THE QUEEN v. CHEUNG WAI LEUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1103 OF 1990

--------------

BETWEEN

-------------

-----------------

JUDGMEN

-----------------

1. The appellant was convicted after trial on two charges of pickpocketing theft and one charge of attempted theft. He now appeals against conviction in respect of the charge of attempted theft.

2. The facts were that the appellant was seen by police officers with his girl friend and another man at the Overseas Trust Bank ETC machine in King's Road. He inserted an ETC card into the machine, pressed some buttons then again pressed some buttons, but having failed to gain access to the machine withdrew the card. He was then seen to insert another card and press some buttons. He was heard to say "just $80. How to get it". He then retrieved that card.

3. He was then apprehended and arrested. The first card was a Standard Chartered Bank ETC card belong to Chai Chih Hui, the victim of a pickpocket a short time before the arrest.

4. Mr Marash, on behalf of the appellant, takes the point that the charge is defective in that it alleges an attempt to steal from the bank account of Chai Chih Hui.

5. When a customer deposits money with a bank the money becomes the property of that bank and the customer becomes a creditor of that bank to the extent of the money lodged. This is reflected in the customers record of account with the bank. The customer does not own the bank account. If the charge had alleged an attempt to steal cash from the overseas Trust Bank or the theft of a chose in action of Chai Chih Hui it would have been properly drawn. The charge is defective and the appellant should not have been convicted. Mr Casewell, who appeared for the Crown, did not seriously contest the point but did apply for the charge to be sent back to a magistrate with an opinion as to the proper wording and for a retrial.

6. Before deciding on that application it is necessary for me to consider other grounds of appeal.

7. Mr Marash argues that there was no evidence to support a finding. that a Standard Chartered Bank ETC card could give access to an Overseas Trust Bank account even if the appellant had Chan Chih Hui's Pin number, which it is agreed he did not. The point was not taken before the magistrate and the Overseas Trust Bank officer who gave evidence was not asked about it. He did however produce the computer print out which showed the appellant's attempt to gain access to the machine. In addition the appellant was able to make an account balance check with his own Standard Chartered Bank ETC card. I am satisfied that there was sufficient evidence to draw the inference that the Standard Chartered Bank ETC cards could be used to gain access to the Overseas Trust Bank machine.

8. Without the pin number the odds were heavily against the appellant gaining access to the machine but it was not physically impossible for him to do so.

9. There is however the further point that there was no evidence adduced that at the time the account of Chai Chih Hui was in credit or if in overdraft that he had an overdraft facility. The authorities quoted to me support the proposition that where a person sets out to commit a crime but finds after all that it is, because of some reason, impossible to achieve his intention he has not committed an offence. An example of this referred to by Turner J is R. v. Donnelly [1970] NZLR 980 is where a person walks into a room intending to steal a specific diamond ring and finds that the ring is no longer there the owner having removed it to a bank, he is thus prevented from committing the crime he intended, and which, but for the supervening physical impossibility imposed by events he would have committed Turner J also referred to the example of where a person may without interruption efficiently do every act which he sets out to do, but may be saved from criminal liability by the fact that what he had done, contrary to his own belief at the time, does not after all amount to a crime.

10. Lord Hailsham L.C. in Haughton v. Smith [1973] All ER109 did not consider either of these examples amounted in law to an attempt.

11. It was therefore an element of the charge as drafted for the Crown to prove that Chai Chih Hui's account was in credit or that he had an overdraft facility so that if the appellant had been able to gain access to the machine he could have been able to recover cash from the machine. This they did not do.

12. I do not consider this is an appropriate case to send back for retrial. The appeal against the conviction on the charge of attempted theft is allowed and the conviction quashed.