HKSAR v. NGUYEN PAULINE

CACC417/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 417 OF 2006

(ON APPEAL FROM DCCC 215 OF 2006)

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J U D G M E N T

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McMahon J (Giving the judgment of the Court) :

1. The applicant pleaded guilty to an offence of conspiring to steal, contrary to section 9 of the Theft Ordinance, Cap. 210 and sections 159A and 159C of the Crimes Ordinance, Cap. 200 before Deputy Judge Yau (as he then was) in the District Court, and was sentenced to two years’ imprisonment.  She now seeks leave to appeal that sentence.

2. The facts of the case were that on 4 January 2006 the applicant was one of a gang of persons who stole expensive items of clothing from “designer label” stores in Causeway Bay.  They entered two stores and after, by various means, distracting the staff, managed to remove the stores security devices from clothing items and put those items into a bag, which was labelled in the name of a different clothing store.  The bag was then handed to, or taken by, another gang member who entered the store for that purpose and who then left the store and put the bag in a motor vehicle stopped outside the store.  Other gang members performed the role of lookouts while all this was going on.

3. Police had earlier seen members of the gang go into a number of clothing stores in the vicinity of where the thefts eventually occurred, on familiarization or reconnaissance visits.  They kept the gang under observation and arrested them once the theft from the second store was completed.

4. The applicant had been involved in the earlier familiarization visits to various stores and was one of the gang members who entered the two stores where thefts occurred.  She had herself stolen some items of clothing.  She had put those items into the plastic bag which was then handed on to, or left, for another gang member to take away.

5. The grounds of appeal advanced by Miss Munira Moosdeen on behalf of the applicant are able to be reduced to two.  They are that :

(1)     the judge failed to obtain reports relating to the mental state of the applicant; and

(2)     the sentence imposed was manifestly excessive.

Ground 1

6. Prior to sentencing, the judge obtained a “background” report which stated in respect of the applicant that :

“…. She alleged that she had suffered from mood disorder, having suicide ideation, had been hospitalized in Prince of Wales Hospital from 19.7.2006 to 28.7.2006 and she still had to attend follow-up treatment at the Psychiatric Department of Shatin Hospital. ….”

The “mood disorder” of the applicant apparently occurred six months after the present offence, and her period of hospitalization concluded nearly two months before she pleaded guilty to the present offence.  At the time of sentence she was simply attending follow-up treatment at Shatin Hospital.  The judge, it is true, in passing sentence upon her made no specific reference to the applicant’s “mood disorder”, but did say that he had called for a background report concerning her and took her background into account.  The applicant was represented at sentence by an experienced counsel (though not Miss Moosdeen) who made no application for psychiatric or psychological reports to be called for, so far as we are aware.  That was understandable in the present case given the applicant’s mood disorder had come into being at a time when her marriage had broken up and she was facing imprisonment in respect of the present case.  In other words the offence apparently predated any psychiatric or psychological problem the applicant may have experienced.

7. What reports are called for prior to the sentencing of an offender is very much a matter for the discretion of the sentencing judge.  It is only in cases where the judge by not ordering a specific report could be said to be clearly wrong that this court will intervene.

8. In the present case, we do not think the judge was in error in not ordering a psychiatric or psychological report.  The mood disorder of the applicant, from the material before the judge, was a reaction to circumstances as they existed at the time of her hospitalisation.  By the time of sentence, even from the brief reference in the background report, the applicant’s condition had been and was being treated.  There was no suggestion it was permanent and would be a continuing factor in any period of imprisonment imposed.  Indeed we have heard today that she is currently not undergoing any such treatment.  Nor was there any suggestion that the offence had been committed whilst the applicant was afflicted : see HKSAR v. Chiu Peng Richard [2002] 1 HKC 401.

9. In all the circumstances the judge was entitled to proceed to sentence without calling for psychiatric reports, and this ground must fail.

Ground 2

10. The conspiracy in which the applicant participated was relatively sophisticated and well organized.  It involved a gang of at least five persons.  It was an ongoing conspiracy brought to an end by the intervention of very alert police officers.

11. The applicant had three previous convictions for theft at the time of the offence and the judge apparently took those previous convictions into account in adopting his starting point of sentence of three years’ imprisonment.

12. Given the circumstances of the conspiracy and the previous convictions of the applicant, even though less than $10,000 worth of clothing was stolen from the two shops prior to the police intervening, it cannot be said that the starting point of sentence of three years’ imprisonment was manifestly excessive.  The appropriate discount was given for the applicant’s plea of guilty.  The sentence actually imposed of two years’ imprisonment cannot be criticised.  This final ground is without merit.

13. The application is dismissed.