Lee Shek v. The Queen

CACC000487A/1976

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Coram: Briggs, C.J., Huggins and Pickering, JJ.A.

Date of Judgment: 3rd July 1976.

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JUDGMENT

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Huggins, J.A.:

This appeal comes before the Court on a reference by McMullin, J. and the question which arises is stated by him to be "whether Collins (1864) 9 Cox C.C. 597 is to be regarded as good law in this territory". The particulars of the charge of attempted theft laid against the Appellant were:

"LEE Shek, you are charged that on the 7th day of January 1976 at the public stands, Royal Hong Kong Jockey Club, in this Colony, you did attempt to steal from an unknown person."

The facts are succinctly stated by the learned magistrate:

It is conceded by counsel for the Crown that the charge was laid in respect of the third incident and it is common ground that there was no evidence whether this victim's pocket did or did not contain anything capable of being stolen. Although I do not think it is in fact material, it may be added that on this third occasion the Appellant appeared to notice just before he removed his hand that he was observed.

2. For over a century it has been hotly debated whether circumstances such as these amount to an attempted theft and a valuable review of the arguments is contained in an article by Robert Ribeiro in 1974 H.K.L.J. 109. Reg. v. Collins, referred to by McMullin, J., is more fully reported at (1864) Le. & Ca. 471 and it is a case which has been commonly advanced as authority for the proposition that there can be no attempted theft from an empty pocket. Whether or not the proposition itself is correct I think, with respect, that that case does not support it. What was there charged was an attempt to steal "the property of the said woman, in the said gown pocket then being". The woman was a person unknown and the Crown were unable to show whether or not there was any property in the pocket into which the prisoners each placed a hand. The court held that the judge was wrong not to have left to the jury the question whether there was anything in the pocket of the woman which might have been the subject of larceny if the prisoners had not been interrupted. It is important to note that counsel for the prisoners conceded that if the goods had not been specified as "in the said gown pocket then being" an indictment might perhaps have been framed which would have been supported by the evidence. Reg. v. M'Pherson (1857) Dears & B. 197 was a similar case. There the prisoner entered a house with intent to steal but found that the goods specified in the indictment were not there. The jury returned a verdict of not guilty of the offence charged but guilty of breaking and entering and attempting to steal specified goods. On appeal it was held that there could be no attempt to steal those goods but that principle does not necessarily apply where the property has not been specified, a fact which the judges may not have fully appreciated. Thus Bramwell, B. compared the case where a man hits a block of wood believing it to be his enemy. Such a man intended to hit his enemy and believed that he was doing so, but in fact he attempted to hit (and succeeded in hitting) a block of wood. That is an entirely different case. At best it is comparable to a case of attempted theft where the goods have been specified. Again Cockburn, L.J. said:

"The word attempt clearly conveys with it the idea, that if the attempt has succeeded the offence charged would have been committed, and therefore the prisoner might have been convicted if the things mentioned in the indictment or any of them had been there".

Certainly if "the attempt had succeeded" the offence would have been committed in the present case, because there would have been an asportation: something would then have been stolen. The argument begs the question. In a case of an attempt to pick a pocket the acts of the prisoner are the same whether or not there is anything in the pocket and it seems to me that the word "attempt" clearly conveys with it that it is the conduct and intention of the villain which are principally in question. What may differ is the proximity of something capable of being stolen and I shall return to this question of proximity later.

3. That a charge of attempted theft, as distinct from a charge of theft, need not specify any property was decided in Reg. v. Johnson (1864) 10 Cox C.C. 13. There, however, Chief Baron Pollock added:

"It would be necessary to prove that there were goods in the house which could be stolen",

and in that case such proof was made. This dictum was, therefore, not necessary to the decision and no reason was given.

4. The next case which falls to be considered is Reg. v. Brown, a case which has caused some confusion because there are no less than four different reports of it, some of them being in direct conflict as to what the court said. I think that this particular difficulty ought to be resolved by accepting the official report at (1889) 24 Q.B.D. 357 as authoritative. The case was not one of theft but of an alleged attempt to commit unnatural offences with domestic animals. The question arose whether in a previous case of a similar nature the conviction had been quashed because a fowl was not an animal within the meaning of the statute or because there could be no attempt to commit an offence which could not in fact be committed. The truth was that it had been decided on the latter ground, following Reg. v. Collins. The court now ruled that Reg. v. Collins was no longer good law. (The rest of the decision is not material for our purposes.) No reason was given for that view and it is not clear from the report that the judges appreciated how narrow was the ratio decidendi in Reg. v. Collins. The possibility that Reg. v. Collins might be resurrected has now been postulated by the House of Lords in Haughton v. Smith 1975 App. Cas. 476, to which I will come shortly. However, I must again emphasise that the ratio decidendi in Reg. v. Collins was not that in no case was it wrong to convict of attempted theft where the actions of the prisoner were based on a mistaken belief that there were goods in a particular place - and, even if it is good law, it is not inconsistent with the conclusion in cases such as Reg. v. Ring (1892) 17 Cox C.C. 491, although as we shall see that case was certainly decided on a misunderstanding of the reasoning in the earlier case.

5. That the official report of Reg. v. Brown was the correct one seems to be confirmed by Reg. v. Ring, where it was said that Reg. v. Brown had overruled Reg. v. Collins and where the decision clearly was that it was not necessary to prove that there was property capable of being stolen in the pocket, so that had the attempt to steal not been frustrated by other circumstances it would have been successful. As in the case at Bar the charge did not specify the property which it was alleged the prisoner was attempting to steal. That being so, Reg. v. Ring was not inconsistent with Reg. v. Collins and it is questionable whether the court was right to say that the latter case had been overruled by Reg. v. Brown. Reg. v. Ring was on all fours with the present case.

6. In Percy Dalton (London) Limited (1949) 33 Cr. App. R. 102 the accused thought they were charging for goods a price greater than that allowed by law. They were charged with attempting to sell at a price in excess of the permitted price. They intended to do so, but they did not attempt to do so: they attempted (and succeeded) in selling at a price which was eventually found not to be in excess of the permitted price.

7. Reg. v. Miller (1965) 49 Cr. App. R. 241 was described by Lord Widgery, C.J. in Reg. v. Smith as a somewhat unsatisfactory authority: 1975 App. Cas. 483. The headnote reads:

It was clearly right that the bales could not be stolen, because they could not be taken invito domino. Undoubtedly the defendant intended to take them invito domino, but that was impossible because they were handed over with the consent of the owner. This was, perhaps, the most difficult case of all: thus in a sense it is not unreasonable to suggest that the defendant not only intended to take the goods invito domino but also attempted to do so, although that was impossible. I see no reason why one should not attempt the impossible, but in so doing one is not criminally liable unless the acts which one is attempting to do constitute a crime when accompanied by a guilty mind. The view of at least some of their Lordships in Haughton v. Smith was that the asportation in Reg. v. Miller was not an act which could constitute an element in a criminal attempt, because in the circumstances then obtaining it could not be invito domino, whatever the intention of the defendant. In other words, if the defendant had completed the acts which he intended to do there would have been no crime. In the present case if the Appellant had completed the acts which he intended to do he would have been guilty of theft.

8. Passing then to the next of the relevant English cases, which is Davey v. Lee 1968 1 Q.B. 366, we find that the court had to consider whether what the appellants had done had moved from the category of "preparatory acts" into the category of "an attempt" and Lord Parker, C.J. said at p.370

"What amounts to an attempt has been described variously in the authorities, and for my part I prefer to adopt the definition given in Stephen's Digest of the Criminal Law, 5th ed. (1894), art. 50, where it says that:

'An attempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission if it were not interrupted.'

As a general statement that seems to me to be right, although it does not help to define the point of time at which the series of acts begins. That, as Stephen said, depends upon the facts of each case."

It was not necessary for him to go on to ask what would constitute an "interruption", but it is not without significance that Diplock, L.J. in his judgment remarked at p.371:

"There are branches of the criminal law in which it is permitted for justices and juries to use their common sense".

I have not even the beginning of a doubt that common sense would exclude the presence or absence of property in a pocket as being material to the question whether there had been an "interruption". Lord Parker went on to cite with approval a definition which draws a distinction between "immediate" steps towards the commission of a crime and steps "merely remotely connected" with the commission of it, but as we shall see later that is basically a matter of fact.

9. We come then to Haughton v. Smith, where the facts were closer to Reg. v. Collins than they were to Reg. v. Ring. The police intercepted a van which was carrying stolen goods. They then persuaded the driver to continue to his destination, where he was to hand the goods to others. He was accompanied by police officers. At the destination these others, who included the defendant, were waiting to take delivery of the goods and to arrange for the future disposal of them. The defendant was arrested. He could not properly be charged with handling stolen goods because they had ceased to be stolen goods when the police took lawful custody of them - or so it was assumed: s.24(3) of the Theft Act 1968. He was therefore charged with attempting to handle stolen goods. The goods were nevertheless specified in the charge, as was probably inevitable, the principle of Reg. v. Johnson having been so far confined to charges of attempted theft. In the words of Lord Hailsham it was decided

"That it is not possible to convert a completed act of handling, which is not itself criminal because it was not the handling of stolen goods, into a criminal act by the simple device of alleging that it was an attempt to handle stolen goods on the ground that at the time of handling the accused falsely believed them still to be stolen".

That, if I may say so with respect, seems to me sound reasoning despite the criticism of it at 1974 H.K.L.J. 126. The reason why the defendant was not guilty of an "attempt" was that on the correct interpretation of the Act the goods which he had to be shown to have attempted to handle had to be stolen goods - and these were not stolen goods at the material time. In the sameway an "attempt" to murder a particular man who is already dead cannot be indictable and, so far as I am aware, it has never been accepted that one can charge the attempted murder of an unspecified person. As murder is the killing of a person in being, it necessarily follows that where the person named in the charge is no longer a person in being there cannot be an attempt to murder him: it is true that there is an intent to murder but the attempt is an attempt to kill a dead man, which involves an act not "immediately connected with" the offence of murder, to use the words of Parke, B. in Reg. v. Eagleton (1854) Dears. C.C. 515, 538. If, therefore, it be permissible to charge the attempted murder of an unnamed person - and in a case, for example, where a person explodes a grenade in a crowded airport with intent to kill whoever happens to be there there seems to be no reason in principle why Reg. v. Johnson should not be extended to cover it - the difficulty would not arise. As Professor J.C. Smith pointed out in his commentary on Haughton v. Smith 1974 Crim. L.R. 305 the House of Lords never suggested that Reg. v. Johnson was not good law. It may be said that it is undesirable that guilt or innocence should depend upon what may fairly be called a point of pleading, yet it seems to me that it is even more undesirable that a prisoner should be acquitted when, as Lord Reid says at 1975 App. Cas. 499,

"[t]he ordinary man would say without stopping to think - of course he was attempting to steal".

Nor, with the utmost respect, is it true that because, if the ordinary man stopped to think, he would see that one cannot just steal but must steal something it necessarily follows he would agree that one cannot attempt to steal without attempting to steal some particular thing.

10. The only real difficulty seems to me to be whether the act of dipping a hand into an empty pocket is sufficiently proximate, and the view of the ordinary man as to that can be forecast with some certainty, as Lord Reid has indicated. I am convinced that any layman would regard it as absurd if the law were to be that the Appellant in the present case had not "attempted" to steal - and I think he would be right. Nor does it cause me any great anxiety that some layman might also think it absurd that the prisoner in Reg. v. Collins should have been acquitted: they might attach too little weight to the basic principle of our law that the prosecution must prove the charge laid and that, in the absence of statutory authority, there cannot lawfully be a conviction of some other offence which is not charged. For my part I do not think any benefit is to be gained by seeking to categorise by reference to the nature of the "interruption" the cases where persons set out to commit a crime and fail to complete the full offence. Each case must be decided upon its own facts. What is more to the point is whether the proved acts are sufficiently proximate to amount to an attempt and this seems to me to present the only real difficulty. It is here that the distinction between intention and attempt becomes important. Take a case where a pickpocket sees a man put a diamond ring into his jacket pocket. He dips into the pocket and finds it empty - because the ring has fallen through a hole into the lining of the jacket. Assuming that one could prove the precise intent, even a charge specifying an attempt to steal the ring would surely be appropriate provided that one did not add the words "in the pocket". I do not believe that anyone would suggest the act of dipping into the pocket was not sufficiently proximate to constitute an attempt. What then if the owner of the ring, having some intuition that the pickpocket was about to dip a hand into his jacket pocket, surreptiously transfers the ring to a trouser's pocket, thus leaving the jacket pocket empty? Again it seems to me that no jury would consider the ring so remote at the time the pickpocket's hand enters the pocket that there is no attempt. Proximity is a question of fact and no purpose would be served by continuing the examples.

11. However, the examples just given presuppose a charge relating to a particular chattel. We have already seen that where the pocket is empty and the charge relates to unspecified property "in the pocket" the defendant must be acquitted, but that leaves the case - and it is the case with which we are directly concerned - where the property is not identified either by reference to its precise nature or by reference to its location. It is difficult to conceive of circumstances in which an intended victim could be so far removed from anything capable of being stolen from him that a jury would inevitably say an attempt to steal from him was impossible.

12. Even in a case where the charge does not specify the property there remains the necessity of marrying the intent to steal to the actual intent of the defendant. If a defendant is believed when he says he was attempting to steal a particular ring and the evidence shows that that ring was in a bank a hundred miles away, the jury may conclude that the act of the pickpocket was not sufficiently proximate. It might also be proved that the key to the deposit box in which the ring was kept was normally in the pocket, in which event the nexus might be sufficient. But where the intent is not proved to be so particular but is rather an intent to steal from the victim anything capable and worthy of being stolen, I find it hard to believe that any jury would assume that the victim was carrying nothing which fitted that description and would not further find that the intent of the pickpocket was sufficiently general to encompass whatever the victim was carrying. We need not go to the absurd length of considering a case of an "attempt" to steal from a naked man with no chattel of any kind in the vicinity: in the present case the Appellant was at a race meeting.

13. I have not yet mentioned Partington v. Williams 1975 The Times, December 19 but it can be disposed of quite shortly. The Divisional Court thought that the entirety of the speeches in Haughton v. Smith formed part of the ratio decidendi and that in consequence they were bound by that decision. As the Divisional Court was concerned with a case in which the charge had alleged an attempt to steal money from an empty wallet and thus with an attempt to commit an offence which could not itself be committed, that is not surprising. We are not concerned with an attempt to commit an offence which could not itself be committed. Obviously a jury would have needed careful direction, because it would have been wrong for them to infer from the actions of the Appellant that he intended to steal the garment of which the pocket formed a part, though he might have formed such an intention if he had thought he could succeed. It all boils down in the end to the question whether it is necessary for the prosecution to bring affirmative evidence that the victim owned some property both capable of being stolen and sufficiently proximate to the act of the pickpocket or whether common sense would not predicate some such property. In my view the man in the street would experience no difficulty in answering that question and concluding that the pickpocket was guilty of attempted theft. We are dealing with an offence at Common Law and the Common Law (though not, alas, statute law) is the embodiment of logic and good sense: where it appears to be otherwise the fault lies not with the law but with the judges who have ende voured to declare it.

14. For ...(illegible) reasons I would dismiss this appeal. It is not necessary to answer the question in the form it has been put to us.

3rd July 1976.

Representation:

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Coram: Briggs, C.J., Huggins & Pickering, JJ.A.

Date of Judgment: 3rd July 1976.

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JUDGMENT

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Pickering, J.A.:

The appellant was charged with attempted theft, the facts being that at a race meeting and during the course of a race he was seen to put his hand into the left trouser pocket of a man in front of him and thereafter to extract the hand. There was no evidence whether there was then anything in the appellant's hand or not. At the start of the next race he was observed to insert his hand into the right trouser pocket of another man and to extract the hand with nothing in it. During the course of yet the next race he was seen to put his hand into the right trouser pocket of a third man and at the same time he apparently observed the police constable who had been watching him. He at once withdrew his empty hand and was arrested. His intended victim was not questioned and nothing further is known of him.

2. The appellant appeals against his conviction for attempted theft upon the ground that in view of the decision in Haughton v. Smith⁽¹⁾ the learned trial magistrate erred in law in holding that the appellant's acts were sufficient to constitute that offence.

3. In Haughton v. Smith⁽¹⁾ police officers stopped a van and found it to contain stolen goods. They permitted the driver and another man to continue their journey along a motor-way to a service area but with two police officers in the van and others following. At the service area the respondent, Smith, took a leading part in arranging for the future disposal of the goods in the van. He was arrested and convicted of attempting to handle stolen goods albeit the Crown conceded that at the time of the alleged offence the goods, being in the lawful custody of the police, had ceased to be stolen goods by virtue of s.24(3) of the Theft Act 1968. On appeal, the Court of Appeal allowed the appeal. Upon the further appeal by the Crown to the House of Lords it was held, dismissing the appeal, that for the purposes of s.22(1) of the Theft Act 1968, in order to constitute the offence of handling the goods specified in the particulars of offence those goods must not only be believed to be stolen, but actually continue to be stolen goods at the moment of handling, that it was not possible to convert a completed case of handling, which was not itself criminal because it was not the handling of stolen goods, into a criminal act by alleging that it was an attempt to handle stolen goods on the ground that at the time of handling the accused falsely believed them still to be stolen.

4. In the course of their speeches their Lordships considered certain earlier cases their discussion of which has led to critical comment both in England and in Hong Kong and which may be said to have left the law in regard to attempts in a doubtful state.

5. I do not propose to discuss the nature of "attempt" beyond to say that upon the evidence in the present case the proximity test was clearly passed in that the appellant not merely had the intention to steal but actually placed his hand into a pocket. The pocket to which I refer is that of the third race-goer it being common ground that the charge related to this "attempt".

6. It is apparent that in the Court of Appeal Lord Widgery, C.J. was of the opinion that a charge of attempt can properly be brought in the present type of case and the learned Chief Justice actually instanced the case of a pickpocket who put his hand into a man's pocket only to find it empty. It is the discussion in the House of Lords of some of the earlier cases which has obfuscated this seemingly logical proposition.

7. In the case of Reg. v. Collins⁽²⁾ it was held that a person who put his hand into the pocket of another with the intent to steal, could not be convicted of an attempt to steal unless it appeared that there was something in the pocket capable of being stolen. That view was challenged by Lord Coleridge, C.J. in Reg. v. Brown⁽³⁾ as "no longer law" but without any reason being given for that view. In Reg. v. Ring⁽⁴⁾ it was held that in order to prove that an attempt to commit a felony has been committed, it is not necessary to prove that had the attempt not been frustrated the felony could have been committed. Applying that principle to the facts of that case what the court said was that where there was evidence of an endeavour to steal from a pocket it was unnecessary to show that the pocket contained anything. Thus Ring was on all fours with the present case. Since the decision in Ring, Reg. v. Collins⁽²⁾ had been generally held to be had law until doubts as to that proposition were raised in Haughton v. Smith⁽¹⁾ the ratio decidendi of which was that since no substantive offence could have been committed of the type corresponding to the charge of the attempt, no attempt to commit that crime could be committed.

8. For my part I confess that I find the logic of that proposition difficult of comprehension unless it be confined to the facts of Haughton v. Smith and to the interpretation of ss. 22 and 24 of the Theft Act 1968. It is true, as Lord Reid said in his speech in Haughton v. Smith⁽¹⁾ that one cannot just steal, one must steal something. Patently when theft is complete the thief has stolen something specific but it does not appear to me, with due deference, to follow in logic that he cannot have the intent and make the attempt to steal something unspecified even though in fact there is nothing there to steal. To steal anything is a crime. The attempt in the present case was to steal whatever was there; that is, it was an attempt to commit a crime despite the fact that the substantive offence may have been incapable of accomplishment. To steal what, was not specified in the charge but to have stolen anything would have been a crime and there was a clear attempt to steal something.

9. Put in another way, the proposed victim was a man at the races. He had gone there, as everybody who attends the races in Hong Kong does, to bet on horses. No jury could have been in any reasonable doubt that one or other or several of his pockets contained something capable of being stolen. The charge was of attempted theft from a person unknown. It was not a charge of attempted theft from the right-hand trouser pocket of a person unknown and it would be absurd to suggest that because the appellant chose the wrong pocket (if he did so choose, there being no evidence as to whether the pocket contained anything) that he is not guilty of any attempt to steal from the person unknown. Lord Reid in Haughton v. Smith⁽¹⁾ instances the would-be thief who cannot break in because the door is too strong for him and says that he is certainly guilty of attempt because "with better equipment or greater skill he could have committed the full crime". It is tempting to ask if lack of skill does not exonerate him from the attempt, why should lack of luck? Looked at in another way the lack might well be said to have been one of skill rather than luck for a competent pickpocket would first make certain by observation before dipping into a pocket, that the pocket did contain something rather than risk the chance of detection in attempting to pick what might prove to be an empty pocket. These considerations lead to the view that this was an unsuccessful attempt rather than an impossible one and that it fell within the third rather than the fifth of the six-fold classification of attempts adopted by Turner, J. in the New Zealand case of Reg. v. Donnelly⁽⁵⁾.

10. It would be of no avail however, for this Court to cavil at the logic of the result apparently arrived at by the House of Lords in Haughton v. Smith⁽¹⁾ if in fact the observations upon the older cases there made by their Lordships were not merely obiter and if the effect of those observations was to overrule Reg. v. Ring⁽⁴⁾ since in that event the decision would be binding on us. It is therefore necessary to examine whether or not that part of the speeches in Haughton v. Smith dealing with the older cases was obiter and whether or not Reg. v. Ring has in fact been overruled.

11. In Partington v. Williams, a case the only report of which appears to have been in The Times of 19th December 1975, a Divisional Court of the Queen's Bench Division declared itself satisfied that in so far as the speeches in Haughton v. Smith dealt with the general principles involved, they were not obiter and, considering itself bound by what the court conceived to be the effect of those speeches, held that there could be no attempted theft from an empty wallet. It is to be observed that the Divisional Court was presided over by Lord Widgery, C.J. whose view it had been, in the Court of Appeal in Haughton v. Smith⁽¹⁾, that a charge of attempt could properly be laid in that type of case.

12. The first observation which I would make upon Partington v. Williams is that the facts and the charge in that case are distinguishable from those in the present case. In Partington v. Williams the charge was of an attempt to steal something specific, that is, money. Likewise in Collins⁽²⁾ a specific was given, that is, "the property of the said woman, in the said gown pocket then being." In the present case the charge was of an attempt to steal simpliciter. Again in both Partington v. Williams and Collins the attempt was to steal from a single identifiable and circumscribed source, a wallet or a pocket. In the present case the attempt was to steal from a person and could have been from any pocket or parcel or briefcase of that person. There is a distinction between trying to steal something specific from an identified, circumscribed space and trying to steal something or other, that is to say anything which may be found there, from the person of an individual and it may be - I put it no higher - that the former behaviour falls within the ambit of impossible attempts. But the latter behaviour, in my view, lies in the category of unsuccessful attempts.

13. Having noted the distinction between Partington v. Williams and the present case I turn to a consideration of the Divisional Court's view that in so far as the speeches in Haughton v. Smith dealt with the general principles involved, they were not obiter. Upon a consideration of the speeches in that case it is at once apparent that their discussion of the general principles involved was at any rate not strictly necessary for the decision in that case. Thus Lord Hailsham, L.C., having dealt with the interpretation of ss. 22 and 24 of the Theft Act 1968, said⁽¹⁾:

"This would be enough to decide the result of this appeal, but both counsel invited us to take a wider view of our obligations, and, since the question was discussed by the Court of Appeal in general terms and since I believe that the result of our decision is to overrule a number of decided cases, at least to some extent. I feel bound to accede to this invitation."

14. The Lord Chancellor did not there specify the decided cases which were said to have been overruled "to some extent".

15. Lord Reid said⁽¹⁾:

"There may well be borderline cases of that kind. We are not applying a rule but a principle and it must be applied sensibly. I would not seek to lay down the law in detail beyond what is necessary for the present case."

16. In the light of the Lord Chancellor's assertion that the interpretation of ss.22 and 24 of the Theft Act would be enough to decide the result of the appeal - and Lord Salmon agreed with the reasons given by the Lord Chancellor for dismissing the appeal - and of Lord Reid's refusal to seek to lay down the law beyond what was necessary for that case and his reference to not applying a rule but a principle which must be applied sensibly, it is difficult to say that their Lordships' discussion of general principles was not obiter and in that respect I would, with due deference, differ from the view of the Divisional Court in Partington v. Williams. As was said by Tallot, J. in Flower v. Ebbw Vale Steel, Iron & Coal Co., Ltd.⁽⁶⁾, "if a judge thinks it desirable to give his opinion on some point which is not necessary for the decision of the case, that of course has not the binding weight of the decision of the case, and the reasons for the decision".

17. If, however, the view be wrong that the speeches in Haughton v. Smith⁽¹⁾ in so far as they relate to general principles are not obiter, it remains for consideration whether or not their Lordships overruled the case of Reg. v. Ring⁽⁴⁾. This does not appear to have been the case. It will be recalled that the case of Ring is on all fours with the present case and that in Ring the decision in Reg. v. Collins⁽²⁾ was challenged. Lord Hailsham, L.C. said no more of Ring than that it declared Collins "no longer law" with even greater emphasis and even fewer reasons than had been given in Brown⁽³⁾. Observing that Collins has, since Brown⁽³⁾ and Ring⁽⁴⁾, generally been held to be bad law, the learned Lord Chancellor said:

"On this I express no concluded opinion but in general I regard the reasoning in ...... Reg. v. Collins as sound ...... and I consider that the purported overruling of Reg. v. Collins needs further consideration".

18. Nowhere, however, did Lord Hailsham suggest that Ring was to be overruled. Lord Reid observed only that their Lordships would be well entitled to reverse the cases of Brown and Ring if satisfied that they were wrong but, like Lord Hailsham, Lord Reid did not indicate specifically that Ring was to be regarded as overruled and indeed, went on to say that he did not seek to lay down the law in detail "beyond what is necessary for the present case". Lord Morris did not mention the case of Ring in his speech and Lord Dilhorne said no more than that he did not regard Brown and Ring as authoritative. None of their Lordships declared specifically that the case of Ring was wrongly decided. In my view if a case which has stood the test of time for eighty years and which embodies an eminently commonsense proposition is to be regarded as overruled, it must be overruled in clear and unambiguous terms. For my part I am unable to regard the more or less oblique suggestions in some of their Lordship's speeches to the effect that Ring was wrongly decided, as overruling that case.

19. In summary it appears to me that the decision in Ring as also the decision in the present case was eminently logical, that the speeches suggesting the contrary in Haughton v. Smith⁽¹⁾ were made obiter and that in any event the case of Ring has never been overruled. For my part I would not interfere with the manifestly sensible conclusion reached by the magistrate in this case and I would dismiss the appeal.

Representation:

Sparrow (John Ip & Co.) for appellant.

Marash, C.C., for respondent.

(1) 1974 2 W.L.R. 1

(1) 1974 2 W.L.R. 1, 5.

(1) 1974 2 W.L.R. 1, 14

(2) 1864 9 Cox C.C. 497

(3) 1889 24 Q.B.D. 357

(3) 1889 24 Q.B.D. 357, 359

(4) 1892 17 Cox C.C. 491

(5) (1970) N.Z.L.R. 980.

(6) (1934) 2 K.B. 132, 154.

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Coram: Briggs, C.J., Huggins & Pickering, JJ.A.

Date of Judgment: 3rd July, 1976.

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JUDGMENT

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Briggs, C.J.:

1. I agree with the two judgments which have been read and I have nothing to add.

Representation:

Sparrow (John Ip & Co.) for appellant.

Marash for crown/respondent.