The Queen v. Yuen Chan Woon-la

DCCC000130/1977

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CRIMINAL JURISDICTION

CASE NO. 130 OF 1977

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Coram: Rhind, D.J. in Court.

Date of Judgment: 27th September, 1977

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RULING

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1. The defendant now faces just the one charge, namely attempting to obtain a certificate of entry into the United Kingdom by deception, contrary to S.17(1) of the Theft Ordinance, Cap. 210, the particulars of offence being that she did on or about the 12th March 1975 in Hong Kong attempt to obtain for WONG Hon-ping from LAM Ping-kui, an Immigration Officer of the Hong Kong Government a certificate entitling the said WONG Hon-ping entry into the United Kingdom by a deception, namely by a false written representation that the said WONG Hon-ping was beneficially entitled to the sum of $20,000 deposited to his credit in an account in his name at the Hong Kong Industrial and Commercial Bank, Tsim Sha Tsui Branch and a false written representation that the said WONG Hon-ping had been granted leave from his employment for a period of one month.

2. A written summary of the evidence which the Crown proposed to adduce in support of this charge was supplied to the Defence and also made available to the Court. In the course of submissions made to the Court, Crown Counsel has amplified that written summary of evidence in respect of some of the details. She has confirmed that the written summary, as amplified by her submission, contains all the facts on which the Crown seeks to rely to prove its charge.

3. For the Defence the preliminary point has been taken that even if the Crown could prove all the facts it alleges, those facts would not support the charge. The Crown for its part has consented to the Court ruling on this preliminary point, and has agreed that in the event of the ruling being adverse to the Crown, the proceedings against the defendant should be discontinued.

4. The totality of the relevant facts alleged by the Crown will now be stated. (So that there shall be no misunderstanding, it might be as well to state explicitly that the Defence has not admitted the alleged facts.)

5. WONG Hon-ping (hereafter referred to as "Wong") is not a citizen of the United Kingdom, so that, in accordance with the United Kingdom's immigration laws he needs permission to enter there. As a resident of Hong Kong, he can seek such permission from Hong Kong's Immigration Department which has been delegated power for this purpose.

6. In January 1974 Wong requested the grant of such permission from the Hong Kong Immigration Department, but was refused. Towards the beginning of March 1975, Wong, being anxious to visit his relatives in the United Kingdom, again decided to apply for permission to enter there. Having seen the advertisement of a company known as Skal Travel Services Ltd., which is operated by defendant, Wong got in touch with defendant for the purpose of securing her assistance in getting permission to enter the United Kingdom, and for her part, she undertook to render him such assistance. The assistance would be directed towards one of two ends, depending on the type of travel document Wong travelled under. If his travel document was of the variety known as a pass-port, the customary way in which the Hong Kong Immigration Department would acknowledge that it had granted permission to the holder to enter the United Kingdom would be by sticking an adhesive label bearing words to that effect into his pass-port. However, if his travel document was of the type known as a Certificate of Identity, the practice of the Hong Kong Immigration Department in acknowledging that it had granted the holder the right to enter the United Kingdom would be to mark the Certificate of Identity with a chop to that effect.

7. In fact Wong had a pass-port, so what the defendant needed to obtain for him if he were to enter the United Kingdom was the appropriate adhesive label on his pass-port. However, the Crown has expressly stated that it places no reliance on the fact that if Wong had been granted permission to enter United Kingdom he would have obtained this adhesive label. Thus, the Crown is not contending that the property at which the defendant's deception was aimed was the label. According to the Crown's concession, it would have made no difference to its case if Wong's travel document had been a Certificate of Identity in which event the deception complained of would only have resulted in a chop mark being made on that travel document.

8. This concession by the Crown is based on its contention that these adhesive labels or chop marks are mere evidence of the right to enter the United Kingdom, and what the Crown is complaining about is not that defendant tried by deception to obtain a label or chop mark, but that she tried by deception to obtain the right for Wong to enter the United Kingdom. The right to enter United Kingdom is the property which defendant attempted to obtain, so the Crown alleges.

9. Had it maintained that the label or the chop mark was the object of defendant's deception the Crown felt that the true nature of its complaint would have been obscured. Also, the Crown did not want the case to turn on the fortuitous circumstance of whether Wong was the holder of a pass-port or a Certificate of Identity. In this connection, it might be as well to add that originally the defendant faced another six charges, in respect of all of which nolle prosequis have now been entered because vital Crown witnesses were unavailable. Four of those charges were similar to the present charge, namely obtaining or attempting to obtain visas by deception, contrary to S.17(1) of the Theft Ordinance. Some at least of those four charges related to Certificates of Identity on which visas were chopped or would have been chopped if the alleged deception had been successful. If it had been able to go ahead with those charges the Crown would, no doubt, have alleged they should be treated in the same way as the present charge, namely that the Court should regard the grant of permission to enter another country as the property wrongfully obtained. From the outset the Crown treated those four charges as raising identical issues to the present charge and the Crown has never sought to say that defendant's guilt or otherwise should turn on whether her customer's travel document happened to be a pass-port or a Certificate of Identity.

10. Perhaps the Crown's case might at first sight have appeared slightly stronger if it had taken advantage of the fact that Wong had a pass-port, and from there the Crown might have gone on to allege that defendant attempted to obtain an adhesive label on his behalf, for an adhesive label indubitably comes within the concept of "property", whereas the same cannot be said for a chop mark or a right to enter a country, but the Crown was quite right, in my opinion, to eschew such an artificial approach. Moreover, although reliance on an adhesive label as "property" might have at least given the Crown's case a greater semblance of having some connection with the Theft Ordinance, it still would not have served to get the Crown case on its feet in the light of the actual facts alleged by the Crown.

11. All that the relevant facts allege is that defendant composed a letter (Exh. P2) on Wong's behalf, addressed to Hong Kong's Director of Immigration, in which Wong stated that he wished to proceed on a trip to England. Also, by inference from the postscript to that letter, Wong asked for what he called "A visiting visa". Further, at an interview with LAM Ping-kui (hereafter referred to as "Lam"), an Immigration Officer, Wong asked for a visa. Nowhere does Wong ask for an adhesive label. All that Wong wanted was permission to enter the United Kingdom, and it was a matter of indifference to him and the defendant whether such permission was evidenced by a label, a chop, a tattoo mark or whatever.

12. By asking for a visa, the defendant, through Wong, could not be taken to have been asking in effect for something as tangible as an adhesive label for, according to the Oxford Dictionary definition of "visa" (which is an alternative for vise) it is, "an entry or note on a pass-port, certificate or other official document signifying that it has been examined and found correct; a formal official signature or entry of this nature". A further idea of the meaning of this word can be gathered by bearing in mind that it is derived from the French word "viser" meaning to examine or view. Illustrations of the correct usage of the word are to be found in R. v. Brailsford & another⁽¹⁾.

13. It will be noted that in the present charge what defendant was alleged to have attempted to obtain for Wong was variously described as "a certificate" and "a certificate of entry". However nothing turns on those terms which both counsel agree are synonyms, together with visa, for evidence that Wong was entitled to enter the United Kingdom, and, as already explained, the Crown is only complaining about an attempt to deceive it into granting permission to enter the United Kingdom, rather than about any loss of tangible property which might have happened to evidence that right.

14. As for the facts of the deceptions allegedly attempted by the defendant, little need be added to what can be learnt from the particulars of the charge, for the case can be disposed of without having to go on to consider whether any deception was present. Suffice it to say that, two hours before Wong went for an interview at the Immigration Department on 12th March 1975, the defendant allegedly lent him $20,000 to open an account in Wong's name at the Hong Kong Industrial and Commercial Bank, so that Wong could make himself out to the immigration authorities to be a man of greater substance than he in fact was. According to the Crown, this loan was a sham for the defendant kept the bank deposit book, and, simultaneously with the opening of the account, required Wong to sign and hand over to the defendant a withdrawal form for the full amount deposited.

15. The other alleged deception was to put Wong up to making a false representation that he had been granted a month's leave by his employer, for the Immigration Department would be more likely to grant an applicant permission to enter United Kingdom if he could show there was a job awaiting his return to Hong Kong.

16. S.17(1) of the Theft Ordinance, under which the defendant was charged, is in the following terms:-

"          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 ten years."

17. Of the identical section in the English Theft Act 1968, Professor Edward Griew in the second edition of his work on that Act⁽²⁾ had this to say, at p.77:

"          Sections 17 to 21 are concerned with fraud. The characteristic element of the offences contained in these sections is the purpose of the offender to obtain a material or financial advantage by some deceptive practice."

(For all practical purposes the English Theft Act, is identical with Hong Kong's Theft Ordinance but there is a difference in the numbering of the sections of the two pieces of legislation. For ease of exposition I have substituted the equivalent number of the HK section whenever I refer to any English authorities in this ruling).

18. If Professor Griew is right about S.17(1) being concerned with the obtaining of material or financial advantages, it is difficult to see how defendant's conduct would come within its ambit. Allegedly attempting to deceive the Immigration Department into exercising its power to authorize Wong to enter U.K. involves a situation very different from that of obtaining material or financial advantages.

19. To most people I do not think it would come as any great surprise to learn that a section of the Theft Ordinance should be concerned with the obtaining of material or financial advantages. However, what S.17(1) refers to is not material or financial advantages but "property", so the question arises: Is there any difference?

20. S.5(1) of the Theft Ordinance defines "property" as follows:

"          'Property' includes money and all other property, real and personal, including things in action and other intangible property."

21. According to the Crown, the Immigration Department's power to authorise entry into United Kingdom falls within "and other intangible property."

22. The problem with this definition in S.5(1) is that it defines the word to be defined in terms of itself: in effect property "includes........... all ...... property, ........ including .......... intangible property."⁽²⁾(See Griew, op. cit, p.6)

23. Thus, one is forced to search elsewhere for the meaning of "property". Of course, any meaning given to "property" must be one which accords with the other requirements of S.17(1), which is only concerned with the type of "property" which can be "obtained", and of which another can be "permanently deprived".

24. Professor Griew at page 6⁽²⁾ elaborates on the limitations which the other ingredients of charges under the Theft Act impose on the meaning of property. Some idea can be gained of how far the Crown has gone off the rails in the present case by stopping to ponder for a moment on the element of "intention permanently to deprive", which must be present to support a charge under S.17(1). Is the Crown seriously suggesting that the defendant and Wong were trying permanently to deprive it of the power to grant authorisation to enter the United Kingdom, for that is the implication of the charge?

25. To return now to the quest of the meaning of property, the next avenue calling for exploration is the Interpretation and General Clauses Ordinance, Cap.1, which in S.3 offers the following definition:

"'property' includes -

26. None of the items listed there remotely resembles what the Crown contends defendant has taken from it, but no doubt the Crown would point to the word "includes", as it did with regard to the definition in S.5(1) of the Theft Ordinance, to show that the definition is not exhaustive.

27. Another approach for determining the meaning of "property" for the purposes of the Theft Act is proposed by Professor J.C. Smith in The Law of Theft⁽³⁾. Only the second edition has been available to me, so the references will have to be to that. In paragraphs 4, 8 and 52 he in effect puts forward the thesis that the Theft Act assumes the existence of the whole civil law of property, and the way to interpret the meaning of "property" in the Act is by resort to the concepts of the civil law of property. That strikes me as the correct approach, and one I will happily follow.

28. Some general definitions of "property" from the standard law dictionaries might make a good starting-off point, for an understanding of civil concepts.

29. Jowitt's Dictionary of English Law⁽⁴⁾ defines "property" as follows:

30. No joy to the Crown in any of those definitions, I would have thought. In fact, a clue to the Crown's problems is offered by Stroud's (5) para (2) above. The Crown has failed to distinguish between the concepts of "power" and "property". Certainly, if the facts alleged by the Crown were true an attempt was made to deceive it into granting "rights" to Wong, but "rights" can take many forms. "Right" is a homonym, and while all "property" consists of "rights" all "rights" do not consist of "property". See Dias' Jurisprudence (6) It is only if those "rights" amount to "property" that the operation of the Theft Ordinance will be attracted.

31. I will come back later to the legal classification of the Crown's power to grant authorisation to enter the United Kingdom, but, meanwhile, I will pursue the topic of civil law concepts of "property".

32. As helpful an authority as any I have been able to find on these concepts has been the first chapter of the 5th edition, of Crossley Vaines' Personal Property (7). He goes into basic explanations of how in English (and Hong Kong) law, property is either real or personal. Presumably the Crown is not alleging it was deprived of real property. Personalty is residual: it is all property which is not real property. Personalty comprises chattels real and chattels personal. Again, I do not think any time need be wasted on chattels real. All chattels personal are either in possession or in action. The law knows no tertium quid between the two. Choses in possession are corporeal things, tangible, movable and visible. Obviously then, the Crown's rights are not choses in possession. Under this method of definition by subtraction, we are left with the proposition that choses in action are all rights and incorporeal things, not being chattels real or choses in possession, which make up personalty. Thus the Crown's salvation must lie here, if anywhere.

33. Crossley Vaines (7) then goes on to instance various types of choses in action. He refers to debts, annuities, covenants and generally all causes of suit for any debt, or duty, trespass or wrong. Those are what might be called the traditional choses in action. In addition he lists more modern instances of choses in action. These are shares, copyrights, patents, trade marks and the like. He continues by explaining how there is some academic dispute as to whether those more modern forms of incorporeal property should, strictly speaking, be treated as choses in action, but he does so, and states (at p.12) "..... it is quite safe to accept the modern practice of using the phrase 'choses in action' as including all incorporeal chattel interests which are not real" Do the Crown's rights in the present case bear the slightest resemblance to any of the types of property interests he lists as belonging to this drag-net category of "choses in action"? They definitely do not. Thus, Crossley Vaines (7) covers the whole spectrum of "property", but the Crown's rights in the present case do not fit in anywhere.

34. At this point, it will be appropriate to comment on some interesting light which Crossley Vaines' (7) exposition of civil concepts of "property" throws on the definition of "property" in S.5(1) of the Theft Ordinance (8). The Crown's main hope rested on the words "and other intangible property" in that definition. By having those words in addition to "things in action", the Crown suggested there was a residual class of property in addition to that encompassed by "things in action", and it claimed its rights in the present case fell within that residual class. However, the probable explanation for including references to both "things in action" and "other intangible property" in the definition is so as to take account of the division in academic opinion about whether some of the more modern form of incorporeal property such as patents are strictly speaking "choses in action". By referring to both "things in action" and "other intangible property" the legislature has left no doubt that it intends those more modern forms of incorporeal property to be included.

35. To get an idea of the type of "property" intended to be covered by S.5(1), resort can be made to the Criminal Law Revision Committee's 8th Report (9) on which the English and consequently Hong Kong's present theft legislation was based. At page 126, it deals with the definition of "property" and states, "Subsection (1) (of section 5) makes 'property' cover all kinds of property, including land and intangible property such as stocks and shares". Also during the debates when the legislation was in Bill form Lord Wilberforce took "property", to include "things like business secrets". (See Griew (2) op cit p.31) All of this is very far removed from the interpretation the Crown now asks the Court to put on "property".

36. Further indications of the meaning of "property" in this theft legislation are to be garthered from Professor Griew's treatment of the topic of "Theft of things in action and other intangible property" (2) (Op cit, p.30). Examples he gives of the type of property envisaged by these words are shares, trade marks, copyright or trade secrets. Professor Smith (3) in his work at page 40, while dealing with this same topic, gives examples very similar to Professor Griew's (2).

37. From a purely semantic point of view, the word "property" can, of course, be defined in any way one chooses. For example, in the seventeenth and eighteenth centuries such political philosophers and lawyers as Hobbes, Locke and Blackstone defined "property" in a way which included all a person's legal rights, of whatever description. To quote Hobbes, from Leviathan, Chapter 30, "Of things held in propriety, those that are dearest to a man are his own life and limbs; and in the next degree, in most men, those that concern conjugal affection and after them riches and means of living." However, that type of extended meaning of "property" is now obsolete (See Salmond on Jurisprudence (10)), and it hardly likely that the Theft Act, when passed in 1968, intended to incorporate an obsolete meaning of "property".

38. It has to be remembered, too, that the Theft Act was making a new departure by making it possible for the first time to steal intangible property. Prior to that (and the same applied in Hong Kong prior to the Theft Ordinance in 1970) intangible property could not be the subject matter of theft (see Professor J.C. Smith (3) op cit, paragraph 83). Is it conceivable then that Hong Kong's legislature in passing such legislation could have intended to incorporate some obsolete, rather than the modern, commonly accepted meaning of "property"? Moreover, as already mentioned, any meaning ascribed to "property" in this legislation must be one which also fits in with the requirement that this property is of the type which can be "obtained" and of which someone can be "permanently deprived".

39. Salmond (10) goes on to explain that probably the most frequent application of the term property at the present day is to proprietary as opposed to personal rights, and this sense of proprietary rights is how the court considers the term "property" is used in the Theft Ordinance. This contrast between proprietary and personal rights reflects the well known analysis of the substantive civil law into three great divisions, namely the law of property, the law of obligations and the law of status. Of the law of status there will be occasion to say more in due course, for that is where the Crown's right to confer permission on Wong to enter U.K. belongs; it has nothing to do with property. All that Wong would obtain from the exercise of the Department of Immigration's authority in his favour would be the status of someone who could enter U.K.

40. To return to Salmond (10), at page 413 he shows in diagrammatic form the various types of property. Under incorporeal property he lists such immaterial things as "patents copyrights and trade marks etc". Perhaps the Crown would want to say that its interests come under that "etc", for there is certainly nowhere else for them to fit in. However, that "etc" avails the Crown nothing, for, when at page 421 Salmond (10) elaborates the meaning of "immaterial things", it is clear that the Crown's interests in the present case do not fit anywhere. He explains that the subject-matter of a right of property is either a material or an immaterial thing. A material thing is a physical object; an immaterial thing is anything else which may be the subject matter of a right. In the great majority of cases a right of property is a right to the uses of a material object. The only immaterial things which are recognized by law as the subject-matter of rights of this description are the various immaterial products of human skill and labour. According to Salmond these immaterial forms of property are of five kinds: 1. patents; 2. literary copyright; 3. artistic copyright; 4. musical and dramatic copyright; 5. commercial good-will; trade marks and trade names.

41. Thus it will be seen that Salmond's (10) understanding of what is embraced by the concept of "immaterial things" is practically the same as what Professors Griew (2) and Smith (3) in the relevant passages already referred to in their works, understand by "other intangible property", as defined in the Theft Ordinance. The only difference is that Griew (2) and Smith (3) also add trade secrets to their lists, but they, of course, also come within Salmond's (10) concept of the various immaterial products of human skill and labour. There is no getting away from the fact that the ideas which these highly distinguished academics have of what is meant by "other intangible property" and the allied concept of "immaterial things" is very different from what the Crown urges me to accept as the meaning of "property".

42. As I opined earlier in this Judgment, the Crown's case has gone off at a tangent because it has made the fundamental error of failing to distinguish between the different meanings of "right" in law. More specifically, it has got confused about proprietary and personal rights. Once again Salmond (10) can be prayed in aid to explain this difference (op cit, p.238, and 239). His explanation can be summarised as follows. The aggregate of a man's proprietary rights constitutes his estate, his assets or his property, whereas, by contrast, the sum total of a man's personal rights constitutes his status or personal condition. The distinction lies in the fact that proprietary rights are valuable and personal rights are not. The former are those which are worth money; the latter are those that are worth none. Rights of the type known as jus in rem (corresponding to rights arising under that division of law known as the law of property) and those of the type known as jus in personam (corresponding to the law of obligations) are both proprietary and make up the estate of the possessor if they are of economic value. On the other hand, rights pertaining to a man's status (i.e. the third major division of the civil law, as already explained) are personal, not proprietary. They concern a man's welfare, not his wealth; they are juridical merely, not also economic. Instances which Salmond (10) gives of such rights concerning status are those concerning personal liberty, reputation and freedom from bodily harm. Those are instances from the sphere of private law. Under public law, the instances he gives include citizenship. A further illustration he gives of status is that of being an alien. I have no doubt that the right of ingress to another country would fall into this category of personal status too.

43. It should not go unnoticed that Salmond (10) characterises proprietary rights as having monetary or economic worth which echoes what Professor Griew (2) op cit, page 77 has already been quoted as saying about s.17 and the other offences connected with fraud in the Theft Act: "The characteristic element of the offences contained in these sections is the purpose of the offender to obtain a material or financial advantage by some deceptive practice". Where do the Crown's rights in the present case fit into this?

44. The Crown's right to decide which persons not holding U.K. pass-ports shall be permitted to enter the U.K. stems either from the royal prerogative or from statutory powers See Chitty's Prerogatives of the Crown (11), p.49; Maitland's Constitutional History of England (12), p.418; S.A. de Smith's Constitutional and Administrative Law (13)). Whichever of those two it is, it is a power. To understand what is meant by a "power" Salmond (10) (op. cit. 228-231) is at hand again to render the necessary assistance. He defines "power" as an ability conferred by law to alter the rights, duties liabilities, or other legal relations of either the holder of that power or of other persons. Powers are either public or private, the former being those which are vested in a person as an agent or instrument of the functions of the state, and they comprise the various forms of legislative, judicial and executive authority. Lam's position was that, by the Crown's delegation, he was vested with executive authority as to whether applicants for permission to enter U.K. should be granted it.

45. Reprehensible though it would have been to attempt to deceive him into exercising that power in Wong's favour, such conduct would fall completely outside the scope of the Theft Ordinance.

46. About the only elements of a section 17(1) offence that the the Crown might have hoped to prove on the alleged facts submitted to me were "dishonesty" and "deception", because if Wong and the Defendant did in fact enter into an arrangement together, as alleged, that might arguably have amounted to "dishonesty" and "deception". Their alleged joint acts of dishonesty and deception committed in furtherance of a common purpose of causing the Immigration Department to grant Wong permission to enter the U.K. would have nothing to do with the Theft Ordinance, though. Instead, such conduct would attract the operation of the law of conspiracy. There is a well-established offence of conspiring to deceive public officials. R. v. Brailsford (1) is an example. Another example is afforded by Board of Trade v. Owen (14). At one time, such conduct was charged under the broad head of conspiracy to commit a public mischief. Despite the abolition of the broad offence of conspiracy to commit a public mischief, the narrower offence of conspiracy to deceive public officials has survived: See D.P.P. v. Withers (15).

47. The Crown has missed its chance this time, but should know better should similar cases arise in future.

48. As this ruling goes against the Crown, it now only remains for me to dismiss the charge.

Representation:

(1) 1905 2 K.B. 730 at 736 and 743.

(2) The Theft Act 1968, 2nd Edition, by Edward Griew.

(3) The Law Of Theft, 2nd Edition, by J.C. Smith

(4) Jowitt's Dictionary of English Law, 2nd Edition.

(5) Strouds' Judicial Dictionary, 4th Edition.

(6) Dias' Jurisprudence, 3rd Edition, p.248 & 249.

(7) Crossley Vaines' Personal Property 5th Edition

(8) The Theft Ordinance Cap.210.

(9) Cr. Law Revision Committee's 8th Report

(3) The Law of Theft 2nd Edition

(10) Salmond on Jurisprudence 12th Edition at p.411

(10) Salmond on Jurisprudence 12th Edition

(11) Chitty's Prerogatives of the Crown, 1st Edition

(12) Maitland's Constitutional History of England, 1st Edition, p.418

(13) S.A. de Smith's Constitutional and Administrative Law 2nd Edition

(14) 1957 1 A.E.R. 411 at 414A

(15) 1974 3 A.E.R. 984 at 1009b

(16) 1905 2K.B. 730