Michael Jackson on Determining Criminal Dishonesty, Implications of the UKSC's Ivey v Genting Casinos for Hong Kong

"Determining criminal ‘dishonesty’: a new challenge for our courts"

Michael Jackson

Boase Cohen & Collins Blog
16 November 2017

What makes a defendant ‘dishonest’ under Hong Kong’s criminal law? Uncertainty about this has been introduced into the criminal law of Hong Kong by the recent decision of the UK Supreme Court in Ivey v. Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67 (hereafter ‘Ivey’). Ivey, a professional gambler, claimed to have ‘honestly’ relied on a sharp-eyed ‘edge-sorting’ technique while playing cards in a casino, leading to substantial winnings. Not so, ruled the Supreme Court, declaring that Ivey had taken positive steps to ‘hoodwink’ casino staff and facilitate edge-sorting, and thus acted dishonestly. In so doing, the Supreme Court considered and rejected the ‘second leg’ (as it is called) of the ‘Ghosh direction’ on ‘dishonesty’, formulated by the English Court of Appeal in 1982 (R v. Ghosh [1982] 1 QB 1053), which Ivey had relied on to deny ‘dishonesty’. According to this direction, a jury or other fact-finder tasked with determining whether a defendant acted ‘dishonestly’:

‘...must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter and the prosecution fails. If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest.’

     Neither ‘dishonesty’ nor ‘dishonestly’ are statutorily defined in Hong Kong, save for the express exclusion of certain ‘beliefs’ in s.3 of the Theft Ordinance in relation only to theft (eg. D’s taking of another’s property is not to be regarded as ‘dishonest’, and thus not theft, if he took it ‘in the belief that he has in law the right to deprive the other of it’ or ‘in the belief that she would have the other’s consent if the other knew of the [taking] and the circumstances of it’). This left both a definitional gap in the criminal law, and also an analytical uncertainty, namely, does ‘dishonesty’ relate to and characterize the conduct element of dishonesty-based offences such as theft, or is it a separate mental element for such offences? Some jurisdictions have adopted the first analysis (eg. Canada), but the UK courts, in Ghosh, came down on the side of dishonesty being a mental element.

     In relation to the definitional gap, Ghosh did not actually define what had to be proved to establish this mental element. Instead, it directed fact-finders to apply their understanding of community standards of honesty and dishonesty to determine whether a defendant’s conduct falls the wrong side of the line, and then ask whether they can be sure the defendant ‘realised’ his or her conduct was ‘dishonest’ by those standards. The Ghosh direction was readily adopted in Hong Kong, and has been largely applied ever since, despite its somewhat open-ended and imprecise language. Its use was given the seal of approval by the Court of Final Appeal in Mo Yuk Ping ((2007) 10 HKCFAR 386). Importantly, the CFA in Mo affirmed that ‘dishonesty’ is a ‘state of mind’, even though Mo was charged with conspiracy to defraud at common law, necessitating proof of ‘dishonest means’, rather than just ‘dishonesty’. As to its meaning, Sir Anthony Mason NPJ, for the Court, stated (at para.48):

‘Although dishonesty in its ordinary sense does not lend itself to definition, it is not an arbitrary standard and a citizen should have little difficulty in appreciating what is dishonest judged by the ordinary standards of reasonable and honest people.’

     As the CFA affirmed, the first ‘leg’ of the Ghosh direction requires assessment of the defendant’s conduct (‘what was done’) against community standards of ‘honesty’ and ‘dishonesty’, and involves the application of an ‘objective’ test by fact-finders. In other words, the standard is fixed by the fact-finder, reflecting its intuitive sense of community standards, and is external to the defendant’s personal view about what amounts to dishonesty. But the second - or ‘subjective’ - leg directs attention to the defendant’s state of mind, and was intended to prevent conviction of a person acting with a state of mind which would negate a finding of dishonesty, or perhaps without sufficient understanding of the concept of honesty (eg. a person of low intelligence). So for example, a customer who leaves a shop without paying for an item, thereby acting in a manner which would prima facie be considered dishonest by ordinary standards, but who claims to have been distracted or absent-minded at the time, may pray in aid Ghosh’s second leg to prevent conviction, assuming that none of the three exclusions in s.3 of the Theft Ordinance apply (cf. someone who leaves the shop in the mistaken belief the item is a ‘free sample’, who could rely on either s.3(a) or (b)). Since s.3 applies only to the offence of theft, the second leg expands to encompass those same s.3 beliefs in relation to offences of dishonesty other than theft... Click here to read the full article.