Lee Shek v. The Queen

CACC000487/1976

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Coram: McMullin, J. in Court.

Date of Judgment: 5 June 1976

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JUDGMENT

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1. I regret that there has been delay in this matter which is directly attributable to the court. Upon hearing argument from Miss Trieu for the appellant and from Miss Kam for the Crown I was disposed to the view that the major point of principle which was argued on the law did not necessarily arise in this case by virtue of its special facts and that the case could and ought to be disposed of upon a narrower basis of decision. Upon further consideration it appears to me that I had given undue weight to two factors in the circumstances of the present case which appeared to me to distinguish it from the circumstances of the two decisions which principally favour the appellant. The first of these is the old case of Reg. v. Collins⁽¹⁾ and the other is the very recent decision, in Partington v. Williams to which Miss Kam referred me from a report in The Times of the 19th of December 1975. Very briefly the argument before me went as follows: Miss Trieu for the appellant relied upon the House of Lords decision in Haughton v. Smith⁽²⁾ in which the several learned Lords of Appeal who gave speeches strongly favoured the view that the old case of Reg. v. Collins⁽¹⁾, which for 80 and more years has been thought to be had law, having been disapproved in the subsequent decisions of Reg. v. Brown⁽³⁾ and Reg. v. Ring⁽⁴⁾, represents the preferable view of such circumstances as we have here and that following that case the law now is that an attempt to steal from a pocket or receptacle which in fact has nothing in it is not a criminal attempt capable of being made the subject of a charge at law.

2. Miss Trieu conceded that the opinions on this particular matter might be considered obiter inasmuch as they were propounded by the learned Lords in the course of dealing with a somewhat different factual situation and none of the judgments expressly proposes a review of the law as to criminal attempts generally (a view also taken in the commentary to the brief report of the case which appears at page 305 of the Criminal Law Review for 1974). Miss Kam for the Crown, with exemplary fairness drew my attention however to Partington v. Williams, which is apparently not yet officially reported. It is a decision in the Queen's Bench Division the court being composed of the Lord Chief Justice and Mr. Justice Parker and Mr. Justice May. The charge in that case alleged an attempt to steal money from a wallet. The evidence showed that in fact there was no money in the wallet. Mr. Justice May giving the judgment of the court dealt with the contention of the prosecution that the views of the judges in Haughton v. Smith⁽²⁾ on the general principles of law applicable to attempts were by way of obiter only and he expressly rejected that argument. Whether or not that decision does establish that the law in England relating to the "empty pocket cases" has now been overturned and is not as it has generally been stated to be in the leading textbooks prior to the decision in Haughton v. Smith⁽²⁾ the principles behind those statements of law deriving from cases such as Ring⁽⁴⁾ and Brown⁽³⁾ are certainly very seriously in question.

3. I had thought that this serious issue - one of sufficient importance to have been referred at once to the Court of Appeal - did not directly arise in the case before me inasmuch as the charge did not allege an attempt to steal any specific property but merely alleged an attempt to steal from an unknown person, a factor which I regarded as setting it off from Partington v. Williams; secondly, I took the view that, as distinct from the case of Reg. v. Collins⁽¹⁾ the present case could not be said to be an "empty pocket case" at all since there was nothing in the evidence to show that the pocket of the relevant victim, the third of the three approached by the defendant, did not contain any property. I was then of the opinion that the case was properly speaking one in which an attempt to commit a crime was broken off before completion only as a result of the fact that the intending thief perceived that he was under observation by a policeman. It appeared to me, upon the authority of Reg. v. Johnson & Anderson (a case decided in the court of Crown Cases Reserved about six months after the decision in Reg. v. Collins⁽¹⁾ by the same court, but not by the same judges) that since it was proper to charge attempted theft without specifying any particular property as the object of the theft, then once the Crown had charged in that form it was unnecessary to prove the existence of anything that might have been capable of being stolen. I have however since had the advantage of consulting the report of Reg. v. Collins⁽¹⁾ which may be found at page 471 of Volume 1 of Leigh & Cave's Crown Cases where the facts of the case are more fully set out than in the report I first consulted in Cox's Criminal Cases. From the latter report I had assumed that it had been proved that the pocked was empty. However it appears that that case, like the present case, was one where no positive proof was laid before the court to show that the pocket was empty. The charge in Collins⁽¹⁾, like the charge in Johnson & Anderson was an attempt to steal unspecified property. In Collins' Case⁽¹⁾, an attempt to steal the property from the person of a certain woman. Miss Trieu argued that since the Crown had not produced evidence to show that there was any property in the pocket it must be inferred that the pocket was empty. The court in Collins' Case⁽¹⁾, notwithstanding my first impression of the matter, seems to have accepted precisely that principle. Therefore it now appears to me that there is no valid distinction to be made upon the facts between the present case and that case. That being so I think that the issue as to whether Collins is to be regarded as good law in this territory does arise. It would certainly seem that these recent decisions reflect what can only be described as a major reversal in judicial opinion on the question of this species of attempt. For this reason, and in view of the fact that Haughton v. Smith⁽²⁾ is a decision of the highest authority and that Partington v. Williams, although decided in the divisional court, is nevertheless the unanimous decision of a Bench of three judges presided over by the Lord Chief Justice (who himself delivered the judgment of the Court of Appeal in Haughton v. Smith⁽²⁾) I think it most desirable that the point should be dealt with by the Court of Appeal. Accordingly I am referring the case for decision to that court under the provisions of s.118(1)(d) of the Magistrates Ordinance as modified by s.59(a) of the Supreme Court Ordinance 1975. I understand that an early date will be available.

Representation:

(1) (1864) 9 Cox C.C. 497.

(2) (1973) 2 W.L.R. 942 (sub nom. Reg. v. Smith (Roger)

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

(4) (1892) 17 Cox. C.C. 491.