Ng Yin Han v. The Queen

CACC000903/1980

Coram: Rhind, J., in Court

Date of Judgment: 5 December 1980

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JUDGMENT

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1. The Appellant pleaded guilty in a Magistrate's Court to a charge of obtaining a pecuniary advantage by deception, contrary to s.18(1) of the Theft Ordinance, Cap. 210, the particulars being that on the 3rd July, 1980 at the Golden Palace Night Club, 6, Nanking Street, Kowloon, she dishonestly obtained for herself a pecuniary advantage, namely the opportunity to earn remuneration as a waitress in the employ of the said Golden Palace Night Club by deception, namely by a false written representation, viz. a Hong Kong Identity Card in the name of Ng Ching-lan, that she was the holder of it and attained the age of 17 years.

2. At the time of committing this alleged offence, the Appellant was sixteen years and five months old, having been born on the 2nd of February, 1964.

3. The facts she admitted before the Magistrate were as follows in the rest of this paragraph. In June this year, she borrowed the identity card of her seventeen year old sister, Ng Ching-lan, for the purpose of seeking employment. On 3rd July she went to the Golden Palace Night Club to he interviewed for the job of a waitress there. While being interviewed by the manager, she produced her sister's identity card, stating it was her own, and that she was seventeen years old. She signed a slip certifying that she was the holder of that identity card. She was accepted for the job and started work the next day. Her earnings were about $100 per day and her working hours were normally between 1 p.m. and 5.30 p.m. When the police executed an Authorisation Under the Protection of Women and Juveniles Ordinance, Cap. 213, at the night club on the afternoon of 10th July, the facts so far disclosed came to light. There is no suggestion that the night club proprietors suffered any economic loss or were in any way worse off financially as the result of employing the Apellant. The police arrested her and charged her with the present offence.

4. On the facts stated above the magistrate accepted the appellant's plea, and found her guilty as charged. He took such a serious view of what she had done that when he placed her on probation - it was her first ever offence - he saw fit to record a conviction. She broke the terms of the probation order, resulting in the magistrate sending her to the Training Centre. She now appeals to this court against that sentence.

5. Crown Counsel has most fairly pointed out that the facts do not support the offence charged. When the Appellant got this job in the night club, it was lawful for a girl aged fourteen years or older to work there, other than between the hours of 8 p.m. and 6 a.m. See Regulation 29(1) of the Dutiable Commodities (Liquor) Regulations. (The age has since gone up to fifteen). There is nothing in the facts to show that the management of the night club would not have employed the Appellant for that particular job if they had known she was under 17 years or that she would have been paid any the less if her true age were known.

6. I agree with Crown Counsel that the offence was not proved. Although the Appellant practised a deception, there is nothing to show that it operated to obtain any pecuniary advantage for her. By virtue of her true age, she was already qualified for the job she got.

7. Being unsupported by the facts, the conviction is a nullity. I grant the Appellant leave to appeal against conviction out of time. The conviction is quashed and the sentence set aside.

8. To my mind, charging young girls with an offence against the Theft Ordinance just because they have lied about their ages to get jobs in night clubs is a very strange way for the police to be carrying out their duties of protecting women and juveniles under the Protection of Women and Juveniles Ordinance. If the night club proprietor has been defrauded in some way, then a charge under the Theft Ordinance will be appropriate, but, if the gravamen of the conduct is using someone else's identity card, then the appropriate charge should be for a lesser offence under Regulation 12(3) of the Registration of Persons Regulations. Whereas the maximum penalty under s.18 of the Theft Ordinance is ten years imprisonment, Regulation 12(3) of the Registration of Persons Regulations carries a maximum of one year. Let the Theft Ordinance be used, as it was no doubt intended to be, against thieves, robbers, burglars, confidence-tricksters, blackmailers and receivers, but not against those who have caused no economic loss. Technically, perhaps, an under-age girl will sometimes commit an offence against s.18(1) of the Theft Ordinance if she lies about her age to get a job, but to charge her under this legislation, unless she is out to cheat someone, is akin to using a sledge-hammer to crack a walnut.

9. Perhaps it is thought that the severest charge possible should be brought against girls who mislead night club proprietors about their ages, because a night club proprietor employing under-age girls might find his licence therby imperilled. However, as most of these offences by girls come to light as the result of police action which is supposed to be for the protection of women and juveniles rather than for the protection of night club owners, I seriously question whether girls should be prosecuted under the Theft Ordinance where their conduct has got nothing to do with theft, as commonly understood by ordinary people in this community.

Representation:

Appellant in person

A. Duckett, Assistant Crown Prosecutor for Crown