HKSAR v. YIU HOI YAN

HCMA 417/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 417 OF 2004

(ON APPEAL FROM TMCC 495/2004)

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J U D G M E N T

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1. On 17 February 2004 this Appellant, a woman of previous good character in her early 20's, pleaded guilty before T S Jenkins, Esq. in the Magistrate's Court at Tuen Mun to one charge (being Charge 1) of theft, two charges of obtaining services by deception (being Charges 2 and 5) and three charges of obtaining property by deception (being Charges 3, 4 and 6). What she had done was to steal her former boyfriend's credit card and use it to obtain $2,577 worth of services and $8,990 worth of property. All of these offences were committed on 15 February 2004.

2. The Appellant's background had been a troubled one. Very properly, the Magistrate sent for and considered a number of reports. By the time he passed sentence, the Magistrate had considered a Probation Officer's Report, a Psychiatric Report, a Psychological Report and a Drug Addiction Treatment Centre Report.

3. Probation was not recommended. The Psychiatric Report concluded as follows:

"6.	Opinion: Defendant has history of psychosis, likely attributed to the use of psychoactive substance but further investigation and follow up is necessary to ascertain its cause. Her present mental condition is such that she is stable; she requires no hospital treatment, she should return to the outpatient clinic for further management.
7.	I do not find her offence in any way directly related to her mental illness.
8.	She is mentally fit to plead."

The Psychological Report concluded as follows:

"From a rehabilitative perspective, psychological services aiming at dealing with her problems relating to her borderline personality disorder may be helpful in reducing her anti-social behaviour. Nonetheless, the prognosis for treatment of borderline personality disorder is normally guarded."

The Appellant was not considered suitable for admission to a Drug Addition Treatment Centre.

4. On 16 March 2004, after considering the reports and hearing mitigation, the Magistrate sentenced the Appellant to a total of 12 months' imprisonment. How this total was reached appears from the final paragraph of the Magistrate's Reasons for Sentence where he said this:

"In respect of the initial theft of the credit card, I took as my starting point a 9 month prison sentence which I reduced to 6 months for the plea. So far as the fraudulent use of the card was concerned I adopted a global approach in sentencing passing concurrent sentences given the fact that only 1 credit card had been used on 1 day albeit on a multiple basis. I took as my starting point 18 months imprisonment on Amended charges 2 - 6 which I reduced to 12 months imprisonment for the pleas. I ordered the concurrent 12 months terms to run concurrently with the 6 months sentence on charge 1. I so sentenced."

5. The Appellant now appeals against her sentence. I acknowledge the anxious care which the Magistrate applied to his task of sentencing this Appellant. But I am troubled by what he said in the penultimate paragraph of his Reasons for Sentence, where he said this:

"Credit card fraud is a prevalent offence in Hong Kong and I considered that it was necessary in the circumstances to pass a deterrent sentence (i.e. an immediate prison term) notwithstanding the defendant's pleas of guilt and her clear record."

6. I have no doubt that there is a class of credit card fraud which is prevalent in Hong Kong and which calls for deterrent sentences. But the present case is an unusual one of a troubled young woman who, upon breaking up with her boyfriend, acted not only for financial gain but also for another reason which took her case out of the general run of credit card fraud cases. In his Statement of Findings the Magistrate observed that the Appellant's "primary motive for committing the offences may well have been for revenge".

7. In my view, an immediate prison term was justified, but the length of that term should not have been fixed on the basis of prevalence. I will not disturb the sentence of six months for theft. But I will reduce the sentences of 12 months on each of the other charges to six months. Accordingly, the appeal is allowed to the extent that the total of 12 months' imprisonment passed on the Appellant will be reduced to a total of six months' imprisonment.