Theft, Fraud, and Dishonesty: A Comparison between English Law and Chinese Law

This chapter provides a nuanced comparative analysis of how dishonesty is dealt with in the main property offences such as theft and fraud, under English and Chinese law. English law has dispensed with consent and focuses more on dishonesty whilst Chinese law focuses more on consent and does not recognise dishonesty as an offence element. However, both jurisdictions allow a claim of right to deny the mens rea of the offence. This chapter challenges the prevailing notion in both jurisdictions that an objective test of dishonesty may result in innocent people being convicted. It is submitted that the claim of right defence will protect those who were genuinely mistaken about a fact or a point of civil law, and that objective dishonesty only comes into play when there is no claim of right. Moreover, dishonesty represents the wrongfulness of the conduct involved in theft and fraud and thus should be assessed by community standards. In addition, defendants who used various manipulative means to acquire property had made no mistake of fact or civil law, nor could they convincingly argue that they genuinely believed they had the donors’ true consent. These manipulative schemes should be charged with fraud rather than theft.