Case Document

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CACC000879/1980

[

Obtaining part of an estate in land by deception cannot be offence against section 17 (1) of Theft Ordinance. Power of court to quash conviction where there was plea of guilty.]

IN THE COURT OF APPEAL

	Criminal Appeal
	1980 No. 879

BETWEEN:
	CHAN WAI LAM	Appellant
	and
	THE QUEEN	Respondent

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	Criminal Appeal
	1980 No. 880

BETWEEN:
	WOO YIN LUNG	Appellant
	and
	THE QUEEN	Respondent

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	Criminal Appeal
	1980 No. 881

BETWEEN:
	CHAU LEI SHEUNG (F)	Appellant
	and
	THE QUEEN	Respondent

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Coram: Roberts, C. J., Barker, J and Penlington, J.

Date of Judgment: 22nd January, 1981.

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JUDGMENT

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Roberts, C. J.:

Preliminary

1. The three appellants, whose appeals were heard together, pleaded guilty before Mr. Crawshaw to a charge of attempting to obtain property by deception contrary to section 17(1) of the Theft Ordinance, Cap. 210. Each appellant appealed against his sentence within time. The three appeals came before Barker, J. on the 3rd December, 1980.

2. In view of the difficult question of law involved, the judge referred the appeals to the Court of Appeal, in accordance with section 118(1)(d) of the Magistrates Ordinance (Cap. 227).

Facts

3. The facts in all three cases are, in essence, the same. We will take those applicable to the first appeal, that of CHAN Wai Lam, but the decision in the other two appeals will follow that of CHAN.

4. The charge brought against him reads as follows -

"

Statement of Offence - ATTEMPTING TO OBTAIN PROPERTY BY DECEPTION Contrary to Section 17(1) of the Theft Ordinance, Cap. 210, and Common Law.

Particulars of offence - CHAN Wai-lam, you are charged that you, on the 27th day of September, 1979, did attempt dishonestly to obtain a flat from the Hong Kong Government by deception, namely by falsely representing that neither you nor your spouse owned any residential property, including vacant building land, within Hong Kong, Kowloon or the New Territories, with the intention of permanently depriving the Hong Kong Government of the said flat."

5. Section 17 of the Theft Ordinance (Cap. 210) is in the following terms -

"	17. (1) Any person who by any deception (whether or not such deception was the sole or main inducement) dishonestly obtains property belonging to another, with the intention of permanently depriving the other of it, shall be guilty of an offence and shall be liable on conviction upon indictment to imprisonment for ten years.
	(2) For the purposes of this section a person is to be treated as obtaining property if he obtains ownership, possession or control of it, and 'obtain' includes obtaining for another or enabling another to obtain or to retain.
	(3) Section 7 shall apply for the purposes of this section, with the necessary adaptation of the reference to appropriating as it applies for the purposes of section 2.
	(4) For the purposes of this section - 'deception' means any deception (whether deliberate or reckless) by words or conduct as to fact or as to law, including a deception relating to the past, the present or the future and a deception as to the intentions or opinions of the person using the deception or any other person."

6. Section 17 of the Theft Ordinance is in the same terms as section 15 of the Theft Act of 1968 with the exception of the words in brackets in subsection (1), which are not present in the English Act.

7. In September 1979, teachers in the Sai Kung District were given the opportunity of applying for vacant flats, which had been built for those working on the construction of the High Island Water Scheme, and were now vacant at Sai Kung Town.

8. The application form, which was completed and signed by the appellant, required an applicant to sign a declaration that neither he nor his spouse owned any residential property in Hong Kong. The appellant submitted his signed application form on the 27th September, 1979 to the Sai Kung District Office.

9. Officers of the Sai Kung District Office conducted a search in the Land Office, to ensure that the applicants for these flats complied with the conditions as to ownership. This search revealed that the appellant's wife, KO Yin Ping, owned a residential property in Kwai Chung.

10. The appellant was charged with the offence described above against section 17(1) of the Theft Ordinance and pleaded guilty before Mr. Crawshaw, the facts recited above having been read to him in court and admitted by him.

11. The magistrate sentenced the appellant to imprisonment for 28 days. The appellant appealed against this sentence and has sought to argue that, notwithstanding the provisions of section 113 of the Magistrates Ordinance, the conviction should be quashed because the facts as put before the court disclosed no offence known to the law.

Was there any offence?

12. It was not disputed by counsel for the appellant that the appellant was guilty of a deception within the meaning of section 17(1) of the Theft Ordinance. Nor was it in dispute that what the appellant was seeking to obtain, by virtue of his deception, was not a flat, as alleged in the particulars of the offence, but a leasehold interest in that flat.

13. It was further agreed that the leasehold interest which would have been granted by the Crown to applicants was one which would expire in 1997, three days before the end of the lease of the New Territories, held by the United Kingdom Government under a grant from the Government of China.

14. There seems to be little doubt that an offence against section 17(1) can be committed if, by deception, a person obtains ownership of an estate in land, or possession or control of the land, provided that there is an intention to deprive the victim permanently of his interest in the land, whatever that interest may be.

15. There is no difficulty where the owner is induced to convey the whole of his estate to the deceiver, for instance if the owner of a freehold is induced to convey the fee-simple, or a lessee is induced to assign the whole of his leashold interest.

16. Difficulty arises, however, where the deceiver induces the owner of a freehold to grant him a lease of the land for a short period. Clearly, the deceiver does not intend to deprive the victim permanently of the property which belongs to him, that is to say, of his freehold interest. Furthermore, if he intends to vacate the property after this period, he does not intend to deprive the victim permanently of possession of the land.

17. The position would seem to be no different if the victim were himself a lessee, whose lease has a number of years to run and who grants a sub-lease to the deceiver for a term less than that remaining under the head-lease.

18. It might be suggested that a lease of land could be said to be an estate in land created by the granting of the lease and that since that estate could be regarded in law as a separate piece of property, the deceiver intends that the lessor shall never have it.

19. The difficulty about this argument is that it is not possible to say that the leasehold estate ever belonged to the owner of the freehold. If it were surrendered to the owner, it would cease to exist as a separate piece of property and merge in the larger interest. Nor does it exist until the lease is granted, from which moment it belongs only to the deceiver.

20. It was suggested in a passage from Smith's Law on Theft (4th Ed.), that where the Act talks of permanently depriving another, it could be construed as meaning the living person whose property is taken or obtained, and that if he is not to have it back in his lifetime, that element of the offence is made out.

21. We are not convinced by this argument, which surely leaves out of account the possibility that the person being deprived would be an entity with no life span, such as a corporation or, as in this instance, a government.

22. Can it be said that there is any point, short of the assignment of the victim's whole interest, at which the quality of permanence can be ascribed to the intention of the deceiver. It is tempting, if the deceiver obtains a very long lease, to say that he intends to deprive the victim permanently of the land, but we do not see how any artificial line can be drawn to the effect that, after so many years, there shall be deemed to be an intention to deprive permanently but not before this.

23. Does section 7(1) of the Ordinance, which reads as follows, affect the position -

"7. (1) A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other's rights; and a borrowing or lending of it may amount to so treating if, but only if, the borrowing or lending of it is for a period and in circumstances making it equivalent to an outright taking or disposal."

24. The wording of section 7(1) which refers to meaning the victim "permanently to lose the thing itself" is hardly appropriate to an estate in land.

25. Nevertheless, even if the phrase "the thing itself" could be interpreted sufficiently widely to include an estate in land, we do not think that the deceiver in this case had the intention of treating the estate as his own to dispose of regardless of the other's rights, for there is nothing to suggest that the appellant intended to do anything which would have ignored the rights of the Crown, had the leasehold estate been conveyed to him. It must indeed be assumed that although he would no doubt have treated the estate as his own, subject to whatever conditions may have been contained in the grant of it to him, he did not intend to dispose of the property in any way inimical to the rights of the Crown, that is to say to the Crown's right of reversion.

26. Thus we have come to the conclusion that an offence can be committed under section 17 of the Theft Ordinance, only if the intention of the deceiver is to deprive the victim, where the latter has an interest less than full ownership, permanently of the whole of that interest, whatever it may be. In this instance, taking the facts at their highest against him, the appellant could not have intended to do more than to deprive the Crown of a lease which was shorter in terms than its own interest in the land.

Can the court interfere?

27. The appellant, who was legally represented, pleaded guilty before the magistrate.

28. He appealed against the sentence imposed on him, under section 113 of the Magistrates Ordinance (Cap. 227).

29. By virtue of section 113(2) of the Magistrates Ordinance, it is provided that -

"(2) Any person who, after pleading guilty or admitting the truths of the information, may appeal to a judge against his sentence."

30. On the face of it, the provisions of section 113 do not permit a person who has pleaded guilty to an offence to appeal against his conviction.

31. However, there are various authorities which make it clear that, where justice so requires, an appellate court will entertain an appeal against conviction, even where this is not permitted by the terms of section 113 of the Magistrate Ordinance.

32. The general principle applicable was set out in CHAO Tse Yun v. R.⁽¹⁾

33. In dealing with an appeal in which it emerged that the charge to which an accused had pleaded guilty had been bad for duplicity, Hogan, C.J., delivering the judgment of the Full Court, set out the approach of the court as follows -

"In our opinion, when section 111(1) of the Magistrates Ordinance refers to a plea of guilty it contemplates a valid plea to a valid charge. Where there has been a plea of guilty to a charge that is defective on the face of it and the accused appeals against sentence, justice and convenience seem clearly to point towards a construction of sections 111(1) and 117 (d) which would enable an appellate court to quash the defective charge, even though they are doing so on an appeal which comes before them only as a result of the appellant exercising his rights under section 111(2). We think that section 117(d) may properly be so construed and that the Judge was right when, on the 16th May, 1962, he quashed the conviction recorded by Mr. Phillips."

34. We were also referred to Criminal Appeal 310 of 1980 and Criminal Appeal 888 of 1980. In each of these appeals, the Chief Justice quashed convictions, although the appellants in each case had pleaded guilty before a magistrate and was appealing to the High Court only against sentence.

35. The Chief Justice does not appear to have been referred to any of the case relevant to the court's power to act under section 113, and seems to have acted from instinct and a sense of justice rather than on the basis of authority. Having seen such authority, we are satisfied that it was proper for him to act as he did.

36. In R. v. Forde⁽²⁾, the princples on which the Court of Criminal Appeal was prepared to act, in similar circumstances, were set out by Avory, J., who delivered the judgment of the Court of Criminal Appeal, at pp.102 and 103 -

The first question that arises is whether this Court can entertain the appeal. A plea of guilty having been recorded, this Court can only entertain an appeal against conviction if it appears (1) That the appellant did not appreciate the nature of the charge, or did not intend to admit that he was guilty of it; or (2) That upon the admitted facts he could not in law have been convicted of the offence charged."

37. It seems to us that the appeal before us falls clearly into the second category, that is to say, that on the admitted facts the appellant could, in law, not have been convicted of the offence charged since in law those facts amounted to no offence.

38. We are prepared to so act and accordingly we ordered, at the conclusion of the argument, that all three convictions should be quashed and that the sentences should be set aside.

39. We undertook to give our full reasons later and this we have now done.

Representation:

A. Sedgwick (Liu, Chan & Lam) for Appellant

K. Egan (for Crown)

(1) (1963) H.K.L.R. 121.

(2) (1923) 17 C.A.R. 99

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