Pang Hei-chung v. The Queen

CACC000641/1970

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 641 OF 1970

-----------------

Coram: Rigby, C.J., Mills-Owens & McMullin, JJ.

Date of Judgment: 15 April 1971

-----------------

JUDGMENT

-----------------

Rigby, C.J.:

1. This is an appeal by way of case stated under Section 105 of the Magistrates Ordinance (Cap. 227) from the decision of a magistrate whereby the appellant was found guilty of the charge of theft preferred against him. The appellant also appealed in the ordinary way, under Section 113 of the Magistrates Ordinance, against the sentence imposed upon him. The sentence imposed upon him under Section 36(1)(b) of the Ordinance, was that a conviction for theft be recorded against him and he be discharged conditionally upon him entering into a recognizance, himself in the sum of $500, to be of good behaviour and appear for sentence any time when called upon during the period of the next two years. The conviction and sentence were recorded on the 27th October, 1970.

2. When the case first came before me, sitting as a single judge on an appeal from a magistrate, I considered that it raised matters of such practical interest and importance that, under Section 118(d) of the Ordinance, I thought it proper to reserve the appeal for the consideration of the Full Court.

3. The facts are very fully set out in the case as stated by the learned magistrate:-

4. In addition to these findings of fact as stated by the learned magistrate there are certain other facts which are apparent from the record. They are:-

5. It was upon those facts that the learned magistrate found the appellant guilty of theft. In arriving at that conclusion the magistrate held that the word "dishonestly" now appearing in Section 2 of the new Theft Ordinance was, in effect, synonymous with the word "fraudulently" appearing in Section 2 of the repealed Larceny Ordinance, Cap 210; that on the authority of the cases of R. v. Williams⁽¹⁾ and R. v. Cockburn⁽²⁾ the appellant's conduct, even though there was a clear intention on his part to replace the money, would have been "fraudulent" so as to warrant a conviction for theft; and that "fraudulently" being equivalent to "dishonestly", the appellant was guilty of theft under the new Theft Ordinance. He went on to say in the Case Stated:-

"Even if 'dishonestly' in the new legislation can sometimes mean something different from 'fraudulently' in the old, I would still have been of the opinion that the appellant acted 'dishonestly' on the facts before me. When he took the Government's money without permission he knew that what he was doing was wrong. Nonetheless he went ahead and did it. To my mind that was acting dishonestly."

6. The question of law for this court is whether, upon these facts, the appellant was rightly convicted of theft. That the appellant's conduct was wholly irregular is, of course, beyond doubt. That his conduct was such as to justify his immediate dismissal is also, in my view, beyond doubt. But I must confess that bearing in mind the undisputed facts that

I find it very difficult to decide that his conduct was such as to justify him being stigmatized with the ugly epithet of "thief" such as to warrant a conviction of theft being recorded against him.

7. It would seem clear beyond doubt that upon the authority of the English cases of Williams and Wife⁽³⁾ and R. v. Cockburn⁽²⁾ that under the old Larceny Act 1916, it was no defence to a charge of larceny of a sum of money to show that the defendant not only intended to replace the money taken with its currency equivalent, but also that he had resources available to him to make that replacement. In Cockburn's case⁽²⁾, although the appellate court did not say so in express terms it is, I think, implicit from its judgment - and, indeed, a necessary implication in order to support the conviction - that it held that the taking in such circumstances was fraudulent. The most that could be said where a plea of intention and availability to repay was advanced was that it afforded a plea in mitigation of sentence.

8. Winn, L.J. said in Cockburn's case⁽²⁾:-

"The more reasonable the ground for expecting and feeling confident that the money can with certainty and promptitude be repaid, the more substantial are the grounds of mitigation, and the better the justification for regarding the case as one approaching, though never actually to be equated with, a technicality."

9. The real issue in this appeal, as it seems to me, is whether (1) the word "dishonestly" now appearing in Section 2(1) of the Theft Ordinance (Section 1(1) of the Theft Act) is in fact synonymous with the word "fraudulently" which appeared in Section 2(1) of the old Larceny Ordinance (Section 1(1) of the old Larceny Act) and (2) whether Section 3 of the Theft Ordinance indicating in what circumstances a person's appropriation of the property belonging to another is not to be regarded as dishonest, is exhaustive and final and admitting of no further exceptions being considered. The matter is very far from being free of difficulty. Professor J.C. Smith at p.41, paragraph 156, of his textbook "The Law of Theft", under the heading of a paragraph commencing "What does 'dishonestly' add?" states:-

"The old law is not irrelevant here, for the word 'dishonestly' seems to have been substituted for 'fraudulently' because it is more easily understood by laymen rather than because any changes of substance were intended."

He then goes on to say:-

"It is submitted that under the new law the beliefs set out in s.2(I) [which corresponds to our s.3(1)] do not exhaust the concept, 'dishonestly', and that, apart from the instances given, there may be other cases where D will have to be acquitted on the grounds that he was not dishonest. While it would be a mistake to seek to draw up a closed list of cases which do, or do not, amount to dishonesty, the function of 'fraudulently' and 'dishonestly' certainly seems to be limited."

Later on, at page 43, para. 166, Professor Smith submits that a person is not fraudulent (or dishonest) unless he intends "to act to the detriment of any person against that person's wishes." He then goes on to say:-

"By such a test, the person with good credit was not dishonest but Williams was, because she intended to risk P's money."

10. In the case of Williams and Wife⁽³⁾, a sub-postmistress, with the knowledge of her husband, had taken sums of money from the till in her sub-post office and used it for the purposes of the general shop which she ran on the premises. Mrs. Williams and her husband were charged on a number of different counts with the larceny of different sums of money on different occasions. The jury convicted the appellants on all counts except one. They added a rider to their verdict that in respect of two of the counts the appellants intended to repay the money and honestly believed that they would be able to do so, and that in respect of three of the counts they intended to repay but had no honest belief that they would be able to do so. The Court of Criminal Appeal upheld her conviction on all counts. In commenting upon that case, Professor J.C. Smith says, at page 41 (para. 156):-

"This suggests a rule that an honest belief in ability to repay in the future is no defence; but it is submitted that this would be going too far. D(Mrs. Williams) knew that she was at least taking a risk with the Postmaster General's money. The general shop was doing badly and her honest belief was presumably based on her faith that business would improve."

11. In the course of delivering the judgment of the court in the Williams' case⁽³⁾, as reported in (1953) 2 W.L.R. at p.942, Lord Goddard, L.C.J. said:-

"It is one thing if a person with good credit and with plenty of money uses somebody else's money which may be in his possession and which may have been entrusted to him or which he may have had the opportunity of taking, merely intending to use those coins instead of some of his own which he has only to go to his room or to his bank to obtain. No jury would then say that there was any intent to defraud or any fraudulent taking."

That passage in Lord Goddard's judgment was adversely criticised by Winn, L.J. in Cockburn's case⁽²⁾. He pointed out that no corresponding passage appeared in the authorised law reports or in the Criminal Appeal Reports and he went on to express the view that:-

"beyond peradventure Lord Goddard, C.J. himself must have checked the Law Reports and the Criminal Appeal Reports, and taken good care to see that the passage ........ did not appear in those official reports."

As to the passage itself, he went on to say:-

"I venture to think that quite probably Lord Goddard, C.J. felt about that passage what I myself not only feel but now say, that it is an extremely dangerous and most misleading statement;"

In Cockburn's case⁽²⁾, the manager of a shop, on a Saturday, took the sum of £50 from the shop's till. On the Sunday the area manager of the shop carried out a check and found that a sum considerably in excess of £50 was missing from the till. The manager later admitted that he himself had taken £50 from the till. There was evidence that on previous occasions he had taken sums of money from the till but he had replaced those sums with blank cheques signed by his daughter on her own bank account and with authority given to him to fill in those cheques for any money he might require. It had been his intention, on the Monday morning, to replace the £50 with one of the blank cheques signed by his daughter and filled in by him to cover that amount. He was convicted of larceny. His appeal was dismissed. It was in the course of that case that Winn, L.J., delivering the judgment of the court, made the observations criticising the dicta of Goddard, L.C.J. in the Williams' case⁽³⁾. Upon the authority of these two cases, it would certainly seem clear that under the former Larceny Ordinance an honest intention to repay the money appropriated, coupled with an ability to repay, would not have constituted a defence to a charge of larceny. Has the position been altered by the substitution of the word "dishonestly" in place of the word "fraudulently"?

12. Our Theft Ordinance is taken from the United Kingdom Theft Act 1968. There is, unfortunately, no definition of the word "dishonestly"; there are only exceptions contained in Section 3 as to what appropriations of another person's property are not to be regarded as "dishonest". But the Theft Act, itself, very substantially follows the model draft Bill prepared by the Criminal Law Revision Committee. In deliberately substituting the word "dishonestly" in preference to the word "fraudulently" formerly contained in the old Larceny Act, the Committee, in paragraph 39, of their accompanying Report, state:⁽⁴⁾

"39. The word 'dishonestly' in the definition in clause 1(1) is very important, as dishonesty is a vital element in the offence. The word replaces the requirement in 1916, s.1(1) that the offender should take the property 'fraudulently and without a claim of right made in good faith.' 'Dishonestly' seems to us a better word that 'fraudulently.' The question 'was this dishonest?' is easier for a jury to answer than the question 'was this fraudulent?' 'Dishonesty' is something which laymen can easily recognize when they see it, whereas 'fraud' may seem to involve technicalities which have to be explained by a lawyer. The word 'dishonestly' could probably stand without a definition, and some members of the Committee would have preferred not to define it. But we decided to include the partial definition in clause 2 in order to preserve specifically two rules of the penal law. The first is the rule mentioned above that a 'claim of right made in good faith' is inconsistent with theft. .. The second is the rule in 1916, s.1(2)(d) that a finder of property cannot be guilty of stealing 'unless he believes that the owner can be discovered by taking reasonable steps' ........"

13. It would seem apparent from the words there used that the Committee itself considered, first, that clause 2 of the Bill (which became section 2 of the Act and corresponds to our section 3) was to contain only a partial definition of what would constitute 'dishonest appropriation' and that it was not intended to be exhaustive and final and, secondly, as a corollary, that it would be for a jury to decide in the final analysis whether the conduct of the accused person was dishonest.

14. In commenting upon the use of the word 'dishonestly' in a passage entitled "Has 'dishonesty' a residual function in the definition of theft?", Edward Griew, in his textbook "The Theft Act 1968" at p.44, states:-

"It is only, of course, in very rare cases like these of Williams (1953, 1 Q.B.660) and Cockburn (1968 1 W.L.R. 281) that the problem of the residual function, if any, of the word 'dishonestly' will arise. How the courts will respond to it is uncertain. It is probably safer to predict that they will, in effect, follow the old decisions. But it is just possible that the Committee's reference to the layman's recognition of dishonesty may serve as a hint to the courts not indeed to leave juries and magistrates to define dishonesty untrammelled by judicial instruction, but at least so to use the word 'dishonestly' themselves as to achieve a definition of theft that is as acceptable as possible to the moral judgment of the tribunals of fact that must apply it."

15. Again, Smith and Hogan, in their textbook "Criminal Law" (2nd Ed. p.372) point out that Section 2(1) contains only a partial definition and conduct is not to be regarded as dishonest simply because it cannot be brought within the subsection.

16. The decisions in both the cases of Williams and Wife⁽³⁾ and Cockburn⁽²⁾ were the subject of a great deal of adverse criticism by the textbook writers and academic lawyers. In an article entitled "The Theft Act and its Commentators"⁽⁵⁾ the writer*, in considering the substitution of the word "dishonestly" in place of "fraudulently" says:-

"Fraudulently' has developed into a term of art manipulated by judicial decision into a concept which is by no means always what the ordinary man means by 'dishonestly'. In the Williams case, the jury found that Mrs. Williams honestly believed she would be able to repay the money she took from the Postmaster-General and genuinely intended to repay. Most people would say that on those facts she was not dishonest."

Pausing here for a moment, in the present case the facts are even stronger in favour of the appellant in that not only was there a genuine intention to repay but within a matter of less than 24 hours the appellant was virtually in possession of the money and it was clearly found as a fact that it was his intention to replace it at the commencement of the day's work in the Post Office and that he would have done so if, unfortunately for him, there had not been a surprise check of the Post Office accounts. The writer then goes on to say:-

"If the substitution of 'dishonestly' for 'fraudulently' has any effect at all (and both Smith and Griew seems to think it has some effect), it must surely involve (i) the partial overruling of both Williams and Cockburn and (ii) leaving the issue 'Was this done dishonestly?' to the jury.

It may well be that the position is correctly stated by Smith and Hogan in the following passage which appears as a footnote on p.373 of their textbook "Criminal Law":-

"What does or does not amount to dishonesty appears to be a question of law for the judge: Although the jury (or judge of fact) must decide whether D was in fact acting dishonestly, the relevant criteria of dishonesty must be given them by the judge. It cannot be supposed that whether D was acting dishonestly is at large in every case for each particular jury to express its own view."

17. But in my judgment, by deliberately substituting "dishonestly" for the word "fraudulently" previously used, it would seem reasonable to infer that the intention of the legislature was to provide a much wider concept as to what constitutes 'theft' and, for my part, I doubt whether the cases of Williams⁽³⁾ and Cockburn⁽²⁾ are necessarily to be followed when deciding whether a person is guilty of "dishonest" as distinct from "fraudulent" appropriation so as to justify a conviction for theft.

18. In Cockburn's case⁽²⁾, Winn, L.J. considered the degrees of larceny as varying between "grave theft and a taking which, whilst technically larcenous, reveals no moral obloquy .....". A conviction for theft is a finding of fact that a person has been guilty of dishonestly taking another person's property. For my part, I find it difficult to understand how it can be said that a person is guilty of theft and, at the same time, to say that his conduct reveals "no moral obloquy".

19. There are two further cases to which I would wish to refer, one, a civil case, and the other, a criminal case. The case of Sinclair v. Neighbour⁽⁶⁾, although a civil case, is of some relevant interest. In that case - and I quote from the headnote of the case -

20. Sellers, L.J., in the course of his judgment said:-

21. The above passage seems to me to be of interest for two reasons: first, because if 'dishonest misappropriation' is the same as 'fraudulent misappropriation' then, if this case had proceeded to trial on the basis of a criminal prosecution, on the authority of Williams and Wife⁽³⁾ and Cockburn⁽²⁾ the jury, on the facts of the case, would have had no alternative but to convict on the basis that the person who took the money - and I quote from the judgment of Winn, L.J. in Cockburn's case⁽²⁾:-

"has taken something which he was not entitled to take, had no claim of right to take, without the consent of the owner, and is in effect trying to force upon the owner a substitution to which the owner has not consented."

Secondly, however, leaving aside the question as to whether, on the basis of Williams⁽³⁾ and Cockburn⁽²⁾, the judge, on the facts of the case, ought to direct the jury, as a matter of law, to convict, it would seem apparent that Sellers, L.J. if the facts of the case had been the subject of a criminal prosecution, appears to have taken the view that the jury, on those facts, if the matter had been left to them on the factual basis as to whether or not the defendant was guilty of a dishonest intention, might not have convicted the defendant of dishonest misappropriation of the money.

22. Davies, L.J., after referring to the particulars of the defence as pleaded, namely, that the defendant had dishonestly misappropriated to his own use monies in the till belonging to his employer and after referring to the judge's finding that the employee's conduct was "misguided, foolish, improper and reprehensible but not dishonest and that is what is pleaded," went on to say:-

"With the greatest respect to the judge, I think that he fell into error in attaching too much weight to the label and not enough to the facts. The facts were established. The fact that the employee did take the money from the employer's till behind his back knowing that the employer would not consent, was established, and it seems to me that it does not really matter very much whether that justifies the label 'dishonest' or not. The judge ought to have gone on, in my judgment, to consider whether, even falling short of the label of 'dishonesty', it was nevertheless conduct of such a grave and weighty character as to amount to a breach of the confidential relationship between master and servant, such as would render the servant unfit for continuance in the master's employment and give the master the right to discharge him immediately. On the facts of this case the employee's conduct clearly fell within that latter category; and I have no doubt at all that the employer was therefore entitled to dismiss him."

23. Sachs, L.J., however, puts the matter rather more strongly than the other members of the Court in that, after referring to the conduct of the manager of the shop, he says:-

"To state those facts quite simply seems to me enough to make plain that here indeed there was beyond a peradventure misconduct of a type which justified instant dismissal;"

He then goes on to say - and it is, of course, an expression of opinion which is directly relevant to the conduct of the appellant in the instant case and, as such, adverse to the arguments which have been advanced in his favour -

"As between the employer and the employee (and that seems to me to be the cardinal matter), where the former deliberately takes money illicitly behind the back of his employer and appropriates it, even temporarily, for his own use, knowing that the employer would disapprove, that is sufficient, to my mind, to establish that as between the employer and the employee that conduct is dishonest."

24. The only observation I would make is that these words were, of course, spoken in reference to the conduct of an employee in a civil action where he was seeking to recover damages for what he alleged to be wrongful dismissal arising directly out of his own improper and reprehensible conduct; whether the learned judge would have expressed himself in the same terms if the employee in that case had been convicted upon a criminal charge of dishonestly appropriating his employer's property is another matter. It may well be, of course, that no such charge of theft could or would have been brought against the manager on the basis that having already replaced, by an equivalent amount, the sum of money he had taken from the till it was clearly shown that he had no intention of permanently depriving his employer of the money which he had temporarily misappropriated. However, if the intention of permanent deprivation is a question of fact and the manager, by his conduct in replacing the money was demonstrably shown not to have had an intention of permanent deprivation, it is difficult to see how his conduct was dishonest as distinct from being obviously improper and reprehensible.

25. Finally, I would refer to the case of R. v. Waterfall⁽⁷⁾. In that case - and I quote from the headnote -

26. Mr. Swaine relied strongly upon this case. He pointed out that the sole issue in that case was a subjective test: was the defendant dishonest? Did he honestly believe that he could pay the taxi driver? By analogy, he submits that the test in this case should be: Did the defendant honestly believe that in taking the money he was acting to the detriment of the Post Office and, as an equally important and current issue, did he honestly believe that he could replace the money? If the answer to the first question was in the negative and to the second in the affirmative then Mr. Swaine submitted, quite clearly he was not guilty of a dishonest appropriation however much he might be said to have acted in a grossly irregular and improper manner in relation to his employers.

27. Mr. Alec Samuels, in an interesting and instructive article in the New Law Journal⁽⁸⁾, has put the proposition in another way. He has submitted that 'dishonestly' should bear its ordinary layman's meaning (in accordance with the professed intention of the Criminal Law Revision Committee when substituting the word 'dishonestly' for the word 'fraudulently') and that the proper question for the jury to consider is whether the defendant genuinely believed that the employer would not need the money and that he, the defendant, could replace it; the means of the defendant being relevant evidence of the reasonableness of his expectation of replacement.

28. In whichever way one puts the proposition, whether one follows the formula of Mr. Samuels or that put forward by Mr. Swaine, the net result seems to me to be the same, namely, can it fairly be said, in ordinary layman's language and in terms of simple morality as understood by the ordinary layman, that the defendant, on the facts relevant for consideration, acted dishonestly as distinct from improperly and reprehensibly. For my part, I would adopt the view - and the words used by the trial judge in the case of Sinclair v. Neighbour⁽⁶⁾, namely, that the appellant's conduct was "misguided, foolish, improper and reprehensible", and clearly such as to justify his immediate dismissal, but not 'dishonest' - and that is what was charged.

29. The learned magistrate quite clearly placed reliance on the fact that the appellant, at the time of taking the money, knew that what he was doing was wrong. In my view, there may well be a world of difference in doing what is morally wrong and reprehensible such as to justify dismissal and doing what is criminally dishonest.

30. For my part, I would have been disposed to take the view that, despite the earlier decisions of Williams and Wife⁽³⁾ and Cockburn⁽²⁾ given while the old Larceny Act was in force and the word 'fraudulently' used therein, and before the repeal and replacement of that Ordinance by the Theft Ordinance containing the word 'dishonestly' in substitution for the word 'fraudulently', a clear and manifest intention to replace the money taken, coupled with a proved and clearly established ability to do so, may well constitute a defence to a charge of theft under Section 9 of the Theft Ordinance. However, my brothers have taken a contrary view and their view constitutes the decision of this court.

Representation:

J. Swaine (Hastings & Co.) assigned for Appellant.

Stapp. C.C. for Crown/Respondent.

(1) (1968) 1 W.L.R. 281.

(2) (1968) 1 W.L.R. 281.

(3) (1953) 37 Cr.App.R. 71.

(3) (1953) 37 Cr.App.R. 71; (1953) 2 W.L.R. ...(illegible).

(4) (1966) C.L.R. 548 at p.552.

* John M. Collins, Barrister-at-Law

(5) (1968) Crim. L.R. 638, 642.

(6) (1966) 3 All.E.R. 988.

(7) (1969) 3 W.L.R. 947.

(8) December 24th, 1970, p.1178.

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 641 OF 1970

-----------------

-----------------

Coram: Full Court: Sir Ivo Rigby, C.J., Mills-Owens and McMullin, JJ.

Date of Judgment:

-----------------

JUDGMENT

-----------------

31. Mills-Owens J: The Theft Ordinance is clearly intended to operate in revision of the law of larceny. That appears not only from its 'long title' but also from the concepts embodied in its provisions. As Megaw L.J. stated, in delivering the judgment of the Court of Appeal in R. v. Lawrence (1970) 3 W.L.R. 1103, at p.1105:-

"As is well known, the primary purpose of the Theft Act, 1968 was to remove notorious difficulties and uncertainties in this branch of the law ......"

Accordingly the answer to the question posed by the case stated must be sought, primarily at least, in the provisions of the Ordinance itself, rather than by a process of proceeding initially upon decisions reached with respect to larceny at common law or under the statutory definition of larceny previously obtaining.

32. The debate centres around the word "dishonestly". Whatever might have been said concerning the word "fraudulently" appearing in the definition of larceny contained in the Larceny Act, 1916, it is clear beyond doubt that it is an essential ingredient of theft under the new Theft Act or Ordinance that the defendant acted dishonestly. That this is so appears from the fact that the legislation (section 3 of our Ordinance) is concerned to point out a number of instances in which a person's appropriation of property belonging to another is not to be regarded as dishonest. Thus in para. (a) of subsection (1) of section 3 there appears the defence of belief in a claim of right; in para. (b) thereof, that of assumed consent; in para. (c) thereof, that of the owner being believed to be undiscoverable; and in subsection (2) of the section appears the case, in reverse, that willingness to pay for what is appropriated may be no defence.

33. Subsection (2) of section 3 reads:-

"(2) A person's appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property."

Counsel for the appellant points out that "property" is defined to include money (section 5(1) and argues that the subsection should, therefore, be read as comprehending the case where a person appropriates money belonging to another but intending to replace it with other money, so that the subsection contemplates that such conduct may not be dishonest. In my view, that argument is not sustainable. The wording of the subsection is not apt to include such a case. One does not 'pay' for money appropriated; it is replaced or reimbursed. The subsection is aimed at a quite different situation, in my view.

34. The main contention for the appellant, to the effect that his action was not 'dishonest', rests on the basis that dishonesty is a matter to be decided on a subjective test, not an objective test. Counsel for the appellant referred to three authorities on this aspect: Sinclair v. Neighbour ((1966) 3 All E.R. 988); R. v. Waterfall ((1969) 3 W.L.R. 949); and R. v. Lawrence (supra). The headnote in Sinclair v. Neighbour reads:-

Sellers L.J. said, at p.989:-

"Whether such taking of the money would have resulted in a conviction for larceny or for dishonest misappropriation of the money does not arise, in my view. On these facts a jury might have taken the view that they would not convict; but I do not think that it matters whether the conduct is to be described as dishonest misconduct or not. Views might differ. It was sufficient for the employer if he could, in all the circumstances, regard what the employee did as being something which was seriously inconsistent - incompatible - with his duty as the manager in the business in which he was engaged."

Later, at the same page, he said:-

"The practice of taking money out of the till in that way, as we all know in criminal courts, can lead to endless trouble."

Davies L.J., at p.990, said:-

"...... and it seems to me that it does not really matter very much whether that justities the label "dishonest" or not. The judge ought to have gone on, in my judgment, to consider whether, even falling short of the label of "dishonesty", it was nevertheless conduct of such a grave and weighty character as to amount to a breach of the confidential relationship between master and servant, such as would render the servant unfit for continuance in the master's employment and give the master the right to discharge him immediately. On the facts of this case the employee's conduct clearly fell within that latter category; and I have no doubt at all that the employer was therefore entitled to dismiss him."

Sachs L.J. referred to the conduct of the manager in the terms that: "as between the employer and the employee that conduct is dishonest". The case was of course, a civil case, and, as it appears to me, the Court of Appeal was at pains to decide, and to decide only, whether the employee was guilty of such misconduct as justified instant dismissal. It cannot, therefore, be regarded as an authority for the meaning of the word 'dishonestly' in an enactment such as the Theft Ordinance (which, incidentally, was not then in force).

35. In the case of Waterfall (supra), the defendant arranged with a taxi driver to be driven from Southampton to London and back. On arrival in London the taxi driver asked for an advance. The defendant replied that he would get it later in the day when he had seen his accountant. He was driven to the accountant's address and later emerged saying that the accountant could not let him have any money. He was driven back to Southampton and tried unsuccessfully to raise money at various addresses. He was charged with dishonestly obtaining a pecuniary advantage by deception, contrary to section 16(1) of the Theft Act, 1968. The deputy Chairman directed the jury, inter alia, to the effect that they could not find that the defendant had a genuine belief that the accountant would provide the money unless he had reasonable grounds for that belief. The defendant having been convicted, the Court of Appeal allowed his appeal, holding that the test of dishonesty in section 16(1) of the Theft Act was subjective; so that the jury had been misdirected, it being for them to decide whether or not this particular defendant had a genuine belief that the accountant would provide the money. In giving the judgment of the Court, Lord Parker C.J., at p.949, referred to the following passages in the summing up:-

"It is entirely a matter for you to decide; you have to decide not merely whether this man genuinely believed he might get some money from Mr. Tropp, but whether he had any reasonable ground for thinking so."

and:-

"So what you have to decide in regard to that is not merely was it a genuine belief but was there any reasonable ground for thinking that Mr. Tropp would lend him money."

Lord Parker then proceeded to say:-

".... the court is quite satisfied that those directions cannot be justified. The test here is a subjective test, whether the particular man had an honest belief, and of course whereas the absence of reasonable ground may point strongly to the fact that that belief is not genuine, it is at the end of the day for the jury to say whether or not in the case of this particular man he did have that genuine belief."

Earlier, at p.948, he had said:-

"Looking at the ingredients of the offence it is clear that there had been an obtaining of a pecuniary advantage, in that the defendant had made himself liable to a debt which he had evaded. Secondly, it is perfectly clear that he did that by deception; not only was the conduct of taking a taxi in those circumstances such as to convey that he had money to pay, but according to the taxi driver there had been a specific assurance that the defendant had money to pay. True, the defendant denied giving that assurance, his case being that he believed and honestly believed that the accountant in Harley Street would provide the money. The sole question as it seems to me in this case resolves round the third ingredient, namely, whether what was done was done dishonestly."

36. The case of Lawrence was concerned mainly with whether the defendant had the owner's consent to his appropriation of the owner's property, and is material, for present purposes, only in emphasising that dishonesty is an essential issue and in pointing out that absence of consent is relevant to that issue.

37. The question arises whether the decision of the Court of Appeal in the case of Waterfall to the effect that the test of dishonesty is a subjective test, means that a person, such as the appellant, who deliberately appropriates money belonging to another, doing so knowingly and intending to use it as his own, is acting dishonestly where he intends genuinely at the time of appropriation to replace it by other money. First, I would say that whether he has the means to replace the money appropriated is a matter of evidence, going to proof of the genuiness of his professed intention; but obviously that does not conclude the matter. Secondly, I think that a distinction is to be drawn between the case of Waterfall and the present case. It is difficult to formulate the distinction, for, as Professor J.C. Smith says in his commentary on the case of Waterfall, appearing at page 36 of the (1970) Criminal Law Review: "If it is dishonest ....... to take another's money intending and being able to replace it with an exact equivalent, it is curious that it should not be dishonest to obtain another's services by deception, intending to pay for them." The distinction must be, in my view, in the matter of consent; in the theft case it is apparent that there is no consent, whereas in the obtaining case there is consent, which, although induced by deception (or, as I would prefer to say, misrepresentation), is not induced dishonestly. In the theft case, therefore, the theft is complete and admits of no defence, whereas in the obtaining case the question remains whether the misrepresentation was honestly made. This amounts to saying that the conduct of the appellant in the present case was, in point of law, 'dishonest' - thus stating that the question is one of law for the judge, not of fact for the jury. In my view that is how it should be, as otherwise there would be the prospect of different juries returning different verdicts on the same state of facts, which would be most unsatisfactory. In my view there is a world of difference between the case of a man obtaining the services of another fully expecting to be able to pay for them when the time for payment arrives, as e.g. at the end of the journey by taxi, and that of a man who puts his hand in the till having no reason to believe that his employer would consent to his doing so. The latter conduct is morally inexcusable, and rightly to be termed criminally dishonest, whereas in the former case no moral fault may be imputed such as to justify invoking the criminal law. Mr. Swaine contended that the real question was whether there would be detriment or prejudice to the employer. I cannot accept that, It would, to an extent, allow the defendant to be the judge of the employer's needs, and it makes no allowance for possible contingencies preventing the replacement of the money appropriated. In any event. surely it is to a man's detriment or prejudice to deprive him of the use of his money for however short a period of time.

38. I would answer the case stated in the negative, holding therefore that the appellant was rightly found guilty by the learned magistrate.

Representation:

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO.641 OF 1970

-----------------

-----------------

Coram: Full Court (Hon. C.J., Mills-Owens and McMullin JJ.)

Date of Judgment: 19th February, 1971.

-----------------

JUDGMENT

-----------------

39. McMullin J.: The appellant appeals by way of case stated against the decision of a magistrate finding him guilty upon a charge of theft under s.9 of the Theft Ordinance (No.21 of 1970) of the offence of stealing $600 in cash the property of the Hong Kong Government. The facts are set out fully in para.4 of the case stated and as they have also been dealt with in the judgment of the learned President it is needless to repeat them. The short point for decision is set out in para. 7 of the case stated in the following terms:

"7. The question of law arising on the above statement for the opinion of this court therefore is whether I was wrong in holding that an intention to repay money taken is not a defence to a charge under s.9 of the Theft Ordinance 1970."

Before considering this main point, however, I should like to say, since the matter was raised, that in my view the Crown quite properly charged the appellant under s.9 and not under s.2 of the Ordinance although s.2, the section principally discussed in the case, describes the elements which constitute the offence of theft it is s.9 which actually provides that theft is to be an offence.

40. The discussion has turned largely on the meaning of the word "dishonestly" which appears in s.2 and at many other places in the Ordinance. The Theft Ordinance is closely modelled upon the English Theft Act 1968. Counsel were therefore able to assist us by the citation of certain recently decided cases arising under the Theft Act and by referring us to the opinions of certain academic writers who have made a special study of the recent provisions. In his commentary on the Theft Act Professor E. Griew considers the definition of "theft" (s.2 in the Act which is for all practical purposes identical with s.2. of the Theft Ordinance) and puts the problem this way (Griew "The Theft Act 1968; p.42 para.2-50):

It may be added neather are they well received by counsel for the appellant who, by contrast, would have us apply the principles he discerns in the decision of the Court of Appeal in the case of the Queen v. Waterfall (1970 3 W.L.R.947). The accused in that case had been charged with dishonestly obtaining a ride in a taxi, the basis of the case against him being that in ordering the taxi and in employing it for a trip from Southampton to London and back again he had been guilty of obtaining this pecuniary advantage by deception and dishonesty. The relevant portion of s.16 of the Theft Act is identical with subsection 1 of section 18 of the Theft Ordinance and is in the following terms:-

"18(1) any person who by any deception (whether or not such deception was the sole or main inducement) dishonestly obtains for himself or another any pecuniary advantage shall be guilty of an offence and shall be liable etc. ......"

The defence of Waterfall is that case was that he had had the honest intention of paying that he believed that his accountant Mr. Tropp would put him in funds when the taxi got to London. Dealing with this matter the trial judge said:

"If on reflection and deliberation you came to the conclusion that this defendant never did have any genuine belief that Mr. Tropp (the accountant) would pay the taxi fare, then you would be entitled to convict him. But if you felt on weighing up all the evidence you have had that there was some real doubt in your mind, not fantastic but some real doubt in your mind as to whether or not Mr. Tropp might have paid, then, of course, he would be entitled to be acquitted."

The Court of Appeal found this passage unexceptionable but the conviction was set aside because of later directions in which the trial judge told the jury that they must decide not merely whether the defendant had a genuine belief but also whether there was any reasonable ground for thinking that the accountant would lend the money. The important aspect of this case from the appellant's point of view is, of course, that the decision deals very favourably, from the point of view of the defence, with the possibilities open to an accused person of showing that he had not acted dishonestly. Before considering the implications of that judgment however a quite incidental misgiving might suggest itself in relation thereto by virtue of the fact that the passage in the summing-up which was approved contains a direction which appears to say very much what was said in the later passages where the directions were held to be so greatly at fault as to necessitate the quashing of the conviction. The trial judge, having told the jury that they were entitled to convict if they came to the conclusion that the appellant did not have a genuine belief that the accountant would pay, went on at once to say that if they had a real doubt as to whether or not the accountant might have paid they should acquit. In this latter part of the approved direction as it appears to me the test is objective. The jury's attention is being drawn not to the state of the appellant's mind in relation to the facts, as had been done in the earlier part of the same passage, but to the state of the facts themselves. In effect, they were being told that if in the circumstances they, as reasonable men, felt that there was some real possibility that the accountant might have lent the money then the defendant must be acquitted; presumably because in those circumstances they must hold that his expectation was a reasonable one - or at least that the Crown had not shown that it was not reasonable. Be that as it may, the decision leaves no doubt that the Court of Appeal in England regards the issue of dishonesty under s.16 of the Theft Act as one to be decided on the basis of what the person charged himself believes, whether or not that belief, objectively regarded, can be said to be reasonable.

41. Mr. Swaine's interest in the case is however, not primarily directed to the question whether or not the test of belief is to be objective or subjective but whether the question of genuine belief is relevent to a charge under s.9. Although Waterfall [(1969) 3 W.L.R. 947] was a case under s.16 of the Theft Act (corresponding to s.18 of the Ordinance), Counsel seeks to apply it to this case by way of analogy inasmuch as the same term "dishonestly" calls for examination in each case and in each case the decision turns upon it. His argument was persuasive and he was able to urge in its support the opinions of some of the foremost academic writers who have dealt with the English provisions and who at times seem to imply that if "dishonestly" has any residual meaning it must bear the same meaning wherever it appears. Thus in commenting on the decision in Waterfall [(1969) 3 W.L.R. 947] Professor J.C. Smith says at page 36 of the Criminal Law Review, 1970 :-

"It is submitted that the accused should be regarded as dishonest for the purposes of obtaining by deception as well as theft if he knew that there was a risk (in the case of theft) of his not being able to replace an exact equivalent or (in the case of obtaining) his not being able to supply the promised price; and that the victim would not have been willing to take this risk."

Following this line of reasoning Mr. Swaine says that his client ought to have been acquitted because, adopting the principle in Waterfall, his client obviously had a genuine belief that he could replace the exact equivalent of the money taken or else, adopting the standpoint of Professor Smith in his commentary, because he knew that there was no risk of his not being able to replace the money. Whichever way one looks at it the accused, according to Counsel, had not in fact acted to the detriment of his employer and this notion of acting to the detriment was the true meaning of "dishonestly". In the same commentary it is to be noted however that Professor Smith expresses the opinion that "fraudulently" under the Larceny Act and "dishonestly" in the Theft Act mean the same thing and he points out that in the cases under the Larceny Act the courts generally took the view that a taking was fraudulent if it was without the owner's consent even if the taker intended and believed that he would be able to replace not the identical property taken but its exact equivalent. This certainly seems to have been the basis of the Court's decision in the case of Williams (1953 1 Q.B.D.660) which was a case under the Larceny Act 1916. In that case D took money from the Post Master General's till in her sub-post office and used it for the purposes of the general shop which she carried on in the same premises. The jury found that she intended to repay the money and that, in respect of the money referred to in some of the counts, she honestly believed that she would be able to do so; in respect of the other sums, she had no such belief. The Court of Criminal Appeal upheld her conviction on all the counts. In his book "The Law of Theft" (paragraphs 157-167) Professor J.C. Smith points out that in the report of the decision of Lord Goddard, C.J. which appears in (1953) 1 All E.R. at p.1070 and in (1953) 2 W.L.R. at p.942 but which was omitted from the Law Reports and the Criminal Appeal Reports, the learned Lord Chief Justice appears to have accepted the argument of counsel who proposed that the test of whether or not a person was fraudulent depended on whether or not he intended "to act to the detriment of any person against that person's wishes." This passage in Lord Goddard's judgment was expressly disapproved by the Court of Appeal in Cockburn, [(1968) 1 All E.R. 466] but Professor Smith would have it that the effect of the later desision and of the revised judgment in Williams was to deprive "fraudulently" of all meaning and that the true test of what was meant in S.2 of the Theft Act 1968 by "dishonestly" was the test proposed by counsel in Williams. He rounds off his argument by saying in effect that if the accused takes the money intending to replace its equivalent and believing that there is no risk of his being unable to do so he has not acted to the owner's detriment and cannot therefore be said to have taken it dishonestly.

42. Waterfall(supra) or its commentator is therefore important to the appellant's argument in two ways: firstly, the word at issue in both cases is "dishonestly" and counsel says that we ought to interpret it here as the Court did there i.e. in terms of the appellant's intention and capacity to repay; secondly, he points out that the test applied in Waterfall was subjective viz. did the accused himself honestly believe that he would be able to pay? If this analogy is viable and there is no distinction on principle between the two cases, then it is abundantly clear that, on the evidence before him, the magistrate ought to have found the appellant not guilty. The persuasiveness of this argument derives principally, I believe, from the disinclination of courts to give different meanings to a term which appears in several places in one coherent piece of legislation and is employed in a similar way in each case in dealing with matters of closely similar nature. On the other hand there is a difference so marked between on the one hand, taking somebody's property without his knowledge and, on the other, persuading him, even by deceit, to supply a service which it is his duty and his interest to supply, that one feels an instinctive reluctance to use the same word as a precise description for both acts. It appears to me that this dilemma is to be confroned only by taking it boldly by the horns. It may be said that "dishonestly" does retain a function wherever it appears in the new legislation but that its content may vary in different contexts. This is, I hope, not so subversive of the canons of legal interpretation as may at first appear when one considers that in ordinary speech it is a word which may have widely different connotations. It can be used to describe the man who makes off with a thousand pounds of his employer's property or the man who cheats at bridge with no commercial motive whatsoever; it has been used in common speech to describe lewdness or even physical deformity; it covers the whole spectrum between "thievish" and "sly" and may, as the circumstances demand, be applied to conduct which is wholly corrupt or merely lacking in complete candour. If this much be granted it would seem inadvisable, even if it were possible, to attempt to distill from the many contexts where it appears in the Act or the Ordinance a basic simple meaning applicable to the term in all circumstances. No doubt it was because of its flexibility that this was the term chosen by the Legislature as the one most generalised and capable of adaptation to the many different sorts of human conduct dealt with by the law. For all that, I think it is clearly not desirable that the interpretation of the word should be left wholly at large and in the keeping of any jury's whim. It must be the duty of the Court to indicate to the jury in each case what the terms means or at least what limits it may have in relation to the given charge and the facts as they appear. It is clear that if the matter is left to the jury and the jury is left to its own devices the dictionary alone will be found to give out a confusing and equivocal sound. Thus in the Shorter Oxford Dictionary the word 'fraudulent' and 'deceitful' appear, among many other usages, as synonomous terms for "dishonest", whereas "fraudulent" appears to carry as its primary meaning the sense of unjust advantage gained at another's expense and "deceitful" although also equated with "fraudulent" is given the primary sense of tending to mislead.

43. I would be prepared to say therefore that the proof of the element "dishonestly" in s.2. requires that no more need be shown than that the property was taken without the consent of the owner where as the proof of the same element in s.17 requires that it be shown that at the time the service was obtained the defendant had no genuine belief that he was in a position to pay for it. I think that it is not merely possible or desirable to distinguish two meanings for the term in these two places but it is necessary to do so in the light of the wholly different situations being dealt with. Although both provisions seek to repress a certain kind of conduct which is wrong or dishonourable the kind of conduct described in s.2, the act of theft, has about it a quality which may, perhaps, best be described as absolute. Section 2 deals with chattel property and with the permanent expropriation of it. Section 17 deals with the kind of advantages which accrue from matters such as personal services and which arise in the context of relations to which the notion of permanent expropriation is irrelevant save by way of analogy. In the one case the law is dealing with a bare physical trespass to property invito domino in which only the trespasser moves; in the other it is dealing with the consequences of a purported consensus of minds on a matter of common interest in which two parties move and which can only be of concern to the criminal law if one of them has practised a deception and the other has been actually damnified by it. In the one case a power of disposal over property is assumed wholly without reference to the owner and behind his back; in the other two parties engage freely face to face in negotiations and by that fact are immediately apprised at least of the possibility of risk arising from mistake or deceit. But the commonsense distinction is between on the one hand a physical trespass without consent in which the propriety of the act (save for the statutory exceptions) can only be sustained on the basis of a consultation which was deliberately avoided and, on the other hand, an act of mutual traffic deriving from commercial or other interests which results from express consultation and which can only be infected with criminality when one of the parties had stooped to a misrepresentation so reckless as to exceed the permissible limits of commercial expectation. In this latter case it does not seem unjust or illogical to require the prosecutor to demonstrate that the accused was indeed reckless to that high degree for the reasonableness or otherwise of the accused's expectations becomes the precise matter in issue before the court as it was formerly the matter at issue between the parties; but in the case of the theft there never was, in that sense, an issue between the parties at all. In the act of obtaining by deception it may be said by the deceiver, right up to the moment of complaint: "If I am able to get the money to pay all will be well; nothing will have happened to incriminate me," whereas restitution in theft can never undo the appropriation. Theft is essentially a one-sided transaction; it can be accomplished without reference to the knowledge of any other person. The act and its pecuniary effect upon the owner are two separate things. Obtaining, on the other hand, being involved with the idea of deception cannot be committed save by reference to another mind. Yet for the obtaining to constitute a crime (s.18) the act of deception and its effect are in some sense one for without its intended effect the deception is guiltless while without a successful deception the effect must either be avoided or condoned. Thus a man may commit a theft which is none the less a theft because it has gone unnoticed: but unless his deceit has been marked he is unlikely to find himself in trouble with s.18.

44. There is, no doubt, an emotional or imaginative difficulty in applying provisions which may, in extreme cases, result in the conviction, for example, of an efficient and trusted servant who does not wish to cheat his employer and does not believe that he is doing so, and in the acquittal of a thoroughly tricky customer who may have a life-style well adapted to the accommodations of the criminal law and who escapes on the strength of a convincing jury manner. But probably the extreme case will not often occur. It may be, if one is searching for the root of what appears to be an anomaly, that the reality behind the more stringent attitude of the courts to the question of honesty in the offence of theft, is to be found in the importance attached by our society to the inviolable character of a man's private property and to the necessity for securing that it is so regarded by other persons at all times when the owner is not there to attend to its protection. Between the offence of theft (s.2) and the offence of obtaining (s.18) there is all the difference between a physical invasion and a cunning imposture. The effect of the invasion may be minimal and that of the imposture may be great but it would seem that the law regards the direct trespass, perhaps because of its immemorial connection with anarchy and violence, as belonging to a category of acts ex propria nature mala in se.

45. Although I believe the element, "dishonestly" in s.2 is to be understood as meaning; "without the owner's consent" clearly it cannot be suggested that the term must invariably be identified with lack of consent for if that were so it would mean that, in circumstances such as those in Waterfall where the charge was one of obtaining (s.16 of the Theft Act corresponding with s.18 of the Ordinance), questions of intent to pay and capacity to pay would be irrelevant once consent to supply the advantage had been obtained albeit by deception. It is clear from the decision in that case that the Court of Appeal was in no doubt that these were the vital matters for consideration by the jury in deciding whether or not the appellant had behaved dishonestly. It is true of course that popular usage might hold the practice of a deception to be in itself an act of dishonesty but it is clear that the Legislature, here as in England, by using both terms in the "obtaining" section intended to distinguish between them so that one could have an act which could be describes - in terms no doubt surprising to the layman - as an honest deception. All that means however is that the deception was practised without the intention to cause loss to the victim. Whatever about dictionary confusions, lawyers, at least, are in the debt of Buckley J. for the distinction enshrined in the epigram: "to dexeive is by falsehood to induce a state of mind; to defraud is by deceit to induce a course of action." (In re London & Globe Finance Corporation Limited 1903 1 Chancery at p.733), so that, whatever common ground may be covered by the terms "fraudulent" and "dishonest", we have at least a good light to guide us in distinguishing between either of those terms and what is comprised in the word "deception". Whatever the similarities existing between these terms it is, at any rate, clear that dishonesty as "intentional trespass without consent and dishonesty as "intentional causing of loss" are distinguishable notions and one is therefore forced to the conclusion that in using the term "dishonestly" rather than "fraudulently" the Legislature was not merely selecting a term which (to quote the report of the committee appointed to consider the reform of the law in England: Command Paper 2977 para. 39):

"... is something which laymen can easily recognise when they see it, whereas 'fraud' may seem to involve technicalities which have to be explained by a lawyer."

but also one which is inheretly more elastic and more versatile for describing the several different kinds of ill-intention reflected in the several sections where it appears.

46. In pursuing this idea of the variable content of "dishonestly" it is noteworthy that the three express exceptions provided by s.3 in respect of conduct which might otherwise be regarded as dishonest are each concerned with the question of consent. The section reads as follows:

Thus in 3 1(a) (which covers the old claim of right under the Larceny Act) consent is said to be unnecessary; in 3(1)(b) it is regarded as given; and in 3(1)(c) it is dispensed with as unobtainable. Again in s.2 "dishonestly" appears as an element superadded to the intention permanently to deprive and it is presumably therefore something different from that intention. I have noted that this element is irrelevant to the proof of an offence under s.18 and it does not appear in s.18 yet if "dishonestly" in that section means "without the true intention of paying" or "with the intention of putting to loss by not giving value therefor", it is performing a function in relation to the payment withheld, closely similar to the function performed by "intention permanently to deprive" in s.2. In other words "dishonestly" is intended in both sections to add something to the other elements described but it is called upon to add something different in each case. Again, it is to be noted that where the word appears in s.17 (corresponding to s.15 of the Theft Act) which deals with obtaining property by a deception it would seem to bear yet a third possible meaning for there, as in s.2, the intention permanently to deprive is expressly included, with deception, as an element of the offence and the notion: "without the true intention of paying therefor" or "intending to cause loss" could not, on its own, exhaust the possible kinds of dishonesty relevant to such an act. Intention to cause loss or to refuse to give value for what was taken might be quite irrelevant to such an obtaining as occurs, for example, where A intends to give a suit of clothes to be disposed of for charity at a jumble sale and B, wanting it for himself, obtains it on the pretence that he has been sent to fetch it and then goes away with it and appropriates it to himself. That is a plain piece of dishonesty but A is not financially the poorer for it. In this context "dishonestly" might be said to correspond to: "without claim of right". I think it might found that the word has yet other extensions of meaning if, in relation to various sets of facts, one were to subject to analysis the several other sections where it is used but perhaps enough been said to support the view that its meaning varies and that it is difficult to strip it of all accidental connotations deriving from context until one is left with a kind of skeleton key to its meaning in all the sections where it appears.

47. Perhaps Mr. Swaine, following the writers he has quoted, came neat to supplying us with such a key when he proposed the formula: "intending to act to the detriment of etc. ......" certainly that formula would fit the requirements of most cases taken under s.18 and perhaps of other sections, as well. If so much can be said for if it is tempting to argue that it must supply the residual element intended, but not otherwise expressed, in s.2 also. The advantage of the formula to his case is that he can, if we adopt it, urge us to accept, in addition, that there was in fact no detriment to the appellant's employer in this case because - as he would have it - there was never any risk that the equivalent of the money taken would not be replaced before any pecuniary loss could arise. It is at this point however that I think the arguments for the opposed viewpoints may tend to converge so that the contention that "dishonestly" in s.2 means "trespass without consent" and the contention that it must mean "intent to act to the detriment of etc ......"; meet in the resolution, at a deeper level, of what is implied by the very basic term "detriment". I take the view, if I am wrong in suggesting a variable meaning for the term "dishontly", and if detriment to the owner is its final most generalised and completely comprehensive meaning, that it would nevertheless be without justification in law or in logic to restrict "detriment" wholly to detriment in the sense of actual financial loss. I would say that it is always detrimental to a man's right of ownership to indulge in any unauthorised physical interference with it in as simple and as obvious a way as it is wrong to lay hands upon his person in any manner not sanctioned by the customary usages of society. It is immaterial, for the purpose of this analogy, that in society everyone does from time to time, and in the interest of good temper, submit to genial or minimal "assaults" without the law being invoked. The law is there and the right to invoke it is perfected at the moment when there is any "laying on of hands" to which objection can reasonably be taken. So also it seems to me in the case of theft. If this is said to be unduly fanciful in relation to such a case as the present one, I should point out that in any event, a detriment, in the sense of risk of financial loss, always accrues when money is taken in this way since it is always possible that the means to repay it will be removed by the intervention of some wholly unforeseen and untoward event. The circumstances of such appropriations may vary infinitely so that the risk involved may run the whole scale from "very likely" to "virtually impossible" and at the latter end of the scale it is arguable that the whole affair will fall into the territory of the rule "de minimis" and that if it does so there should be no prosecution. But even that is not to say there has been no wrong but only that the wrong is too small to be worth measuring. Looked at in this way there seems to me to be sound logic no less than sound sense in the words of Winn L.J. (to which Mr. Swaine took exception) in the Queen v. Cockburn where he says :-

".... larceny may vary very greatlyindeed to the extent, one might say, of the whole heavens between grave theft and a taking which, while technically larcenous, reveals no moral obloquy and does no harm at all ......"

and later, where he observes, echoing the opinion of Goddard L.C.J. in Reg. v. Williams (1953) 1 Q.B. 660) that expectation of being able to repay goes to mitigation only: "it may be very good mitigation indeed."

48. Finally, it is to be noted that the element "without the consent of the owner" which side by side with "fraudulently" figured in the definition of theft in s.1 of the Larceny Act 1916 is conspicuous by its absence in the new definition of theft. This to my mind fortifies the conclusion that the essential element supplied by the term "dishonestly" in s.2 is the element of uninvitedness and it was perhaps this element which Lord Goddard C.J. in the case of Williams was pointing to when he said that the word "fraudulently" means - "that the taking is done intentionally, under no mistake and in the knowledge that the thing taken is the property of another person." More clearly still did the court in Cockburn pinpoint this element where Winn L.J. summarizing the elements of theft concludes that the thief: ".... is in effect trying to force upon the owner a substitution to which the owner has not consented." (the emphasis is mine). Professor Smith finds the judgment unsatisfactory because of the omission of any mention of the word "fraudulently." I take the view that any such mention would have been otiose inview of the word underlined above.

49. For these reasons I feel compelled to conclude that on a charge under s.9 of the Ordinance the Crown, in order to prove the element of the offence comprised in the term "dishonestly" need do no more than to show that the appropriation was without the consent of the owner. The test of of detriment upon risk may be the proper one to apply in respect of the issue of guilt or innocence to charges arising under s.18 and possibly in relation to other offences under the Ordinance as well but, in my view, on a charge of theft under s.9 it is relevant only in relation to mitigation. The wrong here was in acting without consent and I think that the magistrate put his finger on the essential deficiency of the defence when he pointed out that the appellant had admitted to the court that he knew he had done wrong.

50. I would answer the question raised by the case stated in the negative.

Representation:

Swaine (Hastings & Co.) for appellant

Stapp, C.C. for respondent