 HKLRD 525, it was held that section 22(3) had
given an extended meaning to the element of “execution” under the offence created
by section 22(2). A document signed or sealed would be treated as executed “in order
that it [might] be … used or dealt with as a valuable security”. The element of “execution” is satisfied by the signing or sealing of a document which, when “used or dealt
with” answers the description of a valuable security provided that the person signing
or sealing the document did so in order that it would become a valuable security.
As to “acceptance”, the House of Lords in Kassim held, disapproving Beck, above,
that acceptance was to be restricted to the technical sense of an acceptance of a bill of
exchange by the drawer signing his assent to the order of the drawer; mere payment
by a bank in accordance with the instructions contained in a cheque or credit card
voucher did not constitute its “acceptance”.
22–​209
Valuable security
To be a “valuable security”, the document must:
(1) affect, in one of the stated ways, a “right to, in or over property”, or
(2) authorise the payment of money or delivery of property, or
(3) evidence an operation of the kind referred to in either (1) or (2), or
(4) evidence the satisfaction of an obligation.
To fall within the first limb of the definition, there must be some property (which,
by the extended definition given to that term by subsection (4), may include money)
“to, in or over” which a right may exist.
See Chiu Yu-​man v HKSAR, above.
An irrevocable letter of credit is a valuable security within section 20 of the Theft
Act 1968 (which more or less corresponds to section 22 of the Theft Ordinance): R v
Benstead and Taylor, 75 Cr App R 276, CA, where the court said that the obligation of
the issuing bank created a corresponding right in the beneficiary to enforce payment
on the presentation of certain specified documents: the bank had no right to rescind
the obligation pending compliance with the condition. In Chiu Yu-​man, above, however, it was held that a letter of credit did not create a right “to, in or over property”
and accordingly, does not fall under the first limb of section 22(4): with the opening
of a letter of credit, a bank was only under a personal obligation to pay money, the
respective assets of both the bank and the customer were not encumbered or affected
in any way (R v Benstead and Taylor was distinguished).
In R v King [1992] 1 QB 20; 93 Cr App R 259, CA, the document in question consisted
of a form completed from details supplied by dishonest mortgage applicants. The paying bank’s staff keyed the information from the form into a computer and put into operation an instantaneous transfer of the amount specified into the payee’s bank account.
Before that information was keyed in however, the form was signed by a bank official,
thereby effectively authorising the keying operation; and after the operation had been
completed it appears that the form was signed again by whoever had performed it. It
was held that the document constituted a valuable security on a number of grounds. It
was said to be a document that transferred a right over property, namely the bank credit
as a chose in action; it also created a right over the chose; and, further, it evidenced the
obligation of the bank to act on its paying customer’s instructions to effect the transfer.
477
22–​210
22–211
Offences Under the Theft Ordinance
[Chap. 22
D. Jurisdiction
22–​211
An offence contrary to section 22(2) is a “Group A” offence within Part I of the
Criminal Jurisdiction Ordinance: see generally, above, para.22-​152 to 22-​153, above.
XIV. BLACKMAIL
(1) Statute
Theft Ordinance (Cap 210), s 23
22–​212
23.—​(1) A person commits blackmail if, with a view to gain for himself or another or
with intent to cause loss to another, he makes any unwarranted demand with menaces;
and for this purpose a demand with menaces is unwarranted unless the person making
it does so in the belief—​
(a) that he has reasonable grounds for making the demand; and
(b) that the use of the menaces is a proper means of reinforcing the demand.
(2) The nature of the act or omission demanded is immaterial, and it is also immaterial whether the menaces relate to action to be taken by the person making the
demand.
(3) Any person who commits blackmail shall be guilty of an offence and shall be liable
on conviction upon indictment to imprisonment for 14 years.
(4) Any person who has in his possession or under his control any letter or writing making any unwarranted demand of any person with menaces shall be guilty of an
offence and shall be liable on conviction upon indictment to imprisonment for 10 years.
(5) A person does not commit an offence under subsection (4) if he proves that
he had the letter or writing in his possession or control otherwise than with intent to
utter it.
Notes on section 23
22–​213
“Gain” and “loss” are defined in the Theft Ordinance, section 8(2): para.22-​64, above.
(2) Indictment
22–​214
Statement of Offence
Blackmail, contrary to section 23(1) of the Theft Ordinance (Cap 210).
Particulars of Offence
AB, on or about the _​_​_​_​day of _​_​_​_​, 20_​_​, in Hong Kong, with a view to gain for himself
in a letter dated __​ _​ _​ _​ _​ _​ _​ _​ _​ _​ ​and addressed to CD at __​ _​ _​ _​ _​ _​ _​ _​ _​ _​ ​, made and unwarranted
demand of HK$__​ _​ _​ _​ _​ _​ _​ _​ ​from CD with menaces.
(3) Sentence
Authorities
22–​215
Imprisonment not exceeding 14 years: s 23(3), above. As for the related offence of
possession of a demand letter to blackmail, imprisonment not exceeding 10 years: s
23(4), above.
(4) Elements of the offence
Generally
22–​216
Prove that (a) a demand with; (b) menaces was made; (c) that it was unwarranted;
and (d) that at the time of making the demand the defendant made it with a view to
gain for himself or another or with intent to cause loss to another.
478
Sect. XIV]
Blackmail
22–218
The demand
The demand may be made in writing, by speech or by conduct. It need not be
explicit provided that if implicit, the demand was such that “the demeanour of the
accused and the circumstances of the case were such that an ordinary reasonable
man would understand that a demand … was being made of him … ”: R v Collister
and Warhurst, 39 Cr App R 100 at 102, CCA. Whether such conduct amounts to a
demand is an issue for the jury: HKSAR v Fung Cheuk Sang [1999] 3 HKLRD 660, CA;
HKSAR Law Kwok Sang (CACC 330/​2001). The fact that the defendant may believe
that he is lawfully entitled to that which he demands does not render an demand
warranted: HKSAR v Lau Wa Sang and Lau To Sang (CACC 203/​2000, 23 Nov 2000).
In R v Lambert (Lewis) [2010] 1 Cr App R 21, it has been held that the demand does
not have to be made in terms of a demand or requirement or obligation. It can be
couched in terms which are by no means aggressive or forceful.
The demand does not have to be communicated to the person of whom it is
made: Treacy v DPP [1971] AC 537, HL.
Where a letter containing an unwarranted demand with menaces was written in
Hong Kong but posted to and received by a person in another country, Hong Kong
has jurisdiction to try the accused for blackmail: Treacy, above. Conversely, Hong Kong
also has the jurisdiction where the demand is made in another country but received
in Hong Kong: R v Tsang Yip Fong, Tsang Shui Lee [1993] HKLY 217.
22–​217
Menaces
The demand must be made with menaces. In R v Clear [1968] 1 QB 670; 52 Cr App
R 58, CA, Sellers LJ reviewed the authorities as to the meaning of the word “menaces”.
Having done so, his Lordship continued at 679-​680:
“Words or conduct which would not intimidate or influence anyone to respond to
the demand would not be menaces … but threats and conduct of such a nature and
extent that the mind of an ordinary person of normal stability and courage might be
influenced or made apprehensive so as to accede unwillingly to the demand would be
sufficient for a jury’s consideration … There may be special circumstances unknown
to the accused which would make the threats innocuous and unavailing for the
accused’s demand, but such circumstances would have no bearing on the accused’s
state of mind and of his intention. If an accused knew that what he threatened would
have no effect on the victim it might be different”.
In Thorne v Motor Trade Association [1937] AC 797, HL, Lord Wright at 817 also
thought that the word “menace” is to be
“liberally construed and not as limited to threats of violence but as including threats
of any action detrimental to or unpleasant to the person addressed. It may also
include a warning that in certain events such action is intended”.
Lord Atkin at 806-​807 said:
“The ordinary blackmailer normally threatens to do what he has a perfect right to do
namely, communicate some compromising conduct to a person whose knowledge is
likely to affect the person threatened. Often indeed he has not only the right but also
the duty to make the disclosure, as of a felony, to the competent authorities. What he
has to justify is not the threat, but the demand of money. The gravity of the charge is the
demand without reasonable or probable cause: and I cannot think that the mere fact
that the threat is to do something a person is entitled to do either causes the threat not
to be a ‘menace’ … or in itself provides a reasonable or probable cause for the demand”.
In R v Lambert (Lewis) [2010] 1 Cr App R 21, it has been held that, regarding the
element of menace, the essence of the offence is the imposition of menacing pressure.
The element is established even if the threat was not that the person who made the
threat would do or allow others to do something but that the person who made the
threat would suffer violence.
479
22–​218
22–218
Offences Under the Theft Ordinance
[Chap. 22
In R v Lawrence and Pomroy, 57 Cr App R 64, it was argued before the Court of
Appeal that the trial judge had wrongly failed to give the jury a definition of what
constitutes a menace in accordance with Clear, above:
“The word ‘menaces’ is an ordinary English word which any jury can be expected
to understand. In exceptional cases where because of special knowledge in special
circumstances what would be a menace to an ordinary person is not a menace to the
person to whom it is addressed, or where the converse may be true, it is no doubt
necessary to spell out the meaning of the word” (per Cairns LJ at 72).
Clear and Lawrence and Pomroy were referred to approvingly in R v Garwood, 85 Cr
App R 85, CA. There were two possible situations where some elaboration of the
word “menaces” might be required. The first was where the threats might affect the
mind of an ordinary person of normal stability but did not affect the person actually
addressed. Such circumstances would amount to a sufficient menace. The second was
where the threats in fact affected the victim’s mind although they would not have
affected the mind of a person of ordinary stability: in such a case the existence of
menaces was proved, provided that the accused was aware of the likely effect of his
actions on the victim.
See also R v Ko Wun Chung (CACV 70/1990, [1990] HKEC 86); HKSAR v Wong Wai-​
yip (CACC 718/​1996, [2003] HKEC 262), CA.
Unwarranted
22–​219
Any demand with menaces is unwarranted unless the defendant is able to bring
himself within both paragraphs (a) and (b) of section 23(1). Thus the essential nature
of the offence is that the defendant demands with menaces when he believes he is not
entitled to the thing demanded or when he believes the use of menaces is improper
notwithstanding his genuine claim. It appears to follow from this that a claim of right
cannot be a defence as such to a charge of blackmail. The fact that dishonesty is
not an ingredient of the offence adds weight to this contention. In R v Lawrence and
Pomroy, above, one of the defendants apparently had a genuine belief that the money
demanded was lawfully due to him: no point was taken on this, however, and it certainly did not occur to the Court of Appeal that there might be anything in the point.
Each case will turn on its own facts. A deliberate refusal by a debtor to pay a debt
may cause a creditor to believe he could threaten to tell the debtor’s employer about
the debt. A threat to do some harm disproportionate to the sum or property legally
claimed would be strong evidence of the absence of any belief in the propriety of
the threat. That it is the defendant’s own belief that matters, was emphasised in R v
Harvey, 72 Cr App R 139, CA. Bingham J, giving the court’s judgment, said: “It matters
not what the reasonable man, or any other man than the defendant, would believe
save in so far as that may throw light on what the defendant in fact believed” (at 141).
This applies to both paras (a) and (b). In relation to paragraph (b), the court considered the question of what or whose standards were to be applied in relation to the
issue of the defendant’s belief that the use of the menaces was a “proper” means of
reinforcing the demand. It is submitted that a threat to perform a criminal act can
never as a matter of law be a proper means within the subsection. Bingham J said (at
142) that the word “proper” is:
“plainly a word of wide meaning, certainly wider than (for example) ‘lawful’. But
the greater includes the less and no act which was not believed to be lawful could be
believed to be proper within the meaning of the subsection … The test is not what
(the defendant) regards as justified, but what he believed to be proper. And where …
the threats were to do acts which any sane man knows to be against the laws of every
civilised country no jury would hesitate long before dismissing the contention that
the defendant genuinely believed the threats to be a proper means of reinforcing
even a legitimate demand.”
In Harvey, the menaces were to kill or to maim or to rape. The court held that a
proper direction would have been as follows: the demand with menaces was not to be
480
Sect. XIV]
Blackmail
22–222
regarded as unwarranted unless the prosecution satisfied the jury that the defendant
did not make the demand with menaces in the genuine belief both (a) that he had
reasonable grounds for making a demand, and (b) that the use of the menaces was in
the circumstances a proper (meaning for present purposes a lawful, and not a criminal) means of reinforcing the demand.
It is for the defence to raise the issues contained in both paragraphs if they so
wish and establish the defendant’s belief in the grounds and the means. Once the
issue is raised, it is for the prosecution to negative so that a jury can be sure that the
defendant did not have the beliefs he alleges in relation to either the grounds of
the demand or the means of reinforcing it. In R v Lawrence and Pomroy, above, neither defendant suggested in evidence that, if menaces were used by them, it was a
proper means of reinforcing the demand for payment of the debt. They contended
on appeal that the judge should have directed the jury on proviso (b). It was held
that where on the face of it the means adopted to obtain payment of a debt are not
the proper way of enforcing it and where the accused does not at his trial set up
the case that he believed it to be, there is no need for any direction to be given on
proviso (b). The same principle will apply to (a): if, on the face of it, there are no
reasonable grounds for the demand and the defence do not raise the issue, there
will be no need for the judge to direct the jury on proviso (a). See also R v Harvey,
above at 142.
With a view to gain for himself or another or with intent to cause loss
to another
The demand must be accompanied by either a view to gain or an intention to cause
loss. Gain or loss is to be construed as extending only to money or other property: see
section 8(2), above, para.22-​64.
There is no requirement of economic interest: R v Bevans, 87 Cr App R 64, CA (doctor threatened patient in severe pain who wanted an injection of morphine).
Since the definition of “gain” includes “getting what one has not”, there is no
justification for any argument that “gain” should be limited to “gain” in the sense
of “profit”. If a person makes a demand for a debt lawfully owed to him, it may be
argued that he does not do so with a view to profit, but he certainly does so with a
view to getting what he has not. It has been held at first instance that by demanding
money lawfully owing to him the defendant did have a view to “gain”: by obtaining
hard cash as opposed to a mere right of action in respect of the debt the defendant
was getting more than he already had: R v Parkes [1973] Crim L R 358. In R v Lawrence
and Pomroy, above, it appears to have been assumed that an unwarranted demand
with menaces for a debt believed to be due was blackmail (see HKSAR v Lau Wa Sang
(CACC 203/​2000, 23 November 2000); See also Att-​General’s Reference (No 1 of 2001)
[2002] 3 All ER 840).
22–​220
(5) Possession of blackmail letters
Under subsection 4, it is also an offence for a person who has in his possession
or under his control any letter or writing that makes an unwarranted demand with
menaces. This is so even where the letter in question is addressed to a non-​existent
person: R v Carruthers (1844) 1 Cox CC 138. However, whether this dictum will stand
the test of time is debatable.
22–​221
(6) Jurisdiction
Statute
As to the effect of the Criminal Jurisdiction Ordinance, Part I (blackmail is a “Group
A” offence), see para.22-​152 to 22-​153, above.
481
22–​222
22–223
Offences Under the Theft Ordinance
[Chap. 22
XV. HANDLING STOLEN GOODS
(1) Statute
Theft Ordinance (Cap 210), s 24
22–​223
Handling stolen goods
24.—​(1) A person handles stolen goods if (otherwise than in the course of the stealing) knowing or believing them to be stolen goods he dishonestly receives the goods, or
dishonestly undertakes or assists in their retention, removal, disposal or realisation by or
for the benefit of another person, or if he arranges to do so.
(2) Any person who handles stolen goods shall be guilty of an offence and shall be
liable on conviction upon indictment to imprisonment for 14 years.
Theft Ordinance (Cap 210), s 8(2)
22–​224
8.—​(2) For purposes of this Ordinance—​
“goods”, except in so far as the context otherwise requires, includes money and
every other description of property except land, and includes things severed
from the land by stealing.
(2) Indictment
Count 1
Statement of Offence
Dishonesty
22–​225
Handling stolen goods, contrary to section 24(1) of the Theft Ordinance (Cap 210).
Generally
See generally para.22-19 to 22-24, above.
Particulars of Offence
_
_
_
_
AB, on or about the ​ ​ ​ ​day of __​ _​ _​ ​, 20__​ ​, in Hong Kong, dishonestly received certain
stolen goods, namely two [Toyota, etc] vehicles, knowing or believing the same to be stolen
goods.
22–​225A
The above will suffice where there is clear evidence of possession by the defendant of the goods alleged to have been stolen. Where, however, the prosecution also
desires to rely on the other limbs of the offence of handling, a second count should
be added.
Count 2
22–​226
22-​226A
Statement of Offence
Handling stolen goods, contrary to section 24(1) of the Theft Ordinance (Cap 210).
Particulars of Offence
_
_
_
_
AB, on or about the ​ ​ ​ ​day of __​ _​ _​ ​, 20__​ ​, in Hong Kong, dishonestly undertook or
assisted in the retention, removal, disposition or realisation of certain stolen goods, namely two
[Toyota, etc] vehicles by or for the benefit of another, or dishonestly arranged so to do, knowing
or believing the same to be stolen goods.
For observations upon a compendious count for handling when property is discovered in the context of an “Aladdin’s cave”, see R v Smythe, 72 Cr App R 8, CA,
para.22-​226, below. As to the application of the “continuous offence” and “general
deficiency” principles to an allegation of handling, see R v Cain [1983] Crim L R 802,
CA, para.22-​221, below.
482
Sect. XV]
Handling Stolen Goods
22–227
Form of the indictment
Section 24(1) constitutes a single offence of handling stolen goods, see Griffiths
v Freeman [1970] 1 All ER 1117. The two more common charges laid under section
24(1) concern two different methods of handling. They are: first, a charge of dishonestly receiving goods, knowing or believing them to have been stolen. For this
charge, the doctrine of recent possession, if relevant, may be introduced because that
would be evidence from which an inference may be drawn of the defendant being the
guilty handler of stolen goods. It may also be inferred that he is not the actual thief.
See R v Cash [1985] 1 QB 801 at 805A, per Lord Lane CJ.
The doctrine of recent possession is also relevant to this latter method of handling
stolen goods: HKSAR v Zheng Wan Tai [2001] 1 HKLRD 839; (R v Sloggett, 55 Cr App
R 532, not followed). In Griffiths v Freeman, it had been argued that the section set out
18 separate offences: Lord Parker CJ said (at 1118-​1119) that if that was correct the
information would have been bad for duplicity.
“It seems to me … that it is sufficient to allege a handling of goods contrary to the
section, but that in the ordinary way particulars should be given in order to enable
the accused to understand the ingredients of the charge which he has to face … In
a case where there is likely to be any embarrassment it is quite clear to me that the
information should set out particulars, and that if it does not, an application for particulars should be acceded to … I would like to confine this judgment to proceedings
in magistrates’ courts. It may be, whatever be the true position in law, that when one
comes to deal with indictments, the better practice may be of having … separate
counts describing the different methods of handling.”
In R v Sloggett, the Court of Appeal expressed its agreement with Lord Parker’s
observations in Griffiths v Freeman. The court in Sloggett held that no count in an indictment for the offence of handling stolen goods by dishonestly undertaking or assisting
in the retention, removal, disposal or realisation of stolen goods by or for the benefit
of another person should omit the words “by or for the benefit of another person”,
since on the true construction [of section 24(1)], the nouns retention, removal, disposal and realisation are all governed by those words, which form an essential part
of the offence: see also R v Bloxham [1983] 1 AC 109, HL, para.22-​243, below; and R
v Gingell [2000] 1 Cr App R 88, CA (on a charge of second limb handling, the other
person cannot be a co-​accused in the same count). However, as noted above, Sloggett
was not followed in Hong Kong in HKSAR v Zheng Wan Tai.
There then followed a series of further cases in which the proper form of an indictment for handling stolen goods was considered: R v Ikpong [1972] Crim L R 432, CA;
R v Alt, 56 Cr App R 457, CA; R v Willis and Syme, 57 Cr App R 1, CA; R v Deakin, 56 Cr
App R 841, CA; R v Pitchley, 57 Cr App R 30, CA.
All of the foregoing authorities were considered in R v Nicklin, 64 Cr App R 205,
CA. D’s appeal was allowed on the ground that, the prosecution having charged handling by receiving with no alternative count, he could not be convicted of a form of
handling with which he had not been charged.
“It is conceded by both counsel that the effect of those cases is this. An indictment which
alleges an offence of handling simpliciter unparticularised is not a defective indictment,
although that was so stated in one case, and convictions of a particular type of handling
can be upheld where allowing the charge in that generalised form has led to no injustice or confusion; but the better practice is to particularise the form of handling for
which the defendant is blamed. If the prosecution were to consider and provide for
all possible forms of handling … some 18 counts might be necessary. That would be
absurd but the prosecution ought, generally speaking, to nail its colours to the mast of
a particular form of handling. If there is any uncertainty about which form of handling,
two counts will generally cover every form: one count for the first limb, dishonestly
receiving, and a second for the second limb, dishonestly undertaking or assisting in the
retention, removal, disposal or realisation, with arrangement to do those things if need
be. The second count, covering all those alternatives, would not be bad for duplicity
and might be advisable. It is quite clear that in many cases a second count would be
advisable but a second count alleging only one or two of the alternatives set out in the
483
22–​227
22–227
Offences Under the Theft Ordinance
[Chap. 22
section, perhaps assisting in the retention or removal, something of that kind … If
there is any doubt about what form of handling is being charged … particulars of the
charge or charges should figure clearly in the indictment. In other words the handling
should be particularised and, if necessary, particularised in more than one way, but as
a general rule certainly not in more than two counts” (per Stephenson LJ at 208-​209).
The words “ … or if he arranges to do so” at the end of section 24(1) apply to both
limbs of the provision. The 18 possible forms of handling referred to by Stephenson
LJ in Nicklin, above, can only be calculated on the basis that “arranging to receive” is a
form of handling: see also Ikpong, above.
Averment of ownership
22–​228
In R v Gregory, 56 Cr App R 441, the Court of Appeal held that where on a receiving
charge the property in question was of a common and indistinctive type it might well
be necessary to name the owner in the particulars of the charge since cases could
arise, where, unless the ownership was so assigned in the particulars, the defendant
might be unable to understand fully the nature of the case he had to meet. For a case
where the Court of Appeal (by a majority) took the view that the attribution of ownership did not constitute a material averment, see R v Tsui Fung (No 1) [1996] 1 HKCLR
107 (Ching JA dissenting): where the defendant was bound by his admission of facts
under section 65C(1) of the Criminal Procedure Ordinance, the proof of actual identity of the person to whom the property belonged was an immaterial averment.
General deficiency and handling
22–​229
In R v Cain [1983] Crim L R 802, CA, the “continuous offence” and “general
deficiency” principles were held to apply to receiving: a continuous series of closely
linked offences may be charged in a single count where no particulars of the dates or
amounts of the individual receipts could be given. In this case, the allegation was that
the defendant had over a period of several years received a total of £20,000 from a co-​
defendant. See R v Smythe, 72 Cr App R 8, CA.
Joinder, etc: evidence disclosing separate offences
Theft Ordinance (Cap 210), s 29(1), (2)
22–​230
22–​231
29.—​(1) Any number of persons may be charged in one indictment, information or
charge with reference to the same theft, with having at different times or at the same time
handled all or any of the stolen goods, and the persons so charged may be tried together.
(2) On the trial of two or more persons charged or indicted for jointly handling any
stolen goods the court or jury may find any of the accused guilty if the court or jury is
satisfied that he handled all or any of the stolen goods, whether or not he did so jointly
with the other accused or any of them.
For section 29(3), (5) see para.22-​247, below.
Section 29(2) has its origins in section 14 of the Criminal Procedure Act 1851,
which was passed apparently to counter the decision in R v Dovey and Gray (1851) 4
Cox 428, to the effect that where two persons are jointly indicted for receiving, it is
impossible for them both to be found guilty where the evidence discloses separate
receipts by them. Since section 29(2) relates only to trial on indictment, Dovey and
Gray will continue to apply to summary proceedings. See also DPP v Merriman [1973]
AC 584, HL and R v French [1973] Crim L R 632, CA.
(3) Sentence
Maximum
22–​232
Imprisonment not exceeding 14 years: section 24(2), above.
484
Sect. XV]
Handling Stolen Goods
22–234
(4) Theft and handling
(a) Practical issues
Generally
The legal issues that arise when considering alternative counts of theft and handling must be seen against the background of the practice and experience of the
courts. Unnecessary complications, or unrealistic verdicts, may result from the inclusion of alternative counts in circumstances where they are wholly unnecessary on the
facts: see R v Christ, 35 Cr App R 76, CCA, and R v Melvin and Eden [1953] 1 QB 481;
37 Cr App R 1, CCA; R v Shelton, 83 Cr App R 379, CA.
In R v Shelton at 385, Lawton LJ made a number of points that he said were intended
to give guidance to counsel in settling indictments and to judges as to how to act in
order to produce sensible verdicts when dealing with alternative counts of theft and
handling:
22–​233
“the long established practice of charging theft and handling as alternatives should
continue wherever there is a real possibility, not a fanciful one, that at trial the evidence might support one rather than the other. Secondly … there is a danger that
juries may be confused by reference to second or later appropriations since the issue
in every case is whether the defendant has in fact appropriated property belonging
to another. If he has done so, it is irrelevant how he came to make the appropriation
provided it was in the course of theft. Thirdly … a jury should be told that a handler can be a thief, but he cannot be convicted of being both a thief and a handler.
Fourthly … handling is the more serious offence, carrying a heavier penalty because
those who knowingly have dealings with thieves encourage stealing. Fifthly, in the
unlikely event of the jury not agreeing amongst themselves whether theft or handling
has been proved, they should be discharged. Finally, and perhaps most importantly,
both judges and counsel when directing and addressing juries should avoid intellectual subtleties which some jurors may have difficulty in grasping: the golden rule
should be ‘Keep it short and simple’.”
Each of Lawton LJ’s six points is examined below.
(b) Guidelines
The inclusion of alternative counts
The long-​established practice of charging theft and handling when drafting indictments by including alternative counts has been approved by the Court of Criminal
Appeal and the Court of Appeal prior to and since the passing of the Theft Act 1968.
It is perfectly proper in law to charge theft and handling in the alternative: R v Shelton,
above. This view has been endorsed by the House of Lords in R v Bellman [1989]
AC 836.
In R v Chan Chun Wa [1970] HKLR 327, a case before the enactment of the Theft
Ordinance, the defendant argued on appeal that the evidence of recent possession
did not raise an irresistible inference that he was guilty of robbery. It was held that
where the evidence was as consistent with larceny as with receiving, the proper course
is to charge both offences. Unless there is something which leads the jury to think that
the defendant is more likely to have received the stolen goods from another than to
have stolen them himself, the verdict should be guilty of larceny, and only the charge
of larceny should be left to the jury. In Shelton, Lawton LJ made it clear that alternative
counts of theft and handling should be included wherever there is a real possibility,
not a fanciful one, that at trial the evidence might support one rather than the other.
The most common situation faced by prosecutors was described by Lord Goddard in
R v Christ, 35 Cr App R 76 at 78-​79, CCA:
“There are, of course, many cases in which, when a man is found in possession of
property or has been seen to be associated with property, it is uncertain whether
485
22–​234
22–234
Offences Under the Theft Ordinance
[Chap. 22
the evidence for the prosecution will ultimately satisfy the jury that he was guilty of
stealing it or of receiving it, and, therefore, the indictment very properly, includes
both counts, though they must necessarily be alternative counts. It may well be, even
in a case such as the present case, that it is desirable that the two counts should be
opened to the jury, because it is conceivable that the defence may take such a turn, or
may raise such other facts as would make the count of receiving one which it would
be desirable for the jury to consider  … ”.
In R v Chan Tat [1973] HKLR 114 (Full Court), it was held that the trial judge, having found beyond reasonable doubt that the defendants were in unlawful possession
of property obtained six hours earlier in a robbery, was no longer concerned with
the mere question of guilt or innocence but with the question of what offence the
defendants had committed, namely, robbery or handling. The defendants should be
convicted according to which offence was more likely in the circumstances and were
not entitled to be acquitted altogether merely because there were some doubts as to
which of the two offences the defendants had committed. Chan Tat was overruled in
AG v Yip Kai Foon [1988] 1 HKLR 544 where the Privy Council advised that “such a
direction is wrong in law. It detracts, or may be thought to detract, from the obligation
of the jury to be satisfied beyond reasonable doubt that the accused is guilty of the
particular offence, before they enter such a verdict.”
Assuming the decision has been made to include alternative allegations, but the stolen property found in the defendant’s possession comes from several thefts, burglaries
or robberies with which the defendant is to be indicted, if it is the prosecution case
that the property was received on a number of separate occasions, there should be a
corresponding number of counts of receiving. It is only if the prosecution case is that
all the property was received on one occasion that there should be one compendious
count: R v Smythe, 72 Cr App R 8, CA.
First and second appropriations
22–​235
Because a handler is nearly always a thief, the inclusion of alternative counts may
present a jury with three questions: (a) is the defendant the thief who originally appropriated the goods (the first appropriation); (b) did the defendant receive the goods
knowing or believing them to be stolen; or (c) did the defendant steal the goods
by acquiring them, other than in the course of the original stealing, and appropriate them by deciding to retain them with the intention of permanently depriving
the owner of them (the second appropriation)? However, as Lawton LJ observed in
Shelton, above, it is irrelevant how the defendant came to appropriate the goods provided it was in the course of theft. Accordingly, the use of phrases such as “first” and
“second” appropriations is misleading and should be avoided.
The position is best illustrated by the facts of Stapylton v O’Callaghan [1973] 2 All ER
782, DC, where the defendant was charged with the theft and handling of a driving
licence in the alternative. The informations were dismissed because, although the
magistrate found: (a) that the licence had been stolen; (b) that the defendant was
found in possession of it; and (c) that he had come by it dishonestly and intended to
keep it, he was unable to determine whether the defendant was guilty of theft or handling. On appeal it was held that as the defendant had been in dishonest possession
of the licence and intended to keep it, it followed that whether he was the original
thief or a subsequent receiver, he had dishonestly assumed a right to the licence “by
keeping or dealing with it as owner” within section 3(1) of the Theft Act (section 4 of
the Theft Ordinance). He had therefore dishonestly appropriated property belonging
to another with the intention of permanently depriving the other of it. Accordingly,
he was certainly guilty of theft, whether or not he was also guilty of receiving. As
to the inappropriateness of alternative counts of theft with varying particulars, see
para.22-​9, above.
The distinction between handlers and thieves
22–​236
Lawton LJ’s third point, that a jury should be told that a handler can be a thief,
but that he cannot be convicted of being both a thief and a handler, refers both
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to the alternative nature of the counts and to the legal relationship between the
offences.
The legal relationship between the offences
Because of the definition of the offence of theft and, in particular, the definition
of “appropriates” in s 4, almost everyone who commits the offence of handling stolen
goods contrary to s 24(1) of the Theft Ordinance will also commit the offence of theft.
On the other hand, it will by no means be the case that every thief will also be guilty
of handling. As a matter of law, however, it was said in R v Dolan, 62 Cr App R 36, CA,
that a person may steal and dishonestly handle the same goods.
22–​237
“If the defendant’s handling of the goods occurs only in the course of the stealing, he
cannot be found guilty of handling by receiving; [see s 24(1) of the Theft Ordinance].
But, if he handles them later, ie after the stealing he commits an offence under the
subsection. It is, therefore, perfectly possible for a man to be guilty of stealing and
receiving the same goods” [per Scarman LJ in R v Dolan at 39].
See also R v Lo Kar Wai [1990] 2 HKLR 219.
Theft and handling as mutually exclusive alternative counts
In practice, the theft and handling are treated as alternatives: robbery, burglary or
theft on the one hand and handling on the other. Where there are two such counts
in the indictment, the prosecution invariably puts the case on the basis that the jury
should convict on one or the other, but not on both offences. Where the prosecution
so puts the case, the Court of Appeal said in Dolan (para.22-​94, above) and again in R
v Smythe, 72 Cr App R 8, that the offences should be regarded as true alternatives and
mutually exclusive.
The effect of mutually exclusive counts was considered in R v Bellman [1989] AC
836, HL, where Lord Griffiths (at 851) rejected the respondent’s argument that contradictory or mutually exclusive counts can never be joined in the same indictment, by
pointing to the “long-​established practice of charging counts of larceny and receiving
as alternatives and … robbery or theft and handling as alternatives … ”. Lord Griffiths
had earlier observed at 847 that:
“it will only be comparatively rarely that the prosecution will wish to charge counts
which are factually mutually contradictory in the sense that proof of one charge
destroys the other. The very fact that offences are being charged in the alternative
obviously weakens the prosecution case and enables the defence to invite the jury
to say that as the prosecution cannot make up their mind which crime the accused
committed they, the jury, cannot be sure of his guilt.”
Where there are alternative counts, the jury should be directed as to the relationship between the counts (including a direction that handling has to be otherwise than
in the course of stealing), and they should be instructed to consider the theft (robbery, burglary) count first and that they will be asked to return their verdict in respect
of that count first: R v Fernandez [1997] 1 Cr App R 137, CA.
In Att-​Gen of Hong Kong v Yip Kai Foon [1988] AC 642, PC, the defendant was charged
with two counts of robbery: under the schedule to the Theft Ordinance, a verdict of handling stolen goods is an alternative on a charge of robbery. He was convicted of handling
on both counts. There was no direction in relation to handling that it must take place
otherwise than in the course of the theft. The Court of Appeal of Hong Kong allowed
the appeal on the grounds, inter alia, that the judge had failed to direct the jury properly
in relation to handling by not telling them that the prosecution had to prove that the
receiving took place otherwise than in the course of robbery. The Privy Council overturned this decision, holding that the judge had properly directed the jury with regard
to the alternative counts by telling them to consider first whether they were satisfied
that the defendant was guilty of robbery and, if not, secondly whether he was guilty of
handling stolen goods. On the assumption that the jury had obeyed this direction, it was
held that once they acquitted the defendant of robbery, theft was no longer a live issue
and therefore any receiving could not have been in the course of robbery.
487
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[Chap. 22
It appears that Yip Kai Foon was not cited to the Court of Appeal in Fernandez, above.
Although in Yip Kai Foon the Privy Council upheld the trial judge’s direction, it is
submitted that the better approach is to follow the recent guidance given in Fernandez,
namely to direct the jury:
(1) that the counts are alternatives and handling has to be otherwise than in the
course of stealing;
(2) to consider first the count of theft (robbery, burglary);
(3) if they find the defendant guilty of theft, they will be discharged from returning a
verdict on the handling count; but
(4) if they find the defendant not guilty of theft, they should go on to consider the
handling count.
In R v Cash [1985] QB 801; 80 Cr App R 314, CA, the defendant was convicted of
several offences of handling stolen goods. He was found to be in possession of items of
property from various burglaries, the most recent of which occurred nine days before
the property was found in his possession. He gave no explanation to the police of his
possession of the property. He was indicted only for offences of handling stolen goods.
It appears that, apart from the fact of his possession of the stolen property, there was
no evidence against him. He did not give evidence. It was contended on his behalf in
the Court of Appeal, relying upon R v Seymour, 38 Cr App R 68, CCA, that the proper
form of indictment in cases such as this, where the evidence is simply of “recent possession” (see para.22-​93, above), is an indictment that includes alternative counts, it
being left to the jury to decide which, if either, offence, the defendant has committed.
It was also submitted on the basis of the definition of the offence of handling stolen
goods, in particular the words “otherwise than in the course of the stealing” that the
prosecution had positively to prove that a person charged with handling stolen goods
was not the thief, or, as in this case, the burglar.
The second limb of the argument was rejected: the Court of Appeal effectively
ruled that unless the point was raised as an issue, no direction to the jury is needed.
This was applied in HKSAR v Cheng Chi Wai [2012] 4 HKLRD 360. As to the first limb
of the argument, the court said there was no evidence that the defendant was the burglar and, even where there was a time lapse of only nine days between the burglary and
the finding of the goods, that would not have been sufficient to justify leaving a count
of burglary to the jury. The court was saying, in effect, that the indictment, containing
allegations of handling counts only, was correctly drawn.
Handling is the more serious offence
22–​239
In saying that handling was the more serious offence because those who knowingly
deal with thieves encourage stealing, Lawton LJ was reiterating Lord Widgery CJ’s
observation in Stapylton v O’Callaghan [1973] 2 All ER 782 at 784, DC, that the offence
of handling stolen goods was a more serious offence than theft in that it carried a
heavier maximum penalty. Handling may be an alternative charge not only to theft,
but also to burglary, which carries a maximum sentence similar to handling, and robbery, which carries a greater maximum sentence.
Leaving alternative counts to the jury
22–​240
Where alternative inconsistent allegations are included in the indictment, and the
evidence establishes a prima facie case on both counts, the matter should be left to the
jury to determine which, if either, count has been proved: R v Chan Chun Wa, above;
Bellman, above. See also R v Seymour, 38 Cr App R 68, CCA; R v Plain, 51 Cr App R
91, CA; Shelton, above; and R v Bosson [1999] Crim L R 596, CA. In Plain, Winn LJ
said at 93:
“I think it should be made perfectly clear that, where there are alternative charges of
larceny and receiving against the same man in respect of the same property, the proper
course in almost every case will be to allow both charges to proceed and be decided
ultimately by the jury. Only in very rare cases would it be right to accede to a submission
that there was no evidence on the larceny count or, on the other hand, no evidence
upon the receiving count, at the end of the case for the prosecution. The reason for
488
Sect. XV]
Handling Stolen Goods
22–243
that is this, that very often it is only at the end of a trial that it can be seen, and made
the subject of the proper direction to assist the jury, whether the facts of the particular
case fall into the category of larceny or the category of receiving, or call for a verdict of
not guilty of either.”
His Lordship then said that both counts might be withdrawn from the jury if there
was insufficient evidence that the property in question had been stolen by anybody.
Similarly in R v Christ, 35 Cr App R 76 at 78-​79, CCA, Lord Goddard observed:
“but once it becomes apparent … that the case is one of larceny or nothing, then it is,
in our opinion, desirable that the trial judge, in his summing up, should put simply
to the jury the count of larceny, and leave out altogether from their consideration
the alternative count of receiving … It would, we think, much simplify matters for the
consideration of a jury in this type of case if, as soon as it becomes apparent what is
the real charge on which, if they are going to convict at all, they must convict, that
charge alone is left to the jury  … ”.
If one or the other count is to be withdrawn from the jury, this should not normally
be done prior to the end of the evidence: R v Bosson, above. In the unlikely event of
the jury not agreeing amongst themselves whether theft or handling has been proved,
they should be discharged: R v Shelton, above.
“Keep it simple”
Lawton LJ’s final exhortation in Shelton, above, that judges and counsel when
addressing juries should avoid intellectual subtleties, was undoubtedly a reflection
of his earlier observation that the case was a striking example of what can happen if
counsel, after studying the commentaries of academic writers, develop arguments that
have the allure of legal logic but which, if taken too far, affront common sense.
22–​241
(5) The elements of the offence
(a) Stolen goods
Generally
For the definition of “goods”, see section 8(2), above, para.22-​216. It is necessary
to prove that the goods are stolen goods. This may be proved by the evidence of the
thief: see R v Reynolds, 20 Cr App R 125, CCA.
That the goods are stolen may also be proved by circumstantial evidence although
there may be no direct evidence, such as from the loser of the goods or the thief. For
example, the circumstances in which the defendant handled the goods may of themselves be sufficient to prove that the goods were stolen and also, that at the time when
the defendant handled them, he knew or believed that they were stolen and each case
depends on its own facts: see, for an example, R v Kwong Cheuk Wah [1989] HKLY 374.
The fact that the defendant believed the goods to be stolen, however, does not necessarily prove that the goods were in fact stolen: See para.22-​233, below. Conversely,
in R v Lai Kwok Cheung [1989] HKLY 257 where the defendant was found to have in
his possession at his home the video cassette player that was missing from the officers’
mess two years earlier, the doctrine of recent possession could not be invoked and the
conviction was quashed on appeal as the prosecution failed to prove that the defendant knew or believed the goods to have been stolen at the time of the receipt.
22–​242
Admission of belief that goods were stolen as evidence that
they were
Where a defendant, upon being questioned by the police about certain goods,
admits that he had purchased them and that at the time he believed them to have
been stolen, such an admission, in the absence of any other evidence, is not sufficient
to permit an inference by the jury that the goods were stolen goods: R v Porter [1976]
Crim L R 58; R v Marshall [1977] Crim L R 106; Att-​Gen’s Reference (No 4 of 1979), 71
489
22–​243
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[Chap. 22
Cr App R 341, CA. The general evidential principle upon which these decisions are
based is that an accused person’s admissions are only evidence against him where it
appears that he had personal knowledge of the facts admitted: R v Kwong Cheuk Wah,
above. However, the circumstances in which the defendant received the property may
be proved by his own admission, and on the basis of those circumstances an inference
may properly be drawn that the property was stolen: Bird v Adams [1972] Crim L R
174, DC; R v Hulbert, 69 Cr App R 243, CA; R v MacDonald, 70 Cr App R 288.
In Hulbert it was pointed out that the defendant’s statements may be admissible to
prove, inter alia, the place in which the property was received, the amount paid, the
circumstances in which it was offered, the state of the property and the personality of
the seller. What the defendant was told about the origin of the goods, while inadmissible for the purpose of proving the goods to be stolen, will of course be relevant to the
question of dishonesty and whether or not the defendant knew or believed the goods to
be stolen. Hulbert was applied in R v Korniak, 76 Cr App R 145, CA: where a defendant
gives several different versions of the facts, not all of which could be true, the jury are
entitled to believe any one of those differing or conflicting versions. In Korniak itself the
defendant gave only one account of how he came to be in possession of the goods: this
account was such as to entitle the jury to draw an inference that the goods were stolen.
However, it was argued that because he had lied to the police initially, it was obviously
possible that his account of how he acquired possession might also be untrue and, if that
was so, there was no evidence before the jury upon which they could base any inference
that the goods were stolen. The Court of Appeal accepted the first limb of the argument
but was dismissive of the suggested conclusion: “ … if it too was untrue, it is safe to infer
that the truth would have been even more damaging” (per Eveleigh LJ at 149).
Conviction for attempt where no proof that goods stolen
22–​244
See para.22-​232, above.
Scope of offences relating to stolen goods
Theft Ordinance (Cap 210), s 26
22–​245
22–​246
26.—​(1) The provisions of this Ordinance relating to goods which have been stolen
shall apply whether the stealing occurred in Hong Kong or elsewhere, and whether it
occurred before or after the commencement of this Ordinance, provided that the stealing
(if not an offence under this Ordinance) amounted to an offence where and at the time
when the goods were stolen; and references to stolen goods shall be construed accordingly.
(2) For the purposes of those provisions references to stolen goods shall include, in
addition to the goods originally stolen and parts of them (whether in their original state
or not)—​
(a) any other goods which directly or indirectly represent or have at any time
represented the stolen goods in the hands of the thief as being the proceeds
of any disposal or realisation of the whole or part of the goods stolen or of
goods so representing the stolen goods; and
(b) any other goods which directly or indirectly represent or have at any time represented the stolen goods in the hands of a handler of the stolen goods or any
part of them as being the proceeds of any disposal or realisation of the whole
or part of the stolen goods handled by him or of goods so representing them.
(3) No goods shall be regarded as having continued to be stolen goods after they have
been restored to the person from whom they were stolen or to other lawful possession or
custody, or after that person and any other person claiming through him have otherwise
ceased as regards those goods to have any right to restitution in respect of the theft.
(4) For the purposes of the provisions of this Ordinance relating to goods which have
been stolen (including subsections (1) to (3) above) goods obtained in Hong Kong or
elsewhere either by blackmail or in the circumstances described in section 17(1) shall
be regarded as stolen; and “steal”, “theft” and “thief” shall be construed accordingly.
Section 26(1)
Where the prosecution seeks to rely on a theft committed abroad pursuant to section 26(1) it must prove that the behaviour complained of amounts to an offence
490
Sect. XV]
Handling Stolen Goods
22–248
under the relevant foreign jurisdiction. It is not open to the prosecution to rely on a
rebuttable presumption that foreign law is the same as English law: R v Ofori and Tackie
(No 2), 99 Cr App R 223, CA.
Section 26(2)
In Att-​Gen’s Reference (No 4 of 1979), 71 Cr App R 341, CA, it was held that a balance in a bank account can be goods that directly or indirectly represent stolen
goods for the purposes of section 24(2) of the Theft Act 1968 (section 26(2) of the
Theft Ordinance). The court was also of the opinion that a person who dishonestly
accepts a transfer of stolen funds from another’s account into his own account is
receiving stolen goods within the meaning of section 24(1) of the Theft Act 1968.
The English Law Commission, in its Report on Offences of Dishonesty, Money Transfers
(Law Com No 243), thought that this opinion could not survive the reasoning in
R v Preddy and Slade; R v Dhillon [1996] AC 815, HL. This point was considered
in R v Forsyth [1997] 2 Cr App R 299, CA. It was alleged that N had stolen a chose
in action, namely a credit balance of £400,000 in a bank in London. N ordered the
transfer of the money to a bank in Switzerland. The appellant collected the money
from the bank in Switzerland and transferred it to another bank in Switzerland. On
the appellant’s instructions, a proportion of the sum was then transferred to a bank
in England and she brought back the balance in cash. The appellant was charged
with handling the chose in action and the cash by assisting in the retention, etc, of
the goods for the benefit of N. The appellant argued that, according to Preddy, the
funds obtained by the transferee had never been in the hands of the thief at all, and
the transferee in whose hands they were could not be regarded as a handler until
it had first been determined that he had handled stolen goods. The court said the
question was whether the total sum could be said directly or indirectly to represent
the original stolen goods in the hands of the thief. It held that the words “in the
hands of” meant in the possession or under the control of the thief. Accordingly
the new credit balances remained under the control of N and could be handled
by the appellant. (For commentaries on Forsyth by Sir John Smith QC, see [1997]
Crim L R 589, 755.)
In relation to money credits, it would now generally be appropriate to charge the
defendant under section 18 of the Theft Ordinance (obtaining pecuniary advantage
by deception) (para.22-​154, above).
22–​247
Section 26(3)
A police officer found an unlocked and unattended car containing packages of
new clothing that he suspected (rightly) had been stolen. He immobilised the car and
kept observation. The officer subsequently arrested a man who arrived a few minutes
later and tried to start the car. At that man’s trial on a charge of handling the goods,
the judge accepted the submission that since the goods had been restored to the
“lawful possession or custody” of the police officer there was no case to answer. On the
Attorney-​General’s reference to the Court of Appeal on the point of law as to whether
stolen goods were restored to lawful custody when a police officer, suspecting them to
be stolen, examined and kept observation on them with a view to tracing the thief or
handler, the court was of the opinion that the issue as to whether the goods had been
reduced into the “lawful possession or custody” of the police officer was a question
of fact that depended upon the intentions of the officer as to whether or not he had
decided to take the goods into custody, reduce them into his possession or control,
take charge of them so that they could not be removed and so that he would have the
disposal of them. If he was of an entirely open mind as to whether the goods should
be seized or not and was merely concerned to ensure that the driver did not get away
without being questioned, then it could not be said that he had taken the goods into
his possession or control: Att-​Gen’s Reference (No 1 of 1974) [1974] QB 744; 59 Cr App R
203, CA, applying R v Villensky [1892] 2 QB 597.
In HKSAR v Chiu Kwok Wai Caesar [2008] 1 HKLRD 284, the Court of Appeal applied
Att-​Gen’s Reference (No 1 of 1974) and held that when the police kept the stolen vehicles
under observation, they had taken constructive custody of the vehicles in the sense that
491
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[Chap. 22
they would not have allowed others to remove them, and would have brought them
into actual physical police custody at a later stage at the conclusion of their operation –​
whether the police managed to catch the suspects or not. Hence the vehicles ceased to
be stolen goods by virtue of section 26(3) and the applicant could not be guilty of the
full offence of handling stolen goods. Whilst in such case, and subject to the particular
circumstances of the particular case, it may be possible to find the defendant guilty of
an offence of attempting to handle stolen goods, the Court should inform and give
sufficient opportunity to both the Prosecution and the Defence to address the issue
(HKSAR v Mak Pui Cheong (CACC 185/​2011, 23 December 2011)).
In Metropolitan Police Commissioner v Streeter, 71 Cr App R 113, DC, the court held
that section 24(3) of the Theft Act 1968 (section 26(3) of the Theft Ordinance), did
not apply in the following circumstances: a thief, having stolen four cartons of his
employer’s goods, loaded them on to his employer’s lorry where they were seen by the
security officer who initialled them for future identification and thereafter informed
the police when he realised that they were stolen. The police followed the lorry and
observed three of the marked cartons being delivered to S. S and later K (who had the
fourth carton) were arrested and admitted receiving property they knew to be stolen.
The court held that the property had not ceased to be stolen property at the time S
and K received the cartons notwithstanding the actions of the security officer and the
police. See also R v Dolan (1855) 6 Cox 449; R v Schmidt (1866) LR 1 CCR 15; Haughton
v Smith [1975] AC 476, HL.
Goods received from child under seven
22–​249
It is an irrebuttable presumption of law that a child under ten cannot be guilty of a
criminal offence (s 3 of the Juvenile Offenders Ordinance (Cap 226)). Where, therefore, a child under seven has unlawfully acquired property and handed it to a person
who receives it with guilty knowledge, since there can have been no theft of the property by the child, the person who receives the property from the child cannot be guilty
of handling stolen property: Walters v Lunt, 35 Cr App R 94. The Divisional Court in
Walters v Lunt added that there was no reason why such a person should not be guilty
of larceny as a bailee or larceny by finding provided he had the requisite intent. This
will also be the case under the Theft Ordinance: he will be guilty of theft if he has
dishonestly appropriated property belonging to another intending permanently to
deprive the other of it. Section 4 of the Theft Ordinance provides that where a person
has come by property, innocently or not, without stealing it, any later assumption by
him of a right to it by keeping or dealing with it as owner amounts to an “appropriation” (para. 22–​25, above).
Evidence by statutory declaration
22–​250
See para.22-​257, below.
(b) The handling
Generally
22–​251
Having proved that the goods are stolen goods, it is necessary to prove that the
defendant handled them; that is, that he either (a) received them or arranged to do
so, or (b) undertook or assisted in their retention, removal, disposal or realisation by
or for the benefit of another person or arranged to do so.
Receiving
22–​252
The words “by or for the benefit of another person” do not apply to receiving.
There is no definition of “receiving” in the Theft Act 1968 or the Theft Ordinance.
Under the old authorities, to establish receiving it was necessary to establish possession in the sense of control by the defendant: R v Wiley (1850) 2 Den 37; and see R v
Watson [1916] 2 KB 385; 12 Cr App R 62, CCA.
492
Sect. XV]
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Such possession need not be exclusive but might be joint with another receiver: R
v Payne, 3 Cr App R 259, CCA; or joint with the thief himself: R v Smith (1855) Dears
494; R v Seiga, 45 Cr App R 26, CCA.
Since it is necessary to establish control of the goods by the defendant, proof that he
has physically handled them is neither necessary nor sufficient. The defendant might
have handled the goods physically without being in control of them or have been in
control of the goods without physically handling them. It does not constitute receiving
where the defendant had the relevant state of mind and was in transitory physical possession of the stolen goods but the goods were under the control of another: HKSAR
v Ho Wai Lun [2001] 2 HKLRD 431.
An example of the defendant having control of stolen goods without physically handling them is provided where they were found on his premises; if he was absent when
the goods arrived there, it must be proved that he became aware of their presence and
exercised some control over them or that the goods came, albeit in his absence, at his
invitation and by arrangement with him; if delivery has been taken by a servant in his
master’s absence, the master can be convicted only if there is evidence that he gave the
servant authority or instructions to accept the goods: R v Cavendish, 45 Cr App R 374,
CCA. For other cases considering whether the defendant was in possession of property
found on his premises, see R v Savage, 70 JP 36; R v Lewis, 4 Cr App R 96, CCA. An
example of a defendant physically handling the stolen goods without having control
of them is afforded by R v Court, 44 Cr App R 242, CCA.
Where receiving is alleged there must be a clear direction to the jury as to what
constitutes possession: R v Seiga, 45 Cr App R 26, CCA; R v Frost and Hale, 48 Cr App R
284, CCA; R v Comerford, 49 Cr App R 77, CCA.
Undertaking or assisting, etc
Where a person is charged under this limb of section 24(1) there is no need to
prove possession or control: R v Shears [1969] Crim L R 319, CA; R v Sanders, 75 Cr
App R 84, CA.
The word “undertakes” meant simply to accept the obligations or the responsibility
to do the necessary act. The undertaking might precede the act or might be concurrent with it, but the dishonesty must be related to the undertaking to do the act for
the benefit of another. Whether or not the act was for the benefit of another could
not be established objectively. It was the nature of the act done by the defendant,
together with the necessary mental element, which established the offence. Therefore
where there was doubt, the prosecution must prove at least an awareness on the part
of the defendant that his act was for the benefit of another. See R v Tsang Chi-​ho [1997]
HKLY 269, CA.
In R v Bloxham [1983] 1 AC 109, the House of Lords was called upon to determine
the proper construction of the second limb of the subsection. Lord Bridge delivered
a speech with which the remainder of their Lordships agreed. Having referred to the
fact that the second half of the subsection creates a single offence which can be committed in various ways and having said that the words “or if he arranges to do so” could
be ignored for present purposes, his Lordship said (at 113, 114) that four activities
were contemplated: retention, removal, disposal and realisation.
“The offence can be committed in relation to any one of these activities in one or
other of two ways. First, the offender may himself undertake the activity for the benefit of another person. Secondly, the activity may be undertaken by another person
and the offender may assist him. Of course, if the thief or an original receiver and his
friend act together in, say, removing the stolen goods, the friend may be committing
the offence in both ways. But this does not invalidate the analysis and if the analysis
holds good, it must follow, I think, that the category of other persons contemplated
by the subsection is subject to the same limitations in whichever way the offence is
committed.”
The question certified by the Court of Appeal was: does a bona fide purchaser for
value commit an offence of dishonestly undertaking the disposal or realisation of stolen property for the benefit of another if when he sells the goods on he knows or
493
22–​253
22–253
Offences Under the Theft Ordinance
[Chap. 22
believes them to be stolen? The Court of Appeal had held that he does, the other
person being the purchaser. Lord Bridge, however, said that according to his analysis
of the subsection “a purchaser, as such, of stolen goods, cannot, in my opinion, be
‘another person’ within the subsection”, since his act of purchase could not sensibly
be described as a disposal or realisation of the stolen goods by him. Equally, therefore,
even if the sale to him could be described as a disposal or realisation for his benefit
(about which his Lordship had expressed doubt on the ground that a natural use of
language suggested the disposal or realisation is for the seller’s benefit whereas it is
the purchase that is for the benefit of the purchaser) “the transaction is not, in my
view, within the ambit of the subsection”.
In R v Tokeley-​Parry [1999] Crim L R 578, CA, it was held that where A commissioned
B to travel abroad to collect what A knew, but B did not know, to be stolen antiquities,
B knowing only that their exportation was prohibited, and B was paid by A for doing
so, A was guilty of handling stolen goods, in that he assisted another to remove stolen
goods; the fact that B may have been an innocent agent did not mean that he and A had
to be treated as one person. Mere failure to reveal to the police the presence of stolen
property on the defendant’s premises does not amount to assisting in the retention of
stolen property though it may be strong evidence of it: R v Brown [1970] 1 QB 105; 53
Cr App R 527, CA. In R v Pitchley, 57 Cr App R 30, CA, P was held to have assisted in
the retention of stolen money where, some 48 hours after innocently accepting it from
his son for safe keeping and banking it, he discovered it was stolen and took no steps
to have it returned to the owner before being visited by the police four days later. The
court held that P’s conduct in permitting the money to remain under his control in his
bank was sufficient to constitute retention. The court adopted the dictionary meaning
of the word “retain”, viz –​keep possession of, not lose, continue to have. It was added
that so far as any construction of the word “retain” is necessary, it is a question of law
and when a defendant has admittedly kept possession of money it is not necessary to
leave to the jury the question whether that amounted to retention.
In R v Sanders, above, it was held that the mere use of goods known to be stolen
could not amount to assisting in their retention. It must be proved that in some way
the defendant was assisting in the retention of the goods by concealing them or making them more difficult to identify or by hiding them pending their ultimate disposal,
or by some other act that was part of the chain of dishonest handling. In R v Kanwar,
75 Cr App R 87, CA, it was held that the requisite assistance need not be a physical
act. Verbal representations, whether oral or in writing, for the purpose of concealing
the identity of stolen goods may, if made dishonestly and for the benefit of another,
amount to handling stolen goods by assisting in their retention. It was also held that
the requisite assistance need not be successful in its object.
In R v Coleman [1986] Crim L R 56, CA, it was held that where a person is charged
with assisting in the disposal of stolen money, the actus reus of the offence is not made
out by proof that he was getting the benefit of the disposal of the money. Such proof
might, however, be evidence that he had assisted in the disposal, “assisting” meaning
among other things, helping or encouraging.
Arranging
22–​254
The words “or if he arranges to do so” apply to both limbs of section 24(1): see
para.22-​215, above.
Where the prosecution allege an arrangement to receive, etc stolen goods, it must
be proved that the goods were stolen at the time the arrangement was made: where
they were not stolen at that time, the correct charge will be one of conspiracy: R v Park,
87 Cr App R 164, CA.
(c) Dishonesty
Generally
22–​255
See generally para.22-​19 to 22-​25, above.
494
Sect. XV]
Handling Stolen Goods
22–256
A “dishonest” handling must be established and the jury must be so directed: see
R v Sloggett [1972] 1 QB 430; 55 Cr App R 532, CA. It is not sufficient to direct them
that once it is proved that the goods have been stolen and have been handled by the
defendant, and that the defendant knew they were stolen, that this is sufficient to
warrant a conviction for handling: R v Dickson and Gray [1955] Crim L R 435, CCA.
See, for example, R v Matthews, 34 Cr App R 55, CCA, where the defence was that the
defendant handled the goods with the intention of returning them to the owner or
of handing them to the police. There is no special test of dishonesty on a charge of
handling stolen goods: R v Roberts, 84 Cr App R 117, CA (rejecting a suggestion that
the dishonesty must relate to the owner of the property, but acknowledging that it
would sometimes be necessary to consider whether the defendant had acted honestly
or dishonestly vis-​à-​vis the loser).
(d) Knowing or believing the goods to be stolen
Generally
It must be proved by the prosecution (and the burden of establishing this remains
on the Crown throughout), that the defendant, at the material time (when that was
will depend upon the particular allegation being made, eg if the allegation is “receiving”, the material time is the time when he received the goods) knew or believed the
goods to be stolen. This is proved, either directly, by the evidence of the principal
offender, or circumstantially. It is not sufficient to prove that the goods were “handled”
in circumstances that would have put a reasonable man on inquiry. A summing-​up
is defective if in effect it leaves the jury with the impression that suspicious circumstances, irrespective of whether the defendant himself appreciated they were suspicious, imposed a duty as a matter of law to act and inquire, and that a failure to do so
was to be treated as knowledge or belief: R v Grainge, 59 Cr App R 3, CA. The question
is a subjective one, and it must be proved that the defendant knew, or believed the
goods to be stolen. Suspicion that they were stolen, even coupled with the fact that
he shut his eyes to the circumstances, is not enough, although those matters may be
taken into account by a jury when deciding whether or not the necessary knowledge
or belief existed: R v Moys, 79 Cr App R 72, CA. See also R v Ismail [1977] Crim L R
557, CA; R v Reader, 66 Cr App R 33, CA; R v Reeves, 68 Cr App R 334, CA; R v Kwong
Cheuk Wah [1989] HKLY 374. A belief by the person handling the goods that he had a
right to them may, under certain circumstances, negative the required intent: R v Lam
Chiu-​ua [1996] 1 HKC 302.
In R v Forsyth [1997] 2 Cr App R 299, the Court of Appeal doubted whether it is
necessary or helpful to attempt an exposition of the meaning of the word “belief” by
equating it with different and less easily understood states of mind, such as “unreasonable uncertainty” or “a refusal to believe the obvious”. The court held that the trial
judge ought to have followed the guidance given in R v Moys, above, which is clear and
readily understandable by a jury and avoids the potential confusion inherent in the
direction suggested by the court in R v Hall (E), 81 Cr App R 260, 264.
In R v Harris (M), 84 Cr App R 75, CA, it was submitted that it was insufficient for
a judge simply to direct a jury that they must be satisfied that the defendant knew
or believed the goods were stolen. The court was referred to Moys and Hall, above.
Lawton LJ referred to what Lord Diplock had said in Treacy v DPP, namely that the
Theft Act 1968 had been deliberately drafted in simple language, avoiding as far as
possible those terms of art that have acquired a special meaning understood only by
lawyers. His Lordship said that “knowledge or belief” are words of ordinary usage and
in many cases no elaboration at all was needed. It is submitted that where, on the facts
of the case, some elaboration is needed, the judge ought to give a Moys direction, as
approved in Forsyth.
An offence under section 24 of the Theft Ordinance can be established by proving
that the defendant knew or believed that he was handling stolen goods, although he
had no knowledge of the nature of the goods: R v McCullum, 57 Cr App R 645, CA; or
of the circumstances in which they were stolen: DPP v Nieser [1959] 1 QB 254.
495
22–​256
22–257
Offences Under the Theft Ordinance
[Chap. 22
Proof of guilty knowledge by evidence of the possession of other
stolen property or previous conviction
Theft Ordinance, s 29(3), (5)
22–​257
29.—​(3) Where a person is being proceeded against for handling stolen goods (but
not for any offence other than handling stolen goods), then at any stage of the proceedings, if evidence has been given of his having or arranging to have in his possession the
goods the subject of the charge, or of his undertaking or assisting in, or arranging to
undertake or assist in, their retention, removal, disposal or realisation, the following
evidence shall be admissible for the purpose of proving that he knew or believed the
goods to be stolen goods:—​
(a) evidence that he has had in his possession, or has undertaken or assisted in
the retention, removal, disposal or realisation of, stolen goods from any theft
taking place not earlier than 12 months before the offence charged; and
(b) (if seven days notice in writing has been given to him of the intention to
prove the conviction) evidence that he has within the five years preceding the date of the offence charged been convicted of theft or of handling
stolen goods.
(5) This section is to be construed in accordance with s 26, and in subsection 3(b)
of this section the reference to handling stolen goods shall include any corresponding
offence committed before the commencement of this Ordinance.
For s 29(1), (2), see para.22-​222, above; for s 29(4), see para.22-​257, below.
For s 26, see para.22-​235, above.
Great care should be taken, where evidence is admitted under s 29(3), to direct
the jury that the purpose of the evidence is restricted to assisting them to determine
the issue of guilty knowledge. Such evidence has no relevance to the question of possession. Accordingly, where an accused is charged with several counts of handling, in
some of which guilty knowledge is in issue and in others possession, particular care
should be exercised by the judge before admitting such evidence. If it is admitted,
equal care should be exercised to ensure that the jury realise to which issue the evidence relates: R v Wilkins, 60 Cr App R 300, CA.
Further s 29(3)(a) applies only in relation to other stolen property; that is, stolen
property other than that listed in the charge: HKSAR v Mak Ho Yin [2012] 1 HKC
159. In that case the judge misdirected himself on this point by applying s 29(3)(a) to
property that was the subject of the relevant charge.
Evidence of other stolen property in defendant’s possession
22–​258
Under section 29(3)(a) evidence may be given that other property stolen within the
period of 12 months preceding the date of the offence charged was found or had been
in the possession of the defendant, or that he had otherwise “handled” it, although
such other property is the subject of another indictment against him, to be tried at
the same court: see R v Jones, 14 Cox 3. There is no authority for the introduction
of evidence that goes beyond what the subsection specifically describes. Accordingly,
details of the transactions as a result of which the earlier property had come into the
defendant’s possession may not be given: R v Bradley, 70 Cr App R 200, CA. Bradley was
followed in R v Wood (WD), 85 Cr App R 287, CA, where Mustill LJ, giving the judgment of the court (at 292), said that:
“if section 27(3)(a) [which mirrors section 29(3)(a) of the Theft Ordinance] … is to
be given a literal interpretation, the consequence will be that the jury is to be told simply that the defendant was on a previous occasion found to be in possession of stolen
goods, without being furnished with any facts upon which they could base a conclusion as to whether on that occasion the possession was guilty or innocent; and they
might well be tempted to assume that since they had been told about the incident,
this must be because some guilty knowledge attending it could properly be inferred.
The task of conveying to the jury that the only relevance of the fact is that the previous
occasion would have served as a warning to be more careful in future (if indeed this
is the rationale of paragraph (a)) will not be easily performed. On the other hand to
let in evidence of circumstances from which the existence of guilty knowledge on the
496
Sect. XV]
Handling Stolen Goods
22–259
prior occasion could be inferred would be such a striking inroad into the general rule
which excludes evidence of prior unconnected offences that one would need clear
words in the statute to justify it, and section 27(3) is quite silent.”
See also R v Cheung Shing Kin [1989] HKLY 256 and R v Poon Wah Sang [1985]
HKLY 289.
Notwithstanding their view as to the proper ambit of section 29(3)(a) of the Theft
Ordinance, the court upheld a ruling by the trial judge admitting a statement made by
the defendant at the time of the earlier possession which, albeit edited, revealed some
of the detail of how he came to be in possession of the stolen goods. The justification
for this, according to the Court of Appeal, was that it was necessary to prove that the
defendant had indeed been in possession of the goods. This object could have been
achieved however, by the defence making an admission. It seems that the unarticulated reason for admitting the statement was the virtually identical circumstances of
the two receipts, but that fact, it is submitted, would have been admissible at common
law: See also Cross and Tapper on Evidence, 12th edn, pp 410-​412.
It is essential, in order to admit such evidence, that the property that is found is stolen property; if the prosecution fails to prove this, then the evidence admitted under
this section ought to be withdrawn by the judge from the consideration of the jury: R
v Girod and Girod (1906) 22 TLR 720. Similarly, where evidence in relation to other
property is admitted under this provision but there is no evidence at the end of the
prosecution case that the defendant personally had come into possession of it, the
jury should then be told to ignore this evidence: R v Garside, 52 Cr App R 85, CA (a
decision under the old law where only possession was relevant).
Evidence by the thief to prove that he had sold stolen property to the handler at any
previous time is admissible against the handler at common law, and is not excluded by
the time limitation in the statute: R v Powell, 3 Cr App R 1, CCA.
The material words in the statute are “not earlier than twelve months before the
offence charged”; as, therefore, the statute does not read “within the period of twelve
months before the offence charged” evidence is admissible under this provision of the
possession of other stolen goods at a date after the date of the offence charged: R v
Davis [1972] Crim L R 431, CA.
Evidence of previous conviction
A notice in pursuance of section 29(3)(b) is not defective because it does not state
that it is given under or for the purpose of the section: R v Airlie [1973] Crim L R
310, CA.
In R v Christopher Guy Fowler (1988) 86 Cr App R 219, the Court of Appeal held that
s 27(3)(b) (equivalence of s 29(3)(b) of the Theft Ordinance) should be construed
literally and favourably towards an accused person and the prosecution was not permitted to go further than to relate the fact of conviction and where and when it took
place. Introduction of greater details could only be done at common law. In R v Hacker
[1995] 1 Cr App R 332, the House of Lords held that, on the true construction of
section of 27(3)(b) (section 29(3)(b) of the Theft Ordinance), reading together with
section 73(2) of the Police and Criminal Evidence Act 1984, a certificate of previous
conviction should, where the conviction was on indictment, state the substance and
effect, omitting the formal parts, of the indictment and conviction; reference therein
to the nature of the property stolen or handled was not a formal part, but was the
substance of the indictment and conviction; if the conviction was in summary proceedings, the certificate should record the nature of the property stolen or handled,
and the whole of the certificate was admissible. In Hong Kong context, as the proof
of conviction is concerned, section 63 of the Evidence Ordinance is not equivalent
to section 73(2) of the Police and Criminal Evidence Act 1984. It is submitted that,
applying Hacker in Hong Kong context, section 29(3)(b) should be read together with
section 63 of the Evidence Ordinance.
A judge has a general discretion to exclude the evidence if its prejudicial effect
greatly outweighs its probative value: R v List, 50 Cr App R 81; R v Herron [1967] 1 QB
107; 50 Cr App R 132, CCA. The reasoning in these cases has been applied to section
27(3) of the Theft Act 1968 (section 29(3)(b) of the Theft Ordinance): R v Knott
497
22–​259
22–259
Offences Under the Theft Ordinance
[Chap. 22
[1973] Crim L R 36, CA. See also R v Rasini (The Times, 20 March 1986), CA: where
the only issue in the trial of a defendant charged with handling stolen goods was
whether he had guilty knowledge, evidence of previous offences should only be introduced under this provision where the interests of justice so demanded: it should not
be adduced as a matter of course.
In R v Poon Wah Sang (HCMA 815/​1985, [1985] HKLY 289), it was held on appeal
that the magistrate was wrong in admitting the evidence of previous convictions
because the appellant was charged with an offence of handling stolen goods and an
offence of theft, and therefore section 29(3)(b) did not apply. Though the charges
were alternative, nevertheless he was being tried in respect of both.
Evidence of previous convictions for handling is not admissible under this section in
relation to the defendant’s credibility and to the issue whether he acted dishonestly: R
v Duffas (The Times, 19 October 1993), CA.
See generally Chapter 8.
Recent possession as evidence of guilty knowledge
22–​260
The onus of proving guilty knowledge or belief always remains upon the prosecution. Where the only evidence against the defendant is that he was in possession of
recently stolen property, the jury should be directed that they may infer guilty knowledge (a) if the defendant has offered no explanation to account for his possession
of the property; or (b) if they are satisfied that any explanation that has been given
consistent with innocence is untrue. They should also be told that if an explanation has
been offered that leaves them in reasonable doubt as to the knowledge of the defendant that the property had been stolen, the offence has not been proved, and the verdict
should be not guilty: R v Aves, 34 Cr App R 159, CCA. See also R v Garth, 33 Cr App
R 100, CCA; R v Norris, 12 Cr App R 156, CCA; R v Badash, 13 Cr App R 17, CCA; R v
Bailey, 13 Cr App R 27, CCA; R v Brain, 13 Cr App R 197, CCA; R v Currell, 25 Cr App R
116, CCA; R v Hepworth and Fearnley [1955] 2 QB 600; 39 Cr App R 152, CCA; R v Smythe,
72 Cr App R 8, CA; R v Cash [1985] QB 801; 80 Cr App R 314, CA. However, it should
be noted that it is merely a principle concerning how a judge or jury makes inference
from facts and there is no magic in any given length of time. Every case depends on its
own facts: HKSAR v Mohammad Amjad (CACC 423/​2011, [2012] HKEC 1278); HKSAR
v Tran Thi Hoai Huong (CACC 127/​2014, 30 October 2014).
In R v Bradley, 70 Cr App R 200, CA, it was said obiter that where there is direct
evidence of the circumstances in which the defendant came into possession of the
stolen goods the doctrine of recent possession has no application. In R v Raviraj,
85 Cr App R 93, CA, the court said that it did not think that the decision in Bradley
warranted a general statement of the law in those terms. The court said that whilst
clearly, in that case, a direction on recent possession was an embarrassment to the
jury, that was no ground for saying that where something is known of the circumstances in which stolen goods are received, the doctrine of recent possession does
not apply.
“The doctrine is only a particular aspect of the general proposition that where suspicious circumstances appear to demand an explanation, and no explanation or an
entirely incredible explanation is given, the lack of explanation may warrant an inference of guilty knowledge in the defendant. This again is only part of a wider proposition that guilt may be inferred from unreasonable behaviour of a defendant when
confronted with facts which seem to accuse” [per Stocker LJ at p 103].
In R v Ball and Winning, 77 Cr App R 131, CA, it was held that the so-​called doctrine
of recent possession applied not only to cases of receiving but also to cases brought
under the second limb of section 22 of Theft Act 1968 (section 24 of the Theft
Ordinance). See HKSAR v Zheng Wan Tai [2000] 1 HKLRD 839 where R v Ball and
Winning was applied. What constitutes “recent possession” depends upon the nature
of the property and the circumstances of the particular case: cf R v Adams (1829) 3 C &
P 600; R v Partridge (1836) 7 C & P 551; R v Langmead (1864) L & C 427; R v McMahon
(1875) 13 Cox 275, CCR (Ir); R v Deer (1862) L & C 240. In R v Smythe, 72 Cr App R
8, Kilner Brown J, giving the Court of Appeal’s judgment said: “Nearly every reported
498
Sect. XVI]
Going Equipped to Steal
22–265
case is merely a decision of fact as an example of what is no more than a rule of evidence” (at 11).
(6) Attempt
Section 24 defines the actus reus of the offence as the handling of goods that are
“stolen” and goes on to define the mens rea as the dishonest knowledge or belief that
the goods are stolen. The status of the goods being stolen is therefore an element in
both the actus reus and mens rea.
In Haughton v Smith [1975] AC 476, HL, it was decided that a person who dishonestly handles goods that he believes to be stolen goods but which, in fact, are not
stolen goods cannot be convicted of an attempt to handle stolen goods. However, by
amendment to the Crimes Ordinance, which became effective on 2 August 1996, the
law as enshrined in Haughton v Smith has been reversed (cf. R v Lin Kuo Liang, David
[1997] HKLRD 694).
Section 159G of the Crimes Ordinance (Cap 200) provides:
22–​261
22–​262
“Attempting to commit an offence
159G.—​(1) A person who, intending to commit an offence to which this section
applies does an act that is more than merely preparatory to the commission of the
offence is guilty of attempting to commit the offence.
(2) A person may be guilty of attempting to commit an offence to which this section applies even though the facts are such that the commission of the offence is
impossible.”
(7) Advertisements offering rewards for the return of stolen goods
Theft Ordinance (Cap 210), s 25
Advertising rewards for return of goods stolen or lost
25.—​Where any public advertisement of a reward for the return of any goods which
have been stolen or lost uses any words to the effect that no questions will be asked, or
that the person producing the goods will be safe from apprehension or inquiry, or that
any money paid for the purchase of the goods or advanced by way of loan on them will
be repaid, the person advertising the reward and any person who prints or publishes the
advertisement shall be guilty of an offence and shall be liable on conviction to a fine of
$2000. It is an offence of strict liability (Denham v Scott, 77 Cr App R 210, DC).
22–​263
XVI. GOING EQUIPPED TO STEAL
Statute
Theft Ordinance (Cap 210), s 27
Going equipped for stealing, etc
27.—​(1) Any person who, when not at his place of abode, has with him any article
for use in the course of or in connection with any burglary, theft or cheat shall be guilty
of an offence and shall be liable on conviction upon indictment to imprisonment for
three years.
(2) Where a person is charged with an offence under this section, proof that he had
with him any article made or adapted for use in committing a burglary, theft or cheat
shall be evidence that he had it with him for such use.
(3) For purposes of this section an offence under section 14 of taking a conveyance
shall be treated as theft, and “cheat” means an offence under section 17.
22–​264
Sentence
Imprisonment not exceeding three years: section 27(1), above. An offence under
this section committed with reference to the theft or taking of a motor vehicle involves
discretionary disqualification: see section 14 the Road Traffic Ordinance (Cap
374) and para.22-​13, above.
499
22–​265
22–266
Offences Under the Theft Ordinance
[Chap. 22
Elements of the offence
22–​266
It is necessary to prove that the defendant at the time of the alleged offence was not
at his place of abode and that he had with him the articles named in the indictment,
and that they were articles for use in the course of or in connection with burglary,
etc. Where a person lives and drives around in a car in which he keeps burglary tools,
the car is his place of abode for the purpose of section 27(1) only when it is on a site
where he intends to abide: R v Bundy, 65 Cr App R 239, CA. In R v Law Hoi-​fu (Crim
App 154/​1996), CA, it was held that in Hong Kong, a carpark outside a housing estate
could not, in law, be a place of abode for this purpose.
If the article is made or adapted for use in committing burglary, theft or cheat,
proof that the accused had it with him is evidence that he had it with him for such
use. If the article is not so made or adapted it is a matter of inference for the jury to
draw from its nature and the circumstances in which the accused was in possession of
it, what his intent was. See R v Harrison [1970] Crim L R 415, CA.
It must be proved that the defendant had the article in question for the purpose,
or with the intention, of using it in the course of or in connection with some burglary,
theft or cheat to be committed in the future. But it is not necessary to prove that the
defendant intended the article to be used in the course of or in connection with any
specific burglary, theft or cheat; it is enough to prove a general intention so to use it.
Nor is it necessary to prove that the defendant intended to use it himself; it will be
enough to prove that he had it with him with the intention that it should be used by
someone else: R v Ellames, 60 Cr App R 7, CA. In R v Mansfield [1975] Crim L R 101,
CA, it was held that the tendering of certain employment and driving documents to a
potential employer in the hope of securing a driving job that in turn would enable the
defendant to steal a load, was too remote an act to sustain a charge of having articles
(the documents) with him for use in connection with theft.
In R v Doukas, 66 Cr App R 228, CA, the defendant, a hotel waiter, was found
in the hotel with six bottles of wine of a type that was not stocked in the hotel. He
intended to sell the wine to the customers of the hotel for his own profit. His conviction was upheld. Giving the court’s judgment, Geoffrey Lane LJ said that in relation to an allegation of going equipped for cheat, sections 17 (obtaining property
by deception) and 27 of the Theft Ordinance had to be combined. Accordingly, a
person is guilty of the offence if, when not at his place of abode, he has with him any
article for use in the course of or in connection with any deception, whether deliberate or reckless, by words or conduct, as to fact or law, for purposes of dishonestly
obtaining property belonging to another with the intention of permanently depriving the other of it.
In R v Corboz [1984] Crim L R 629, CA, it was stated that in future any summing up
should be based on the analysis of the ingredients of the offence set out in Doukas. In
R v Cooke [1986] AC 909, HL, their Lordships were not directly concerned with the
ingredients of an offence under section 25, but with the ambit of the offence of conspiracy to defraud. The case arose, however, from a similar set of circumstances to
those in Doukas and Rashid. Lord Mackay LC, with whom Lords Brightman, Brandon
and Goff expressly agreed, said that the elements necessary to establish an offence
under section 27 (section 25 of the Theft Act 1968) were correctly described in
Doukas: whether they are established in any particular case is a question of fact,
which will depend on the detail of the evidence particularly that relating to the
attitude and understanding of those receiving the supplies. His Lordship said that
the dishonesty in question is the deception of the guests, customers or passengers
so that there is a deception of them. He rejected the alternative way that the prosecution had put forward the element of dishonesty in Doukas, namely dishonesty
towards the employer by keeping money for which the employer was entitled at
least to require the employee to account. This appears to coincide with what Bridge
LJ said in R v Rashid, 64 Cr App R 201 about the element of fraud on the employers being a red herring. In practice, however, it is impossible to separate the two
aspects of dishonesty: as was pointed out in Doukas, it is the fact that the employee
is defrauding his employer that makes, or may be thought to make, his conduct
towards the customer dishonest.
500
Sect. XVII]
Theft Ordinance Enforcement
22–268
XVII. THEFT ORDINANCE (CAP 210) ENFORCEMENT
AND PROCEDURE
A. Search for Stolen Goods
(1) Statute
Theft Ordinance, s 28
28.—​(1) If it is made to appear by information on oath before a magistrate that there
is reasonable cause to believe that any person has in his custody or possession or on his
premises any stolen goods, the magistrate may grant a warrant to search for and seize
the same.
(2) [Repealed 13 of 1995 s 52]
(3) Where under this section a person is authorised to search premises for stolen
goods, he may enter and search the premises accordingly, and may seize any goods he
believes to be stolen goods.
(4) Section 102 of the Criminal Procedure Ordinance (Cap 221) (Which makes provision for the disposal of property connected with offences) shall apply to property which
has come into the possession of the police under this section as it applies to property which
has come into the possession of the police in the circumstances mentioned in that section.
(5) This section is to be construed in accordance with section 26 and in subsection
(2) of this section the references to handling stolen goods shall include any corresponding offence committed before the commencement of this Ordinance.
22–​267
B. Evidence and Procedure on Charge of Theft, Handling
Stolen Goods and Obtaining by Deception
(1) Statute
Theft Ordinance (Cap 210), s 29
29.—​(1) Any number of persons may be charged in one indictment, information or
charge with reference to the same theft, with having at different times or at the same time
handled all or any of the stolen goods, and the persons so charged may be tried together.
(2) On the trial of two or more persons charged or indicted for jointly handling any
stolen goods, the court or jury may find any one of the accused guilty if the court or jury
is satisfied that he handled all or any of the stolen goods, whether or not he did so jointly
with the other accused or any of them.
(3) Where a person is being proceeded against for handling stolen goods (but not for
any offence other than handling stolen goods), then at any stage of the proceedings, if evidence has been given of his having or arranging to have in his possession the goods the subject of the charge, or of his undertaking or assisting in, or arranging to undertake or assist
in, their retention, removal, disposal or realisation, the following evidence shall be admissible for the purpose of proving that he knew or believed the goods to be stolen goods—​
(a) evidence that he has had in his possession, or has undertaken or assisted in
the retention, removal, disposal or realisation of, stolen goods from any theft
taking place not earlier than 12 months before the offence charged; and
(b) (if seven days notice in writing has been given to him of the intention to prove
the conviction) evidence that he has within the five years preceding the date
of the offence charged been convicted of theft or of handling stolen goods.
(4) In any proceedings for the theft of anything in the course of transmission (whether
by post or otherwise), or for handling stolen goods from such a theft, a statutory declaration made by any person that he despatched or received or failed to receive any goods
or postal packet, or that any goods or postal packet, when despatched or received by him
were in a particular state or condition, shall be admissible as evidence of the facts stated
in the declaration, subject to the following conditions—​
(a) a statutory declaration shall only be admissible where and to the extent to
which oral evidence to the like effect would have been admissible in the
proceedings; and
(b) a statutory declaration shall only be admissible if at least seven days before
the hearing or trial a copy of it has been given to the person charged, and he
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has not, at least three days before the hearing or trial or within such further
time as the court may in special circumstances allow, given the prosecutor
written notice requiring the attendance at the hearing or trial of the person
making the declaration.
(5) This section is to be construed in accordance with section 26, and in subsection
(3)(b) of this section the reference to handling stolen goods shall include any corresponding offence committed before the commencement of this Ordinance.
(6) In any proceedings for an offence under section 17, 18, 18A or 18B—​(Amended
45 of 1980 s 5)
(a) (Repealed 13 of 1995 s 53)
(b) where—​
(i) any cheque or other bill of exchange bears any writing purporting to
be written by or on behalf of the bank or other person on whom the
cheque or bill of exchange was drawn and indicating that payment of
the cheque or bill of exchange was refused upon presentation on or
after becoming due; or
(ii) any document purporting to be made by or on behalf of the bank or
other person on whom any cheque or bill of exchange was drawn bears
any writing indicating that payment of the cheque or bill of exchange
was refused upon presentation on or after becoming due,
then payment of the cheque or bill of exchange shall, until the contrary is
proved, be deemed to have been so refused;
(c) the provisions of this subsection shall apply whether or not the bank or other
person on whom the cheque or bill of exchange was drawn carries on business in Hong Kong and whether the writing was written on the cheque or bill
of exchange or the document within or outside Hong Kong;
(d) any document purporting to be a document of the kind specified in paragraph
(b) or purporting to be a copy or reproduction of any such document shall be
admitted in evidence on its production by the prosecution without further proof;
(e) where any cheque or bill of exchange or any document of the kind specified
in paragraph (b), or any copy or reproduction of such document, is to be
adduced in evidence, a copy thereof shall be served on the defendant not
less than 14 days before the commencement of the trial;
(f) if service is not effected in accordance with paragraph (e), the court may on application by the accused grant an adjournment for such period as it considers just.
Note on Section 29(3)
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Evidence admitted pursuant to s 29(3) merely goes towards proof of guilty knowledge. Section 29(3) does not make it conclusive, or even presumptive evidence of guilty
knowledge. It is not necessarily sufficient proof in itself of guilty knowledge and whether
it is sufficient in a particular case depends on the circumstances of that case (R v Poon
Wah Sang [1985] 1 HKC 556, CFI). The Court has discretion to exclude evidence admissible under s 29(3) (Leung Tim v R [1980] HKLR 555). Regarding s 29(3)(a), it can only
be invoked for the purpose of demonstrating that the defendant had been found in
possession or in some other manner “handled” property stolen from theft other than
the one charged (HKSAR v Mak Ho Yin [2012] 1 HKC 159). Although it is open to the
Court to admit evidence of possession of property stolen after the date of the charge,
the Court should fully inform itself of the nature of the evidence so as to enable itself
properly to exercise the discretion to exclude it. (Leung Tim v R [1980] HKLR 555).
C. Orders for Restitution
(1) Statute
Theft Ordinance (Cap 210), s 30
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30.—​(1) Where goods have been stolen, and a person is convicted of any offence with
reference to the theft (whether or not the stealing is the gist of his offence), the court
by or before which the offender is convicted may on the conviction exercise any of the
following powers—​
(a) the court may order anyone having possession or control of the goods to
restore them to any person entitled to recover them from him; or
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(b) on the application of a person entitled to recover from the person convicted
any other goods directly or indirectly representing the first-​mentioned goods
(as being the proceeds of any disposal or realisation of the whole or part of
them or of goods so representing them), the court may order those other
goods to be delivered or transferred to the applicant; or
(c) on the application of a person who, if the first-​mentioned goods were in the
possession of the person convicted, would be entitled to recover them from
him, the court may order that a sum not exceeding the value of those goods
shall be paid to the applicant out of any money of the person convicted
which was taken out of his possession on his apprehension.
(2) Where under subsection (1) the court has power on a person’s conviction to make an
order against him both under paragraph (b) and under paragraph (c) with reference to the
stealing of the same goods, the court may make orders under both paragraphs provided that
the applicant for the orders does not thereby recover more than the value of those goods.
(3) Where under subsection (1) the court on a person’s conviction makes an order
under paragraph (a) for the restoration of any goods, and it appears to the court that
the person convicted has sold the goods to a person acting in good faith, or has borrowed money on the security of them from a person so acting, then on the application
of the purchaser or lender the court may order that there shall be paid to the applicant,
out of any money of the person convicted which was taken out of his possession on his
apprehension, a sum not exceeding the amount paid for the purchase by the applicant
or, as the case may be, the amount owed to the applicant in respect of the loan.
(4) The court shall not exercise the powers conferred by this section unless in the opinion of the court the relevant facts sufficiently appear from evidence given at the trial or the
available documents, together with admissions made by or on behalf of any person in connection with any proposed exercise of the powers; and for this purpose “the available documents” means any written statements or admissions which were made for use, and would
have been admissible, as evidence at the trial, the depositions taken at any committal proceedings and any written statements or admissions used as evidence in those proceedings.
(5) Any order under this section shall be treated as an order for the restitution of property within the meaning of section 83X of the Criminal Procedure Ordinance (Cap 221).
(6) References in this section to stealing are to be construed in accordance with section 26(1) and (4).
D. Husband and Wife
(1) Statute
Theft Ordinance (Cap 210), s 31
31.—​(1) This Ordinance shall apply in relation to the parties to a marriage, and
to property belonging to the wife or husband whether or not by reason of an interest
derived from the marriage, as it would apply if they were not married and any such interest subsisted independently of the marriage.
(2) Subject to subsection (4), a person shall have the same right to bring proceedings
against that person’s wife or husband for any offence (whether under this Ordinance or
otherwise) as if they were not married, and a person bringing any such proceedings shall
be competent to give evidence for the prosecution at every stage of the proceedings.
(3) Where a person is charged in proceedings not brought by that person’s wife or husband with having committed any offence with reference to that person’s wife or husband
or to property belonging to the wife or husband, the wife or husband shall be competent
to give evidence at every stage of the proceedings, whether for the defence or for the
prosecution, and whether the accused is charged solely or jointly with any other person:
Provided that—​
(a) the wife or husband (unless compellable at common law) shall not be compellable either to give evidence or, in giving evidence, to disclose any communication made to her or him during the marriage by the accused; and
(b) her or his failure to give evidence shall not be made the subject of any comment by the prosecution.
(4) Proceedings shall not be instituted against a person for any offence of stealing or
doing unlawful damage to property which at the time of the offence belongs to that person’s
wife or husband, or for any attempt, incitement or conspiracy to commit such an offence,
unless the proceedings are instituted by or with the consent of the Secretary for Justice:
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Provided that—​
(a) this subsection shall not apply to proceedings against a person for an
offence—​
(i) if that person is charged with committing the offence jointly with the
wife or husband; or
(ii) if by virtue of any judicial decree or order (wherever made) that person
and the wife or husband are at the time of the offence under no obligation to cohabit; and
(b) this subsection shall not prevent the arrest, or the issue of a warrant for the
arrest, of a person for an offence, or the remand in custody or admission
to bail of a person charged with an offence, where the arrest (if without a
warrant) is made, or the warrant of arrest issues on an information laid, by a
person other than the wife or husband.
Notes on section 31
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In Woodley v Woodley [1978] Crim L R 629, DC, the court held that where at the material time the husband, who was alleging criminal damage by his wife, was the subject
of an order committing him to prison, which was suspended on terms that he did not
molest his wife or approach within 200 yards of her home, the protection offered by subsection (4) [of section 31 of the Theft Ordinance] did not extend to the wife because
the judicial order debarred the husband from the matrimonial home and accordingly
the obligation to cohabit was not in existence at the time of the alleged offence.
E. Verdict
(1) Statute
Theft Ordinance (Cap 210), s 32
22–​272
32.—​(1) If on the trial of any information, charge or indictment for an offence specified in the first column of the Schedule it is proved that the accused is not guilty of
that offence but guilty of one of the offences specified opposite thereto in the second
column of that Schedule or of attempting or being a party to an offence so specified, the
accused shall be acquitted of the offence originally charged and shall be convicted of
such other offence or of attempting or being a party to such other offence and be liable
to be punished accordingly.
(2) The references in the Schedule to numbered sections and subsections shall be
construed to include every offence under the section or subsection so numbered in this
Ordinance.
(3) Nothing in this section or in the Schedule shall exclude the application to any
offence of any other law authorising a person to be found guilty of an offence other than
that with which he is charged.
Alternative Verdicts
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The Schedule (setting out alternative verdicts under section 32) is reproduced here
for ease of reference for practitioners.
Offences
Other offences of which the defendant may be found guilty
1.
Theft (section 9).
(i) Taking conveyance without authority (section 14). (ii)
Obtaining property by deception (section 17). (iii) Obtaining
pecuniary advantage by deception (section 18). (iv)
Obtaining services by deception (section 18A). (v) Evasion of
liability by deception (section 18B). (vi) Making off without
payment (section 18C). (vii) False accounting (section
19). (viii) Handling stolen goods (section 24). (ix) Going
equipped for stealing (section 27).
2.
Robbery (section 10). (i) Theft (section 9). (ii) Assault with intent to rob (section
10). (iii) Blackmail (section 23(1)). (iv) Handling stolen
goods (section 24). (v) Common assault.
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3.
Assault with intent to
rob (section 10).
(i) Theft (section 9). (ii) Robbery (section 10). (iii)
Blackmail (section 23(1)). (iv) Common assault.
4.
Burglary (section 11). (i) Theft (section 9). (ii) Handling stolen goods (section 24).
(iii) Going equipped for stealing (section 27). (iv) Inflicting
grievous bodily harm.
5.
Aggravated burglary
(section 12).
(i) Theft (section 9). (ii) Burglary (section 11). (iii)
Handling stolen goods (section 24). (iv) Going equipped for
stealing (section 27). (v) Inflicting grievous bodily harm. (vi)
Possession of arms. (vii) Possession of imitation firearm. (viii)
Possession of explosive.
6.
Taking conveyance
without authority
(section 14(1)).
Going equipped for stealing (section 27).
7.
Obtaining property
(i) Theft (section 9). (ii) Obtaining pecuniary advantage by
by deception (section deception (section 18). (iii) Obtaining services by deception
17).
(section 18A). (iv) Evasion of liability by deception (section
18B). (v) Making off without payment (section 18C). (vi)
Blackmail (section 23(1)). (vii) Handling stolen goods
(section 24). (viii) Going equipped for stealing (section 27).
8.
Obtaining pecuniary
advantage by
deception (section
18).
(i) Theft (section 9). (ii) Obtaining property by deception
(section 17). (iii) Evasion of liability by deception (section
18B). (iv) Blackmail (section 23(1)). (v) Handling stolen
goods (section 24).
9.
Evasion of liability by
deception (section
18B).
(i) Theft (section 9). (ii) Obtaining property by deception
(section 17). (iii) Obtaining pecuniary advantage by
deception (section 18). (iv) Obtaining services by deception
(section 18A). (v) Making off without payment (section 18C).
(vi) Blackmail (section 23(1)).
10. Making off without
payment (section
18C).
(i) Theft (section 9). (ii) Obtaining property by deception
(section 17). (iii) Obtaining services by deception (section
18A). (iv) Evasion of liability by deception (section 18B).
(v) Blackmail (section 23(1)).
11. Blackmail (section
23(1)).
(i) Obtaining property by deception (section 17). (ii)
Obtaining pecuniary advantage by deception (section 18). (iii)
Obtaining services by deception (section 18A). (iv) Evasion of
liability by deception (section 18B). (v) Making off without
payment (section 18C). (vi) Possession of blackmailing letter
(section 23(4)). (vii) Common assault.
F. Effect on Civil Proceedings and Rights
(1) Statute
Theft Ordinance (Cap 210), s 33
33.—​(1) A person shall not be excused, by reason that to do so may incriminate that
person or the wife or husband of that person of an offence under this Ordinance—​
(a) from answering any question put to that person in proceedings for the recovery or administration of any property, for the execution of any trust or for an
account of any property or dealings with property; or
(b) from complying with any order made in any such proceedings,
but no statement or admission made by a person in answering a question put or complying with an order made as aforesaid shall, in proceedings for an offence under this
Ordinance, be admissible in evidence against that person or (unless they married after
the making of the statement or admission) against the wife or husband of that person.
(2) Notwithstanding any enactment to the contrary, where property has been stolen
or obtained by fraud or other wrongful means, the title to that or any other property
shall not be affected by reason only of the conviction of the offender.
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G. Effect on Existing Law and Construction of References
to Offences
(1) Statute
Theft Ordinance (Cap 210), s 34
22–​275
34.—​(1) The following offences at common law are hereby abolished for all purposes not relating to offences committed before the commencement of this Ordinance,
that is to say, any offence at common law of larceny, robbery, burglary, receiving stolen property, obtaining property by threats, extortion by colour of office or franchise,
false accounting by public officers, concealment of treasure trove and, except as regards
offences relating to the public revenue, cheating.
(2) Except as regards offences committed before the commencement of this
Ordinance, and except as the context otherwise requires—​
(a) references in any enactment passed before this Ordinance to an offence abolished or contained in any provision repealed by this Ordinance shall, subject
to any express amendment or repeal made by this Ordinance, have effect as
references to the corresponding offence under this Ordinance, and in any
such enactment “receive” (when the expression relates to an offence of receiving) shall mean handle, and “receiver” shall be construed accordingly; and
(b) without prejudice to paragraph (a), references in any enactment, whenever
passed, to theft or stealing (including references to stolen goods), and references to robbery, burglary, aggravated burglary or handling stolen goods,
shall be construed in accordance with the provisions of this Ordinance,
including those of section 26.
H. Mode of Trial
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Section 92 of the Magistrates Ordinance (Cap 227) permits all indictable offences
with the exception of those specified in Part I of the Second Schedule to the Magistrate
Ordinance to be tried before a Magistrate. Part I of the Second Schedule restricts all
those offences punishable by life imprisonment from being tried in the Magistrates’
Court, with the exception of robbery (section 10 of the Theft Ordinance) and aggravated burglary (section 12 of the Theft Ordinance).
Venue for trial is at the discretion of the prosecution. Applications for transfer to
the District Court or committal to the Court of First Instance cannot be resisted; see
sections 80C and 85 of the Magistrates Ordinance (committal to the Court of First
Instance), and section 88 of the Magistrates Ordinance (transfer to the District Court).
See generally Chapter 1.
I. Transitional Provisions
(1) Statute
Theft Ordinance (Cap 210), s 35
22–​277
35.—​(1) Sections 29 and 30 shall apply in relation to proceedings for an offence
committed before the commencement of this Ordinance as they would apply in relation
to proceedings for a corresponding offence under this Ordinance and shall so apply in
place of any corresponding enactment repealed by this Ordinance.
(2) Subject to subsection (1), no repeal or amendment by this Ordinance of any
enactment relating to procedure or evidence, or to the jurisdiction or powers of any
court, or to the effect of a conviction, shall affect the operation of the enactment in
relation to offences committed before the commencement of this Ordinance or to proceedings for any such offence. [cf 1968 c 60 s 35(2) & (3) UK].
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