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. 22–1 22–2 22–67 22–67 22–78 22–82 22–82 22–98 22–103 22–107 22–107 22–119 22–122 22–125 22–129 22–129 22–158 22–167 22–168 22–171 22–176 22–180 22–183 22–196 22–198 22–198 22–200 22–204 22–211 22–212 22–223 22–264 22–267 22–267 22–268 22–269 22–270 22–272 22–274 22–275 22–276 22–277 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 22–2 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 22–3 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 408 Sect. II] Theft 22–8 (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. 22–5 (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. 22–6 Theft and handling 22–7 See para.22-215 to 22-250, below. Theft and obtaining property by deception 22–8 See para.22-126 to 22-153, below. 409 22–9 Offences Under the Theft Ordinance [Chap. 22 Alternative counts of theft 22–9 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 22–10 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 22–11 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 22–12 Theft as an offence covers a broad range of criminal conduct and sentences imposed vary. See also Chapter 5 on sentencing. Maximum 22–13 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 22–14 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 410 Sect. II] Theft 22–16 [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. 411 22–15 22–16 22–17 Offences Under the Theft Ordinance [Chap. 22 (5) Elements of the offence of theft Four elements 22–17 “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 22–18 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 22–19 22–20 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 412 Sect. II] Theft 22–21 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. 413 22–21 22–22 Offences Under the Theft Ordinance [Chap. 22 Claim of right 22–22 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 22–27 Offences Under the Theft Ordinance [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 22–31 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 22–37 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 22–41 22–41 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 22–49 22–49 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 425 22–52 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 427 22–58 22–58 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 22–63 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 22–68 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 22–81 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 22–140 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 22–149 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 22–153 22–154 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 22–158 22–158 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 Sect. X] Obtaining By Deception 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 22–167 22–168 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] Obtaining By Deception 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 22–173 22–174 22–174 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] Obtaining By Deception 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 22–175 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 22–181 22–182 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 486 Sect. XV] Handling Stolen Goods 22–238 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 22–238 22–238 Offences Under the Theft Ordinance [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 22–243 Offences Under the Theft Ordinance [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 22–248 22–248 Offences Under the Theft Ordinance [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] Handling Stolen Goods 22–253 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 501 22–268 22–268 Offences Under the Theft Ordinance [Chap. 22 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) 22–268A 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 22–269 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 502 Sect. XVII] Theft Ordinance Enforcement 22–270 (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: 503 22–270 22–270 Offences Under the Theft Ordinance [Chap. 22 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 22–271 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 22–273 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. 504 Sect. XVII] Theft Ordinance Enforcement 22–274 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. 505 22–274 22–275 Offences Under the Theft Ordinance [Chap. 22 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 22–276 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]. 506
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