HKSAR v. Ma Pui Ying

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.425
(Criminal)

HEADNOTE

Burglary - Section 11(1)(b) of the Theft Ordinance Cap.210 - intention permanently to deprive - property taken to be used to frame innocent victim - likelihood that property may be returned to owner.

Section 7(1) of Theft Ordinance considered.

Dishonesty and trespass - where defendant given keys to enter flat by one of several occupiers - defendant told to take property of other occupiers without their permission.

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.425
(Criminal)

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Coram: Power, V.-P., Mayo, and Stuart-Moore, JJ.A.

Date of Hearing: 3 December 1997

Date of Judgment: 18 December 1997

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. The Applicant was convicted on 13th June 1997, following a trial in the District Court before Deputy Judge Patrick Lim, of burglary contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap.210. She now seeks leave to appeal against her conviction.

2. The alleged offence took place at a flat in Chai Wan on 11th August 1996. The facts were extremely unusual and, reducing a complicated story to one of relative simplicity, the picture which the judge accepted as having emerged from the trial on material aspects was this. The Applicant had been instructed by a female acquaintance (PW8) to enter the premises mentioned in the charge with a set of keys supplied to her by PW8. The normal occupiers of the address were PW8 herself, PW8's mother (PW6) and brother (PW4), and his wife (PW5). The Applicant was told to enter on a particular Sunday when all the family would be away, and to remove property from the bedroom occupied by PW4 and PW5. The property was then to be handed by the Applicant to PW8 who would use the items which had been taken to "frame" her former boyfriend (PW7) by having them put into his address at Park Oasis where they would be discovered. In the event, the Applicant was caught in the act of taking the property after police had been called by an alert neighbour who had noticed something which had caused her suspicions to be aroused. The Applicant immediately confessed to what she had been put up to doing, and said on her arrest, and I quote from the Reasons for Verdict:

"It was Law Kam-yuk (PW8) who asked me to go to her residence to get something and to get as many as possible. After that I will give all the stuff back to her. I had come here to get something a few months ago (in April) and afterwards, the stuff was returned to her. Law Kam-yuk had broken up with her boyfriend (PW7) and intended to frame up her boyfriend by saying that it was done by him."

3. This version of events ran strongly counter to the way in which the prosecution had put their allegation. For this reason, no doubt, a charge of conspiracy to pervert the course of public justice, which might otherwise have been expected on the basis that an innocent victim would be falsely accused of responsibility for this burglary, did not feature on the charge sheet.

4. The trial judge concisely set out at page 20 of his Reasons for Verdict the situation with which he was confronted at the end of the evidence, putting the versions of both sides into context:

"Having found that PW8 had given the keys of the Chai Wan flat and asked the Defendant to go there to get things belonging to PWs 4 and 5, the question is, where does that leave the Crown? Am I to acquit her because she was so instructed by PW8 who has been disbelieved by me?

Mr. Cosgrove (for the Prosecution) submits that the Defendant had stolen the keys or duplicated them to get into the Chai Wan flat on the 11th August 1996 and her motive was one of jealousy since PW8 had at one stage been romantically linked to her then fiancee, Ho Chi-lok. On the other hand if I were to find that PW8 may have given the keys to the Defendant then I must acquit her.

Mr. Cunningham for the Defence stresses that it is a question of subjective intention and since the Defendant did return the things to PW8 after the staged burglary of the Chai Wan flat in April 1996, the Crown is therefore unable to prove that she had the intention to permanently deprive the owners of their property on the 11th August 1996."

5. The same point, regarding the intention permanently to deprive, is raised by Mr. Macrae in his first ground of appeal. Although it is not his only ground, it is apparent to us that it is the one which is of paramount significance.

6. Section 11(1)(b) of the Theft Ordinance, Cap.210 reads:

"(1) A person commits burglary if -

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(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 ...."

7. Theft, or stealing, occurs by virtue of section 2(1) where a person:

"dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it ......"

8. Mr. Macrae argues that, in the particular circumstances of this bizarre case, it is obvious that the property, having first been planted and then found in PW7's flat, would be likely to be restored to its lawful owners. We accept his submission that the trial judge may well have fallen into error (at page 22 of the Reasons for Verdict) where he said:

"The probable consequence of what, according to the Defendant, was intended by PW8 was that there was to be a staged burglary and PW7 would be framed, and in order for that to be done the properties of PWs 4 to 6 cannot be restored to them even though the Defendant would return the properties to PW8."

9. We have found it very hard to understand what the trial judge meant, as the statement appears to be contradictory. If the goods were planted on PW7, who was then framed for the burglary, we would have thought the likely or probable consequence to have been that the property would eventually be returned to its respective owners.

10. The judge was at that stage of his Reasons for Verdict embarking upon an exercise in which he was trying to determine the Applicant's intention by reference to what the "foreseeable consequences" of her acts might be, and what might ultimately happen to the property. We do not consider that this was the correct approach. Quite simply there were too many imponderables for that. What had to be determined was whether, at the time these goods were admittedly appropriated by the Applicant, she had the intention permanently to deprive the owners of them.

11. Section 7(1) of the Theft Ordinance provides assistance in determining this question. It reads:

"(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; ....."

12. This provision was never considered by the judge or by counsel during the course of the trial. In this respect the trial judge fell into error.

13. On any view of this case, we consider that the Applicant's intention was to treat the items she had taken as her own, to dispose of regardless of the owners' rights. It was her case, not only put in cross-examination but given also in evidence, that she would hand the goods to PW8 for the disgraceful purposes PW8 had in mind for them. It is obvious that, while the Applicant may not have meant the owners to lose the items permanently, she was prepared to put the safe custody of the items she had taken in jeopardy by placing them in hands beyond her control. She had no interest in what happened to them thereafter. There were obviously all kinds of inherent risks, involved in passing over the goods to PW8. We do not intend to speculate about such risks other than to say that the disposal of such goods if suspicions were aroused is the most obvious of them.

14. Accordingly, we cannot accept Mr. Macrae's submission that this section was not intended to cover the situation revealed by the facts of this case, and this ground must fail.

15. Mr. Macrae has further sought to argue that the actions of the Applicant were not dishonest, particularly as the judge never considered the evidence in the light of section 7 of the Theft Ordinance. However this submission is untenable. The goods in this case had been removed without the permission of the owners, they were being put at risk of loss altogether, and they were being taken so that PW8 could use them to frame an innocent member of the public. These actions were plainly dishonest and the trial judge was correct in expressing the matter (at page 23 of his Reasons for Verdict) in the following way:

"There are two aspects to the question of dishonesty, the objective and the subjective aspect. The objective test is that of the standard of reasonable and honest people whether what was done was dishonest. In my view, what was done by the Defendant was dishonest by the standard of reasonable and honest people. In answering the question of the subjective test, I must be sure that the Defendant herself knew that she was acting in a way which she knew ordinary people would consider to be dishonest. The Defendant in evidence said that she asked PW8 if it was alright for her to go to the Chai Wan flat to take things since it was other people's place, and it was other people's things. Whether her motive was to help PW8 to frame up PW7 or to help PW8 to get PW7's attention or she did it out of spite for PW8 matters not. In my view the Defendant knew what she did was dishonest by ordinary people's standard of dishonesty."

16. Finally, Mr. Macrae has submitted that the element of trespass in the charge of burglary has not been proved because the Applicant had been permitted to enter by one of the occupants of the relevant premises. She had been given the keys to go in, and she had been given "permission" by PW8 to take the property.

17. Again, we have concluded that this is an argument without any foundation. The licence to enter the premises could not lawfully extend to the unauthorized taking of property belonging to other occupants of the flat. On the evidence, as the trial judge found, there was a clear inference that the Applicant was aware of this, yet this was what the Applicant expressly intended to do. We are satisfied, therefore, that the learned Deputy Judge did not err in concluding that the Applicant was a trespasser in the flat.

18. In our judgment, the case presented by the Prosecution against the Applicant was overwhelming. No actual miscarriage of justice has occurred as a result of the error made by the trial judge when he failed to consider section 7(1) of the Theft Ordinance, and looked instead at what the foreseeable consequences of the Applicant's actions would have been.

19. We will allow the application for leave to appeal, but treating the hearing as the appeal, and applying the proviso to section 83(1) of the Criminal Procedure Ordinance, dismiss the appeal.

Representation:

Mr. A.E. Schapel for D.P.P./Respondent

Mr. Andrew Macrae (Messrs. Sin Wong & Mui) for the Applicant.