The concept that "taking without asking is stealing" is incorrect?

Under Hong Kong law, the concept of "taking without asking is stealing" is not entirely accurate. According to the Theft Ordinance (Cap. 210), the act of theft requires specific legal elements to be met, rather than simply "taking without asking." Below is a detailed explanation of this concept:

Limitations of "Taking Without Asking"

"Taking without asking" implies taking someone else's property without permission, but this alone is not sufficient to constitute theft. According to Hong Kong's Theft Ordinance, the act of theft must satisfy the following four elements:

1. Dishonest appropriation: The act must involve dishonestly appropriating something.

2. Property: The appropriated item must be property.

3. Belonging to another: The property must belong to someone other than the appropriator.

4. Intention to permanently deprive: The person appropriating the property must have the intention to permanently deprive the owner of it.

Detailed Analysis

1. Dishonest Appropriation

• Dishonesty: The act must be judged dishonest based on the standards of ordinary decent people, considering the subjective intent of the actor.

1. Property

• Types: This includes money, personal items, and other tangible or intangible property.

1. Belonging to Another

• Ownership: The property must be under the possession or control of another person.

1. Intention to Permanently Deprive

• Intention: The actor must intend to permanently deprive the owner of the property, not just temporarily use it.

Exceptions

In some cases, even if something is taken without asking, it may not constitute theft. For example:

• Mistaken Ownership: If the actor mistakenly believes they have a legal right to the property, they may not be deemed dishonest.

• Temporary Possession: If the actor only intends to borrow the property temporarily and not permanently deprive the owner, it may not constitute theft.
  

Conclusion

Simply "taking without asking" is not enough to constitute theft; all elements specified in the Theft Ordinance must be met. Thus, the concept "taking without asking is stealing" is incorrect under Hong Kong law, and a more comprehensive understanding of the elements constituting theft is required.

July 2024

Dr. Anthony Lai and Mr. Herbert Kwoon