Criminal Law I & II 2022-23

UNIVERSITY OF HONG KONG

Faculty of Law
2022-23

CRIMINAL LAW
LLAW2003/2004 : Criminal Law I/II

Tutorial 2
Worksheet (for 15-21 Sep)

Topic 2 : Statute Reading

- Theft -

Learning Outcomes of this Class

At the conclusion of this class, assuming adequate preparations were made, students:

1. Will have developed familiarity with the Theft Ordinance, in particular, with the
offence of theft, and will be able to outline the relevant statutory provisions detailing
theft’s various elements, including ‘property’, ‘belonging to another’, and
‘appropriation’ (actus reus element), as well as being familiar with the mens rea
elements of ‘dishonesty’ and ‘intention of permanently depriving’;

2. Will have engaged in problem-solving in relation to theft, in particular, by applying

relevant statutory provisions in the Theft Ordinance to several factual scenarios.

Preparation for this Tutorial Class

1. Read the attached statutory provisions from the Theft Ordinance, which relate
primarily to theft, but also refer to robbery and burglary [note: only the English
language version is included - you may find it useful to copy the Chinese version so you
are familiar with the relevant Chinese terms, and also in case it assists your
understanding of the English terms]. When the Theft Ordinance was enacted, it was
intended to be a new start for theft and related offences (ie. ridding the law of previous
statutory and case law baggage), and was drafted using ‘ordinary language’ so it would
be readily understandable by a lay person (ie. non-lawyer).

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2. Read through the additional statutory provisions from the Magistrates

Ordinance, which set out the jurisdiction of a Magistrate (Permanent and Special) to
summarily try offences of theft (and also most other offences in the Theft Ordinance)
even though they are formally ‘indictable offences’ (ie. are triable ‘on indictment’).

3. Read the attached extract from R v. Hinks [2001] 2 AC 241 (HL), which discusses
in particular the meaning of ‘appropriation’ for the purposes of theft, and the brief
extracts from Ghosh [1982] QB 1053 (CA) and Ivey v. Genting Casinos UK Ltd [2017]
UKSC 67, [2017] 2 WLR 1212, discussing the ‘meaning’ of ‘dishonesty’. In each case, ask
yourself: do the meanings attributed to ‘appropriation’ and ‘dishonesty’ match with the
‘ordinary meaning’ of ‘theft’?

4. Class Activity

During class, we will discuss the offence of theft, contrary to s.9, Theft Ordinance (cap
210) (based on the English Theft Acts 1968 and 1978). Starting with the general
definition of theft in s.2 of the Ordinance, we will familiarize ourselves with how
each of its elements (as stated in s.2) is further elaborated in ss.3-7. We will then work
through some simple factual scenarios to familiarize ourselves with the application of
the Theft Ordinance to theft.

_____________________________________________________________

Reading the Theft Ordinance :

(a) Start with section 9:

You will see that s. 9 enacts an offence of theft, stipulates that it is an ‘indictable offence’
(ie. triable on indictment) and sets the maximum penalty at 10 years imprisonment.
(Note, however, that theft can also be tried summarily, ie. before a Permanent (or
Special) Magistrate - to understand why, take a quick look at ss.91, 92 of the Magistrates
Ordinance (Cap.227), which are also attached).

But s. 9 does not itself define ‘theft’. To identify the elements of ‘theft’ (ie. what the
prosecution has to prove BRD to convict someone of theft), we must look elsewhere. In
this case, we will find the answer in s.2

[Note: alternatively, definitions may be found in the interpretation section of the

particular Ordinance (in HK, this is usually s.2; cf. UK Acts which commonly place its
definitions section towards the end), or in the general definitions found in s.3 of the
Interpretation and General Clauses Ordinance (‘IGCO’) (Cap.1). If no statutory
definition exists, then we must turn to the common law (ie. case law)]

(b) Turn to section 2:

Unlike most HK ordinances, the Theft Ordinance does not have a general interpretation
section at the beginning; instead, it sets out definitions in specific sections in relation to

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specific offences – see eg. s.7 (re theft), s.12 (re aggravated burglary); s.16A (re fraud);
s.17 (re obtaining property by deception).

You will see that s. 2(1) gives us a statutory definition of ‘theft’ : it states that a person
commits theft if he ‘dishonestly appropriated property belonging to another with the
intention of depriving the other of it [i.e. the property].’

Thus, to convict a person of theft, the prosecution must prove each element of this
definition BRD (of course, there may also be other matters or issues arising in a
particular case, eg. suppose D says he was ‘drunk’ at the time, or made a mistake (eg. D
mistakenly thought it was D’s property), or D was ‘forced’ by another to take the
property, etc).

For the sake of clarity, each of the elements of theft, as set out in s.2(1), is statutorily
elaborated or defined (in varying degrees) in ss. 3-7 of the Theft Ordinance.

(c) Read through sections 3-7:

Read each of these statutory provisions in the light of the general rule of criminal
statutory interpretation that a term or phrase should prima facie be given its ‘ordinary
meaning’ – and if you are unsure about the ‘ordinary meaning’ of any term, then prima
facie you should refer to an ordinary dictionary, not a legal dictionary! This rule
attempts to ensure that criminal law is accessible by ordinary citizens, and doesn’t
require specialist legal knowledge (but this objective isn’t always achieved – recall the
meaning given to ‘bet’ in Tutorial 1). Do you see any potential difficulties giving the
words used in ss.3-7 their ‘ordinary meaning’? Not surprisingly, the wording and effect
of each of these sections has been subjected to argument and judicial interpretation on
many occasions … usually at the instigation of defendants (but sometimes by the
prosecution), especially if a particular interpretation would or might lead to an acquittal.
Often the courts declare they are giving words and phrases their ‘ordinary meaning’, but
not always.

So, to fully understand ‘theft’, we need to be familiar both with ss. 2-9 of the Theft
Ordinance, and also with all the case law dealing with the interpretation of these
sections. For this tutorial, you have been asked only to read an extract from three cases.

The first is from Hinks, dealing with the notion of ‘appropriation’, which is the key
conduct element of theft : D commits theft when D dishonestly ‘appropriates’ property
belonging to another with intention to permanently deprive the other of it. Does
‘appropriation’ (as elaborated in s.4, TO) require proof of ‘hostility’ or ‘non-consensual’
conduct? Or is it a wholly neutral term, so that eg. a consensual, legally valid transfer of
property belonging to another to D (eg. by way of a legally valid gift) may still amount
to an ‘appropriation’ (and thus potentially constitute theft, provided the mens rea
elements also exist). In reading Hinks, ask yourself whether its interpretation of
‘appropriation’ accords with your ‘ordinary meaning’ of ‘theft’?

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The other two extracts, from Ghosh and Ivey, discuss ‘dishonesty’. Note firstly that
neither case actually defines ‘dishonesty’ (noun) [or ‘dishonest’ (adjective) or
‘dishonestly’ (adverb)] as such – rather, they set out tests for the trier of fact (ie. jury, or
judge, if no jury) to use to assess ‘dishonesty’. Secondly, note the difference between the
‘Ghosh test’ and the reformulation offered in Ivey. The ‘Ghosh test’ has two limbs - the
first is objective, the second is ‘subjective’ (ie. it relates to what D actually thought). This
test has been generally applied in HK (and was held not to be ‘uncertain’ as a standard
of liability in Mo Yuk-ping). However, in 2017 the UK Supreme Court in Ivey rejected
the second (subjective) limb. Instead, the SC declared that ‘dishonesty’ should be
assessed first by ascertaining D’s knowledge and beliefs about the facts (but not
including any belief held by D about whether D’s conduct was ‘honest’ or ‘dishonest’)
and then applying only the first, wholly objective limb. Will the HK courts follow Ivey?
This has not yet been (clearly) determined.

Problems for analysis and discussion

Consider the following scenarios in the light of your reading of the relevant section(s)
of the Theft Ordinance :

1. Dee was playing games on her mobile phone while on a bus. The passenger
beside her got off. After the bus began moving, Dee saw a library book and wallet
(which in fact contained $300 in bank notes and some business cards printed in the name
of ‘Victor Lo’) lying on the bus seat next to her. Without opening the wallet, Dee picked
up the book and wallet and put them into an empty plastic shopping bag she happened
to be carrying:

(a) suppose Dee handed the bag and its contents to the bus driver;

(b) suppose Dee got off the bus with the bag, opened the wallet and removed the
$300, and then dumped the bag and its remaining contents into a rubbish bin.

2. Dee regularly visited John, an elderly man of slightly sub-normal intelligence, as

part of her job as a social worker. On many occasions, Dee put the kettle on and made
John a cup of tea, especially when, as he says, ‘I got a bit confused about who she was’.
During a recent visit, John handed her an envelope containing $1,000 in cash, which he
had withdrawn from his bank account, saying ‘I want you to have this as a gift, for
helping me and being nice to me’. Dee took the envelope, and later deposited the $1000
cash into her bank account (which previously had a $0 balance).

For each scenario, first focus on the external elements (or ‘actus reus’):

(1) Identify all items qualifying as ‘property’, within s. 5, Theft Ordinance. Be

prepared to explain how each item qualifies as ‘property’.

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(2) For each item of ‘property’ identified, identify who it ‘belongs to’, within s.6,
TO. (ie. from whom it may be ‘stolen’), specifying the statutory wording you
rely on in saying it ‘belongs to’ that person.

(3) For each item of ‘property’, assess whether Dee has ‘appropriated’ it, according
to the language used in s.4, TO. If so, when and by doing what? Explain what
‘rights of an owner’ were ‘assumed’ by Dee in relation to each item of
property?

Then assess whether the necessary mens rea elements specified in s.2 are likely to be
proved ... or is there likely to be at least a reasonable doubt about either of them?

(4) For each item identified by you as ‘property belonging to another’, assess
whether Dee ‘intended to permanently deprive’ ‘the owner’ of the item(s), as
required by s.2, TO? Consider whether s.7, TO, might assist you to make this
argument if you were the prosecutor.

(5) Finally, assess whether Dee ‘dishonestly’ appropriated the items in question,
as required by s.2, TO? Consider whether Dee might be able to claim that she
acted with any of the ‘beliefs’ identified in s.3, TO?

Be prepared to explain which words in the section(s) (or subsection) you rely on for
your analysis of the facts, and, if necessary, how you have ‘interpreted’ these words,
referring where appropriate to Hinks (re ‘appropriation’) and to the ‘Ghosh test’ or its
reformulation in Ivey (re ‘dishonesty’).

To assist you, a table with columns for each element of theft, is attached (a copy has
also been uploaded to Moodle).

If time allows, additional scenarios for analysis and discussion may be provided to
you in class, for further analysis and discussion.

***

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APPENDIX

Theft Ordinance (cap 210)

Section 2 Basic definition of theft

(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" (竊賊) and "steal" (偷竊) shall be
construed accordingly.
(2) It is immaterial whether the appropriation is made with a view to gain, or is made for the
thief's own benefit.
(3) Sections 3 to 7 shall have effect as regards the interpretation and operation of this section (and
except as otherwise provided by this Ordinance shall apply only for purposes of this section).
[cf. 1968 c. 60 s. 1 U.K.]

Section 3 ‘Dishonestly’ (不誠實地)

(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) (except where the property came to him as trustee or personal representative) if he
appropriates the property in the belief that the person to whom the property belongs
cannot be discovered by taking reasonable steps.
(2) A person's appropriation of property belonging to another may be dishonest notwithstanding
that he is willing to pay for the property. [cf. 1968 c. 60 s. 2 U.K.]

Section 4 ‘Appropriate’ (挪佔)

(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) Where property or a right or interest in property is or purports to be transferred for value to a
person acting in good faith, no later assumption by him of rights which he believed himself to be
acquiring shall, by reason of any defect in the transferor's title, amount to theft of the property.
[cf. 1968 c. 60 s. 3 U.K.]

Section 5 ‘Property’ (財產)

(1) "Property" (財產) includes money and all other property, real and personal, including things
in action and other intangible property.
(2) A person cannot steal land, or things forming part of land and severed from it by him or by his
directions, except in the following cases, that is to say -
(a) when he is a trustee or personal representative, or is authorized by power of attorney,
or as liquidator of a company, or otherwise, to sell or dispose of land belonging to
another, and he appropriates the land or anything forming part of it by dealing with it in
breach of the confidence reposed in him; or

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(b) when he is not in possession of the land and appropriates anything forming part of the
land by severing it or causing it to be severed, or after it has been severed; or
(c) when, being in possession of the land under a tenancy, he appropriates the whole or
part of any fixture or structure let to be used with the land.
(3) For the purposes of subsection (2) –
"land" (土地) does not include incorporeal hereditaments;
"tenancy" (租賃) means a tenancy for years or for any less period and includes an agreement for
such a tenancy, but a person who after the end of a tenancy remains in possession by virtue of any
Ordinance or otherwise is to be treated as having possession under the tenancy, and "let" (租)
shall be construed accordingly.
(4) A person who picks mushrooms growing wild on any land, or who picks flowers, fruit or
foliage from a plant growing wild on any land, does not (although not in possession of the land)
steal what he picks, unless he does it for reward or for sale or other commercial purpose.
(5) For the purposes of subsection (4) "mushroom" (菌類植物) includes any fungus, and "plant" (
植物) includes any shrub or tree.
(6) Wild creatures, tamed or untamed, shall be regarded as property; but a person cannot steal a
wild creature not tamed nor ordinarily kept in captivity, or the carcass of any such creature, unless
either it has been reduced into possession by or on behalf of another person and possession of it
has not since been lost or abandoned, or another person is in course of reducing it into possession.
[cf. 1968 c. 60 s. 4 U.K.]

Section 6 ‘Belonging to another’ (屬於另一人)

(1) 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).
(2) Where property is subject to a trust, the person to whom it belongs shall be regarded as
including any person having a right to enforce the trust, and an intention to defeat the trust shall
be regarded accordingly as an intention to deprive of the property any person having that right.
(3) Where a person receives property from or on account of another, and is under an obligation to
the other to retain and deal with that property or its proceeds in a particular way, the property or
its proceeds shall be regarded (as against him) as belonging to the other.
(4) Where a person gets property by another's mistake, and is under an obligation to make
restoration (in whole or in part) of the property or its proceeds or of the value thereof, then to the
extent of that obligation the property or its proceeds shall be regarded (as against him) as
belonging to the person entitled to restoration, and an intention not to make restoration shall be
regarded accordingly as an intention to deprive that person of the property or proceeds.
(5) Property of a corporation sole shall be regarded as belonging to the corporation
notwithstanding a vacancy in the corporation. [cf. 1968 c. 60 s. 5 U.K.]

Section 7 ‘With the intention of permanently depriving the other of it’ (意圖永久地剝
奪他人財產 )

(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

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borrowing or lending of it is for a period and in circumstances making it equivalent to an outright

taking or disposal.
(2) Without prejudice to the generality of subsection (1), 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. [cf. 1968 c. 60 s. 6 U.K.]

Section 8 Other definitions

(1) Section 5(1) and section 6(1) shall apply generally for the purposes of this Ordinance as they
apply for the purposes of section 2.
(2) For the purposes of this Ordinance –
"gain" (獲益) and "loss" (損失) are, except in section 16A, to be construed as extending only to
gain or loss in money or other property, but as extending to any such gain or loss whether
temporary or permanent; and -
(a) "gain" includes again by keeping what one has, as well as a gain by getting what one
has not; and
(b) "loss" includes a loss by not getting what one might get, as well as a loss by parting
with what one has; (Amended 45 of 1999 s. 2)
"goods" (貨品) except in so far as the context otherwise requires, includes money and every other
description of property except land, and includes things severed from the land by stealing.
[cf. 1968 c.60 s.34 U.K.]

THEFT, ROBBERY, BURGLARY, ETC.

Section 9 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. [cf. 1968 c. 60 s. 7 U.K.]

Section 10 Robbery

(1) A person commits robbery if he steals, and immediately before or at the time of doing so, and
in order to do so, he uses force on any person or puts or seeks to put any person in fear of being
then and there subjected to force.
(2) Any person who commits robbery, or an assault with intent to rob, shall be guilty of an
offence and shall be liable on conviction upon indictment to imprisonment for life.
[cf. 1968 c. 60 s. 8 U.K.]

Section 11 Burglary

(1) A person commits burglary if-

(a) he enters any building or part of a building as a trespasser and with intent to commit
any such offence as is mentioned in subsection (2); or

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(b) having entered any building or part of a building as a trespasser he steals or attempts
to steal anything in the building or that part of it or inflicts or attempts to inflict on any
person therein any grievous bodily harm.
(2) The offences referred to in subsection (1)(a) are-
(a) stealing anything in the building or part of a building in question;
(b) inflicting on any person therein any grievous bodily harm or raping any woman
therein; and
(c) doing unlawful damage to the building or anything therein.
(3) References in subsections (1) and (2) to a building shall apply also to an inhabited vehicle or
vessel, and shall apply to any such vehicle or vessel at times when the person having a habitation
in it is not there as well as at times when he is.
(3A) The reference in subsection (2)(c) to doing unlawful damage to anything in a building
includes-
(a) unlawfully causing a computer in the building to function other than as it has been
established by or on behalf of its owner to function, notwithstanding that the unlawful
action may not impair the operation of the computer or a program held in the computer or
the reliability of data held in the computer;
(b) unlawfully altering or erasing any program, or data, held in a computer in the building
or in a computer storage medium in the building; and
(c) unlawfully adding any program or data to the contents of a computer in the building
or a computer storage medium in the building. (Added 23 of 1993 s. 6)
(4) Any person who commits burglary shall be guilty of an offence and shall be liable on
conviction upon indictment to imprisonment for 14 years. [cf. 1968 c. 60 s. 9 U.K.]

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Magistrates Ordinance (Cap 227)

Section 91 Indictable offences which may be dealt with by special magistrate
summarily

Whenever any person is accused before a special magistrate of any indictable offence except an
offence specified in the Second Schedule, the magistrate, instead of committing the accused for
trial before the court, may deal with the case and convict the accused summarily, and on
conviction may sentence the accused to imprisonment for 6 months and to a fine of $50000:
Provided that nothing in this section shall affect the provisions of section 94 or any lesser
punishment specifically provided in any other Ordinance.

Section 92 Indictable offences which may be dealt with by permanent magistrate

summarily

Whenever any person is accused before a permanent magistrate of any indictable offence except
an offence specified in Part I of the Second Schedule, the magistrate, instead of committing the
accused for trial before the court, may deal with the case and convict the accused summarily, and
on conviction may sentence the accused to imprisonment for 2 years and to a fine of $100,000:
Provided that nothing in this section shall affect any greater or less punishment specifically
provided for in any other Ordinance.

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SECOND SCHEDULE

PART I
[sections 91, 92]

1. Any offence which is punishable with death.

2. Any offence (except an offence against section 10 or 12 of the Theft Ordinance (Cap 210), or
an offence against Part VIII of the Crimes Ordinance (Cap 200)) which is punishable with
imprisonment for life.
3. Any offence against section 21 or 22 of the Crimes Ordinance (Cap 200).
4. Misprision of treason.
5. Any offence against Part I or Part II of the Crimes Ordinance (Cap 200).
6. Blasphemy and offences against religion.
7. Composing, printing or publishing blasphemous, seditious or defamatory libels, except as
provided by section 16 of the Defamation Ordinance (Cap 21).
8. Genocide and any conspiracy or incitement to commit genocide.
9. Torture.

PART II
[section 91]

1. Perjury and subornation of perjury.

2. Making or suborning any other person to make a false oath punishable as perjury.
3. Any offence against the provisions of the laws relating to bankrupts.
4. Bigamy.
5. Bribery.
6. (Repealed).
7. An offence against section 22(1) of the Theft Ordinance (Cap 210).

PART III
[section 88, 91]

1. Any offence which is punishable with death.

2. Any offence which is punishable with imprisonment for life except an offence against section
37C, 37D, 37O or 37P of the Immigration Ordinance (Cap 115), an offence against section 53 or
123 of the Crimes Ordinance (Cap 200), an offence against Part VIII of the Crimes Ordinance
(Cap 200), an offence against section 4 or 6 of the Dangerous Drugs Ordinance (Cap 134), an
offence against section 10 or 12 of the Theft Ordinance (Cap 210), section 17, 28 or 29 of the
Offences against the Person Ordinance (Cap 212) or section 16, 17 or 18 of the Firearms and
Ammunition Ordinance (Cap 238).
3. Any offence against section 21 or 22 of the Crimes Ordinance (Cap 200).
4. Misprision of treason.
5. Any offence against Part I or Part II of the Crimes Ordinance (Cap 200).
6. Blasphemy and offences against religion.
7. Composing, printing or publishing blasphemous, seditious or defamatory libels.
8. Genocide and any conspiracy or incitement to commit genocide.

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