The Queen v. Leung Wing Hong

M.A. No.1159/92

HEADNOTE

Theft Ordinance, Cap.210 - S.7(1) – “With the intention of permanently depriving the other of it” - meaning of.

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 1159 OF 1992

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BETWEEN

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Coram : The Hon Sir T L Yang, CJ in Court

Date of hearing : 11 March 1993

Dates of Judgment : 19 March 1993

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J U D G M E N T

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Hon Yang, CJ:

1. The Appellant was convicted of theft after trial at the Eastern Magistrate’s Court and fined $3,000. He was also ordered to pay a court fee of $1,500. He now appeals against his conviction.

2. The Appellant was charged that on 12 September 1992 at the Sauna de Carol Reef he stole a portable telephone valued at $11,000, the property of FAN Man-kuen (“Mr Fan”).

3. Mr Fan’s evidence was that at about 5:30 a.m. on the day in question, he went to the Sauna and there he placed his portable telephone on a cabinet at the head of a bed in a room where he had a massage. After falling asleep, he woke up at about 9:10 a.m. and found his portable telephone missing. He reported the matter to the Police. He also called the number of his own portable telephone. At 1 p.m. someone answered his call but the line was cut; he thought perhaps it ran out of electricity. At about 7 p.m. he dialled his number again and someone answered. Mr Fan said that he was the man who had lost the telephone and “what do you want before you return it to me ?” The man answered that he had picked up the telephone but it was useless to him and he asked Mr Fan for tea money. Mr Fan offered $1,000, but the man said he wanted $2,000 and asked Mr Fan to make an appointment. The line was then cut again. After trying for “some tens of minutes”, Mr Fan reached the man again on the telephone, but the man said he was working at the time and asked Mr Fan to telephone him later to make an appointment. Mr Fan then went to Wanchai Police Station to report the matter. After several attempts at the Police Station, Mr Fan got through to the man again, and the man demanded $4,000 for the telephone. The Police had told Mr Fan to pay the man’s price, so he agreed. The man said he was in Yuen Long, and he asked Mr Fan to meet him at 12 p.m. that night at the Red House Canteen, Hennessy Road, Ground Floor.

4. At mid-night Mr Fan went to the canteen whilst the Police laid ambush on the opposite side. The man then called Mr Fan and asked him to wait at Watson’s in Jardine Street nearby.

5. Mr Fan waited at Watson’s for five minutes and he again dialled the number of his portable telephone. The man answered the call and said he was coming, but asked Mr Fan to wait at the Seven Eleven Shop nearby. Mr Fan did as instructed. Then a police officer told Mr Fan they had already arrested the man, and they told him to return to Wanchai Police Station by himself. At the Police Station, at about 1 a.m., he saw his telephone.

6. The Appellant in his evidence said he had found the telephone in the massage parlour and was seeking to return it to its owner, and he never demanded money for so doing. The Appellant’s evidence was disbelieved by the trial Magistrate.

7. In his Statement of Findings, the learned Magistrate said this: -

“I was not sure exactly when on the day in question, the 12th September, the defendant appropriated the telephone. I was sure, however, that by the conclusion of the telephone call which P.W.1 made from the police station that night the defendant had assumed the rights of an owner over the telephone since he was demanding payment for its return to the true owner. It was urged on me by counsel that there was no proof of a lack of consent to the appropriation. Whatever the legal niceties that flow from such a contention I was sure that a lack of consent was to be inferred from the conduct of P.W.1 (i.e. Mr Fan). It probably was the case that he may have rewarded an honest finder of his property with what can be described as tea money, but that was not the situation he was faced with.”

8. The Magistrate went on to say that whilst the Appellant did not intend Mr Fan to lose the telephone permanently, he was to be regarded as having the specific intent as his intention was to treat the telephone as his own to dispose of regardless of Mr Fan’s rights. The Magistrate found that the Appellant had the requisite intent as he had made the return of the telephone conditional on the payment of $4,000.

9. It is obvious that in this finding the Magistrate relied on S.7(1) of the Theft Ordinance, Cap. 210, which provides: -

“A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights; ……”

10. The Appellant through his counsel advances two Grounds of Appeal, viz.: -

(1) the Magistrate erred in deciding that the Appellant had a permanent intention to deprive Mr Fan of the portable telephone; and

(2) the Magistrate erred in deciding that the Appellant had appropriated the portable telephone.

11. Counsel for the Appellant referred to the following provisions of the Theft Ordinance, in addition to S.7(1): -

S.2 (1) A person commits theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.

S.3 (1) A person’s appropriation of property belonging to another is not to be regarded as dishonest –

(a) if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or

(b)       if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it; or

(c)        ……

S.4(1) Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property - (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.

(2) ……

12. It was contended on behalf of the Appellant that the Appellant had neither appropriated the telephone or intended to permanently deprive the owner of it. It was then argued that the theft, if there was a theft, could not have been committed at the Sauna, the earliest time possible would be at the Police Station. It was argued that the Appellant did not say he would not return the telephone without payment; it was Mr Fan who first offered to pay. It was Mr Fan who planted the notion of payment into the Appellant’s head.

13. Counsel for the Crown, however, maintained that the Appellant was holding the telephone for ransom by making payment for it a condition for its return to the owner. It was conceded that probably the theft did not take place at the Sauna.

14. Several authorities were cited in the course of the hearing before me.

15. The first authority cited was the House of Lords case of R v. Gomez (1993) 1 All ER 1, which came nine days before the Magistrate’s Statement of Findings in the present case.

16. In construing S.1(1) of the Theft Act 1968, the terms of which are almost identical with S.2(1) of our Theft Ordinance, Lord Keith said (at P.7, a): -

“It will be seen that Viscount Dilhorne’s speech contains two clear pronouncements, first that it is no longer an ingredient of the offence of theft that the taking should be without the owner’s consent and, second, that an appropriation may occur even though the owner has permitted or consented to the property being taken.”

17. In CHAN Man-sin v. A-G of Hong Kong (1988) 1 All ER 1, the House of Lords had the occasion to consider S.7(1) of our Theft Ordinance. Though the subject matter in that case was a chose in action, the following dictum of Lord Oliver is nevertheless instructive (at P.4, b and c): -

“The owner of the chose in action consisting of a credit with his bank or a contractual right to draw on an account has, clearly, the right as owner to draw by means of a properly completed negotiable instrument or order to pay and it is, in their Lordships’ view, beyond argument that one who draws, presents and negotiates a cheque on a particular bank account is assuming the rights of the owner of the credit in the account or (as the case may be) of the prenegotiated right to draw on the account up to the agreed figure. Ownership, of course, consists of a bundle of rights and it may well be that there are other rights which an owner could exert over the chose in action in question which are not trespassed on by the particular dealing which the thief chooses to assume. In R v Morris [1983] 3 All ER 288, [1984] AC 320, however, the House of Lords decisively rejected a submission that it was necessary, in order to constitute an appropriation as defined by S 3(1) of the 1968 Act, to demonstrate an assumption by the accused of all the rights of an owner.”

18. Smith on the Law of Theft, 6th ed., 1989, explains the position clearly (at P.75): -

“A similar problem may arise where D takes the property of P, intending to claim a reward from P for finding it. If he intends to return the property in any event and hopes to receive the reward, he is not guilty of stealing though he is about to attempt to obtain property by deception, contrary to s. 15(1). But if he intends to retain the property unless he receives the reward, he seems to be in substantially the same situation as the taker who sells the property back to the owner.”

19. And, on the same page: -

“The general principle might be that it is sufficient that there is an intention that P shall not have the property back unless some consideration is supplied by him or another; or, more generally still, unless some condition is satisfied.”

20. In my judgment, clearly, in those circumstances D would be guilty of theft from P.

21. Edmund Davies LJ (as he then was) in the case of Warner (1970) 55 Cr. App. R. 93 gave the example (at P.99) of a man who intended to deprive the owner of the use of his goods for a limited period, the precise length of which he had not yet decided upon, but fully intending to return them to their owner in due course. This, the learned Judge observed, would not necessarily justify conviction for theft and in the majority of cases probably would not do so.

22. In another case, the Appellant had bought a stolen theodolite, but although he kept the stolen property in his possession since he had learned it was stolen, he had not decided what to do with it, and as he had not kept it for a long time, or attempted to dispose of it or had used it, it was held by Goff LJ (as he then was) in Broom v Crowther (1984) 148 JP 592 that it would not be right to conclude that he had assumed the rights of an owner. The appeal was accordingly allowed.

23. Counsel for the Appellant placed much reliance on the decision of the Court of Criminal Appeal in R v. Coffey, the only available report of which appears in (1987) Crim. L. Rev. 498. There Coffey was convicted of obtaining property by deception. He had obtained machinery using a worthless cheque. At his trial he explained that he had been in dispute with the victim, who refused to negotiate its resolution. He had decided to exert pressure by obtaining and keeping the machinery until he got what he wanted. It was not clear exactly what he wanted or what would happen to the machinery if he did not achieve his purpose. He appealed against his conviction on the ground that the Judge’s summing up did not fully or accurately state the law as to intent and dishonesty.

24. In allowing the appeal, the Court of Criminal Appeal held that the summing up was defective. The jury might reasonably have concluded that Coffey intended to keep the machinery until the victim had done what he wanted, no matter how long that might take, and if he did not comply the machinery would never be returned. The jury should have received guidance as to the criteria to apply.

25. The Court had the occasions to consider S.6(1) of the Theft Act 1968, equivalent to S.7(1) of our Theft Ordinance. There, three possible views of the law were discussed, the one preferred by the Court was stated in the Report as follows: -

“The culpability of the appellant’s act depended upon the quality of the intended detention, considered in all its aspects, including in particular the appellant’s own assessment at the time as to the likelihood of the victim coming to terms and of the time for which the machinery would have to be retained. The Court preferred this view.

This was one of the rare cases where it was right for the judge to bring section 6(1) before the jury. The judge could usefully have illustrated the first part of section 6(1) by the expression “equivalent to an outright taking or disposal.” If they thought that the appellant might have intended to return the goods even if the victim did not do what he wanted, they would not convict unless they were sure that he intended that the period of detention should be so long as to amount to an outright taking. Even if they did conclude that the appellant had in mind not to return the goods if the victim failed to do what he wanted, they would still have to consider whether the appellant had regarded the likelihood of this happening as being such that his intended conduct could be regarded as equivalent to an outright taking.”

26. The Court rejected as unsound the second view that Coffey was interested in the machinery, only as a means to an end which if achieved would mean the return of the machinery, so that his intention could not be said to deprive permanently. The Court rejected this view for it concentrated too much on the physical object which constitutes the “property” and not enough on the relationship in which the true owner stands to that property.

27. Lastly, the third view was stated thus: -

“To create a situation in which the victim could only get his own goods back by doing something which the appellant wanted him to do was treating the machinery as the appellant’s ‘own to dispose of.’ There may be cases where this argument would be correct, e.g. the ‘ransom’ situation where the true owner has to pay for the return of his goods. It will not always be so; not every wrongful conversion is theft.”

28. The commentary, with which I agree, goes on to say that a guilty intent and dishonesty in this context includes the state of mind of a person who intended that the owner should have his property back only by buying it; and it seems clear that the same principle must apply where the appropriator demands some other consideration such as a ransom. The decision in Coffey makes it clear that the jury must be satisfied that the accused intended not to return the property if he did not get what he wanted or, at least, that he intended to keep it so long as to be “equivalent to an outright taking”, e.g., “when the virtue” had gone out of the thing.

29. The Magistrate found that matters such as moving the meeting place at the last minute, it’s time and place and the broken contacts were all of nature that demonstrated the Appellant making money out of the owner’s loss rather than endeavouring an honest return of the portable telephone. He continued to find that the Appellant was to be regarded as having the specific intent to permanently deprive as his intention was to treat the telephone as his own to dispose of regardless of the owner’s rights. The Magistrate found that the Appellant had the requisite intent and found that he had made the return of the telephone conditional on the payment of the $4,000.

30. The Magistrate was on the evidence clearly entitled to come to the findings he did. On S.7(1), and on the authorities, in particular R v. Coffey (supra), the conviction cannot be faulted.

31. It remains for me to consider the point that the venue of the theft was probably not the Sauna but the Wanchai Police Station. Nothing turns on this point. There is a remedy provided by S.27 and S.119 of the Magistrates Ordinance, Cap. 227. I accordingly exercise my power to amend the particulars of the charge by substituting Wanchai Police Station for the name “Sauna de Carol Reef” with its address.

32. The appeal is dismissed.

Mr T M Casewell for the Crown/Respondent

Mr G J X McCoy (Stevenson, Wong & Co) for the Appellant