HKSAR v. CHAN YUEN LIN

DCCC 210/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 210 OF 2017

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Reasons for Sentence

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1.   The defendant pleaded guilty to three charges of theft.

2.   She has agreed the facts, I have convicted her of those offences.  The facts show the first two offences were committed on 1 December 2016, and committed against two people who were shopping at the Food Mart in Shau Kei Wan, and they both discovered that their wallets had been taken.  The wallets contained items such as money and other personal items like Octopus cards and ATM cards.  In fact, PW1 found her wallet later, but the cash inside it had gone.  PW2’s wallet was recovered. 

3.   An investigation followed by perusal of the CCTV cameras, and in fact, the suspect had turned up with the defendant, and can be seen taking the items and walking away with them.

4.   The 3rd charge relates to the next day, 2 December 2016, and this relates to another person who was shopping at the Food Mart.  She found her wallet, which contained over $6,500 and various cards, was missing from her handbag.  The CCTV footage, again, captured the defendant taking the wallet. 

5.   As a result of investigations, the defendant was arrested on 5 December.  At the time, she was saying she was not in Hong Kong. 

6.   The defendant later gave a cautioned interview.  On that occasion, she admitted she was in Hong Kong on 2 December and admitted stealing the wallet from PW3.  It was clear from the records, the defendant had not departed from Hong Kong, and the defendant admits today that she stole from the three prosecution witnesses over the two days from the Food Mart. 

7.   I will turn to the defendant’s background.  She is presently aged 56 years old.  She is a Hong Kong identity card holder.  She studied up to around primary 6 and has sold items such as sweets and the like as her employment. 

8.   The defendant has a fairly lengthy criminal history, some 16 previous appearances in court, involving some 14 cases of theft, involving thefts described as pickpocketing, and that is the same kind of offence the defendant has committed in December this year.

9.   She has been fined, sentenced to suspended sentences of imprisonment and sentences of immediate imprisonment. She was sentenced in the year 2010 to theft and sentenced to 8 months of imprisonment; 2006 to 10 months’ imprisonment for attempted theft; later in 2006 to some 14 months’ imprisonment; later in 2008 to 12 months’ imprisonment for theft; and her most recent case involving pickpocketing was in 2014, sentenced to 4 months’ imprisonment; and then later, a case of shoplifting, a further 4 months’ imprisonment in July 2016. 

10.   The defendant is a long-term offender. It is clear from the antecedents, the defendant has struggled with issues relating to both psychological and psychiatric conditions.

11.   As far as personal history is concerned, her late husband passed away in 2002, and she has two sons.  And at the time of her arrest, she had regular, what is described as cross-border work at a nightclub. 

12.   She has been under psychiatric attention and treatment for some time, and dating back to February 1998, when she was first seen at the Pamela Youde Nethersole Eastern Hospital.  At that time, the opinion was that the defendant had a mixed anxiety depressive disorder, with a history of conduct problems and personality difficulties.  She had an unfavourable upbringing, maladapted stress-coping. 

13.   In or around 2016, she reported hearing non-existent voices.  The diagnosis that was given in April of this year was that she suffered some psychosis, with anxiety depression personality disorder.  She needs outpatient medication and counselling, and needs to be abstinent from alcohol and other hypnotics.

14.   I obtained further reports as part of the sentencing process.  She has been seen by a psychiatrist in August of this year.  At the present moment, she has stable mood, and no signs of mental disturbance.  She has mood adjustment problems.  Her mental condition is stable.  And she should continue to receive outpatient psychiatric treatment.

15.   There is also a psychologist report of the same month.  The psychologist outlines what we know, that the defendant suffered from effective disorder for almost two decades.  She has had what is correctly described as, I think, miserable past life experiences, and adopted what are maladapted strategies of use of alcohol and drugs.

16.   It is considered that her risk of reoffending is still high, and psychiatric treatment is recommended, she also needs psychological intervention.

17.   It can be seen from this extensive background that the defendant has been offending, we can see, for a long period of time.  She undoubtedly offends for financial reasons, but there is also a strong element of psychiatric and psychological problems that are mixed up in her offending history.  It is also apparent that neither court sentencing nor the treatment she has received has been able to prevent her from continuing to commit offences. 

18.   As far as the sentencing is concerned, her background undoubtedly has a mitigating effect.  She has also accepted her responsibility for these offences and has shown a degree of remorse. 

19.   It does appear to me the outcome of her future is not particularly optimistic.  She certainly moved in to the category now of being a recidivist, persistent offending of the same nature, and such interventions as there have been, both by the courts and by the medical services, seem unable to cope with the problem.  It is to be hoped the defendant is at an age and at a resolution of mind that she can perhaps put her past behind her.

20.   As far as the sentence for these offences is concerned, these offences must be treated similar to those of pickpocketing.  The defendant’s offences involved stealing people’s wallets and walking away with their property.  I find this is really not possible to distinguish from ordinary pickpocketing cases. 

21.   The starting point for a pickpocketing offence for a person of clear record after trial would be between 12 to 15 months’ imprisonment. 

22.   It would appear to me these are simple offences and would warrant an ordinary starting point of 12 months’ imprisonment.

23.   There is, of course, the defendant’s long history of offences of this nature, and the failure of previous sentencing to deter her from these offences.  I consider this is a further aggravating factor, and will aggravate the starting point for sentence.

24.   That means the starting point of sentence I shall adopt in respect of each of these three offences of theft is one of 18 months’ imprisonment.  After deduction for her plea of guilty, that is a sentence of 12 months’ imprisonment on each charge. 

25.   I must now look to an overall sentence for these three offences.

26.   What is the appropriate overall sentence for these offences?  Now, the first two offences appear to have been committed at around about the same time, in the same supermarket, and the next offence on the following day.  What I shall do is adopt an overall sentence of 18 months’ imprisonment.  I shall achieve that by ordering the 1st and 2nd charge to run concurrently to each other, and the 3rd charge, 6 months of that sentence to run consecutively to the first two offences, and the balance concurrent.