Fai and Ming came to know that the school stored expensive lost property and confiscated items in the Principal’s Office. They decided to sneak into the Principal’s Office…

1. Have Fai and Ming committed theft or burglary? What are the differences between the two offences?

   Fai and Ming have committed theft and burglary. They will most likely be charged with the offence of burglary. Burglary more appropriately reflects their criminal conduct in this case scenario.

   Theft is an offence contrary to Section 9 of the Theft Ordinance (Chapter 210), Laws of Hong Kong. A person commits theft if he or she dishonestly appropriates property belonging to another with the intention of permanently depriving that other of it.

   Burglary is an offence contrary to Section 11 of the Theft Ordinance (Chapter 210). burglary is committed where a person enters a building or a part of a building as a trespasser with intent to steal (or to commit certain other specified offences) or, having entered a building or part of a building as a trespasser, steals or attempts to steal anything in the building (or commits certain other specified offences).

   Burglary is generally regarded as more serious than theft. The main difference between the two offences is that theft can be committed anywhere, for example stealing from someone in a street, whereas burglary can only be committed in a building or in a part of a building and the entry was without permission. For more detailed explanations of the elements of these two offences, please click here.

   Fai and Ming have dishonestly appropriated property belonging to another by taking items from the Principal’s Office. The items taken were lawfully in the possession of the school. Fai and Ming’s conduct in going back to the school on a Sunday, sneaking into the Principal’s Office and taking property which did not belong to them shows they knew they had no permission to take the items, they knew they were acting dishonestly and that they intended to take the items away from the school permanently. All the requirements of theft are satisfied.

   The items were taken from the Principal’s Office. That office is part of the school building. However it is a room that pupils can only enter with permission and for a lawful purpose. There is nothing to suggest that Fai and Ming had permission to enter. Their entry to the Principal’s Office was not for a lawful purpose. They intended to steal from the Principal’s Office and they did steal.

   Because they had no permission or lawful right to enter the Principal’s Office for the purpose of stealing items from the office, they were trespassing. They have entered into a part of a building with intent to steal and have committed theft inside that part of the building. The correct charge would therefore be burglary.

2. If the Principal’s Office was unlocked, have Fai and Ming committed theft or burglary and why?

   That the Principal’s Office was unlocked makes no difference to Fai and Ming’s criminal liability for burglary. Burglary is entering a building or part of a building as a trespasser intending to commit theft, or having entered as a trespasser committing theft. It matters not whether the building or the part of the building was locked or unlocked. The “walk in” thief is just as much a trespasser as a thief who forces open a door or a window to obtain entry.

3. When Fai and Ming sold the mobile phones, they did not tell the shopkeeper how they had got the phones. Does the shopkeeper have any criminal liability?

   Someone who dishonestly buys or deals with property which has been stolen, knowing or believing that property to have been stolen, commits the offence of handling stolen goods under the Theft Ordinance (Chapter 210). Handling is helping the thief after the theft has been committed, for example by buying the stolen property.

   If Fai and Ming did not tell the shopkeeper how they got the mobile phones and the shopkeeper does not know or believe they had been stolen, the shopkeeper does not act dishonestly and therefore does not commit any criminal offence by buying the phones.

4. When Yung bought the iPad, Fai had clearly told Yung that the iPad was stolen from the Principal’s Office. Has Yung committed any crime?

   As Yung knows the iPad was stolen when she bought it, she commits the offence of handling stolen goods contrary to Section 24 of the Theft Ordinance (Chapter 210). Handling means dealing with goods knowing or believing them to be stolen. Dealing with goods includes buying stolen property knowing or believing it is stolen. Section 24 of the Theft Ordinance (Chapter 210) criminalises activities that help thieves benefit from their thefts.

5. If Fai and Ming returned the stolen goods and paid compensation in full after the incident, would the court impose a lesser punishment?

   Theft or burglary cannot be undone by returning the stolen items or paying compensation. Voluntarily returning the stolen items and/or voluntarily paying compensation would be taken into account by a court as a mitigating factor when imposing sentence.

   Though offenders cannot buy themselves out of trouble, voluntarily returning the goods and/or voluntarily paying compensation indicates remorse and this can be an important mitigating factor in sentencing.