Model's case spotlights a tenet of rule of law

PUBLISHED : Tuesday, 18 October, 2011, 12:00am
UPDATED : Tuesday, 18 October, 2011, 12:00am


A lingerie model's state of mind is poised to become Exhibit A in the criminal courts - and the rule of law will benefit from the experience.

Jessica Cambensy may seem an unlikely heroine of progressive jurisprudence. The 23-year-old Eurasian is one of Hong Kong's top 'pseudo-models'. She has promoted Wacoal negligees and Canon printers, and her first film was released this summer.

Cambensy's glitzy world became gritty and real last week when she was arrested by Hong Kong police on suspicion of stealing HK$600 that had been left in an ATM. In July 2010, the authorities allege, a user of a Tsim Sha Tsui cash machine accidentally left the money behind, returned for the cash and found it missing. Earlier this month, police determined that Cambensy had used the ATM in the interval.

Putting aside the fact that Asia's finest took months to conduct what sounds like an hour of detective work, Cambensy's predicament illustrates a positive aspect of Hong Kong's criminal justice system: the way it protects defendants by forcing prosecutors to prove more than just the existence of a fishy situation.

One of the fundamentals of English common law is that a person cannot be punished for a crime unless she acted with a 'guilty mind' - an intention to engage in wrongful behaviour. The Hong Kong Theft Ordinance retains this important requirement, defining theft as the 'dishonest' appropriation of another's property. The Legislative Council has not defined the word 'dishonest', and our courts have imported an English definition that asks if the allegedly criminal act was dishonest by society's standards and, if so, whether the accused knew it.

Cambensy, a US citizen, told the media assembled outside her Causeway Bay flat that the situation was 'a huge misunderstanding', raising the implication that she didn't notice the extra money in the ATM. If she can establish that defence - or, to be precise, if the Department of Justice fails to prove beyond a reasonable doubt that she acted dishonestly - then the lang mo can return to work without fear of fine or imprisonment.

Her case is important because, in multiple common law jurisdictions, the 'guilty mind' requirement is being erased. Tough-on-crime legislators have been passing acts - particularly with regard to illegal drugs and the environment - that outlaw innocent and unknowing behaviour. Under such regimes, anybody caught in ambiguous circumstances can be convicted, and good-faith mistakes are criminalised. Luckily for Hongkongers, the ordinance does not follow that ill-conceived example, which is why Cambensy's intentions will be the subject of courtroom examination.

Paul Karl Lukacs writes about law and media.