HKSAR v. SIU KAM YUNG AND OTHERS

DCCC298/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 298 OF 2011

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Reasons for Sentence

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The Charges and the Facts

1.  This case concerns a total of 14 charges of theft committed inside different shops. Some of the charges were laid jointly against a number of Defendants whereas some were laid against one single Defendant.

2.  The 1st Defendant pleaded guilty to charges 4, 5, 9 and 14.

The 2nd Defendant pleaded guilty to charge 14.

The 3rd Defendant pleaded guilty to charges 7, 8, 12 and 14.

The 4th Defendant pleaded guilty to charges 9, 12, 13 and 14.

The 5th Defendant pleaded guilty to charges 4, 5, 8, 9, 10 and 11.

3.  The prosecution asked for charges 1, 2, 10 and 11 against the 1st Defendant; charges 10 and 11 against the 4th Defendant; and charges 2, 3, 6 and 7 against the 5th Defendant to be left on the court file and not to be proceeded with without the leave of the court. It was so ordered.

4.  The same modus operandi was used in all these offences and I am not going to repeat in detail the Defendants’ acts in respect of each and every charge. Briefly, on all those occasions, the Defendants, either with other Defendants, or with persons still at large, entered shops where expensive goods were put on display and for sale. When the Defendants’ accomplices used their bodies to block the view of the shop-assistants, the Defendants then made use of the chance to take away handbags, leather jackets, and glasses. Afterwards, the group left the shops quickly.

5.  When the shop-assistants later noticed the stolen items missing, reports were made to the police. Upon checking the shops’ CCTV cameras, the Defendants’ stealing acts were discovered. On 10 January 2011, the police kept the group under observation and the 1st to the 4th Defendants were seen visiting the Lamborghini shop of Wing On Department Stores in Kowloon Centre. Later, the 2nd and the 3rd Defendants were twice seen transferring some clothing items from a bag carried by the 2nd Defendant to the 3rd Defendant’s trolley when they were at Saigon Street outside Wing On.

6.  After the party left Wing On, they re-grouped themselves. The 4th Defendant was then seen transferring some clothing items from the trolley to her shopping bag and passing the bag to the 3rd Defendant. The 3rd Defendant was seen handing over the trolley to the 1st Defendant.

7.  When the group was stopped and searched by the police, the stolen items particularized in charge 14 were recovered from the 3rd and the 4th Defendants.

8.  During subsequent video-recorded interviews, the Defendants made various admissions.

9.  The values of the stolen properties were respectively :

(a) HK$13,800 for charge 4 (one handbag);

(b) HK$29,100 for charge 5 (one handbag);

(c) HK$30,000 for charge 7 (one handbag);

(d) HK$66,800 for charge 8 (one leather jacket);

(e) HK$13,000 for charge 9 (one handbag);

(f) HK$7,870 for charge 10 (two pairs of glasses);

(g) HK$16,150 for charge 11 (two handbags);

(h) HK$69,800 for charge 12 (two handbags);

(i) HK$24,000 for charge 13 (one handbag); and

(j) HK$49,215 for charge 14 (one leather jacket, two fur coats, and one T-shirt).

Mitigation – the 1st Defendant

10.  The 1st Defendant is aged 69, married. At the time of her arrest, she was receiving a monthly disability allowance of HK$1,200. The 1st Defendant’s husband deserted the family some 40 years ago. It was said that she raised her 5 children all by herself. Unfortunately, one of her daughters passed away in 2006 and her youngest son suffered a stroke in 2007. On both occasions, the 1st Defendant was, however, in prison and could not help looking after them. Prior to her arrest, her children contributed about HK$6,000 to HK$7,000 to her each month.

11.  The 1st Defendant has an appalling criminal record. She has been before the court on 41 previous occasions with 64 convictions. Of those, 62 were theft-related. She was released from the prison in May 2010. Yet, in October 2010, she started committing this series of offences.

12.  In mitigation, it was said that the 1st Defendant has a very close relationship with her elder brother who has never been married and who suffered from an illness at the time. Ms. Kung for the 1st Defendant told the court that, in order to let her elder brother receive treatment in a private hospital, the 1st Defendant committed these offences.

13.  Letters written by the 1st Defendant, her children and her pastor were given to the court. In gist, it was stated that the 1st Defendant is a responsible mother and a caring person; she only committed the offences as she was led astray by her peers. A lenient sentence was asked for.

Mitigation – the 2nd Defendant

14.  The 2nd Defendant is now aged 35 and is a Mainlander. She was married to a Hong Kong resident in 2005. However, her husband deserted the family afterwards. Prior to her arrest, she lived in the Mainland with her daughter. At the time of the offence, the 2nd Defendant was in Hong Kong on the strength of a two-way permit which allowed her to stay for 14 days. Mr. Cheng for the 2nd Defendant told the court that, a few days after her arrival in Hong Kong, the 2nd Defendant was persuaded by her friends to commit the offence, the subject matter of charge 14.

15.  The 2nd Defendant has been before the court once. She was sentenced in September 2005 for the offences of “using a false instrument“ and “possession of an identity card relating to another person“.

16.  In mitigation, it was said that the 2nd Defendant is now remorseful. In her letter to the court, the 2nd Defendant stated that she was prepared to accept her punishment but she hoped to be re-united with her daughter as soon as possible.

Mitigation – the 3rd Defendant

17.  The 3rd Defendant is now aged 49 and is suffering from asthma. At the time of her arrest, she was unemployed and was a CSSA claimant, getting about HK$2,900 per month.

18.  The 3rd Defendant has been before the court on 4 previous occasions with 5 convictions. Three of those were in relation to “using/possessing a false instrument”. She was, however, sentenced on 4 January 2011, to 160 hours’ CSO in relation to a case of “theft”. Ms. Yip acting for the 3rd Defendant told the court that she committed that offence in December 2010. It was therefore accepted that she was on bail while she committed the offences in charges 12 and 14 in the present case.

19.  In mitigation, Ms. Yip told the court that the 3rd Defendant made full and frank admissions from the start. She was also prepared to shoulder her responsibility for having committed these offences and had never sought any plea bargaining with the prosecution.

20.  Ms. Yip submitted that the 3rd Defendant was not the master-mind of the scheme and her role was a relatively minor one as she only passed the stolen items to others. Moreover, it was said that, although the stolen items were of high values, the 3rd Defendant only got a reward of HK$500 each time.

21.  In her letter to the court, the 3rd Defendant expressed her remorse and her determination to turn over a new leaf.

Mitigation – the 4th Defendant

22.  The 4th Defendant is now aged 58. She is divorced and she lived with her daughter prior to her arrest. At the time, she was unemployed and was a CSSA claimant, receiving about HK$1,800 per month. The 4th Defendant has been before the court on 4 previous occasions with 5 convictions. Two of those were “conspiracy to defraud” and one was “theft”. She was fined HK$1,000 for that “theft” (shoplifting) on 10 January 2011, which was the same day when she committed charge 14 in the present case.

23.  In mitigation, it was said that the 4th Defendant’s 60-year-old elder brother had been suffering from poor health and the 4th Defendant was the one who helped looking after him. Letters written by the 4th Defendant, her daughter and her elder brother, were also provided to the court. In gist, a lenient sentence was sought and it was said that the 4th Defendant is now truly remorseful.

Mitigation – the 5th Defendant

24.  The 5th Defendant is now aged 44 and her three children all live with her ex-husband. Prior to her arrest, she was co-habitating with her boy-friend and their three children. At the time, the 5th Defendant earned a few thousand dollars a month by delivering meals to schools.

25.  The 5th Defendant has been before the court on 13 previous occasions with 19 convictions. 15 of those were theft offences. She was just released from the prison in August 2010. Yet, in October 2010, she started committing the present series of offences.

26.  In her letter to the court, the 5th Defendant expressed her remorse and her wish to take care of her mother who has recently had a stroke.

27.  Moreover, Mr. Ho for the 5th Defendant told the court that the 5th Defendant vowed not to re-offend. She would seek employment in a nursery after her release as she is a qualified worker to work in that type of institution.

Sentencing Considerations

28.  In R v Vargas & Another HCMA 1222/1995, 2 April 1996, (unreported), two Columbians were convicted after trial of one count of theft. At the time, the two Appellants entered a jewellery shop with three others, pretending to be customers. While the shopkeeper was engaged, the 1^st Appellant and his accomplice took away a watch valued at HK$30,000. Their act, however, was seen by other shopkeepers. Having taken into account the planning involved, the fact that a number of persons were acting in concert at the time, and that an expensive watch was stolen, the court considered the adoption of a starting point of 18 months’ imprisonment to be justified.

29.  Similarly, a starting point of 18 months was considered appropriate in HKSAR v Lai Chun Yan & Another HCMA 223/2008, 24 June 2008, (unreported), in which case the two Appellants acted together to steal expensive clothing items and equipped themselves with a pair of scissors for removing the alarm devices.

30.  In this case, there are the following aggravating factors :

(a) the Defendants’ acts were organized and well-planned. Some blocked the view of the shopkeepers or got them engaged when the others stole the items;

(b) on each occasion, the Defendants did not act alone. There were at least two of them acting in concert. For charges 12 and 13, there were about 5-6 of them acting together;

(c) the Defendants were targeting high-value goods like leather jackets, fur coats, and expensive handbags; and

(d) tools like a cutter and a trolley were used.

Sentencing in this case

31.  In view of the facts of this case, including the organized nature of the present offences; that the Defendants were acting in concert in a group of at least two; and that they were targeting high-value goods, I consider a starting point of 18 months to be appropriate for each of charges 4, 5, 7-14.

The 1st Defendant

32.  For the 1st Defendant, she pleaded guilty to charges 4, 5, 9 and 14. In other words, she repeatedly committed these offences within less than three months’ time. Such did not only illustrate the fact that she was treating the stealing as her ordinary activity but also that she had a complete and blatant disregard of the law and order.

33.  The 1st Defendant also has an appalling record in that she has 62 similar convictions. While she would not and should not be sentenced for her previous record, clearly, the sentences imposed in the past did not have sufficient deterrent effect to prevent her from committing the present offences. This is a matter which I should take into account when passing the sentence in this case.

34.  The 1st Defendant is now aged 69. It was said that her health is not good and she is truly remorseful this time. It would appear from her children’s letter to the court that they remain supportive and are prepared to look after the 1st Defendant as well as to help her reform.

35.  Concerning the 1st Defendant’s mitigation, other than her plea which would entitle her to a one-third reduction and would have the sentence reduced from 18 months to 12 months, there is nothing which would warrant any further reduction in sentence.

36.  Having considered the relevant facts and the above matters, and having applied the totality principle, I take the view that an overall sentence of 32 months is appropriate in the case of the 1st Defendant in respect of the 4 charges to which she pleaded guilty. I therefore make the following orders :

(a) 6 months of the 12-month term in respect of charge 5 are to be served wholly concurrently with the 12-month term for charge 4, the rest to be served wholly consecutively;

(b) 5 months of the 12-month term in respect of charge 9 are to be served wholly concurrently with the terms for charges 4 and 5, the rest to be served wholly consecutively; and

(c) 5 months of the 12-month term in respect of charge 14 are to be served wholly concurrently with the terms for charges 4, 5 and 9, the rest to be served wholly consecutively, making a total of 32 months’ imprisonment for all 4 charges.

The 2nd Defendant

37.  The 2nd Defendant pleaded guilty to charge 14. She was a visitor at the time when she committed the offence in Hong Kong. It was, however, said that she did not deliberately come to Hong Kong to engage herself in any criminal enterprise, and that she was merely persuaded to do so by her peers. In the circumstances, I am prepared not to treat that as an aggravating factor.

38.  However, other than the 2nd Defendant’s plea, I see nothing in her mitigation which would entitle her to any further reduction in sentence. The fact that she has a young daughter to look after was a matter which she should have thought about before committing the present offence. While the court is sympathetic over her family situation, it would not warrant a reduction in sentence.

39.  18 months reduced by one-third is 12 months. The 2nd Defendant is therefore to serve a term of 12 months for charge 14.

The 3rd Defendant

40.  The 3rd Defendant pleaded guilty to charges 7, 8, 12 and 14. As pointed out above, she committed charges 12 and 14 while she was on bail and this is an aggravating factor. I have considered the matters put forth in mitigation, other than her plea which would reduce the starting point from 18 months to 12 months, there is nothing which would warrant any further reduction in sentence.

41.  The claim that the 3rd Defendant only received a small reward and that she was not the master-mind of the scheme could not assist her much as she was fully aware that she was acting with others in a syndicate which carried out repeated, clearly pre-meditated, and well-organized thefts in expensive shops. In other words, without the 3rd Defendant playing her part, the group could not have succeeded in their criminal ventures.

42.  Therefore, having considered the relevant facts, the 3rd Defendant’s full co-operation, but that the 3rd Defendant committed two of the offences while on bail, and having applied the totality principle, I take the view that an overall term of 27 months is appropriate in the case of the 3rd Defendant in respect of the 4 charges to which she pleaded guilty. I therefore make the following orders :

(a) 7 months of the 12-month term for charge 8 are to be served wholly concurrently with the 12-month term for charge 7, the rest to be served wholly consecutively;

(b) 7 months of the 12-month term for charge 12 are to be served wholly concurrently with the terms for charges 7 and 8, the rest to be served wholly consecutively; and

(c) 7 months of the 12-month term for charge 14 are to be served wholly concurrently with the terms for charges 7, 8, and 12, the rest to be served wholly consecutively, making a total of 27 months’ imprisonment.

43.  In passing the sentences above, I have already taken into account the fact that the 3rd Defendant would need to be dealt with by another court in respect of the theft for which the CSO was made in January this year.

The 4th Defendant

44.  The 4th Defendant pleaded guilty to charges 9, 12, 13 and 14. As mentioned above, she committed charge 14 on the very day when she was sentenced for another theft.

45.  I have carefully considered the matters put forth in mitigation, while it is sad to see that her elder brother would now be deprived of the care the 4th Defendant previously provided to him, this is a matter which the 4th Defendant should bear in mind before committing these offences. Her personal predicament is not a matter which would warrant a reduction in sentence.

46.  However, the 4th Defendant would be given the one-third reduction for her plea and the starting point for each charge would be reduced to one of 12 months.

47.  Taking into account all the relevant facts, the matters mentioned above, and having applied the totality principle, I take the view that an overall term of 27 months is appropriate in the case of the 4th Defendant in respect of the 4 charges to which she pleaded guilty. I therefore make the following orders :

(a) 7 months of the 12-month term for charge 12 are to be served wholly concurrently with the 12-month term for charge 9, the rest to be served wholly consecutively;

(b) 7 months of the 12-month term for charge 13 are to be served wholly concurrently with the terms for charges 9 and 12, the rest to be served wholly consecutively; and

(c) 7 months of the 12-month term for charge 14 are to be served wholly concurrently with the terms for charges 9, 12 and 13, the rest to be served wholly consecutively, making a total of 27 months’ imprisonment.

The 5th Defendant

48.  The 5th Defendant pleaded guilty to a total of 6 charges, that is, charges 4-5 and 8-11. I have considered the matters put forth in mitigation but there is nothing which would warrant any reduction in sentence.

49.  However, the 5th Defendant pleaded guilty and she would receive a one-third reduction for that. The starting point for each charge would therefore be reduced from 18 months to 12 months.

50.  Having taken into account all the relevant facts and having applied the totality principle, I take the view that an overall term of 34 months is appropriate in the case of the 5th Defendant in respect of the 6 charges to which she pleaded guilty. I therefore make the following orders :

(a) 8 months of the 12-month term for charge 5 are to be served wholly concurrently with the 12-month term for charge 4, the rest to be served wholly consecutively;

(b) 8 months of the 12-month term for charge 8 are to be served wholly concurrently with the terms for charges 4 and 5, the rest to be served wholly consecutively;

(c) 8 months of the 12-month term for charge 9 are to be served wholly concurrently with the terms for charges 4, 5 and 8, the rest to be served wholly consecutively;

(d) 7 months of the 12-month term for charge 10 are to be served wholly concurrently with the terms for charges 4, 5, 8 and 9, the rest to be served wholly consecutively;

(e) 7 months of the 12-month term for charge 11 are to be served wholly concurrently with the terms for charges 4, 5, 8, 9 and 10, the rest to be served wholly consecutively, making a total of 34 months’ imprisonment.