HKSAR v. BULLEN, CHRISTIAN ANTHONY

HCMA 74/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 74 OF 2009

(ON APPEAL FROM ESCC 3989/2008)

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J U D G M E N T

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1.  On the 6^th January 2009, the appellant was convicted after trial at Eastern Magistracy by Mr William Lam, Permanent Magistrate, of an offence of abstracting electricity, contrary to section 15 of the Theft Ordinance, Cap 210.  He was fined $2500 and appeals against both conviction and sentence.

2.  The Appellant, who represented himself at trial, and who appears in person today, has applied for an adjournment of this hearing on the grounds that he has on the 11^th May, i.e., three days ago, applied for Legal Aid, and a letter from the Legal Aid department indicates that two weeks is required to process his application.  I have refused that application for an adjournment.  This appeal was lodged on the 14^th January 2009 and was first listed on the 20th March.  It was adjourned at the request of the appellant because of illness.  The new date was sent to the appellant by registered post on the 24^th March.  A very late application for Legal Aid, given this history, cannot properly justify an adjournment of a second listing of this appeal.

3.  The particulars of the offence were that, between (sic) the 19^th and 20^th June 2008, at Flat A4, 8^th floor, Great George Building, 27 Paterson St, Causeway Bay, he dishonestly used, without due authority, a quantity of electricity, valued at $3.26.

4.  The facts of this matter, as the magistrate said in a commendably succinct statement of findings, are not in dispute and are largely contained in a set of admitted facts signed by the appellant and the prosecution.  These admitted facts were supplemented by the evidence of PW1, an employee of the Hong Kong Electric Co (“HKEC”) and the appellant himself.

5.  The appellant was the owner and occupier at the material time of the flat referred to in the charge.  He had previously let the flat to a tenant who had an electricity account with HKEC.  That tenant had left and had not paid the outstanding electricity bill.  HKEC had therefore disconnected its supply.  At some stage the meter was removed by HKEC.  The appellant tells me that he testified before the magistrate that he had tried to obtain an injunction in the District Court to stop that but was refused on the footing that he was not the account holder.

6.  On the 29^th May 2008, the appellant faxed a letter to HKEC (Exhibit 1) in which, amongst other things, he said that he had obtained his own electricity meter which he was able to install himself.  He asked HKEC to open an account in his name.  Again, he says it was his testimony that HKEC were unwilling to do so whilst the electricity account in relation to the property remained unsettled; and he was not willing to pay because it was the responsibility of the former tenant.  On the 19^th June, the appellant faxed a letter to HKEC saying that he had “safely” installed his own meter which he believed to be “reasonably accurate”.  Again he asked for an account to be opened.

7.  At about 6.55 p.m. on the 19^th June, no doubt as a result of the letter sent earlier in the day, a technician from HKEC, PW1, went to the premises.  He found that an electricity meter (Exhibit 5) had been installed which was not a company meter, i.e., one provided and authorised by HKEC.  In the trial it was called an “alien meter”.  At the time that PW1 observed it, it was registering the consumption of electricity at the premises.

8.  PW1’s evidence, which was accepted as honest and reliable by the magistrate, was that the appellant admitted that he had installed the meter in question.  This fact is not disputed.  PW1 removed the meter and called the police.  He expressly informed the appellant that HKEC did not permit the installation of unauthorised meters.

9.  At about 2.49 a.m. on the 20th June, the early hours of the following day, the appellant telephoned HKEC.  He requested the connection of a temporary supply and said he would pay $2000 to HKEC later the same day.  He complained that he could not get access to the flat through the electronically controlled gate.  He added that he would reconnect the electricity supply himself.  A record of this call was admitted into evidence as Exhibit 3.

10.  Later on the morning of the 20^th June, the appellant transferred $2000 by ATM electronic transfer from his bank account to HKEC.  The transfer advice was admitted into evidence as Exhibit 4, and it was admitted that the transfer had occurred at 10:37 a.m.

11.  At about 5 p.m., PW1 returned to the premises and found another unauthorised meter (Exhibit 6) had been installed and was registering the consumption of electricity.  Again, it is not in dispute that the installation had been carried out by the appellant.  PW1 removed this second unauthorised meter.

12.  The amount of electricity actually used whilst PW1 was present at the premises is the quantity referred to in the charge.  Its value was estimated at $3.60.  This was only a very small amount, of course, but it represented the estimated value of electricity that PW1 was able to observe being used whilst he was there.  There was nothing in the evidence before me to say what, if any, electricity had otherwise been used whilst the two unauthorised meters had been connected.

13.  The appellant testified at the trial and said that because the previous tenant had defaulted, the supply had been disconnected by HKEC.  However, he said he was willing to pay for electricity, as evidenced by his letters to HKEC and the payment of $2000 after the removal of the first unauthorised meter.

14.  This was at the heart of the appellant’s defence which he repeated here in this appeal.  He says that the prosecution had not proved beyond reasonable doubt that he was acting dishonestly.  He now appears to concede the other point he took before the magistrate, that the prosecution had not proved that the use of any electricity at the material time was unauthorised.

15.  There are three ingredients of the offence which the prosecution must prove:

(a)  that the appellant used a quantity of electricity;

(b)  that he did so dishonestly; and

(c)  that he did so without due authority.

16.  It is not disputed that a quantity of electricity was used by the appellant.  PW1 saw electricity being used and the appellant was occupying the premises and had reconnected the supply.  So clearly he was using it.

17.  As to whether there was a want of due authority, in my judgment, the absence of due authority inevitably flows from the undisputed fact that the appellant was not a registered consumer of electricity at the premises and that he had reconnected the supply through unauthorised meters.  This establishes beyond any question that there was no due authority and the magistrate was right so to conclude; and the appellant was right to concede the point here today.

18.  Turning to the issue of dishonesty, the defendant argues correctly that dishonesty is a central part of the offence.  He says, in effect, that the prosecution must prove that he intended not to pay and that, in fact, he did make a payment to HKEC on the morning of the 20^th June.  He submits that the prosecution failed to show he was dishonest with regard to the events of the 20^th June; that even before the installation on the 19^th June of the first unauthorised meter, he had informed the company of what he was going to do:  so how, he asks rhetorically, can he be regarded as dishonest?  At all times in his dispute with HKEC, he maintains that he was open and “up front” about his actions.

19.  The appellant says that the situation is quite unlike any of the cases which have previously come before the courts in relation to this offence.  In the magistracy, he relied on various authorities, starting with a case called R v McCreadie (1993) 96 Cr. App. R. where the Court of Appeal in England rejected a claim that the prosecution had to prove “meter tampering” to establish the offence; and said that it was sufficient to prove that electricity was used without the authority of the supplier by persons who had no intention of paying for it.  The appellant submits, in effect, that this shows that the prosecution must prove that he had no intention to pay, a position negatived by his payment of the $2000 through the ATM on the 20^th June.  However, the effect of the decision is not to make the absence of an intention to pay into an ingredient of the offence, although such a state of affairs may well be indicative of dishonesty.  Similarly, an intention to pay for unauthorised consumption may be an indication of an absence of dishonesty.

20.  In Collins and Fox v Chief Constable of Merseyside [1988] Crim.L.R. 247, the Divisional Court held that dishonesty in this context connoted knowledge that electricity was being consumed without being recorded, coupled with an intention that unrecorded consumption should not be paid for.

21.  The appellant also relies to an extent of the decision in another appeal against conviction for abstracting electricity in which he was himself the appellant: HKSAR v Bullen Christian Anthony, HCMA 1267/2001, where Gall J emphasised the issue of dishonesty as an ingredient; but the appeal there was allowed on the basis that the magistrate had not adequately addressed the question of whether two employees of the electricity supplier, who were witnesses, had discussed the evidence during the trial, not on whether the appellant had made the unauthorised reconnection of the supply of electricity or was acting dishonestly in so doing.  That decision does not avail the appellant here.

22.  The magistrate’s reasons for finding that the prosecution had proved that the conduct of the defendant was dishonest by the standards of ordinary people, and that he realised it would be regarded as dishonest by those standards (the Ghosh test) were these:

(a)  that the appellant knew the supply had been cut off and yet he proceeded to install an unauthorised meter Exhibit 5;

(b)  that when the first meter, Exhibit 5, was removed, he was told that he had no permission to install an unauthorised meter;

(c)  he installed another unauthorised meter, Exhibit 6, which resumed supply to the premises without permission of HKEC; and that

(d)  by section 3(2) of the Theft Ordinance, which defines dishonesty, “a person’s appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property”.

23.  Section 3(2) addresses dishonesty in the context of appropriation and theft, not abstracting electricity, where appropriation is not an element.  In my view, there is no basis for resorting to section 3(2).  The respondent has produced Boggeln v Williams [1978] 1 WLR 873, where the equivalent English provision was referred to, but that was merely to emphasise that a defendant may be guilty of an offence of dishonesty, even though he is willing to pay; but, as the Divisional Court observed, each case depends on its facts.

24.  I agree otherwise with the approach by the magistrate, so far as it goes, that these matters go to the issue of whether the appellant was dishonest in his use of electricity at the material time.  These reasons do not however directly deal with the fact that the appellant had made the unsolicited payment of $2000 to HKEC on the 20^th June.  As to that, it is to be noted first that the payment was made after the initial visit by PW1 on the 19^th June, when the appellant was using electricity without authority.  In my judgment, such payment has no impact on the unauthorised use on the 19^th: there is no evidence that the appellant intended to make payment at that time, prior to the visit by PW1.

25.  The key point is whether the appellant was acting dishonestly in his use of electricity at the premises given:

(a)  that he knew that the connections that he had made were not authorised and HKEC had not agreed to supply electricity to the premises; and

(b)  he knew that any consumption of electricity was not being properly recorded by an authorised meter, so that no effective check could be made by the supplier to determine the amount that had been consumed and was liable for payment: in effect, the unrecorded consumption could not be properly calculated and paid for.  The appellant says that PW1’s evidence was that he checked the unauthorised meter and found it to be recording the consumption satisfactorily; but that is not the same as saying that it provided a proper basis for HKEC to calculate consumption.

26.  The payment of $2000 on the morning of the 20^th June, which HKEC had not asked for, and which did not relate to any account held by the appellant, does not impact on these matters because it does not relate to the unauthorised use of electricity at the material time.  It might just as easily have related to the outstanding account relating to the property.  HKEC would not have been entitled to apply any portion of that sum of money, deposited unexpectedly into its account by the appellant, to this unauthorised consumption of electricity.

27.  The appellant’s assertions in his letters to HKEC that he was willing to pay for electricity used do not, in the context of the repeated unauthorised connection, impact on whether he was acting dishonestly at the time.  He says he was not dishonest but I reject that.  There is no doubt that this unauthorised use of electricity by him on the 19^th and 20^th June, against a background of an unresolved dispute about an outstanding account, was dishonest by the standards of ordinary people and that the appellant must have realised that.  I am sure the appellant’s conduct is properly characterised as dishonest.

28.  This conviction was correct.  I affirm it and dismiss the appeal against conviction.

29.  As to sentence, the magistrate referred specifically to the whole of the appellant’s conduct, in installing a second unauthorised meter after the removal of the first.  The value of the electricity which was proved to have been actually abstracted is not the only measure of the offence.  I note that section 15 of the Theft Ordinance does not specify a maximum fine, but, as it is an indictable offence being dealt with summarily, the maximum fine under section 92 of the Magistrates Ordinance, Cap. 227 is $100,000.

30.  The appellant has not indicated that a fine of $2500 will cause him particular hardship by reason of any limitation to his means.

31.  In my judgment, the dishonest abstraction of electricity by the repeated installation of unauthorised meters to premises, where there was no active electricity account, merited the fine imposed, particularly given that the mitigation of a guilty plea was absent.  It was not excessive.  I dismiss the appeal against sentence.