L6

• L6: Offences Against the Property
• Theft


  Basic definition of the offence of theft
• s2(1) of the Theft Ordinance (Cap 210): 'a person commits theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and thief(竊賊) and steal (偷竊) shall be construed accordingly'
• s2(2) of the Theft Ordinance (Cap 210): 'it is immaterial whether the appropriation is made with a view to gain, or is made for the thief's own benefit'
• Elements of theft


  • dishonesty
  • appropriation
  • property belonging to another
  • intention of permanently depriving the owner of it
• R v Lawrence: 'theft … involves four elements: (a) dishonesty (b) appropriation (c) property belonging to another (d) intention of permanently depriving the owner of it'
• In R v Vinall (George Alfred) [2012] 1 Cr App R 29, it was held that the dishonesty, appropriation, and the intention to permanently deprive must co-incide
• The Ghosh test


  Two-stage process to determine dishonesty: (1) Objective limb - whether according to the ordinary standards of reasonable and honest people, what the defendant did was dishonest (2) Subjective limb - whether the defendant himself did know that what he was doing at the material time was dishonest
• If the objective limb is answered in the negative, the judge of law must acquit the defendant
• If the objective limb is answered in the positive, then the subjective limb will have to be determined by the judge of facts
• Situations where there is no dishonesty pursuant to s3(1) of the TO


  • Appropriation in the belief that the defendant has the right to deprive the other
  • Appropriation in the belief that the other would consent if they knew
  • Appropriation in the belief that the owner cannot be discovered
• If the jury finds that the defendant had one of the beliefs set out under s3(1)


  The question under the first (objective) limb of the Ghosh test must be answered in the negative and an acquittal should be returned
• s3(3) of the TO provides that a person's appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property
• Appropriates (挪佔)


  Any assumption by a person of the rights of an owner amounts to an appropriation, including keeping or dealing with it as owner
• s4(2) of the TO has the effect of codifying the common law defence of "honest mistaken belief" to a specific statutory defence of theft
• Property (財產) under the TO


  Includes money and all other property, real and personal, including things in action and other intangible property
• Things or chose in action refers to a property that is created by a legal action
• The most common types of chose in action include: account balances in banks, debts, company shares
• Land generally does not amount to property that may be stolen, unless under the three conditions specifically set out in s5(2) of the TO
• The fact that the property being stolen has little or even no value is irrelevant to the offence of theft
• A property which is under unlawful possession or control may still be subject to theft for the purpose of the TO
• It was confirmed in R v Gomez [1993] AC 442 that it was not necessary for the Prosecution to prove that all rights in connection with a property was appropriated
• In HKSAR v Cheung Ying Kit, Vicky (unreported, CACC 202/2004), it was held that there had been an appropriation of a chose in action [the funds in a bank account] when the defendants pledge those funds to obtain an over-draft facility for themselves
• Conditional appropriation


  A conditional appropriation will arise if the Defendant has in his mind that he would only deprive the owner of the property when a certain condition is satisfied; but on finding that such condition is absent the Defendant is ready to let the owner to repossess the property
• A conditional appropriation is not sufficient to support a charge of theft
• However, the defendant with a conditional appropriation may be charged with attempt theft of an unspecified property if it can be proved that there is a general intent to steal
• Belonging to another (屬於另一人)


  Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest
• Possession or control alone may satisfy the condition that the property is belonging to another
• Property that has been abandoned cannot be stolen
• In R v Small, 86 Cr App R 170, it was held that where the property was not abandoned but the defendant honestly believed that it was, he cannot be convicted of theft, whether his belief was reasonable or unreasonable
• The relevance of reasonableness of the belief was whether the jury would accept that an unreasonable belief was actually held by the defendant at the material time
• With the intention of permanently depriving the other of it (意圖永久地剝奪他人財產)


  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
• Where a person, having possession or control (lawfully or not) of property belonging to another, parts with the property under a condition as to its return which he may not be able to perform, this (if done for purposes of his own and without the other's authority) amounts to treating the property as his own to dispose of regardless of the other's rights
• Borrowed items


  If the condition of return is one which would not be fulfilled or not be fulfilled in the foreseeable future, then the circumstances may amount to an intention to permanently to deprive. If the condition can be readily fulfilled and may be fulfilled in the future, the circumstances may not amount to an intention to permanently to deprive
• Theft involving breach of trust


  A theft involving breach of trust will arise where a person is authorized to deal with a property belonging to another by virtue of the trust reposed to him dishonestly appropriates the property in abuse of that trust
• Immediate imprisonment for a conviction of theft involving breach of trust is almost inevitable, save in very exceptional circumstances or where the monetary loss of the victim is minimal
• HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017 - sentence tariffs for BOT cases: 10 years or above for cases involving $15 million or more; 5 – 10 years for cases involving $3 – $5 million; 3 – 5 years for cases involving $1 - $3 million; 2 – 3 years for cases involving $250K – $1 million; Below 2 years for cases involving $250K or less
• Alternative verdict


  A verdict that may be made against a defendant if the evidence may establish all the elements of another offence even though the evidence may not be sufficient to establish the elements of the offence with which the defendant is charged
• Alternative verdicts of theft


  • taking conveyance with authority
  • obtaining property by deception
  • obtaining pecuniary advantage of deception
  • obtaining services by deception
  • evasion of liability by deception
  • making off without payment
  • false accounting
  • handling stolen goods
  • going equipped for stealing
• The penalty of theft


  Any person who commits theft shall be guilty of an offence and shall be liable on conviction upon indictment to imprisonment for 10 years