Theft as a crime in Hong Kong

In Hong Kong, there are numerous theft cases being heard in Courts every day. As per the statistics provided by the Hong Kong Police Force, there are around 15,000 theft cases every year.

Theft may well be one of the oldest crime in human history. Legally speaking, a major element of this crime is a "dishonest" intent. In layman's terms, theft is caused by greed.

If you are charged with Theft, can you get away with it and not have a criminal record? What is O.N.E. Bindover?

A common form of theft is shoplifting (stealing in shops). CPH Legal handles a vast number of shoplifting cases. In cases involving relatively less severe facts, it is possible to apply via a lawyer to the DOJ for an O.N.E. Bindover order, and if successful, you will "get away" without getting a criminal record.

However, due to the prevalence of shoplifting, when you apply for a O.N.E. Bindover order, it is most important that your lawyer should set out in detail your otherwise good background and the circumstances leading up to your commission of the offence.

Common circumstances include:

• Momentary greed
• Waiting in a checkout queue for too long and decided to walk out of the shop
• Financial hardship such as unemployment or mortgage payments
• Work-related stress
• Study-related stress
• Psychological issues such as depression
• Family issues

While the above are not defences, they are difficult personal circumstances leading up to your commission of theft and if the prosecutor sympathises with you, the prosecutor may exercise a discretion and agree to the O.N.E. Bindover treatment as allowed under the Prosecution Code.

It is worth noting, though, that O.N.E. Bindover is an exception rather than the rule, even for a first time offender. Your lawyer should state your good personal background, circumstances leading up to the commission of the offence, and the level of remorse after the offence, so as to attempt to persuade the prosecutor to exercise his or her discretion to agree to O.N.E. Bindover.

Specifically in relation to shoplifting, a High Court Judge remarked in judgment in obiter that the prosecution could exercise greater discretion to agree to bind over first-time offenders in cases not of the most serious nature (HKSAR v 許靜宜 HCMA543/2015). The judgment is as follows (available only in Chinese as the judgment was rendered in Chinese only):

“…後言

 刑事檢控的權力在於律政司。本席認為律政司刑事檢控科可以採取更大的酌情權，以非「刑事檢控」方式去處理店鋪盜竊的案件，以便干犯者或涉嫌人士能免卻刑事檢控的焦慮、壓力、困惑，和一經定罪後終生所面對的刑事紀錄。本席認為亦深信，有部分相關人士自當銘記於心，不會再以身試法，珍惜那非「刑事檢控」的寬大處理手法。當然再次犯案者若然再被捕，這可說咎由自取，自毀前程，與人無尤。就本上訴案而言，本席認為在情、理、法的考慮下，律政司大可以較寬大的程度或尺度來行使相關的酌情權。”

Is having forgotten to pay a good reason for O.N.E. Bindover?

Having forgotten to pay is a defence because it means that you did not have any dishonest intent.

However, if you, under caution, explained to the police that you merely forgot to pay, prosecutors tend not to agree to O.N.E. Bindover, because you have denied the offence.

A major condition for the O.N.E. Bindover order is that you must admit to the prosecution's facts in Court, namely you did steal the unpaid items. It poses technical difficulties if you maintain that you simply forgot to pay.

That being said, if your lawyer is able to provide a plausible explanation or even provide strong evidence to the prosecution, then it is still possible to dispose of the case by way of O.N.E. Bindover, or even what is known as straight O.N.E. such that the prosecution would directly withdraw the charge.

If the prosecution still does not agree to O.N.E. Bindover, you still have a chance to plead not guilty in Court and contest the case. You may testify in Court or your lawyer may make submissions that you simply forgot to pay and if the Court accepts your defence that you would be acquitted.

I really did not intend to steal anything. Can I contest the theft charge?

In every criminal case, the prosecution, namely the Department of Justice, bears the burden of proof and must prove all the elements of the charges beyond reasonable doubt.

In a trial for theft, the prosecution must prove both the actus reus (the physical act of taking the property) and the mens rea (the intent to permanently deprive the owner of the property and dishonesty). The prosecution must prove that the defendant was dishonestly appropriating property belonging to another person with the intention of permanently depriving that person of the property.

The most common dispute in theft cases is whether the defendant actually had the necessary dishonest intent. Under the Theft Ordinance, a person does not have dishonest intent if he believes that he has a right in law to the property or if he believes that the owner would consent to him taking the property.

The current legal principles in Hong Kong regarding dishonesty comes from the case of R v Ghosh. When considering whether the defendant's conduct was dishonest, the court will consider two questions:

1. Was the act one that an ordinary decent person would consider to be dishonest (the objective test)?
2. And if so, must the defendant have realised that what he was doing was, by those standards, dishonest (the subjective test)?

In cases of shoplifting, a common defence is forgetfulness, where the defendant claims that he simply forgot to pay. This defence may negate the required mens rea.

In a shoplifting case, the prosecution can rely on direct evidence such as witness testimony from security personnel, CCTV footage, and the defendant's admission of guilt given under caution by the police, such as "I was greedy and stole the item for self consumption. Please give me a chance."

The direct evidence that the prosecution can rely on to prove the defendant's dishonest intent is his admission of guilt or confession under caution.

If there is no admission of guilt evidence, such as if the defendant remains silent under caution, denies the allegation of theft, or the court rules that the admission of guilt was not voluntary and cannot be admitted as evidence in court (please see the section on "special matters" in the linked article), the prosecution can still rely on circumstantial evidence to persuade the court that the only reasonable inference is that the defendant had dishonest intent.

In such trials, in most cases, defendants will choose to testify in court and explain their version of events, including whether they were feeling unwell beforehand, had taken medication, or were distracted while shopping, which might have caused them to forget to pay for the goods. If the court cannot exclude the possibility that the defendant's explanation is truthful, the defendant will be acquitted and released without any penalty or criminal record. 

For more information on the trial process in criminal cases, please click the linked article .