HKSAR v. Wong Sui Ching

FACC No. 12 of 2011

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 12 OF 2011 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 730 OF 2010)

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Between :

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J U D G M E N T

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Mr Justice Bokhary PJ:

1.This appeal concerns how the offence of criminal damage contrary to s.60(1) of the Crimes Ordinance, Cap.200, operates.  The prosecution appeals to us against the quashing by the High Court of the defendant’s conviction in the Magistrates’ Court for that offence.  It appears to have been found by the High Court that she is the owner of the property concerned or at least had acted as the agent of the owner of that property. The property consisted of sheds annexed to the land in question as fixtures and trees growing on that land. 

2.Section 60(1) provides that:

“A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.”

That has to be read together with s.59(2) which provides that property shall be treated as belonging to any person who –

“(a) having the custody or control of it;

(b) having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest); or

(c)   having a charge on it.”

3.Is “custody or control” under s.59(2)(a) limited to lawful custody or control?   That is the certified question in the present appeal.  It was answered “Yes” by the High Court.  The prosecution submits that it ought to be answered “No”.  It is submitted on the defendant’s behalf that the High Court was correct in answering it “Yes”.

4.The defendant’s submission calls for the reading-in of the word “lawful”.  It is submitted on her behalf that such reading-in is necessary for the protection of owners.  I am not of that view. Owners are already sufficiently protected by reason of the prosecution having to prove the absence of “lawful excuse”.

5.Indeed, it is because the question of lawful excuse was not duly investigated at trial that the prosecution does not seek a restoration of the conviction or even a remitter to the High Court simply for it to consider the grounds of appeal which it had regarded unnecessary to consider.  That leaves a retrial in the Magistrates’ Court as a theoretical possibility.  But the prosecution does not seek a retrial either.  Its decision not to ask for a retrial is the appropriate one in all the circumstances.

6.In the result, I would allow the appeal to answer the certified question “No” but would not restore the conviction.  Nor would I order a remitter or a retrial.  As to costs, I would make an order nisi, to become absolute in the absence of any application for variation received by the Court within 21 days, leaving each side to bear its own costs here and below.  Any application or applications for variation of the order nisi should be dealt with on written submissions as to which the parties should seek procedural directions from the Registrar.

7.I associate myself with what Mr Justice Ribeiro PJ says about forcible entry.  When selecting the criminal offence to charge, care should be taken to select the one directed against that aspect of the defendant’s conduct to which the strongest objection is taken and which it is most desired to discourage in future.

8.What Mr Justice Litton NPJ says about statements of findings will, I trust, be received and remembered by magistrates as practical guidance in regard to the performance of their always important and often onerous duty.  Focus, clarity and concision are highly important in all forms of communication, not least of all judicial writings.

Mr Justice Chan PJ:

9.I agree with the Judgment of Mr Justice Ribeiro PJ.

Mr Justice Ribeiro PJ:

10.In this appeal, the meaning of “property belonging to another” falls to be considered in the context of a prosecution for criminal damage against the owner of the property destroyed.

A. The facts

11.In the morning of 15 April 2008, Yau Tak-man (referred to below as “PW2”) was sleeping in a shed erected on a lot in Sheung Shui known as Hang Tau Tsuen.  He was rudely awakened by the noise of an excavator and a gang of more than 10 workmen who were setting about demolishing the tenement structures and cutting down some 74 fruit trees on the property.  PW2 ran to the village grocery shop to call the police.  His father, Yau Sui-sum (“PW1”), arrived at the scene, having been alerted to what was happening.  PW1 remonstrated with the respondent who was present and who claimed to be acting for the registered owner of the property, but to no avail.  Two corrugated iron sheds, a pigsty and the fruit trees were destroyed in what was termed a “clearance” by the respondent and her contractors. 

12.The respondent, together with the leader of the demolition crew, Kwan Ping-Leung,[1] were charged under section 60(1) of the Crimes Ordinance[2] with criminal damage in respect of those sheds, the pigsty and the trees.

13.The evidence was that Yau Lam, PW1’s father, had leased the land and paid rent to a rent collector during the 1960s and the 1970s.  The sheds and pigsty were erected and the trees planted by him.  PW1 had lived with his father on the land. 

14.PW1, whose evidence was accepted by the Magistrate,[3] testified that the rent collector had stopped coming at the end of the 1970s and that thereafter, his father had not known to whom the rent should be paid.  However, they continued to live on and cultivate the land.  In 1997, PW1 moved to Choi Yuen Estate while his father remained on the land until the latter’s death in 2007.  As his father had grown older, PW1 regularly returned to Hang Tau Tsuen to take care of him and to tend the fruit trees.  He would often spend the night there, as would his own son, PW2.  After his father’s death, PW1 would return daily to offer incense to his departed father, continuing to use the sheds and to tend the fruit trees, often staying overnight.  PW2 would also frequently spend the night at Hang Tau Tsuen.

15.PW1 first met the respondent on 25 September 2007 when she came to the property to ask him to sign a tenancy agreement.  The Magistrate found that PW1 “refused to do so since he did not know whether the [respondent] was the true landlord or not”.[4]  They met again on 30 March 2008 when the respondent handed PW1 a solicitor’s letter (which has not been produced in court but which, according to the appellant’s printed case, demanded that he leave the land).  PW1 says that he called the solicitor and that later, Kwan Ping-Leung came to see him and offered him “a few tens of thousand dollars” as removal expenses, but this was refused.  It was a fortnight later that the demolition crew took action without prior notice. Neither of the defendants gave or called any evidence.  A cautioned statement given by the respondent to the police was, however, tendered by the prosecution.

B. The statutory provisions

16.The respondent was charged under section 60(1) of the Crimes Ordinance which provides:

“(1) A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.”

17.Subsection (2) is relevant, although it was not the subject-matter of a charge.  It creates an aggravated form of the offence:

“(2) A person who without lawful excuse destroys or damages any property, whether belonging to himself or another-

(a) intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and

(b) intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered, shall be guilty of an offence.”

18.Of central importance is section 59(2) which gives the words “property belonging to another” an extended meaning:

“(2) Property shall be treated for the purposes of this Part as belonging to any person –

(a) having the custody or control of it;

(b) having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest); or

(c) having a charge on it.”

19.Section 64 expands on the meaning of “lawful excuse” and relevantly provides as follows:

“(2) A person charged with an offence to which this section applies[5] shall, whether or not he would be treated for the purposes of this Part as having a lawful excuse apart from this subsection, be treated for those purposes as having a lawful excuse-

...

(b) if he destroyed or damaged ... the property in question ... in order to protect property belonging to himself or another or a right or interest in property which was or which he believed to be vested in himself or another, and at the time of the act or acts alleged to constitute the offence he believed-

(i) that the property, right or interest was in immediate need of protection; and

(ii) that the means of protection adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances.

(3)   For the purpose of this section, it is immaterial whether a belief is justified or not if it is honestly held.”

C. The decisions below

C.1 The Magistrate’s decision

20.The respondent’s case rested on two principal arguments.  First, it was contended that she was acting as the manager of a tso which was the registered owner of the land; that its ownership extended to all fixtures, including the sheds, pigsty and fruit trees; that at the time the wrecking crew went in, the Yau’s were mere trespassers and that, accordingly, the respondent was not guilty of criminal damage since the fixtures destroyed were not “property belonging to another” but property belonging exclusively to the tso which she represented.  Secondly, she claimed honestly to have believed that she was entitled to carry out the clearance.[6]

21.As to the first argument, the Magistrate found that PW1 had possession and control of the property and that the respondent knew this.[7] He held that the land and fixtures had therefore to be treated as belonging to PW1 by virtue of section 59(2)(a), since they were in his “custody or control” at the material time.[8]  It also appears (contrary to the view later taken by the Judge[9]) that the Magistrate found that the evidence did not establish that the respondent was (or presumably, represented) the owner of the property.[10]

22.There were two strands to the respondent’s second argument concerning lawful excuse.  First, it was contended that she came within section 64(2)(b).  It was suggested, in other words, that she had acted in the belief that the property was in immediate need of protection and that the means adopted were reasonable.  This was rejected, the Magistrate holding that there was no evidence that the property was in fact in immediate need of protection or that the means of protection adopted were in fact reasonable.[11]  Assuming without deciding that section 64(2)(b) was applicable,[12] that was a perfectly understandable conclusion. The Yau’s had been in occupation for decades and nothing had changed, making it impossible to see why, objectively, it should be necessary to send in a demolition crew without any prior notice instead of resorting to the judicial process.  However, it was not enough for the Magistrate to find that objectively there was no immediate need or reasonable requirement for destruction of the property.  Section 64(2)(b) required the prosecution to negative the defendant’s alleged belief as to an immediate and reasonable need to act as she did.

23.Secondly, as the Judge was later to note,[13] it was a ground of appeal that the Magistrate had “failed to deal with the [respondent’s] cautioned statement in which she mentioned that she honestly believed she had the right to remove the fixtures”.  In that cautioned statement (which the prosecution had adduced in evidence) the respondent claimed honestly to have acted on the alleged advice of officers of the Lands Department that she was entitled to demolish the structures, raising a claim of right. 

24.The respondent had therefore sought to rely on lawful excuse as arising in the specific case catered for by section 64(2)(b) and also on lawful excuse generally (by way of a claim of right), whose existence apart from the two cases set out in paragraphs (a) and (b) is recognized by section 64(2).[14]

25.The Magistrate’s treatment of lawful excuse was highly problematical.  It was necessary for the prosecution to negative the respondent’s alleged belief in her entitlement to demolish the fixtures.  However, the Magistrate twice stated in paragraph 60 that he assumed “that [the respondent] honestly believed that she had the right to carry out the clearance and demolition”.  He evidently did not appreciate the exculpatory consequences of that assumption, especially given the terms of section 64(3).[15] He convicted the respondent, sentencing her to one month’s imprisonment suspended for 12 months. 

C.2   The Judge’s decision

26.As noted above, one of the grounds of appeal to the Court of First Instance related to lawful excuse. However, the Judge considered it unnecessary to deal with that ground since he thought he had found a decisive flaw in the Magistrate’s decision concerning the true construction of section 59(2).[16] He held that the Magistrate had been wrong to find the “property belonging to another” requirement satisfied, arriving at that conclusion in two stages. 

27.First, he understood the Magistrate to have accepted that PW1’s father had held the land as the respondent’s (or her principal’s) tenant at will and that such tenancy had determined upon the father’s death, with the fixtures then reverting to the respondent, making them exclusively her property.[17] As indicated above, this seems to involve a misreading of the Statement of Findings since the Magistrate found that the respondent’s ownership of the land had not been established and is hardly likely to have accepted that PW1’s father was her tenant. 

28.However, as leave was neither sought nor granted to challenge the Judge’s decision on that ground, I proceed to the second stage in the Judge’s reasoning on section 59(2).  He held that:

“'Having the custody or control of it' as provided in section 59(2)(a) of the Crimes Ordinance must be taken to mean 'having the lawful custody or control of it'. If the Magistrate had accepted the point of law on tenancy, PW1, who being a trespasser could not have had lawful custody or control of the fixtures on the land in question.”[18]

29.The Judge therefore introduced the word “lawful” as a qualification to “custody or control” in section 59(2)(a).  He then concluded that being mere trespassers (after termination of the tenancy), the Yau’s did not have “lawful custody or control” of the fixtures and therefore did not have a protected interest within the extended meaning laid down in the section. 

D.     The certified question

30.It was that conclusion that led to certification of the question on which leave to appeal was granted by the Appeal Committee, namely:[19]

“Whether pursuant to section 59(2)(a) of the Crimes Ordinance (Cap 200), property shall be treated as belonging to a person having custody or control of it only if the custody or control is lawful?”

E. The legal issues

E.1 The extended meaning of “property belonging to another”

31.To commit an offence under section 60(1), an offender must damage or destroy “property belonging to another”.  Because of the extended meaning given to that phrase by section 59(2),[20] such other person includes, but is not confined to, the property’s owner.  The offence is also committed if the offender (without lawful excuse and intentionally or recklessly) damages or destroys property in another’s custody or control; property in which another person has a proprietary right or interest short of ownership;[21] or property subject to a charge in favour of another.  In the present case, the Magistrate found that the structures and fruit trees destroyed by the respondent were, to her knowledge, in the custody or control of PW1.

32.An item of property may be regarded as simultaneously belonging to more than one person.  To take a commonly cited example, where A, the owner of a book, lends it to B who hands it to C to examine, A owns, while B has possession and C has custody or control of the book.  Should D damage the book in C’s hands with the necessary intent and without lawful excuse, D commits the offence in respect of property which may be regarded as simultaneously belonging to A, B and C within the meaning of section 59(2).

E.2 Two approaches

33.What then is the position if (leaving B aside) the person who destroys the books in C’s hands is its owner A?  One approach would be to continue to treat the book as “property belonging to another”, applying section 59(2), since it was in C’s custody or control.  The competing approach would be to argue that the extended meaning does not apply because under the civil law A has, as against C, a right to immediate possession of the book. 

34.I shall refer to the first approach as the “unqualified approach”.  It does not regard the wording of section 59(2) as in any way qualified so that it is irrelevant that the offender may enjoy superior proprietary rights under the law of property. So long as another person has one of the proprietary interests referred to in section 59(2) in respect of the property damaged or destroyed, the “property belonging to another” requirement is satisfied, even where the offender is its owner.

35.I shall call the second approach the “qualified approach”.  Its adherents argue that in applying section 59(2), one must take into account the relative civil law positions of the parties.  Thus, a person having custody or control of property (even unlawfully) has, by virtue of section 59(2), an interest protected by the criminal law against a mere stranger who damages or destroys the property.  But the position is different if the defendant is the property’s owner.  If, under the civil law, the owner has an immediate right to possession of the property, such property should not be regarded as against its owner as belonging to a person who has mere physical custody or control.  The owner should only be liable (so the argument runs), if such custody or control is accompanied by proprietary rights which restrict the owner’s right to immediate possession. 

36.The Judge essentially adopted the qualified approach.  Describing PW1 and PW2 as mere trespassers, he regarded the respondent as entitled to immediate possession of the property, including the destroyed fixtures, because PW1’s “custody or control” was “not lawful” and held that section 59(2) did not apply.

E.3 Sections 60(1) and 60(2) and the two approaches

37.A preliminary argument should be disposed of.  If one were to examine section 60 in isolation, one might be tempted to conclude that it supports the qualified approach.  Section 60(1) defines the offence as damaging “property belonging to another” which, on its face, may be thought to exclude cases where the defendant destroys his own property.  Section 60(2) may be thought to reinforce this since it expressly makes the aggravated offence applicable to a person damaging property “whether belonging to himself or another”.  It might be argued that, lacking a similar provision, the basic offence created by section 60(1) is only concerned with cases where the property does not belong to the alleged offender.

38.Such a construction would be erroneous.  Section 60(1) is of course immediately preceded by 59(2) which makes it a requirement that, for the purposes of the relevant Part of the Ordinance, “property shall be treated ... as belonging to any person” having the proprietary interests listed, including “custody or control”.  Section 59(2) does not suggest that the extended meaning is disapplied where the alleged offender is the property’s owner.

39.Despite first appearances, section 60(2) casts no light on the meaning of “property belonging to another”.  Its true effect is to remove that requirement altogether from the aggravated offence which penalises a person who damages or destroys any property – “whether belonging to himself or another” – intending to endanger or being reckless as to endangering another’s life.  In such cases, it is irrelevant whether any other person has an interest in the property concerned.  Sections 60(1) and 60(2) therefore give no support to the qualified approach. 

40.The contest between the two approaches has divided judicial and academic opinion.  The debate has embraced both theft (and its cognate forms) and criminal damage.  Both are property offences and both must be committed against “property belonging to another”.  That concept is also given an extended meaning for theft which, for relevant purposes, is the same as for criminal damage: 

“Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest).”[22]

It is therefore helpful to consider the authorities concerning both offences, focusing on “custody or control” in the extended meaning.

E.4 The unqualified approach

E.4a Three features of this approach

41.Three important features of the unqualified approach have been highlighted in the case-law and commentaries. 

(a) First, the approach relies on the fact that, as a matter of language, the provision (our section 59(2)) is unqualified.  It says that property “shall be treated ... as belonging to any person having custody or control of it”.  There is no basis, the argument runs, for implying words like “unless the defendant is the property’s owner”.   

(b) Secondly, its adherents stress that the unqualified approach is concerned with merely one component of the actus reus of the offence.  It does not automatically lead to owners being convicted of stealing or criminally damaging their own property.  Before an owner can be so convicted, the other elements – especially dishonesty in the case of theft and the absence of lawful excuse in the case of criminal damage – must be proved.  Thus, if an owner acts in the honest belief that he has the right to appropriate or destroy the property in question, he will not be liable.

(c) Thirdly, the approach avoids dealing with possibly difficult and complex property law issues in the uncomfortable context of a criminal prosecution unless the statute makes resolving such issues necessary.

E.4b The English Law Commission

42.The relevant sections in the Crimes Ordinance adopt the provisions in the English Criminal Damage Act 1971, which in turn stem from a report of the English Law Commission.[23]  The Law Commission dealt expressly with the owner’s liability if an extended meaning were to be adopted:

“... we consider that where any other person has an interest in the property damaged, though it may be owned or possessed by the offender, the damage or destruction should be penalised. The problem is to define the interest of the other which should produce this result.”[24]

43.The Law Commission went on to state:

“Where a person other than the offender has custody or control of the property it will usually be in circumstances which give him some interest in preserving the property in its existing state. He may be, for example, the lessee of a house, the hirer of a mechanical instrument or the repairer of an article with a lien on it. It seems right to make it an offence for a person to damage or destroy, without lawful excuse, property which is in the custody or control of another in such circumstances without having to show that it belonged to some one other than the defendant; indeed it should be an offence for a person to damage his own property in such circumstances.” [25]

44.Mr Martin Lee SC, appearing for the respondent,[26] urged the Court to conclude from the three examples given (involving a lessee, a hirer and a repairer) that the Commission favoured the qualified approach.  In each of those cases, as he rightly pointed out, the person having custody or control also has a proprietary interest which restricts the owner’s right to immediate possession of the property as a matter of civil law.  However, I do not think that by giving those examples, the Law Commission was intending to import a property law restriction to qualify the meaning of “custody or control”.  In the same paragraph, its recommendation was stated in the following terms:

“We recommend that property should be treated as belonging to another when another has custody or control of the property. The fact that the prosecution will have to establish that the defendant acted without lawful excuse will in most cases be sufficient protection for legitimate destruction of or damage to the property by the true owner.”

45.In my view, the Law Commission was adopting the unqualified approach and relying on lawful excuse (rather than on some limiting property law concept) for the protection of owners who may legitimately damage or destroy their own property.

46.This is bolstered by the Law Commission’s discussion of lawful excuse.  It noted that the law as it then stood drew a distinction between a defendant damaging or destroying property which he believed he owned; and a defendant doing the same to someone else’s property, honestly believing he had the right to do so in order to protect his own property interests.  In the first situation, the law recognized a claim of right, whether reasonable or not, if the defendant honestly but erroneously believed he was dealing with his own property.  However, in the latter situation, the defendant had not only to act honestly, but to employ means which had to be reasonable.[27]

47.The Law Commission did not propose any change in respect of the first situation.  Thus, an owner acting in the honest but mistaken belief that he is entitled to damage or destroy his own property is treated as having a lawful excuse by way of a claim of right even if the belief and means used are unreasonable.  The Commission’s recommendation, subsequently enacted (as sections 64(2)(b) and 64(3) in Hong Kong), was that “lawful excuse” should be expanded to cover the two specified situations (concerning damage or destruction to someone else’s property), making it clear that in such circumstances, it is also immaterial whether the defendant’s belief is objectively justified, provided that it is honestly held.

48.It was by affording owners a “lawful excuse” on such relatively undemanding conditions that the Law Commission sought to exclude from criminal liability owners who act honestly.  It did not seek to achieve this by importing civil law property concepts.

E.4c The English Court of Appeal

49.The unqualified approach was adopted by the English Court of Appeal in R v Turner (No 2), a decision that has proved controversial.[28] The defendant took his car to a garage and later, without paying for the repairs, surreptitiously drove it away using a spare set of car keys.  He was convicted of stealing his own car.  A conviction on such facts would not in principle have attracted objection from adherents of the qualified approach. The defendant, although owner of the car, would not have been entitled to its immediate possession under the civil law since the garage owner had a lien on it pending payment for the repairs.  However, the first instance judge directed the jury to disregard any question of lien.  It was argued on appeal that the repairer therefore had to be regarded merely as a bailee at will and that the car ought not to be regarded as “belonging to another” since the defendant owner was entitled to immediate possession as against such a bailee. 

50.Lord Parker CJ[29] rejected that argument and adopted the unqualified approach:

“This court is quite satisfied that there is no ground whatever for qualifying the words ‘possession or control’ in any way.[30] It is sufficient if it is found that the person from whom the property is taken, or to use the words of the Act, appropriated, was at the time in fact in possession or control. At the trial there was a long argument as to whether that possession or control must be lawful, it being said that by reason of the fact that this car was subject to a hire-purchase agreement, Mr Brown could never even as against the appellant obtain lawful possession or control. As I have said, this court is quite satisfied that the judge was quite correct in telling the jury that they need not bother about lien, and that they need not bother about hire-purchase agreements. The only question was whether Mr Brown was in fact in possession or control.”

51.In R v Kelly,[31] while not a case involving theft by an owner of his own property, Turner (No 2) was endorsed.  It was a case involving the theft of human body parts from the Royal College of Surgeons where the parts had been used for teaching purposes.  The defendant was an artist who had wanted to make casts of the body parts.  It was argued on his behalf that the parts were not “property belonging to another” on the basis that at common law, neither a corpse nor parts of a corpse constitute property belonging to anyone.  The Court held that the extended meaning deemed them property belonging to the College, its possession or control being sufficient, especially given the skilled work done to render the body parts into teaching specimens.  The defence also argued that such possession or control was not lawful since the body parts had been kept for longer than the two years permitted under the Anatomy Act 1832.  That was again rejected, Rose LJ stating (for the Court):

“So far as the question of possession by the Royal College of Surgeons is concerned, in our judgment the judge was correct to rule that the college had possession, sufficiently for the purposes of and within section 5(1) of the Theft Act 1968.[32] We are unable to accept that possession, for the purposes of that section, is in any way dependent on the period of possession, ie whether it is for a limited time, or an indefinite time. In our judgment, the evidence, so far as it was material, before the jury, was to the effect that factually, the parts were in the custody of the Royal College of Surgeons. They were, as it seems to us, in their control and possession within the meaning of section 5(1).”

52.His Lordship went on to state in relation to Turner (No 2),as follows:

“That conclusion is, as it seems to us, reinforced by the judgment of the Court of Appeal in Reg v Turner (No 2) [1971] 1 WLR 901. We do not accept that the passage in Lord Parker CJ's judgment which we have read is to be regarded as limited to the facts of that particular case. In expressing the view that no other word such as ‘lawful’ was to be read into section 5(1), by reference to possession, that court was construing section 5 entirely consonantly with the construction which we now place upon it for the purposes of this appeal.”[33]

E.4d Academic commentators

53.Turning to academic support for the unqualified approach, in Australia, C R Williams, writing about the similarly worded Crimes Act 1958[34] of Victoria, noted the existence of the qualified approach but preferred Turner (No 2) stating:

“It can be said to be contrary to basic notions of what constitutes theft to say that a person who not only has the full proprietary interest in an item of property but also has a right to immediate possession of that property, can be guilty of theft when exercising that right, however dishonest the motives. However, s 71(2) has been deliberately drafted in very wide terms and the argument adopted by the Court of Appeal in R v Turner (No 2) that it is not legitimate to read limitations or qualifications into it appears compelling. ... Where an accused appropriates property in which he or she has the full proprietary interest plus a right to immediate possession, the accused will, of course, usually have a defence of lack of dishonesty.”[35]

54.Turner (No 2) was accepted without criticism by Alan Reed in a case-note in the Journal of Criminal Law,[36] and the decision received strong support in a textbook by Clarkson and Keating.[37]  Disagreeing with a criticism by Glanville Williams (referred to below), the learned authors stated:

“The Theft Act has chosen to protect a wide range of proprietary interests, including possession and control – irrespective of the rights or interests of the defendant. In Turner (No 2), there can be little doubt that the defendant appropriated property belonging to another (Mr Brown, by virtue of his possession or control). In most cases defendants with greater property rights than their victims, such as rights to repossession of their property, will not be acting dishonestly. ... But the defendant in Turner (No 2) surreptitiously removed his car without paying for the repairs and without the garage proprietor knowing his name or address so as to be able to send him his bill. In such a case a conviction for theft, based on the ordinary meaning of the words ‘possession or control’, does seem more appropriate than an acquittal based on a technical analysis of the meaning of a ‘bailment at will’, which is what Mr Brown had at civil law if he did not have a lien. The short point is that whatever else he might have had at civil law, Mr Brown clearly had possession or control of the car and the defendant acted dishonestly and satisfied the remaining elements of the offence of theft. A conviction was inevitable.”

E.5   The qualified approach

E.5a R v Meredith

55.The only reported case that has been cited in support of the qualified approach is the decision of Judge John Da Cunha in R v Meredith[38]in the Manchester Crown Court. The defendant’s car which was causing an obstruction was removed and impounded by the police pursuant to certain statutory powers.  The police would have required him to pay £4 to recover the car.  However, because the police station was very busy, he retrieved the car himself and drove it away without paying anything.  He was charged with theft of the car.  The Judge held that the statutory powers did not give the police the right to withhold the car from its owner and that therefore, there was no case to answer on the theft charge.  This was inconsistent with Turner (No 2) since the car was at the relevant time in the possession or control of the police and so within the extended meaning of “property belonging to another” under the Theft Act.  The Judge qualified that extended meaning by considering the relative rights of the police and the owner to possession.  If the unqualified approach had been applied, the defendant’s liability would have turned on whether he had acted dishonestly, not on whether the police had the right to retain the car as against its owner.

E.5b Academic commentators

56.Meredith has received powerful academic support, with eminent scholars favouring it over Turner (No 2).  The fundamental objection and the common theme of the commentators has been that the unqualified approach is likely to lead to an unacceptable inconsistency between the criminal and the civil law.

57.Thus, commenting on Turner (No 2), Sir John Smith wrote:[39]

“It looks more than a little odd that, where D has a better right to possession than P, he can nevertheless commit theft by the exercise (however dishonestly) of that ‘right’. It might have been thought that a thing does not belong to a possessor, P, as against D who has an immediate right to take possession from him. Possibly Turner (No 2) may be explained by holding that a bailor has no right, even in the civil law, to take back the chattel bailed, without notice to the bailee at will.”

58.J R Spencer called Turner (No 2) “remarkable” because:

“... it implies that an owner can be guilty of theft, even from a wrongful possessor, someone who has no right to keep the property at all. ... the decision creates the possibility of a collision between the civil and the criminal law. Taken at face value, Turner (No 2) accepts that a defendant can be guilty of theft in doing something which he could not merely do free of civil liability, but which the civil courts would actually help him to do if he asked them.”[40]

59.In the same vein, A T H Smith wrote that the principal objection to Turner (No 2) is that:

“... if the lien is ignored, the defendant has a better right to possess[ion] of the car than the supposed victim. ... Without the lien hovering over it the owner has a perfect right to drive it away, and a person should not be convicted of theft for doing what he has the right to do.”[41]

60.In his textbook, Glanville Williams thought that the effect of Turner (No 2) was to do away with the actus reus of the offence:

“If the owner was entitled to repossess himself whenever he wished, how could his act possibly be a crime? Yet not only was he convicted but the Court of Appeal affirmed the conviction.

The court assumed that the only questions were: was the repairer in possession, and did the owner take the car from his possession with subjective dishonesty? If so, it is theft. Nothing else matters. This means that theft can be committed without an actus reus in the sense in which the term is generally used for consummated crimes. It is hard to believe that the decision represents the law.”[42]

He added:

“...a person should not be held guilty of theft if he has the right to do what he does.”[43]

E.6   The preferable approach for Hong Kong

61.In my view, the unqualified approach is preferable and should be adopted.  The three features outlined in Section E.4 above provide compelling reasons for doing so.  First, as a matter of language, there is no reason apparent for implying any qualification to the plain words of section 59(2). 

62.Secondly, with great respect to the distinguished commentators who have expressed contrary views, I do not agree that the unqualified approach results in a collision between the civil and criminal law.  To accept that the requirement that the property must “belong to another” is satisfied – even as against the owner – if the property was in the custody or control of someone else when it was destroyed or damaged, does not of itself result in penalising the owner.  There is only criminal liability if the owner damages or destroys his own property without lawful excuse.  In such a case, the owner is not doing something that the civil law entitles him or will assist him to do.  I see no reason why destructive acts by an owner, performed without lawful excuse (and therefore without any honest belief in his being entitled so to act) in relation to property which he owns but which is in someone else’s custody or control, should not attract liability.  I see no attraction in making such liability depend on property law concepts which would come into play in the very different context of a civil suit for recovery of his property from the person having custody or control, where no one is concerned with any prohibited actus reus and no question of the plaintiff’s dishonesty or absence of lawful excuse arises.

63.I am respectfully unable to accept that the unqualified approach does away with the actus reus in any sense.  The actus reus remains damage or destruction to property belonging to another, but with the latter element – “belonging to another” – given the extended meaning specified by the Ordinance. 

64.The third feature of the unqualified approach also weighs in its favour.  I do not for a moment suggest that it is always possible or desirable to exclude civil law concepts from the true construction of criminal statutes.  It will often be the case – for instance where the Ordinance speaks of a “proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest)” – that relevant civil law concepts must be engaged.  As J C Smith (as Sir John Smith then was) pointed out:

“Sometimes the context in which a word is found points so clearly to the concept of the civil law that the court is bound to invoke it”.[44]

65.But at the same time, as Professor Smith indicated in the same article:

“Sometimes the courts have introduced the refinements of the civil law into the law of crime when there was no obvious necessity to do so. In some cases the courts have held themselves bound to interpret a word in a sense which it bears in the civil law, even though this defeated the probable intention of Parliament and produced an undesirable result.”[45]

66.In my view, to subject the words “custody or control” to civil law refinements is unnecessary and produces undesirable results.  It may of course be said that in many cases, the civil law concept is straightforward and poses no real problems:  How difficult can it be to understand that until one pays for the repairs, the repairer has a lien on the property which entitles him to withhold possession from the owner?  That may be true.  But even in that example, a debate as to the true civil law rule may arise.  A possible refinement to the law of lien was suggested by Sir John Smith:

“Possibly Turner (No 2) may be explained by holding that a bailor has no right, even in the civil law, to take back the chattel bailed, without notice to the bailee at will.”[46]

67.In a case involving criminal damage to fixtures attached to the land, there is considerably greater potential for complexity.  Proof of title may not be straightforward, especially where the relevant period spans many years.  Thus, the Magistrate in the present case was not satisfied that title to the land had been established by the respondent.  If one were thoroughly to explore the relative potency of the parties’ respective proprietary rights, the possibility that the respondent’s title had been extinguished by adverse possession after the decades of occupation by PW1 and his father might well require investigation.  A court trying a criminal damage case is poorly adapted to exploring such a question with the prosecution, rather than the claimant doing the running and without pleadings, discovery, witness statements and so forth.  The same applies to other possible civil law issues, touching, for instance, on the law of landlord and tenant.  The avoidance of unnecessary legal complications and procedural inadequacies argues strongly in favour of the unqualified approach.

68.There is a fourth reason for preferring the unqualified approach, namely, the policy of discouraging breaches of public order.  There exist, of course, a range of legal measures which may be invoked to prevent or punish such breaches and which are applicable to the unlawful use of force in property disputes.  The offences of theft and criminal damage may function as two such measures.  They constrain resort to inappropriate and possibly dangerous self-help measures when there should instead be resort to the judicial process.  To disapply those offences on the ground that a person is a trespasser and that his custody or control is not “lawful” may encourage those who claim to be owners – claims which may be questionable and which have not been judicially investigated – to take strong action to “recover” physical possession, potentially leading to breaches of the peace.

69.It was with similar considerations in mind that in R v Smith & Ors,[47] Lord Judge CJ rejected the argument that “a person cannot be guilty of stealing something which it is unlawful for anyone to possess.”  That was a case where a drug dealer was ambushed by the defendants and robbed at knifepoint of his stash of heroin, which it was of course unlawful for him to possess.  Charged with robbery, that is, theft of the heroin accompanied by the use of force, the defendants endeavoured to argue that the heroin was not property belonging to the drug dealer because his possession was unlawful.  Lord Judge CJ commented:

“Carried to its logical conclusion, the argument would suggest that the drug-misusing community is permitted to conduct itself in the context of what would otherwise be theft from each other with impunity. The public interest would hardly be secured by the inevitable public warfare which would ensue. ... In the ninth edition of Smith's Law of Theft, at page 80, it is suggested that ‘public policy which prevents the wrongdoer from enforcing a property right should have no application to criminal proceedings brought in the name of the Crown. The criminal law is concerned with keeping the Queen's peace, not vindicating individual property rights’. That observation articulates the principle to be applied in the present appeal.”[48]

70.It may be noted that Lord Judge CJ also expressed views reflecting the first and third reasons for supporting the unqualified approach discussed above:

“...nothing ... suggests that what would otherwise constitute or be regarded as ‘property’ for the purposes of the Theft Act ceases to be so because its possession or control is, for whatever reason, unlawful or illegal or prohibited. ...

... this is not an appropriate context in which to consider the impact of civil law concepts on the law of theft. The question of how litigation in the civil courts, brought by a person seeking damages for wrongful deprivation of drugs unlawfully in his possession from the person who removed the drugs from him, would operate is utterly irrelevant.”[49]

E.7 Answer to the certified question

71.For the foregoing reasons, the answer I would give to the certified question is “No”.  The extended meaning given to the phrase “property belonging to another” is not qualified by any requirement that “custody or control” must be lawful under the civil law.  The extended meaning is not qualified where the defendant is the owner who damages or destroys property in the hands of a person having custody or control.

F. Constitutional challenge

72.Mr Lee sought to rely on Articles 6 and 105 of the Basic Law as somehow rendering an unqualified reading of the extended meaning under section 59(2) unconstitutional. 

73.Article 6 states:

“The Hong Kong Special Administrative Region shall protect the right of private ownership of property in accordance with law.”

74.And Article 105 materially provides:

“The Hong Kong Special Administrative Region shall, in accordance with law, protect the right of individuals and legal persons to the acquisition, use, disposal and inheritance of property and their right to compensation for lawful deprivation of their property.

Such compensation shall correspond to the real value of the property concerned at the time and shall be freely convertible and paid without undue delay.”

75.Mr Lee never spelt out, whether orally or in his Speaking Note, what his argument was.  That is perhaps unsurprising since the point is, with respect, hopeless.  There is no question of any infringement of either Article.  The relevant provisions in fact constitute a measure affording protection in accordance with law to private property rights – of owners as well as others with protected proprietary interests – as required by both Articles.  The unqualified approach to the extended meaning does not deprive the owner of any property rights.  The owner commits no offence unless, without lawful excuse, he damages or destroys his property in which someone else also has a protected proprietary interest.  And should he commit the offence, he (and everyone concerned) may be deprived of the property as a result of his own destructive acts, but not by operation of the law.  The Articles are simply not engaged.

G. Disposal of the appeal

76.The Judge, with respect, fell into error when he restricted “custody or control” in section 59(2) to cases where such custody or control is “lawful”.  The basis upon which he quashed the respondent’s conviction therefore falls away and the appeal must be allowed.

77.However, as Mr William Tam[50] accepted, it does not follow that this Court should simply restore the respondent’s conviction.  He informed the Court that he does not seek an order for such restoration.  That is a concession correctly and fairly made. 

78.As appears from Sections C.1 and C.2 above, while the Magistrate correctly adopted the unqualified approach in construing “custody or control” in section 59(2), his conviction of the respondent rested on very shaky ground since his stated assumption “that [the respondent] honestly believed that she had the right to carry out the clearance and demolition” – if taken to be a finding – ought to have led to her acquittal.  Thus, restoring the Magistrate’s decision would not provide a viable basis for the respondent’s conviction.  Mr Tam declined to seek an order for a retrial.

79.I would accordingly allow the appeal and set aside the Judge’s decision without restoring the Magistrate’s decision or the respondent’s conviction.  Costs should be dealt with as indicated by Mr Justice Bokhary PJ.

H. Future cases

80.Before leaving this judgment, I wish to make some observations regarding future cases.  The respondent can count herself lucky that she has escaped punishment for her conduct.  Landowners and their legal advisers should not make the mistake of believing that this judgment provides any encouragement to adopt the respondent’s “bulldoze now, ask questions later” tactics.  Such conduct exposed her to a range of possible criminal sanctions.

81.It happens that the prosecution preferred an unnecessarily complicated charge.  They could instead have charged her with forcible entry under section 23(1) of the Public Order Ordinance[51] which relevantly provides:

“Any person who enters on any premises in a violent manner, whether or not he is entitled to enter thereon and whether such violence consists in actual force applied to any other person or in threats or in breaking open any building or in collecting an unusual number of people, shall be guilty of an offence and shall be liable on summary conviction to a fine of $5000 and to imprisonment for 2 years.”

82.No debate about relative proprietary rights would have arisen under section 23 which is designed to catch a landlord who is legally entitled to enter on the premises.  It is difficult to see any defence to a charge of forcible entry in a case like the present where actual force is applied not only in breaking open, but in demolishing, the dwellings and other structures.

83.The prosecution limited the particulars of the charge to damage or destruction to the sheds, pigsty and fruit trees, thus giving rise to the argument that those items were fixtures belonging to the respondent or the tso.  The prosecution could have avoided the complication by charging criminal damage to chattels which belonged to PW1 and PW2 and were obviously not fixtures. Photographs of the demolition operation plainly show that the sheds contained items of furniture and household appliances of the kind one would normally expect to find in a dwelling place, and that these items were damaged or destroyed along with the structures containing them.

84.Landowners wishing to recover land from alleged trespassers can and should avoid risking potential criminal liability and should resort to legal proceedings instead of disreputable strong-arm tactics.

Mr Justice Litton NPJ:

The Trial Process

85.The evidence in this case falls within a narrow compass.  There was a total of five witnesses, all called by the prosecution: PW1 Yau Sui-sum, the son of the original occupant of the property; PW2 Yau Tak-man, the son of PW1; two police officers (the witness statement of one of whom was simply put in as evidence in the case); lastly, an official of the Planning Department.  Neither of the two defendants gave evidence or called witnesses.

86.As to the early history of the occupation of this property:  how PW1’s father Yau Lam (Mr Yau) took over the property as tenant, erected sheds for habitation and for rearing pigs, planted fruit trees:  none of this was in dispute at the trial.  Nor was it in dispute that this property became Mr Yau’s family home. Nor was it in dispute that the respondent Wong Sui-ching had, after Mr Yau’s death, approached PW1 several times, once asking him to sign a tenancy agreement for the property.  It appears that PW1, having established his residence in Choi Yuen Estate in the 1990s, returned to the property daily to take care of his father and tend to the fruit trees.  After his father’s death, he returned to offer incense and occasionally slept overnight there.  Nor was it in dispute that the respondent and the 2nd defendant (operator of the excavator) found PW1 at the property shortly before the day in question and handed to him what was described as “a solicitor’s letter”, and that the 2nd defendant later went to the property again and offered PW1 “a few tens of thousands of dollars” as removal expenses.  Nor was it disputed that the respondent signed a contract with the 2nd defendant and caused him with his excavator and ten men to forcibly enter the property on 15 April 2008 and destroy the things in question.

87.The disputed evidence focused on what actually happened on the morning of 15 April 2008 at the property; and in particular whether PW2 was inside the “iron shed”[52] when the 2nd defendant was about to demolish it with his excavator.

88.And yet the trial took place over five days.  It was conducted all in Chinese; no translation was involved which might have prolonged the proceedings.

The Appeal

89.The defendants were convicted on 16 August 2010.  On the same day the 1st defendant (respondent in this Court) lodged her notice of appeal, under s 114(a) of the Magistrates Ordinance, Cap 227.  Her notice of appeal simply said “The conviction is unsafe”.

90.By the provisions of s 114(b) the Magistrate was required to “prepare a signed statement of his findings on the facts and other grounds of his decision”[53].

Statement of Findings

91.What the statute requires of a magistrate is that he should make a statement of his findings on the facts, and of the grounds of his decision.  Nothing more.  In this case what this meant in practice was :

(1)  A statement of the charge.

(2)  A statement of the undisputed facts, essentially as outlined in para 86 above.

(3)  An evaluation of the disputed evidence: Here the issue was whether PW2 had been sleeping overnight in the hut or, as the defence suggested, had arrived by motorcycle when he learnt of the intrusion.  What the defence suggested was that PW2 went into the hut, changed into shorts, then emerged from the hut pretending to have been sleeping there.  This was marginally relevant on the issue of PW1’s degree of custody or control of the property.

(4)  A finding on the disputed evidence: here as outlined in the subparagraph above.

(5)  A statement of the “other grounds of his decision”: Here, in essence, were the issues :

(1) Whether the property “belonged” to PW1 as charged: This boiled down to whether on the morning of 15 April 2008 PW1 had “custody or control” of the property.  This depended on the findings of fact the Magistrate made.

(2)  Whether the respondent and the 2nd defendant destroyed the property “without lawful excuse”: This turned on whether they honestly believed that the respondent had the right to destroy the property: or possibly so.  This depended on the findings of fact the Magistrate made.

92.A statement of findings as outlined above would have been brief, clear, concise.

93.Instead, what we have before us is an account of what happened at trial, over the five days.  A document with 73 paragraphs.  Included in the Magistrate’s “Statement of Findings” is an account of what happened when counsel for the two defendants made submissions of no case to answer.  This covered paragraphs 23 to 44.  As this Court has said[54], the determination of whether there is a case to answer is a question of law; the invariable practice is for the trial court to simply give a bare ruling – Yes or No – on the submission of no case.  Rarely does it require greater elaboration.  It should find no place in a magistrate’s reasons for conviction.  For obvious reasons. Had the submission of no case succeeded, the charge would have been dismissed. Where it failed, then the Magistrate’s task was to view the case as a whole at the end of the trial, including such evidence as the defence chose to produce and the submissions the parties made on the whole case.  What happened at “half time” was wholly irrelevant.

94.The Magistrate in this case appears to have felt the need to justify himself in dismissing counsel’s submissions of no case to answer.  At para 31 of his “Statement of Findings” he said :

“Credibility of PW1’s and PW2’s testimonies

31. In considering no case submission, there is no case for a defendant to answer where the prosecution’s evidence is ambiguous and very weak and even putting the case to the highest, the defendant cannot be convicted.  However, since the defence asserts that the prosecution witnesses were neither credible nor reliable, in principle, the case has to be left to the jury for their decision instead of making a decision at the present stage.”

95.This has no place in a statement of findings made under s 114(b).  In convicting the defendants, the Magistrate eventually found that PW1 and PW2 were “both honest and reliable witnesses” (para 55). Recording his own thought processes[55] when considering the credibility of those witnesses at the stage of a submission of no case was simply confusing and unnecessary.

96.Whether the confused way in which the Magistrate came to his findings had led in turn to the appellate judge’s error, as set out in Mr Justice Ribeiro PJ’s judgment, is a matter of pure speculation.  What is undeniable is that failure to follow the discipline of law, as required by the simple provisions of s 114(b) of the Magistrates Ordinance, led inevitably to confusion.  It did nothing to enhance the due process of justice.

The Question of Law in this Appeal

97.As this case evolved, two broad issues can be discerned:

(1)  whether the property “belonged” to PW1 in terms of the statute, and

(2)  whether the respondent caused the property to be damaged “without lawful excuse”

98.The High Court judge on appeal dealt with the first issue only, leading to the question put to this Court for determination:

“Whether pursuant to section 59(2)(a) of the Crimes Ordinance (Cap 200), property shall be treated as belonging to a person having the custody or control of it only if the custody or control is lawful ?”

99.I have no hesitation in saying “No” to this question.  This statute is concerned with keeping the public peace.  Fine distinctions of property rights should find no place in a criminal trial when persons are brought to court charged with damaging or destroying property “belonging to another” under s 60(1) of the Crimes Ordinance.  “Custody or control (保管或控制)” are plain words in ordinary everyday use.  A trial magistrate would determine the issue in a practical common sense way, without reference to fine property distinctions.

100.Take this very case. Was PW1, on 15 April 2008, a bare licensee?  A licensee with an interest? A tenant-at-will?  Someone who had rights by virtue of adverse possession for more than 12 years? A mere trespasser?  These are not issues that can be resolved without pleadings, without discovery.  The only proper way to approach a case like this is to take a broad view on the facts.  Who had custody or control at the relevant time is a pure question of fact.  No law is involved.

101.Mr Martin Lee, SC, counsel for the respondent, submitted that grave injustice might ensue if the question for determination by this Court were answered “No” : A person with full proprietary rights in property, with immediate right of possession, could, he submitted, find himself convicted of damaging his own property were the question answered otherwise.  But when, in the course of argument, the following proposition was put to him :

“Where an accused person wilfully damages property in which he has full proprietary interest plus a right to immediate possession, he would almost invariably have a defence of lawful excuse”

Mr Lee said he would accept that as correct.

102.That is a tribute to Mr Lee’s candour but, as it seems to me, it also puts an end to his case.

Disposal of the Appeal

103.The facts of this case, as they appear on the record, indicate a reasonably strong case of criminal damage against the respondent.  The problem at trial, and the reason why the prosecution, quite rightly, did not seek to restore the conviction, is this : “without lawful excuse” was an element of the offence, an element which the Magistrate purported to have dealt with under the heading of “Mens rea of the 1st Appellant”. But when one reads paras 57 to 62 of his Statement of Findings, it can be seen that his mind was focused on “points of law on tenancy” and not on the mental state of the defendant.  In para 60 the Magistrate said: “The 1st Appellant relied on the statutory defence under the Ordinance as defence.  I assume that the 1st Appellant honestly believed that [she] had the right to carry out the clearance and demolition”.

104.The state of mind of the respondent was not explored on the facts.  Whether she honestly believed she had the right to destroy the property was a pure question of fact.  The Magistrate had confused matters of law – which did not require determination – with a matter of fact.

105.The prosecution could have sought a retrial but chose not to do so.  This can be said to be merciful in this case.

106.I too would allow the appeal and make the orders as proposed in para 6 of Mr Justice Bokhary PJ’s judgment.

Mr Justice Gleeson NPJ:

107.I agree with the Judgment of Mr Justice Ribeiro PJ.

Mr Justice Bokhary PJ:

108.The Court unanimously allows the appeal and sets aside the Judge’s decision but without restoring the respondent’s conviction. Costs will be dealt with as indicated in paragraph 6 above.

Mr Martin Lee SC, Mr Jackson Poon and Mr Joseph Lee instructed by Edmund W H Chow & Co for the Respondent

Mr William Tam DDPP and Mr Andrew Cheng SPP (Ag) of the Department of Justice for the Appellant