Wednesday, 13 March 2013

Pickpocket -> Attempt Theft?

I want to say life is full of coincidence. My wallet was stolen several days ago. Then, the criminal law professor w/o knowing that allocated me a case about pickpocket.

The problem question is as following:
     In a crowd street, there were two PCs, C and E, patrolling for the purpose of anti-pick pocket. They were on plain clothes so that no body can recognize that they were PCs. Also, there was a foreigner, with his wallet in his back pocket of his trousers, walking on that street. Anyone behind was able to see his wallet because part of the it was sticking out of the his pocket. Sam was a person following closely behind the foreigner at the that time. A few seconds later, Sam stretched out his right hand and used his thumb and index fingers of his hand to touch the pocket. At the moment his finger touched on the top of the wallet, the foreigner felt a little bit itchy with his back and scratched his lower back using his hand. It seems Sam did not want the foreigner to be aware that he touched the wallet. So he stepped back. The wallet was still in the foreigners packet. Then Sam just gave up following the  foreigner and went to look into the window of a nearby shop. The two PCs, E and C , who had observed the whole scenario did not take any action, instead, they continued their patrol.

The problem is: If you had been one of the PCs, would you have acted differently?

It is obvious that the answer of this question depends on what kind of criminal offences Sam may have already committed. If there is not any offence, then it is correct for the two PCs to continue their patrol; If it can be justified that Sam liable for a criminal offence, the two PCs should arrest Sam immediately and put him into trial.

Firstly, we need to determine what kind of substantive offence that Sam may be liable. It could be prima facie a theft case if Sam successfully pulled the wallet out of the pocket and left immediately. This can be confirmed by checking section 2(1) of Theft Ordinance which says: "A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently deprive of it." It is clear that Sam will satisfy both mens rea and actus rea of theft if he take the wallet away.

However, in our scenario, Sam just touched on the wallet. There is no substantive offence completed. Instead, we need consider inchoate offences. The most probable one is attempt theft. According to section 159G(1) of Crimes Ordinance, two elements should be proved in order to convict Sam a attempt offence. On the mens rea part, the prosecution need to provide that Sam really intended to commit the substantive offence which mean Sam really want to steal the wallet; On the actus reus part, it should be proved that Sam's touch on that wallet is more than merely preparatory.

Mens rea is most essential part in determining this case. However, since the above scenario mentioned nothing about Sam's intention to touch the wallet. What we can do is only to infer from the Sam's acts. So I would like to discuss actus reus first, base on a presumption that Sam intended to steal the wallet.

Unfortunately, the description of "an act that is more than merely preparatory" is unclear. It provides no further guidance of where is appropriate threshold for criminal liability. Nevertheless, we have a variety of cases to help us to solve this issue. Until now, the most acceptable principle is what is described as the "Gullefer test":
The attempt begins when the merely preparatory acts have come to an end; And the defendant embarks upon the crime proper. No actual standard should be formulated if your want this statute to apply to all offences. So it will be determined of course upon the facts in any particular case.
According to the above principle, what could be the possible arguments for the prosecution if Sam is put into trial. I think Jones [1990] 1 WLR 1057 could be a good one to apply in this case. In Jones, the court stated  that D's actions in obtaining the gun, in loading it, in putting on his disguise and in going to school where the potential victims car may appear is only preparatory acts. However, it concluded that J was properly convicted of attempted murder, given the evidence that J, in disguise and armed with a shotgun, clambered into the rear set of the potential victim's car and pointed the gun to the victim with intention of killing him. Even though J had not yet unlocked the safety catch and put the fingers on the trigger, the court said he had already gone beyond merely preparatory. Actually, we can make a perfect mapping between the acts of both Jones and current case. For example, Sam's actions in tailing and getting close to the foreigner can be mapped to J's action in putting on disguise and going to V's school. So, Sam's acts at this point can still be regarded as  only preparatory. However, Sam's following actions in stretching his hand, in touching on the top of the wallet can be mapped to J's actions in taking out the gun and pointing it at V. Therefore, on this ground, Sam had already done an act not merely preparatory. Then, Sam should be convicted.

For the defence counsel, it may bring a defence by adopting Campbell [1991] Crim LR 268. The evidence shows that C, while carrying a imitation gun and a threatening note, visited and reconnoitered a post office which he planed to rob. At the time he was arresting, C was going back to his motorbike, having decided, as he said, not to go ahead with the robbery. The court ruled what C had done, is "at best merely preparatory". Therefore, in our case, Sam can argue that he just touched on the top of the wallet for the purpose of testing and checking, as shown in Campbell case, to see whether the foreigner is sensitive. At last, he decided not to go ahead with theft. If the the prosecution want to convict Sam, they must show that Sam had the tendency to pull the pocket, which means, at least,  he need to put a little bit force on his fingers in order to firmly pick the wallet out.

Nevertheless, I think it is quite a weak argument. In Nguyen Thi Huong [1998] HKCU 2290, which is a case the defendant tried to pickpocket twice. The facts is quite similar and the court said:
In deed, on the facts as found by the learned magistrate, it is difficult to imagine that if the appellant had gone one step further, she would not have been facing a charge of theft rather than attempt theft.
 So, on this basis, it seems there is a large possibility for Sam to be convicted, if he really intent to steal.

Then, we need to examine Sam's intention. I think the prosecution will have a bad luck in proving Sam's intention. For instance, Sam can raise a reasonable doubt by claiming that what his original idea was to pick the wallet, show it to the foreigner and tell him it was not safe, in this crowd street, to put the wallet in his back pocket. So the intention of Sam to steal is a questionmark. If there is no dishonest intention, Sam should be acquitted.

The statutory offence of attempt is a matter of degree. In stead of a clear dividing line, it seems there is a grey area in determining what is merely preparatory acts and what is acts beyond merely preparatory. The difficulty lies in balancing the need to ensure there is sufficient evidence that the defendant has psychologically committed himself to committing the offence; and to ensure law enforcement officers can both intervene in a timely fashion and yet still secure a conviction.

Finally, we can come back to our question: would you have acted differently if you had been the policeman? I think we can safely get rid of the option of continue to patrol, because Sam was obviously a criminal suspect. So beside arresting Sam immediately, imoho, there is a third option. We can draw clue from Lee Shek [1976] HKCA 149, Nguyen Thi Huong [1998] HKCU 2290, HKSAR v Xiao Ping [2013] HKEC 3], in which all the witnesses or policemen waited or were aware of until those defendants tried to steal more than once. Hence, if I had been the policeman on that street, I would follow Sam and wait until Sam tried to steal for the second time. This can add more certainty on Sam's intention to steal. If Sam do not try again, given the described facts, then there is a reasonable doubt that Sam may not be a thief .

PS: This is a tutorial question I presented yesterday. Prof. argued that scene is a deciding factor (I don't know whether he really agree w/ his point or just want find some contention point to train us). He argued that Campbell should not be applied as a defending case because Campbell was arrest outside the post-office. However, I don't think it is settled down. If the scene is a deciding factor, then Campbell should be convict once he had entered the post-office, why the court said Campbell need at least go to the counter, and show some hostile acts? On the contrary, in Griffin [1993], the mother who want to abduct her own child was convicted even though there is no evidence shows that she is in control of the child or she took her child to the harbor (inconsistent with Geddes [1996], which requires confrontation with a student). So I don't think whether a defendant presents in the scene should be the key factor. We should, in each case, look at all the factors as a whole.

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