Chan Man-sin v The Queen
Privy Council (Hong Kong)
Citations:  1 WLR 196.
The defendant was a corporate accountant. He used forged cheques to embezzle company money. When the companies’ banks debited their accounts against the cheques, this caused the accounts to become overdrawn. The amounts did not exceed the overdraft agreement.
The defendant was charged with theft under Hong Kong’s Theft Ordinance (which is materially the same as the UK’s Theft Act 1968). The property he was alleged to have stolen was the chose in action represented by the cheques (the debt owed by the bank to the companies). He appealed his conviction.
- Had the defendant dishonestly appropriated property belonging to another with intent to permanently deprive?
The Privy Council dismissed the appeal. The defendant had wrongly assumed the company’s rights over their bank credit and overdraft facility. This amounted to dishonest appropriation of property with intent to permanently deprive. It did not matter that the companies had the right to have their accounts restored by the bank (who acted beyond their authority in honouring the cheques).
This Case is Authority For…
Drawing, presenting and negotiating a cheque amounts to an assumption of the owner’s rights over their credit in their account. It is therefore an appropriation of property.
The fact that it is possible for the victim of the appropriation to force their bank to reverse the transaction does not prevent there being an appropriation of property. Similarly, it does not negate intention to permanently deprive. The fact that the transaction is a legal nullity is also irrelevant.
To demonstrate the existence of appropriation, there is no need to show that the defendant assumed all the rights of an owner. It is enough that he assumed some of those rights.