VIII. Offences relating to dishonestly
Theft is an offence contrary to section 9 of the Theft Ordinance ( Chapter 210 ). It involves the dishonest appropriation of property belonging to another with the intention of permanently depriving the other of it.
The word “appropriates” simply means treating someone else’s property as your own to do what you like with.
The words “belonging to another” mean that the property belongs to someone other than the person who takes it.
To amount to theft, the taking of someone else’s property must be dishonest and with the intention to permanently deprive that person of their property. A person is dishonest if right thinking members of society would consider that what the taker did was dishonest and the taker realised that what was being done was dishonest according to that standard. This is what is known as “the Ghosh test” from the leading authority R v Ghosh , a decision of the English Court of Appeal in 1982. Ghosh remains good authority for the law of theft in Hong Kong.
Burglary is an offence contrary to section 11 of the Theft Ordinance ( Chapter 210 ). It is committed where a person enters a building or part of a building as a trespasser with intent to steal anything inside the building or part of a building, inflicting grievous bodily harm on any person therein, raping any woman therein or intending to do any unlawful damage to the building or anything therein.
Burglary is also committed where a person who has entered a building or any part of a building as a trespasser steals or attempts to steal anything inside the building or the part of a building or inflicts or attempts to inflict grievous bodily harm on any person therein.
Entry as a trespasser simply means intentionally going into a building or a part of a building without the permission of the owner or occupier of the building or without any lawful right to enter.
Whether the place entered is a building or part of a building is a question of fact in each case. A customer in a shop who goes into a part of a shop marked “Private” or “Staff Only” enters that area as a trespasser. A customer only has permission to enter the public area of the shop.
C. Making off without payment
Making off without payment is an offence contrary to section 18C of the Theft Ordinance ( Chapter 210 ). It is committed where a person forms a dishonest intent to avoid payment after goods or services have been received. This would include leaving a restaurant without paying, leaving a taxi without paying the fare or filling up with petrol at a self-service petrol station then leaving without paying for the petrol. In these situations the supplier of goods or services expects payment for the goods or services after they have been supplied and before the person who has received them leaves the place of supply. If the person who has received the goods or services makes off, which means leaves the place where payment was expected, dishonestly intending to avoid payment, the offence is complete.
The dishonesty required is the same as for theft. The difference between theft and making off is that in theft the dishonest intent must be present when the goods are appropriated whereas in making off the dishonest intent arises after the goods or services have been received. A motorist might intend to pay for petrol at a self-service station when he/she starts to fill the car’s tank but then, noticing there is a queue at the payment point, takes the opportunity to drive off to avoid queuing and paying for the petrol. He/she is guilty of making off without payment but not theft.
D. Handling stolen goods
Handling stolen goods is an offence contrary to section 24 of the Theft Ordinance ( Chapter 210 ). It is committed where a person knowing or believing the goods to be stolen goods dishonestly receives them, or dishonestly undertakes or assists in their retention, removal, disposal or realisation by or for the benefit of another person, or if he arranges to do so.
Handling involves dealing with goods which have been stolen, knowing or believing them to be stolen. Handling is action after the theft, by a person other than the thief, which helps the thief. Examples include buying goods from the thief knowing or believing them to be stolen or looking after stolen property whilst the thief finds a buyer for those goods.
Dishonesty in handling has the same meaning as in theft. There must be proof that the goods in question had been stolen. Whether a person knows or believes the goods in question to be stolen goods is a question of fact in each case, which needs to be proved by the prosecution beyond reasonable doubt.
E. Obtaining property by deception
Obtaining property by deception is an offence contrary to section 17 of the Theft Ordinance ( Chapter 210 ). It is committed where property belonging to another person is dishonestly obtained from that person by deception with the intention of permanently depriving that person of the property. The offence involves telling lies which persuades someone to hand over property when, had they known the true situation, they would not have done so. An example would be using a stolen credit card or a credit card which has been cancelled by the bank, to obtain goods from a shop. Using the credit card is making a promise to the shopkeeper that the card can safely be accepted and will result in payment for the goods. Had the shopkeeper known the true position, the credit card would not have been accepted as payment for the goods. The shopkeeper is the victim of a deception. The person using the card intends to permanently deprive the shopkeeper of the goods. The goods have been dishonestly obtained by deception.
F. Obtaining services by deception
Obtaining services by deception is an offence contrary to section 18A of the Theft Ordinance ( Chapter 210 ). It is committed where services are dishonestly obtained. The offence involves inducing a person to confer a benefit by doing an act, or causing or permitting an act to be done on the understanding that the benefit will be paid for, whilst intending not to pay. An example might be getting someone to provide a service, for example painting a house on a promise of payment when the painting has been completed, whilst all the time intending not to pay. The person providing the service is dishonestly deceived into providing the service.