Offences of Dishonesty
Offences of Dishonesty
The range of offences of dishonesty is manifold. But they all require an “act” and a “dishonest mind” before the offence is created. Below are some examples of dishonesty offences in which our practitioners have had first-hand experience in defending:
Blackmail :contrary to section 23(1) of the Theft Ordinance, Cap 210
A person commits blackmail if, with a view to gain for himself or another (or with intent to cause loss to another) je makes any unwarranted demand with menaces. Blackmail carries a maximum sentence of 14 years in jail. It has been said that in the calendar of criminal offences, blackmail is one of the ugliest and most vicious (R v Hajou, 11 Cr App R (S) 29) and for this reason deterrent sentences are often called for. Equally though, the range of circumstances giving rise to the offence of black mail are so varied that each case depends on its own facts. Black mail is tried from the Magistrates courts to the High Court.
Burglary :contrary to section 11(1) of the Theft Ordinance Cap 210
Burglary is committed if a person enters a building as a trespasser and steals or attempts to steal or intending to steal, or intending to inflict grievous bodily harm or rape, or intending to unlawfully damage the building or anything in the building. In 1993 the legislature expanded the definition of burglary to include persons who trespass on buildings intending to alter computers. The offence carries a maximum sentence of 14 years in jail. For sentencing purposes the courts distinguish between domestic and commercial premises. Aggravating features include preying on vulnerable people (such as the old, infirm or handicapped) and the degree of planning involved. See HKSAR v TABORA RAUL F JR , HKSAR v GURUNG VINOD KUMAR and HKSAR v WU PAUL JAVI CALMA.
Conspiracy to Defraud: contrary to common law:
Under section 159A of the Crimes Ordinance, Cap 200 common law conspiracy was replaced with statutory conspiracy with the important exception of conspiracy to defraud which remains a common law offence. Conspiracy to defraud is a charge often used by the Prosecution but a conspiracy can be aimed at any offence. Where two or more persons agree to commit a criminal act, there may exist a conspiracy. Co-conspirators may not necessarily know their fellow co-conspirators. Sometimes the Prosecution will suggest either a conspiracy or a substantive offence. There are rules governing how a conspiracy charge should proceed in the courts. All of our lawyers have defended those facing conspiracy charges in the different courts of Hong Kong and can advise those facing conspiracy charges.
Conspiracy to Steal contrary to common law:
A conspiracy to steal is a conspiracy to commit theft and can cover a wide variety of circumstances. It is now the preferred charge for those who use false or forged ATM cards to steal money from banks. See HKSAR v Ionut Leonard Oancea (D1) Petrica Ghinea (D2) Alin Ciumpuliac (D3)
False Accounting contrary to section 19 of the Theft Ordinance, Cap 210:
A person commits this offence if he dishonestly, with a view to gain for himself or another or with intent to cause loss to another:
– Destroys, defaces, conceals or falsifies any account or record or document made or required for any accounting purpose; or
– In furnishing information for any purpose produces or makes use of any account, record or document which to his knowledge is misleading, false or deceptive in a material particular.
The offence carries a maximum penalty of 10 years imprisonment.
Fraud contrary to section 16A of the Theft Ordinance Cap 210:
Fraud carries a maximum sentence on Hong Kong of 14 years in prison. The elements of fraud are statutorily defined as being committed when a person who by any deceit and with intent to defraud induces a person to commit an act (or not commit an act) which results in benefit to anyone else or in prejudice or a substantial risk of prejudice to another person. So for instance he preparation of letters from a sham employer containing false information to that a person could obtain a credit card or a bank loan may constitute this offence.
Handling Stolen Goods contrary to section 24(1) of the Theft Ordinance, Cap 210:
This offence often goes hand in hand with alternative charge of theft or burglary but the courts have said that handling is the more serious offence because those who knowingly deal with thieves encourage stealing.
Obtaining a Pecuniary Advantage by Deception contrary to section 18 of the Theft Ordinance, Cap 210:
This carries a maximum sentence of 10 years imprisonment. The meaning of pecuniary advantage has been examined by the courts. The actual advantage need not be gained – so a customer who is granted a bank overdraft on the basis of false documents obtains the pecuniary advantage the moment the overdraft facility is granted even if he did not actually draw on the facility.
Obtaining Property by Deception contrary to section 17(1) of the Theft Ordinance, Cap 210:
Again this carries a maximum sentence of 10 years imprisonment. A good example of this is a case where a defendant presented a winning ticket for payment of prize monies knowing that it belonged to others. See HKSAR v KAGODA GEORGE WILLIAM
Possession of False Instruments/False Credit Cards contrary to section 75 of the Crimes Ordinance, Cap 200:
This section creates two offences. The first makes it an offence for a person to have in his custody or control an ”instrument” which he knows to be false with the intention that it shall be used to induce someone else to think it is genuine and use it to their prejudice. The second is the simple possession(without the intention to induce someone to think it is genuine. The first carries a maximum of 14 years in jail while the second carries a maximum of 3 years in jail. Instrument” (文書) means- (a) any document whether of a formal or informal nature; (b) any postage stamp or revenue stamp; (c) any seal or die; and (d) any disc, card, tape, microchip, sound track or other device on or in which information is recorded or stored by mechanical, electronic, optical or other means. False or forged credit cards are the most often encountered example of this offence. Our lawyers have extensive experience in handling offences brought under this section.
Procuring an entry in certain records by deception contrary to section 18D of the Theft Ordinance, Cap 210:
This offence relates primarily to banking records, although credit card sales slips (as they concern businesses which provide credit) are also covered. The offence is created when a person dishonestly and by a deception procures the making of an entry in a bank record with a view to gain for himself or another or loss another. It carries a maximum period of imprisonment of 10 years.
Robbery contrary to section 10 of the Theft Ordinance, Cap 210:
Robbery is viewed very seriously in Hong Kong and carries with it a maximum sentence of life imprisonment . A person commits robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force. The circumstances that can lead to a charge of robbery therefore are very wide, and can range from schoolboys holding down another schoolboy to steal his pocket money to robbers armed with guns forcing the payment over of monies by a teller. Because of the range of circumstances that give rise to a charge of robbery, it is encountered in all the courts of first instance in Hong Kong from the Magistracy through to the District and High Court. See HKSAR v Ko Wai-lun (D1) Yeung Kwong-fat (D2) Kwok chi-fai (D3)
Theft contrary to section 2 of the Theft Ordinance, Cap 210.:
Perhaps the most often encountered offence of dishonesty, theft, and attempted theft are charges we encounter on a daily basis. As an offence, theft covers such a broad range of criminal conduct that the range of sentences vary enormously. The maximum sentence for theft is 10 years imprisonment but for those convicted of theft, the sentence is not necessarily one of imprisonment. Shop theft is perhaps the least serious example where first offenders convicted of the theft of small value items, in an unplanned way, may not receive a custodial term. Pickpocketing, though, is far more serious, and if convicted after trial a sentence of at least 12 to 15 months imprisonment can be anticipated. If there is a breach of trust involved, eg. as between employee and employer, the sentence is likely to be aggravated. But just because a person walks out of a shop with goods not having been paid for does not mean that person is guilty of the offence. The law requires that person to have a “guilty mind” i.e. an intention to steal. Sometimes a person may forget to pay because he has things on his mind or he did not realise he had not placed the item at the point of sale for payment. Sometimes, particularly at large open shopping areas, he may not have realised he has left the shop. Theft by finding is also a criminal offence. If you find something of value, you may be committing the offence of theft if you do not return it to the owner or to the Police.
We have experienced practitioners who have defended the many different kinds of theft charge and can assist you if you find yourself a suspect in a theft investigation or charged with the offence itself.
Using false instruments/ false credit cards: contrary to section 73 of the Crimes Ordinance, Cap 200.:
Similar to possessing a false instrument, this section makes it an offence to use a false instrument . So, the use of a false credit card in a shop would create this offence. See HKSAR v Teoh Choon-yen
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