Attorney General v. Leung Kam Wah

CACC000272/1968

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 272 OF 1968

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Coram: Huggins J.

Date of Judgment: 2 August 1968

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JUDGMENT

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Huggins,J: This appeal by way of case stated raises yet another difficult question on the law of larceny and it is a matter for regret that the respondent has not been represented before me by counsel. The facts can be shortly recited. The respondent is a taxi driver. He conveyed two passengers in accordance with their directions and at the end of the journey the meter indicated a fare of $1.90. The passengers were visitors to the Colony and they mis-read the meter. Apparently thinking (albeit with some understandable doubt) that the fare was $190.00 one of them handed the respondent two $100 bank notes. The respondent clearly guessed what was in the minds of the passengers for he handed back $10.00 change, thus dishonestly misappropriating $188.10. He was charged with the larceny of that sum. I will return later to the course of the proceedings which has led to the hearing in this court.

2. No question is expressly put for the decision of the court but the substance of the matter, as I have understood it, is whether the fact which I have outlined constitute the offence of larceny. Counsel appearing on behalf of the Attorney General submits that the case is clear and is covered by the decision of the majority of the court in Reg. v. Middleton⁽¹⁾. It was for this reason that when the case was first called he urged me not to follow my original inclination to refer the matter to the Full Court. In Middleton⁽¹⁾ a depositor with the Post Office Savings Bank gave notice to withdraw 10 shillings. He presented his savings bank book together with a letter of advice authorising withdrawal of 10 shillings. The clerk referred by mistake to the wrong letter of advice and as a result paid to the depositor the sum of £8 16s. 10d. after entering that sum in the depositor's book. When later questioned the depositor said he had burned his book. The jury found that the depositor had animus furandi at the time he took the money from the counter of the post-office. On appeal it was held by the majority that he had been rightly convicted of larceny, although only seven of the fifteen judges were entirely agreed in their reasons.

3. The charge against the present appellant was laid under the statute and not under the Common Law. Section 2 of the Larceny Ordinance is for all practical purposes identical to section 1 of the Larceny Act, 1916 of England and as all the cases to which I shall have to refer are English cases it will be convenient hereafter to refer to the English section. Sub-section (1) reads:-

This definition suggests that stealing involves six elements:

On the face of it the "taking" was clearly intended to refer to a physical act and the question whether such act has been done should be considered entirely independently of any question of knowledge or intent. One can take and carry away another's goods without knowing that one is doing so, such absence of knowledge being due either to absence of knowledge of the very existence of the thing (as where one takes one's own suitcase in ignorance that someone else's property is inside) or to a mistake as to the identity of the thing taken (as where one takes another's suitcase believing it to be one's own). Whether the taker obtains possession of, or the legal property in, the thing taken would seem to depend on factors which have nothing to do with the question whether there has been a taking. At Common Law the matter appears to have been regarded somewhat differently. There the indictment ran"vi et armis felonice furatus fuit, cepit et asportavit": 1 Hale's Pleas of the Crown 504 and see also Coke's Pleas of the Crown 107. The element of invito domino was commonly spoken of as though it were comprehended in the captio itself rather than in a captio felonice and unfortunately this confusion has been continued under the statute. Thus one finds the phrase "taking ... within the section" (1956 1 Q.B.445) where the context clearly shows that a taking without the consent of the owner is indicated. Section 1, which was the first statutory definition of stealing, gives legislative authority to the same confusion. Subsection (2)(i) reads:

"The expression 'takes' includes obtaining the possession -

As is pointed out in Russell on Crime (12 ed.) 975 and in Kenny's Outlines of Criminal Law (18th ed.) 275 (251) this definition of "takes" does not purport to remove from the crime of stealing the sixth of the elements to which I have referred, namely that the taking should be without the consent of the owner, and it was presumably this aspect of the case which was in the mind of the learned magistrate when he gave as his reason for holding that the facts stated by the prosecuting inspector disclosed no offence that "the property passed in the two $100 bills when they were handed to the defendant": if the property passed it necessarily followed in the circumstances of the case that the owner must have consented.

4. In Middleton⁽¹⁾ the two matters upon which the seven judges were agreed were first that Middleton "took" the money within the meaning of the Common Law definition of larceny and second that the mistake on the part of the clerk prevented the passing of the property in the money despite his intention to pass it. As to the first point they said at 2 C.C.R.43:

When the judges spoke of "a sufficient taking" they must, I think, have meant a taking invito domino. Russell (12th ed.) at p.972 observes, however, that neither of the cases cited nor yet R. v. Pear⁽²⁾provided any authority for the statement in the second paragraph, the reason being that the prisoner had the intent to steal not "from the beginning" but only after the clerk had, as a result of his mistake, voluntarily put the money on the counter. In the other cases the intent had indeed been "from the beginning" because the prisoners had initiated the transactions by making fraudulent misrepresentations. Nevertheless the same author says at p.974:

"It has generally been supposed that the Larceny Act, 1916, removed all doubts which surround the case of Middleton⁽¹⁾ by the provision in s.1(2)(i)(c). The courts appear to have so interpreted the Act, and for practical purposes the matter may, perhaps, be regarded as settled."

Counsel submits that I should regard it as settled and cites a number of text-book writers who state the law without qualification. First and foremost he relies on 10 Halsbury (3rd ed.) 773 (1492) where it is said:

"If under a mistake on the part of the owner property is delivered to a person who, at the time when he receives it, is aware of the mistake and who fraudulently appropriates the property, the person so appropriating the property is guilty of larceny although he did nothing to cause the mistake."

Stephen's Digest of the Criminal Law (9th ed.) 319 (article 368) is to the like effect and so is Smith and Hogan's Criminal Law at p.354, which says that the subsection was "the child of the leading case of Middleton⁽¹⁾ and adds:

"No doubt the decision was technically incorrect, but in view of the fact that the principle of the case is recognised in the Act there is little point in re-opening Middleton on the merits".

It goes on to state boldly:

"The Larceny Act 1916 provides, in s.1(2)(i)(c), that D steals where he takes, 'under a mistake on the part of the owner with knowlege on the part of the taker that possession has been so obtained'".

Whether or not that is what the Act means it is not what it says, for what the subsection says is that a person "takes", not that he "steals", in the circumstances indicated.

5. Cross and Jones in their Introduction to Criminal Law (5th ed.) 210, art. 54 make a similar broad statement of principle, but they go on to suggest that the subsection was never intended to apply to every kind of mistake on the part of the owner. I shall return to this suggestion in a moment.

6. Kenny at p.276 (para.252) agrees that "in practice ...... courts have included, under the head of mistake, transactions in which, although certainly enough the owner has been in some measure mistaken, he has yet undoubtedly consented to transfer ownership of the property to the prisoner. This is due to the assumption that the words of the Act intended to confirm the decision given by the Court for Crown Cases Reserved in the much discussed appeal of Middleton⁽¹⁾". The learned editor goes on to state the facts of that case and continues:

There is some difficulty in accepting this last submission in its entirety if the majority of the Divisional Court of Queen's Bench was right in Moynes v. Coopper⁽³⁾ when it said at p.444:

"(The Larceny Act, 1916) was not intended to alter the law and, as has often been said, it has not done so",

for then if Middleton's acts would not have been stealing under the statute they cannot have been larceny at Common Law and his conviction must have been wrong. In Moynes v. Coopper⁽³⁾ an employee obtained an advance of salary. On the day when payment of his salary became due he was handed a pay packet containing the full amount of his wages without deduction of the advance. He did not open the packet at the time of receipt and both he and the wages clerk were under the mistaken belief that it contained only what was due. When the employee discovered the mistake he dishonestly appropriated the excess to his own use. The majority of the court decided that there was no "taking" within the meaning of the Act (by which, as I have already said, they clearly meant "no taking invato domino") and they deliberately refrained from basing themselves on the fact that the employee did not know of the mistake when he took the money so that any taking would not have been animo furandi. Stable, J. (dissenting) approached the matter both with reference to the consent of the owner and with reference to the animus of the taker, but we need consider only the former. The learned judge thought Middleton⁽¹⁾ showed conclusively that there was "not a consent of the true owner" because the apparent consent was "given in error and under a misapprehension of the true facts". It is implicit that he saw no distinction between the two kinds of mistake which were made in these cases. Unfortunately the majority in Moynes v. Coopper⁽³⁾ did not deal with the point taken by the Quarter Sessions that the words "without the consent of the owner" dominated and governed the whole definition of stealing and that the special meaning given to the word "takes" by the statute did not dispense with the necessity of giving further effect to the words "without the consent of the owner." The majority thought that there was no "taking" because the transfer of the property was obtained by mistake on the part of the owner so that the action to recover it would be an action for money had and received to the use of the employer as paid under a mistake of fact. That the employer consented to the taking did not, as it seems to me, alter the fact that the taking was a taking under the statute, although it would have meant that there was no "taking" as understood at Common Law. Nor did it matter in considering the first element that the employee did not know he was taking money to which he was not entitled. Indeed the confusion of the elements of the offence appears to be recognised in the judgment when it is said that s.1(2)(i)(c) was "affirming the Common Law that the taker must have animus furandi at the time when he takes the property". If that be the true construction of the provision then the Quarter Sessions were right when they said that the words "without consent of the owner" dominated the whole section. On the other hand it is hard to see how, where a taking is by a trick or by intimidation so as to be caught by s.1(2)(i)(a) or (b), it could still be "with the consent of the owner" and if a trick or intimidation vitiates the apparent consent does not the kind of mistake referred to in the subsection similarly vitiate any apparent consent? Is one therefore to read the section as though the definition of "takes" were a definition of "takes without the consent of the owner"? One must endeavour to give all the words of the statute some meaning.

7. At page 276 (251) Kenny gives as an example of the kind of situation which is covered by the statute:

"where a shopkeeper, intending to pass over a specific package to the prisoner, has put it in a certain place in the shop, and, unknown to him but to the knowledge of the prisoner, one of his assistants has innocently moved it elsewhere and set down in its place another package of greater value. The prisoner then asks the shopkeeper (whose attention is directed elsewhere) where his package is, and if he may take it; whereupon the shopkeeper tells the prisoner to go to the original spot and take the package which he will find there".

Cross and Jones agree at p.211 with Kenny and other writers that the subsection would not cover a mistake concerning the value of that which is transferred; this is the example already referred to of the skilled collector of antiques who buys from on ignorant owner. They further suggest that the subsection does not apply when the mistake concerns the amount due to the transferee, which is the very case before me, where the mistake may perhaps be regarded as a mistake of law as much as a mistake of fact.

8. Counsel for the appellant referred briefly to Reg. v. Ashwell⁽⁴⁾ where the prosecutor was asked for a loan of one shilling and handed over a sovereign by mistake. The prisoner took it, believing it to be a shilling, but on discovering the mistake misappropriated it. The fourteen judges were equally divided on the question whether this was larceny at Common Law. But as pointed out in Reg. v. Flowers⁽⁵⁾ all the judges were agreed that innocent receipt of a chattel coupled with its subsequent fraudulent appropriation does not amount to larceny: the difference of opinion was founded on the application of that principle to the facts of the case, i.e. whether Ashwell received the sovereign innocently. In other words the issue was whether he "took" the sovereign when it was in fact handed to him or whether he "took" it when he discovered what it was and misappropriated it. Those who were in favour of conviction took the view that a man cannot take possession of a chattel without knowing of its existence (by which they meant its existence not merely as a chattel within a genus but also as a chattel of a particular kind within the genus), while the others held that it was wrong to distinguish between the taking of the coin (which Ashwell clearly intended to take at the outset and which he received innocently) and the taking of a particular kind of coin, to wit a sovereign, (the existence of which he discovered later). The issue is very neatly shown by Lord Coleridge, C.J. when he says at p.225:

"I can see no sensible or intelligible distinction between the delivery of a bureau not known to contain a sum of money or a purse and the delivery of a piece of metal not known to contain in it 20s.".

This difficulty does not arise in the present case: there is no doubt that the appellant knew what he was taking at the time that he took the notes and that at that time he had animus furandi, but equally there is no doubt that the passengers did know that the two notes "contained" $200. The only real importance of the case for our purposes is that several of the judges considered Middleton⁽¹⁾ and that Stephen, J. said of that case that "the judges who decided it seem to have agreed in thinking that it marked the extreme point to which the law could be carried".

9. The judges in Middleton⁽¹⁾ said at p.44:

"In the present case, the property still remains that of the Postmaster General and never did vest in the prisoner at all. There was no contract to render it his which required to be rescinded; there was no gift of it to him, for there was no intention to give it to him or to any one. It was simply a handing it over by a pure mistake, and no property passed".

They then expressed the view that where under a contract the right quantity of the wrong type of goods is delivered by mistake (e.g. coffee for an equal quantity of beans) the purchaser does not acquire the property. It is perhaps to be assumed that they would have held the same view in a case where the right type of goods was delivered but by mistake a larger quantity was delivered than had been ordered, although the vendor would there retain the property only in the excess. Nevertheless as to the case before them Russell contends "that Bramwell, B. was right in maintaining that in plain fact the post office clerk did consent to give the money to Middleton" and that is the view we have already seen in Kenny. Russell had previously remarked upon the ambiguity of the word "give" and in the passage just cited I think he must himself have used the word in the sense of handing over physical control. The clerk certainly did not intend a donation inter vivos: his mistake as to which was the relevant letter of advice led to his mistake in putting too large a sum on the counter and the question seems to me to be whether these mistakes negatived any apparent willingness on his part to transfer the property in the sum which he put on the counter. I use the word "negatived" with some hesitation because when used in the phrase "negatived consent" I think it is ambiguous and that this fact has not always been recognised. It can mean that an existing consent is neutralized or vitiated or it can mean that an apparent consent is proved to be illusory and that there is in reality no consent at all, i.e. no coming together of two minds in the first instance. Again, one has to ask to what extent it is necessary that the two minds should come together to pass property and the answer is that there must be consensus both as to the passing of the property (the intent to part with the property and the intent to receive it) and as to the identity of the persons to and from whom it is to pass. In Reg. v. Prince⁽⁶⁾ the question was whether the prosecutor's wife had been guilty of larceny when she took from a bank clerk a sum of money which he paid upon a forged cheque and it was unanimously held that as the clerk had a general authority to part with both the property in and possession of his master's money on receiving what he believed to be a genuine order, as he intended to pass the property and as he intended to pass it to the person standing before him, the property passed: therefore the offence committed was obtaining by false pretences and not larceny. In Middleton⁽¹⁾ the majority appear to have thought that the clerk did not intend to pass the property although he had given every manifestation of such an intent; in other words that the apparent consent was illusory Martin, B. expressly said he found it impossible to distinguish Prince⁽⁶⁾. The reason presumably was that he thought in neither case was the apparent consent illusory. Even in Prince⁽⁶⁾ the fraud was merely the factor which led to the clerk's considering whether he would part with the property: once he had decided to pass it the fraud was spent and he intended to pass the property to the person standing before him, i.e. the fraud affected the decision to pass the property and not the intention to pass it. I therefore share Martin, B.'s difficulty in distinguishing Prince⁽⁶⁾ and Middleton⁽¹⁾, because in the latter case the intention to pass the property was no more negatived by the mistake which led to the decision to pass it than was the intention to pass the property in the former case negatived by the fraud which led to the decision to pass it. In both cases, it seems to me, there was an existing cons ent to the passing of the property: in Middleton⁽¹⁾ there was no fraud at all which could neutralise that consent and in Prince⁽⁶⁾ the fraud which was perpetrated did not neutralise that consent. On the other hand, in the well-known case of Cundy v. Lindsay⁽⁷⁾ it was not that a cons ent to pass the property was neutralized but that the intent to pass it to the perpetrator of the fraud was illusory.

10. What counsel particularly relies upon in the present case is an example which was given by the seven judges in Middleton⁽¹⁾ at p.45, where they said:

"We admit that the case is undistinguishable from the one supposed in the argument, of a person handing to a cabman a sovereign by mistake for a shilling; but after carefully weighing the opinions to the contrary, we are decidedly of opinion that the property in the sovereign would not vest in the cabman, and that the question whether the cabman was guilty of larceny or not, would depend upon this, whether he, at the time he took the sovereign, was aware of the mistake, and had then the guilty intent, the animus furandi".

This was a forecast of what was to happen in Ashwell⁽⁴⁾ and counsel submits that that is on all fours with what has happened here. So it is if, but only if, one accepts his further submission that, if there is a mistake (and it matters not what the mistake is if in common sense it would have prevented the owner from handing over his property had he known the true facts), that makes the apparent cons ent illusory. The basis of this argument, as he concedes, is a moral one and I think one must be careful before allowing one's moral indignation to dim the cold light of legal principle, especially where the result would be to establish a criminal offence.

11. Since so many of the cases have been concerned with charges of larceny where the original taking was innocent, it may be desirable to add that there can be more than one taking and carrying away. If the original taking and carrying away is innocent, though without the consent of the owner, nevertheless a subsequent taking and carrying away animo furandi is larceny: Reg. v. Riley.⁽⁸⁾ Whereas the animus furandi element may arise after the original taking, a consent once given by the owner and acted upon by the taker cannot be withdrawn retrospectively, so that if the original taking effects a transfer of the property the transferee becomes the owner for the purposes of the section and a subsequent taking without the consent of the former owner is not felonious.

12. If the correct approach is that the section is to be construed in the manner suggested by the Quarter Sessions in Moynes v. Coopper⁽³⁾ and by some of the textbook writers, with the words "without the consent of the owner" dominating and governing the whole section, then I have to give to these words some meaning beyond the lack of consent due to a mistake which is implicitly covered by sub.s.(2). I have come to the conclusion that that is not what was intended and that the only reasonable way to read sub.ss. (1) and (2) is by reading the definition of "takes" in the manner I have already mentioned, i.e. as "takes without the consent of the owner".

13. That makes the task of the prosecution easier but I still have to decide whether every mistake on the part of the owner comes within paragraph (c). I agree with the view that there must be some limitation on the sort of mistake which is intended, for the contrary view would lead to the extension of the criminal law far beyond the boundaries within which it has generally been understood to be confined. I therefore adopt the statement of the majority in Moynes v. Coopper⁽³⁾ that it is the effect of Middleton⁽¹⁾ which is reproduced and re-enacted in the statute. That decision (whether it was right or wrong as the law then stood) was concerned with a mistake which has been variously described as a mistake as to the identity of the coins, a mistake as to the person with whom the clerk was dealing, and a mistake as to the sum to which the person with whom the clerk was dealing was entitled. The case submitted by the Quarter Sessions stated the mistake to be that the clerk, instead of referring to the proper letter of advice for 10 shillings, referred to another letter of advice, but the judges themselves referred to it as "a mistake as to the transferee's identity" (a conclusion which is hardly consistent with Phillips v. Brooks⁽⁹⁾). There was an express finding by the jury that Middleton knew the money to be the money of the Postmaster General when he took it up, and inferentially that the money was the property of the Postmaster General at that time. As we have seen, the judges accepted it as a finding justified by the evidence. Whether or not that was a right conclusion, in the present case it seems to me that there is no valid reason for saying that the property in the currency notes did not vest upon delivery with full intent to vest the property therein.

14. The result seems to be that not every kind of mistake will be covered by the subsection. In Russell v. Smith⁽¹⁰⁾ if the transferors had been asked how many sacks of pig meal they had entrusted to the respondent they would have given an answer which was eight short of the number actually on the lorry. They never intended to deliver those eight sacks to the respondent. They did not know they had miscounted when they did deliver them and they certainly never intended that the property in those sacks should vest in him. Consequently the property did not pass. In R. v. Hudson⁽¹¹⁾ there was a mistake as to the identity of the person to whom the cheque was delivered and therefore the apparent intention to vest the property in the appellant was illusory. But in Moynes v. Coopper⁽³⁾ the wages clerk intended to vest the property in the money in the appellant and the mistake as to the sum to which he was entitled did not prevent delivery from fulfilling the clerk's intent. In Reg. v. Prince⁽⁶⁾ the clerk had general authority to part with the property in the bank's money and when he delivered the money to the appellant he intended to vest the property in it in the appellant, although be would not have done so if he had known the order was forged. His mistake in assuming the order to be genuine did not negative the intent to transfer the property. In Ashwell⁽⁴⁾ the mistake (if any) was as to the identity of the thing transferred. In Middleton⁽¹⁾ it is arguable, as we have seen, whether there was in truth a mistake as to the identity of the transferee and it is only on the basis that there was that the decision can be supported on this point. The exmple of the cabman which was there given involved a similarly questionable mistake as to the identity of the thing transferred. Both the case itself and the example are distinguishable from the present case. Here there was clearly no mistake as to the identity of the transferee: there was no mistake as to the identity of the thing transferred: there was simply a mistake as to the sum due. I do not condone the conduct of the respondent: it was grossly dishonest and thoroughly deserving of the punishment which the learned magistrate desired to inflict. However, our criminal law includes no crime of "dishonesty" and in my view the final conclusion of the magistrate was right: the facts did not disclose an offence of larceny.

15. The case had a chequered career before the magistrate. The respondent pleaded guilty but on hearing the facts the magistrate was doubtful whether he should accept the plea. At an adjourned hearing he was persuaded that an offence had been disclosed and he passed sentence. The next day, as a result of further information which came to his notice, he reviewed the sentence sui moto. Five days later he had further doubts whether an offence had been disclosed and he reviewed his decision to convict sui moto. Counsel has not questioned the jurisdiction of the magistrate to make this second review and, in my opinion, rightly so. While I incline to the view that there is no jurisdiction under s.104 of the Magistrates Ordinance for a magistrate to review "his decision in the matter" more than once by treating a decision upon a review as a decision which is itself subject to review, it is, I think, possible to construe the words "decision in the matter" as including two elements, conviction and sentence, each of which is subject to review. If, as here, the sentence is reviewed first, I appreciate that on a very strict construction it might be said that his decision as to sentence is final even though the conviction be subsequently set aside, but that would produce an absurdity which the court is not powerless to prevent. I am sure that magistrates will bear in mind the importance of making an end of litigation, if necessary taking time for consideration so that a multiplicity of hearings may be avoided. Nevertheless they have an overriding duty to ensure that justice is done and they should not hesitate to order a review where they believe the interests of justice require it.

16. On the review of the conviction the learned magistrate set aside the conviction and fine and entered a plea of not guilty, but as the witnesses had by then left the jurisdiction the prosecution could not proceed. As I understand it, the magistrate did not acquit the respondent but stood the matter over to enable the Attorney General to state a case for the opinion of the court. The appeal is, therefore, against the decision on the second review and against the order setting aside the conviction and fine. The appeal is dismissed and the case must go back to the learned magistrate with this expression of the view of the court that the facts set out in the Case do not disclose an offence of larceny. It was not suggested to him, nor has it been suggested to me, that there is any other offence disclosed by the facts of which it would be competent for the court to convict the appellant.

2nd August, 1968.

Representation:

Mr. F. Addison for the Appellant

(1) (1873) L.R. 2 C.C.R. 38

(2) (1779) 1 Leach 212

(3) (1956) 1 Q.B. 439

(4) (1885) 16 Q.B.D. 190

(5) (1885) 16 Q.B.D. 643

(6) (1868) L.R. 1 C.C.R. 150

(7) (1878) 3 A.C.459

(8) (1853) Dears C.C.149

(9) (1919) 2 K.B.243

(10) (1958) 1 Q.B.27

(11) (1943) K.B. 458