In Hong Kong, most of the crimes involving dishonesty are covered in Theft Ordinance (Cap. 210), and Crimes Ordinance (Cap. 200). The Prosecution has the burden to prove the defendant was “dishonest” and acted accordingly.
As per the landmark case R v Ghosh, when considering whether a defendant acted dishonestly, the Court would consider two questions:
- Was the act one that an ordinary decent person would consider to be dishonest (the objective test)?
- And if so, must the defendant have realised that what he was doing was, by those standards, dishonest (the subjective test)?
If the answers to both questions are yes, then the Court would consider the defendant acted dishonestly.
Theft is a typical dishonest offence. From the most common theft from shop (shoplifting), theft by finding (taking items found on the street and at ATM), pickpocketing, car theft etc. One may be prosecuted for the offence of theft if he/ she committed any of them.
According to section 2 of 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 …. shall be liable on conviction upon indictment to imprisonment for 10 years.”
The scope of the offence of obtaining property by deception is quite wide, covering claiming prizes using a lottery ticket that belongs to other, selling non-existing facemasks or goods and disappearing after payment is received, etc.
“Any person who by any deception (whether or not such deception was the sole or main inducement) dishonestly obtains property belonging to another, with the intention of permanently depriving the other of it, shall be guilty of an offence and shall be liable on conviction upon indictment to imprisonment for 10 years.”
Common scenarios of using a false instrument include using a falsified income proof to apply for credit cards, using falsified academic qualification to apply for university or job etc.
“A person who uses an instrument which is, and which he knows or believes to be, false, with the intention of inducing somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person’s prejudice, commits an offence and is liable on conviction on indictment to imprisonment for 14 years.”
Fraud is a “flagship” crime under the Theft Ordinance as it carries a heavier punishment, among a number of non-violent crimes involving dishonesty. It also covers a wide scope, including complicated commercial fraud, street scam and cyberfraud etc.
“If any person by any deceit (whether or not the deceit is the sole or main inducement) and with intent to defraud induces another person to commit an act or make an omission, which results either (a)in benefit to any person other than the second-mentioned person; or (b)in prejudice or a substantial risk of prejudice to any person other than the first-mentioned person,
the first-mentioned person commits the offence of fraud and is liable on conviction upon indictment to imprisonment for 14 years.
...A person shall be treated as having an intent to defraud if, at the time when he practises the deceit, he intends that he will by the deceit (whether or not the deceit is the sole or main inducement) induce another person to commit an act or make an omission, which will result in either or both of the consequences referred to in paragraphs (a) and (b) of that subsection.”
Is it a must to plead guilty if you are charged with theft?
Each case is unique. For example, if you genuinely forgot to pay before leaving the shop, it does not involve a dishonest intent and you should mot plead guilty.
To protect your legal rights, if you are or your family member is charged with theft, you should consult a criminal lawyer for legal advice as soon as possible. After considering the strength of evidence, your grounds of defence, and your background, your lawyer will advise whether you should plead guilty or plead not guilty and contest the case, or apply for O.N.E. Bindover.
*Data provided by Hong Kong Police Force
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