Attorney-General v Tjoeng Khin-Tsjin

JurisdictionHong Kong
Date29 October 1965
CourtSupreme Court (Hong Kong)
Hong Kong, Supreme Court, Full Court.

(Hogan C.J., Rigby and Creedon JJ.)

Attorney General (No. 1)
and
Tjoeng Khin-Tsjin and Another
JURISDICTION

Jurisdiction In general Territorial jurisdiction Over territory in general Objective territorial principle One of the acts constituting a criminal offence occurring within the territory Whether conferring jurisdiction Offence of fraudulent conversion of cheques Cheques received outside but encashed in Hong Kong Whether the courts of Hong Kong having jurisdiction The law of Hong Kong

Summary: The facts:The respondents were charged with the crime of fraudulent conversion in respect of cheques received by them in Djakarta, Indonesia, and cashed in Hong Kong. The question was whether the Hong Kong courts had jurisdiction to try the offence.

Held:(1) Where a number of elements together amounted to an offence and the one which completed the offence occurred in Hong Kong, the Hong Kong courts had jurisdiction.

(2) The offence of fraudulent conversion was not completed in Djakarta but only on the cashing of the cheques in Hong Kong. The Hong Kong courts accordingly had jurisdiction.

The text of the judgment of the Court commences on the following page:

Hogan, C.J.:

This is a case stated by a District Judge under section 32A of the District Court Ordinance, 1953, as amended. The facts are clearly set out in the case stated and the annexed ruling; it is unnecessary to recapitulate them in this judgment.

Mr. Pennington, counsel for the Crown, argued that the District Judge was wrong in finding that the fraudulent conversion of the cheques, the offence with which the respondents are charged, had been completed in Djakarta before they reached Hong Kong. Mr. Bernacchi, in support of the District Judge's ruling, argued the contrary. He has, in the course of his argument, directed attention in the first instance to the fact that the two accused were respectively an Indonesian national and a Malaysian or Singapore national and were not citizens of the United Kingdom and Colonies and not subjects of this territory. He has also drawn our attention to a number of eminent decisions for the purpose of showing that British courts are slow to claim jurisdiction over foreigners and of indicating the limits of that jurisdiction. He relied on the case of Macleod v. Attorney General for New South Wales(1) where the Judicial Committee of the Privy Council, when dealing with the application of criminal legislation of the Colony of New South Wales, which Mr. Bernacchi would relate to its criminal jurisdiction, quoted with approval the statement,

The Legislature had no power over any person except its own subjectsthat is, persons natural-born subjects, or resident, or whilst they are within the limits of the kingdom.

The Board went on to say All crime is local.

Mr. Bernacchi also referred us in this connection to the case of The King v. Secretary of State for Home Affairs, Ex Parte O'Brien(2), Swifte v. Attorney General for Ireland(3), Reg. v. Keyn(4), and British South Africa Company v. Companhia de Mozambique(5). These cases may seem somewhat remote from the precise issue we have to determine but Mr. Bernacchi sought to emphasize their relevance by the case of Reg. v. Ellis(6), which

dealt with an alleged offence of obtaining credit by false pretences and was tried at Durham in 1898. Question arose as to whether the offence had taken place in Durham or whether it had taken place in Scotland since the company, which claimed to have been deceived, had its place of business in Glasgow and representations had been made there. Dealing with this issue, Wills, J. said:

The making of the false pretences is antecedent to, and not a part of, the obtaining the goods. It is a material circumstance, because it stamps the illegality of the obtaining the goods. The gist and kernel of the offence is the obtaining the goods by improper means, not in using the improper means whereby goods were obtained, and there was therefore an entire offence within the one county, though the circumstance which stamped it with illegality took place beyond the jurisdiction.

Following on this, Mr. Bernacchi argued that, in order to give the Hong Kong courts jurisdiction in this case, it would be necessary to show that the main part or, as he called it, the kernel of the offence occurred in Hong Kong and not in Djakarta. He maintained that the circumstances of the present case show this was not so; that the offence was complete at the time when the first respondent left Djakarta for Hong Kong. He accepted the definition of this particular offence proposed in R. v. Bryce(7), which was quoted by Mr. Penlington in his opening argument. The headnote reads:

On a charge of fraudulent conversion contrary to section 20(1)(iv)(a) of the Larceny Act, 1916, it must be proved that money or property was entrusted to the prisoner for a particular purpose; that he used it for some other purpose; and that such misuse was fraudulent and dishonest.

Mr. Penlington argued that in the present case only the first of these requirements was satisfied in Djakarta, i.e. the entrusting of the cheques in question to the first respondent. The use of the cheques for some other purpose did not, according to Mr. Penlington, take place until the first respondent arrived in Hong Kong; merely getting on the plane with these cheques and taking them to Hong Kong was nothing more, even when seen in the light of subsequent events, than an indication of a dishonest intention and was certainly not putting the cheques to a use inconsistent with the purpose of the bailment. He said that this

act of the first respondent in taking the cheques to Hong Kong himself rather than sending them by a courier may have been inconsistent with some term of the arrangements made between him and the complainant, Mr. de...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT