OVERVIEW
Perhaps the most frequently encountered offence of dishonesty, theft and attempted theft are charges that arise daily. Theft covers a broad range of criminal conduct, so the sentences imposed vary considerably. The maximum sentence is 10 years' imprisonment, but a conviction does not necessarily result in custody.
Shop theft is generally at the lower end of seriousness. A first offender convicted of an unplanned theft involving items of small value may receive a non-custodial sentence. Pickpocketing is treated substantially more seriously and, depending on the facts, a conviction after trial may attract an immediate sentence in the region of 12 to 15 months' imprisonment. A breach of trust—such as theft by an employee from an employer—is an aggravating feature.
Walking out of a shop with unpaid goods does not by itself prove theft. The prosecution must establish the required mental elements, including dishonesty and an intention permanently to deprive. A person may genuinely have forgotten to pay, failed to notice that an item was not presented at the point of sale, or not realised that they had left an open shopping area. The surrounding evidence determines whether the required intention is proved beyond reasonable doubt.
Theft is not limited to physically carrying an object away. The statutory concepts of appropriation, property, belonging to another, dishonesty and intention permanently to deprive are developed in sections 3 to 7 of the Theft Ordinance. Property can include money and other tangible or intangible property and may belong to another through possession, control or a proprietary interest.
Theft by finding can also constitute an offence. A person who finds something of value may commit theft if they dishonestly keep or deal with it despite being able to identify the owner by taking reasonable steps. Depending on the circumstances, the property should be returned to its owner or handed to the Police.
Our experienced practitioners have defended many different forms of theft allegation and can assist anyone who is suspected of theft, under investigation or charged with the offence.
STATUTORY PROVISIONS
section 2 of the Theft Ordinance (Cap. 210); penalty under section 9
The relevant part of the current statutory provision states:
Section 2(1) — Basic definition of theft
A person commits theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.
Section 2(2) — Motive is immaterial
It is immaterial whether the appropriation is made with a view to gain, or is made for the thief's own benefit.
ELEMENTS OF THE OFFENCE
Appropriation
Under section 4, appropriation means any assumption of the rights of an owner. The prosecution does not need to prove that every ownership right was assumed: taking, retaining, selling, gifting, transferring or otherwise dealing with property as an owner may be enough. Appropriation can occur without the defendant personally taking physical possession and may occur even where the owner apparently consented to a transfer. A later assumption of an owner's right can also amount to appropriation where the property was originally acquired innocently.
Property
Under section 5, property includes money and all other property, real or personal, including things in action and other intangible property. It can therefore include cash, personal belongings, land in the limited circumstances specified by the Ordinance, debts, shares, contractual rights and the credit balance in a bank account. Confidential information alone is not property capable of being stolen under the Theft Ordinance, and obtaining services without payment is ordinarily addressed by a different offence.
Belonging to another
Under section 6, property belongs to any person who has possession or control of it, a proprietary right or interest in it, or a charge over it. Legal ownership is therefore not the only relevant interest. Property received because of another person's mistake may continue to belong to that person where the recipient is obliged to restore the property, its proceeds or its value. An intention not to make the required restoration may amount to an intention permanently to deprive. Property that has truly been abandoned does not belong to another and cannot be stolen.
Dishonesty
The prosecution must prove that the appropriation was dishonest. Hong Kong applies a two-stage test: first, whether ordinary reasonable and honest people would regard the conduct as dishonest; and second, whether the defendant realised that ordinary people would regard it as dishonest. Under section 3, an appropriation is not dishonest if the defendant genuinely believed that they had a legal right to the property, that the owner would consent if aware of the circumstances, or that the owner could not be discovered by taking reasonable steps. The belief must be genuinely held, although it need not be reasonable. A willingness to pay does not by itself prevent an appropriation from being dishonest.
Intention permanently to deprive
The defendant must intend permanently to deprive the other person of the property. An intention to keep, consume, sell or give away the property will ordinarily satisfy this element. Under section 7, the element may also be established where the defendant intends to treat the property as their own to dispose of regardless of the owner's rights.
Penalty
Maximum Penalty
Section 9 provides that, on conviction upon indictment, the maximum sentence is 10 years' imprisonment.
HOW MCS CAN ASSIST
Advice and representation
MCS can assess the charge, the statutory elements and the prosecution evidence; advise on interview, plea, trial and sentence; and identify any defence or evidential issue available on the facts.