‘Dishonesty’

‘Dishonesty’

The appropriation must be dishonest. The Ghosh test applies in Hong Kong. In determining if the appropriation was dishonest, the Court considers:- 

• Whether according to ordinary standards of reasonable and honest people, what was done was dishonest. This is objective; 
• Whether the defendant himself must have realised what he was doing was by the standards of reasonable and honest people dishonest. This is subjective. 

This means that there are two steps. The first step is to determine whether ordinary people would find the defendant’s acts to be dishonest. If that is satisfied, the second step is to determine whether the defendant himself recognises that ordinary people would find what he did to be dishonest. The second step does not ask whether the defendant himself found his own actions dishonest or not. 

In most cases, where the Court has found the appropriation to be objectively dishonest in the first step, it would also be obvious that the defendant would know it was dishonest. 

The appropriation will not be deemed dishonest if a person appropriates property in the belief that he has a legal right to take it on behalf of himself or a third person; or he appropriates believing that if the owner knew about the appropriation and the circumstances of it, he would have consented. 

It would also not be dishonest appropriation if it was done in the belief that the actual owner could not be discovered by taking reasonable steps. 

However, a person’s appropriation of the property belonging to another may still be dishonest notwithstanding that he is willing to pay for the property.  

It has been held that a person in total control of a limited liability company by reason of his shareholding or directorship is capable of stealing the company’s property. It is not a valid defence to claim that dishonesty cannot arise because that person is the sole directing mind and will of the company, and therefore the company must have consented to any acts authorised by that person. The knowledge of that person is not attributed to the company, as the essence of the arrangement was to deprive the company improperly of its assets, thereby making the company a victim. 

Abandoned property cannot be the subject-matter of theft. If the defendant believed that an item was abandoned, even if in fact it was not, he cannot be convicted notwithstanding whether his belief was reasonable or not, because such a belief negates dishonesty. The reasonableness of the belief is relevant only to determining whether it was genuinely held. Even an unreasonable belief may still be honest.

Therefore, if a person sees property seemingly lost or abandoned on the street e.g. a mobile phone, taking it could constitute theft, because the actual owner could be discovered by taking reasonable steps. However, if a person genuinely holds the belief that the item had been abandoned, he would not be convicted of theft. 

A person who buys an item, not knowing it is stolen, and subsequently finds it to be stolen does not commit theft under the Theft Ordinance.