Attorney General v Leung Kam Wah

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 272 OF 1968

-----------------

-----------------

-----------------

JUDGMENT

-----------------

Huggins,J: This appeal by way of case stated raises yet another difficult question on the law of larceny and it is a matter for regret that the respondent has not been represented before me by counsel. The facts can be shortly recited. The respondent is a taxi driver. He conveyed two passengers in accordance with their directions and at the end of the journey the meter indicated a fare of $1.90. The passengers were visitors to the Colony and they mis-read the meter. Apparently thinking (albeit with some understandable doubt) that the fare was $190.00 one of them handed the respondent two $100 bank notes. The respondent clearly guessed what was in the minds of the passengers for he handed back $10.00 change, thus dishonestly misappropriating $188.10. He was charged with the larceny of that sum. I will return later to the course of the proceedings which has led to the hearing in this court.

2. No question is expressly put for the decision of the court but the substance of the matter, as I have understood it, is whether the fact which I have outlined constitute the offence of larceny. Counsel appearing on behalf of the Attorney General submits that the case is clear and is covered by the decision of the majority of the court in Reg. v. Middleton⁽¹⁾. It was for this reason that when the case was first called he urged me not to follow my original inclination to refer the matter to the Full Court. In Middleton⁽¹⁾ a depositor with the Post Office Savings Bank gave notice to withdraw 10 shillings. He presented his savings bank book together with a letter of advice authorising withdrawal of 10 shillings. The clerk referred by mistake to the wrong letter of advice and as a result paid to the depositor the sum of £8 16s. 10d. after entering that sum in the depositor's book. When later questioned the depositor said he had burned his book. The jury found that the depositor had animus furandi at the time he took the money from the counter of the post-office. On appeal it was held by the majority that he had been rightly convicted of larceny, although only seven of the fifteen judges were entirely agreed in their reasons.

3. The charge against the present appellant was laid under the statute and not under the Common Law. Section 2 of the Larceny Ordinance is for all practical purposes identical to section 1 of the Larceny Act, 1916 of England and as all the cases to which I shall have to refer are English cases it will be convenient hereafter to refer to the English section. Sub-section (1) reads:-

This definition suggests that stealing involves six elements:

On the face of it the "taking" was clearly intended to refer to a physical act and the question whether such act has been done should be considered entirely independently of any question of knowledge or intent. One can take and carry away another's goods without knowing that one is doing so, such absence of knowledge being due either to absence of knowledge of the very existence of the thing (as where one takes one's own suitcase in ignorance that someone else's property is inside) or to a mistake as to the identity of the thing taken (as where one takes another's suitcase believing it to be one's own). Whether the taker obtains possession of, or the legal property in, the thing taken would seem to depend on factors which have nothing to do with the question whether there has been a taking. At Common Law the matter appears to have been regarded somewhat differently. There the indictment ran"vi et armis felonice furatus fuit, cepit et asportavit": 1 Hale's Pleas of the Crown 504 and see also Coke's Pleas of the Crown 107. The element of invito domino was commonly spoken of as though it were comprehended in the captio itself rather than in a captio felonice and unfortunately this confusion has been continued under the statute. Thus one finds the phrase "taking ... within the section" (1956 1 Q.B.445) where the context clearly shows that a taking without the consent of the owner is indicated. Section 1, which was the first statutory definition of stealing, gives legislative authority to the same confusion. Subsection (2)(i) reads:

"The expression 'takes' includes obtaining the possession -

As is pointed out in Russell on Crime (12 ed.) 975 and in Kenny's Outlines of Criminal Law (18th ed.) 275 (251) this definition of "takes" does not purport to remove from the crime of stealing the sixth of the elements to which I have referred, namely that the taking should be without the consent of the owner, and it was presumably this aspect of the case which was in the mind of the learned magistrate when he gave as his reason for holding that the facts stated by the prosecuting inspector disclosed no offence that "the property passed in the two $100 bills when they were handed to the defendant": if the property passed it necessarily followed in the circumstances of the case that the owner must have consented.

4. In Middleton⁽¹⁾ the two matters upon which the seven judges were agreed were first that Middleton "took" the money within the meaning of the Common Law definition of larceny and second that the mistake on the part of the clerk prevented the passing of the property in the money despite his intention to pass it. As to the first point they said at 2 C.C.R.43:

When the judges spoke of "a sufficient taking" they must, I think, have meant a taking invito domino. Russell (12th ed.) at p.972 observes, however, that neither of the cases cited nor yet R. v. Pear⁽²⁾provided any authority for the statement in the second paragraph, the reason being that the prisoner had the intent to steal not "from the beginning" but only after the clerk had, as a result of his mistake, voluntarily put the money on the counter. In the other cases the intent had indeed been "from the beginning" because the prisoners had initiated the transactions by making fraudulent misrepresentations. Nevertheless the same author says at p.974:

"It has generally been supposed that the Larceny Act, 1916, removed all doubts which surround the case of Middleton⁽¹⁾ by the provision in s.1(2)(i)(c). The courts appear to have so interpreted the Act, and for practical purposes the matter may, perhaps, be regarded as settled."

Counsel submits that I should regard it as settled and cites a number of text-book writers who state the law without qualification. First and foremost he relies on 10 Halsbury (3rd ed.) 773 (1492) where it is said:

"If under a mistake on the part of the owner property is delivered to a person who, at the time when he receives it, is aware of the mistake and who fraudulently appropriates the property, the person so appropriating the property is guilty of larceny although he did nothing to cause the mistake."

Stephen's Digest of the Criminal Law (9th ed.) 319 (article 368) is to the like effect and so is Smith and Hogan's Criminal Law at p.354, which says that the subsection was "the child of the leading case of Middleton⁽¹⁾ and adds:

"No doubt the...