ATTORNEY GENERAL v. TSANG PUI YEE

MCA No. 940 of 1987

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HEADNOTE

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‘De Minimis’ maxim irrelevant to conviction on theft charge

IN THE SUFREEE COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 940 OF 1987

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JUDGMENT

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1. This is a case stated by Mrs. M. Chui., Principal Magistrate.

2. The respondent worked for HATS, a company which transports goods inside the airport. On 2nd August a consignment of sugar plums arrived from U.S.A. The respondent and others went to collect the goods. The respondent was seen to take two sugar plums from one of the cartons and was reported to the police. He told the latter under caution that he took the plums because he was thirsty and begged for a chance. Before the magistrate he pleaded guilty and admitted the above facts. He was duly convicted and discharged.

3. Later, of her own motion, the magistrate reviewed her decision and set aside the conviction, relying on the principle “de minimis non curat lex”. The question of law for this court is whether she erred in law in applying that principle.

4. The magistrate gave the following reasons for her decision:-

“(4) The Respondent is 39 years old, of previous good character, and gainfully employed. The act was an isolated one, and totally unpremeditated. The two sugar plums were worth no more than a dollar. The owner of the plums had not complained. The plums had been returned to the owner and the latter had suffered no loss. There was no suggestion that such act by the Respondent was prevalent, nor was there public interest involved.

(5) There had been contrasting cases that came before me where violations of the criminal law had been far more serious and where the victims had suffered injuries or losses and had complained to the police, but the Appellant was nevertheless content to simply apply to have the offenders bound over to keep the peace without proceeding to prosecution and conviction.

(6) In my view, the theft of a dollars worth of sugar plums did not in the circumstances of this case and in the circumstances of this Respondent warrant a prosecution and a conviction of a man who for the 39 years of his life had not committed an offence of any kind, bearing in mind that such a conviction might cost the man his job and ruin him and his entire family. In my view, the prosecution fell foul of the rule, which I duly applied on review, of “de minimis non curat lex” - the law does not concern itself with trifles, not to say that the prosecution was a waste of public money.”

5. The extent of the relevance of this maxim in the context of the criminal law was examined by Lord Widgery C. J. in R. v. Morris[1] at page 231 where he said:-

“One ought to add, for completeness sake, that there will of course always be room for a de minimis argument, if the adverse physical effect is so trivial that no ordinary person considering the circumstances would retard the occurrence as an accident at all, but we are quite satisfied that the consequences in this case, whether there was minor damage to the headlamp glass or not, were too severe to justify dismissal on the ground of de minimis in any event.”

6. Professor Glanville Williams deals with the maxim in his Textbook of Criminal Law 2nd edition at page 620 in this way:-

“A few positive examples de minimis may be harvested. Where a driver unintentionally immobilised another car for a very short time, and the car was easily restarted, magistrates were held to be entitled to find that no 'accident' had occurred. And where a moneylender was under an obligation to make a memorandum of a loan, it was held that clerical errors would not necessarily invalidate it. Any obstruction of a highway, even of the smallest degree, is said to be a public nuisance; but at the same time it is allowed that an obstruction may be so trifling (particularly, though not only, when it is temporary) that it does not ‘in law’ amount to an obstruction. In effect, though not avowedly, these cases accept the de minimis principle.

A physical assault is defined as the application of force, however, slight, and this enables the courts to administer due punishment to the rascal who steals a kiss. There are obvious reasons for understanding the word 'force' in this technical sense; normally, a slight touching would be dismissed from consideration as an ordinary social contact.”

7. However, earlier in the same work, the learned author had said at page 177:-

“According to an ancient maxim, the law does not take account of trifles but this is a very misleading generalisation. If the assault is trivial, the court may grant an absolute discharge, but, even so, the fact that an assault has been committed can have importance.”

8. In Seekings v. Clarke[2], a shopkeeper had erected a sunblind in front of his shop, the sides of which projected 2 ft. 6 ins. over the pavement and also placed wooden shelves containing books, 1 ft. 6 ins. wide on the pavcill8nt in front of the shop. Lord Parker C.J. said at p. 269:-

“It is perfectly clear that anything which substantially prevents the public from having free access over the whole of the highway which is not purely temporary in nature is an unlawful obstruction. There are, of course, exceptions to that. One possible exception would be on the principle of de minimis, which would no doubt cover the common case of the newsagent who hangs out a rack of newspapers, which though they project over the highway, project only fractionally. Other cases may be where for some purpose or other a use has to be made of the highway, for instance, for scaffolding, where the question in every case is whether it was or was not a reasonable user ….

In my judgment, however, in this case it is quite impossible to say that the principle of de minimis applies.”

9. In Attorney General v. Chan Wai-lan and Others[3] the Attorney General applied for a review of sentences on five defendants who had failed to produce proof of identity for inspection and who had been discharged absolutely by the magistrate. Roberts C.J. said at p. 74:-

“Many offences contain little or no element of moral blame. They have been created by the legislature because the latter, to which falls the duty of making laws, considers it necessary to impose some restraint or duty upon members of the public for the common good.

The task of a court is to take proper steps to enforce that restraint or duty, due account being taken of the interests of the individual offender and of the circumstances in which the infringement occurred by the imposition of an appropriate penalty in each case. It is not right for a court to adopt a course which is explicable only on the basis that it does not regard the law as worthy of enforcement.”

10. Finally, in R. v. Kwan Chung-yik[4], Kempster J.A. accepted the propriety of convicting youth of unlawfully receiving a duck egg.

11. It was open to the magistrate to express her view of the triviality of the charge by discharging the respondent absolutely, as indeed she did in the first instance. She could have gone further and expressed her disapproval of the prosecution to the Director of Public Prosecutions, though in that case her attention might have been drawn to the notorious extent of pilfering at Kai Tak.

12. On the authorities it was not open to her to take the action on review that she did. Section 19 of the Magistrates Ordinance clearly provides:-

“If the defendant admits the truth of the complaint or information, his admission shall be recorded as nearly as possible in the words used by him and the magistrate shall convict him or make an order against him accordingly.”

13. Before taking such a drastic step as setting aside a conviction of their own motion, on a point of law, magistrates would be well advised to seek the assistance of counsel. At the very least they should make some enquiry into the law on the subject and cite the authorities that seem to support the proposed course of action.

14. Counsel for the Crown does not ask that the case be sent back to the magistrate, or that the conviction be restored by this court, but requests that the case be remitted with the court's opinion that the quest ion should be answered in the affirmative. There will be an order accordingly.