THE QUEEN v. NG YUN TONG

IN THE SUPREME COURT OF HONG KONG

MAGISTRACY APPEAL NO. 748/90

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BETWEEN

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JUDGMENT

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Hon. Yang, C.J.:

1. The appellant was convicted on his own plea by Mr. I.E. Carlson sitting at North Kowloon Magistracy on one charge of uttering a forged document and another charge of attempted theft.

2. We are here concerned only with the conviction of attempted theft. The agreed facts are that on the 17th January 1990 the appellant attempted to steal $29,088 the property of one Shinewin Watch Manufactory Ltd. by means of a stopped cheque which he had stolen and presented at the International Bank of Asia, Yee Wo Street, Hong Kong. He was unsuccessful in cashing the cheque because the cashier at the bank realized that it was a stopped cheque. The appellant did not know the cheque was stopped and there is no evidence indicating when it was stopped.

3. After convicting the appellant the learned magistrate came to the view that he might have been wrong in accepting the guilty plea on the charge of attempted theft. He accordingly wrote to the Registrar Supreme Court saying that it appeared to him to be highly arguable that what the appellant had done in presenting a stopped cheque for payment was to attempt the impossible. And he cited Haughton v Smith (1974) 58 Cr. App. Rep. 198; leave to appeal against conviction out of time was granted by the magistrate.

4. The law on attempt was fully discussed by Turner J in R v Donnelly (1970) NZLR 980 and followed by Lord Hailsham in Haughton v Smith (supra) at pp. 208-210. Turner J's six-fold classification is as follows:

"He who sets out to commit a crime may in the event fall short of the complete commission of that crime for any one of a number of reasons. First, he may, of course, simply change his mind before committing any act sufficiently overt to amount to an attempt. Second, he may change his mind, but too late to deny that he had got so far as an attempt. Third, he may be prevented by some outside agency from doing some act necessary to complete commission of the crime - as when a police officer interrupts him while he is endeavouring to force the window open, but before he has broken into the premises. Fourth, he may suffer no such outside interference, but may fail to complete the commission of the crime through ineptitude, inefficiency or insufficient means. The jemmy which he has brought with him may not be strong enough to force the window open. Fifth, he may find that what he is proposing to do is after all impossible - not because of insufficiency of means, but because it is for some reason physically not possible, whatever means be adopted. He who walks into a room intending to steal, say, a specific diamond ring, and finds that the ring is no longer there, but has been removed by the owner to the bank, is thus prevented from committing the crime which he intended, and which, but for the supervening physical impossibility imposed by events he would have committed. Sixth, he may without interruption efficiently do every act which he set out to do, but may be saved from criminal liability by the fact that what he has done, contrary to his own belief at the time, does not after all amount in law to a crime."

5. In his Statement of Findings, the magistrate stated that the facts of this case fall within the third classification of Turner, J. He further stated that on the question of fact and degree the appellant had done all that he could possibly do when he presented the cheque to the cashier at the bank, so the proximity test was satisfied. The outside agency preventing the commission of the offence was the fact that the owner of the cheque had stopped payment unbeknown to the appellant. It was for those reasons that he was of the view that the plea of guilty was proper and properly accepted by him.

6. Counsel for the appellant however contends that this case falls within the fifth category and it raises a jury question which needs to be determined. Counsel for the prosecution on the other hand argues that the third classification is applicable here. It is further submitted that here the intended theft was difficult but certainly not impossible. What the court must look at is absolutes (i.e. absolutely impossible) and not mere difficulties. If the bank account had been closed, then it would have been a case of impossibility. Here the money was still available in the owner's account.

7. Whilst Turner J's classification is a helpful guide, I do not think one should treat it as necessarily exhaustive or place too narrow and strict a construction on it. As Lord Hailsham said (at p. 209), the classification is "merely a convenient exposition and illustration of classes of case which can arise". Referring to the third classification, Lord Hailsham stressed (at p. 210) the need to determine the stage at which the interruption takes place. In explaining the fourth classification, the Lord Chancellor observed that the criminal had done all that he intended to do, and all that was necessary to complete the crime was an act or event wholly outside his control.

8. In my judgment, the appellant's conduct does not fall within Turner J's third classification. The act of theft here is that of presenting the cheque at the cashier's counter. There was nothing to prevent the appellant from doing some act necessary to complete the theft. The fact that the cheque was a stopped cheque was not an outside agency that prevented the appellant's conduct from achieving his aim.

9. This is not a case falling within the fifth classification either. The theft was not impossible. The money was still in the owner's bank account. The theft could still be completed in spite of the cheque having been stooped, depending on a number of circumstances.

10. I would put the present case in Turner J's fourth classification. There was here an attempt to commit theft where the failure to complete the commission of it was due to ineptitude, inefficiency or insufficient means on the part of the appellant. The means to commit the theft was the cheque. It was not good enough to achieve the appellant's purpose. An attempted theft was committed.

11. The appeal is dismissed.