HKSAR v. CHAN LAI YEE, KIKO

DCCC 467/2020

[2021] HKDC 1090

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 467 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to one charge of burglary, contrary to section 11 of the Theft Ordinance[1] and one charge of theft, contrary to section 9 of the Theft Ordinance.

2.  Full particulars of the offences are set out in the summary of facts admitted by the defendant on 6 August 2021.  Sentence was adjourned for the preparation of a probation report. 

3.  In summary in April 2020 the defendant was employed as a part-time worker by Royce Laundry & Dry Cleaning Centre in Quarry Bay.  The laundry was owned by Ms Mak and her husband.  Ms Lau and Ms Tam were also employed as part-time staff.

4.  The opening hours of the laundry was between 8 a.m. and 8 p.m.  The laundry was secured by a locked glass door for which the defendant, Ms Lau and Ms Tam were each given a key.  CCTV was installed inside the laundry. 

5.  On 23 April 2020 before leaving work Ms Lau counted the daily profit.  The daily profit was $2,930 which was placed in the red cashier box pending collection by Ms Mak.

6.  The defendant was on duty the next day between 8 a.m. and 2 p.m. and Ms Tam between 3 p.m. and 8 p.m.  When Ms Tam left work she placed the daily profit in the sum of $3,274 inside the cashier drawer and locked the glass door.

7.  When Ms Lau returned to work at 8 a.m. on 25 April 2020 she discovered that there was only $24 left in the cashier drawer.  After confirming with Ms Tam how much she had put in the cashier drawer Ms Lau informed Ms Mak. 

8.  Ms Mak attended the laundry and discovered that $700 was missing from the daily float of $1,400 cash which was kept in a blue tray on top of the cashier drawer and that the daily profit of $2,930 Ms Lau had placed in the red cashier box on 23 April 2020 was also missing. 

9.  Ms Mak viewed the CCTV which showed a person entering the laundry at about 9 p.m. on 24 April 2020, opening the cashier drawer and taking some money away.  The person was then seen taking money from the area where the blue tray and the red cashier box were located.

10.  The case was reported to the police.  There being no sign of forced entry and the person seen on the CCTV appeared to be familiar with the internal setting of the laundry, the police suspected an ‘inside job”. 

11.  When the defendant reported for duty on 28 April 2020 she was arrested. 

12.  In a search of the defendant’s residence the police recovered the key to the glass door and the clothes the person seen on the CCTV was wearing. 

13.  In a subsequent record of interview and a video recorded interview the defendant admitted, inter alia, stealing about $2,900 from the cashier box before going off duty on 24 April 2020 and after going off duty returning to the laundry at about 9 p.m., opening the glass door and stealing about $3,000.

Mitigation

14.  In passing sentence, I have carefully considered the oral and written submissions of Mr Lee, including that the defendant who is 32, married with two sons aged 6 and 12, has been diagnosed with borderline intelligence[2].

15.  I have read the defendant’s mitigation letter in which she explains that she stole her employer’s money because she had lost money investing in the stock market and was unable to repay her debts[3].

16.  In November 2020 the defendant was made bankrupt due to her inability to repay the debts[4]. Mr Lee has submitted today a copy of the bankruptcy petition which sets out the debts owed by the defendant.

17.  In her letter the defendant also refers to suffering from auditory hallucinations and that prior to stealing her employer’s money she heard a voice telling her to get money from her company to repay the debt[5]. In oral submissions today Mr Lee says that prior to each offence the defendant also received many phone calls urging her to repay her debts. 

18.  Mr Lee says the defendant, knowing what she did was illegal, acted out of momentary impulse without fully appreciating the seriousness and legal consequences of her acts[6].

19.  I have also read the letters written by the defendant’s husband, elder son and former employer.  

20.  I take into account the defendant has no previous convictions and that the defendant had worked for the laundry for three years before committing the offences[7].

Guidelines

Charge 1 - burglary

21.  The correct starting point for a single burglary of non-domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 2 years and 6 months’ imprisonment. 

Charge 2 - theft

22.  By stealing the property of her employer the defendant breached the trust placed in her by Ms Mak.  In passing sentence, I have considered the principles laid down in R v Clark[8] as applied in HKSAR v Cheung Mee Kiu[9] as adjusted in HKSAR v Ng Kwok Wing[10]. 

23.  The guidelines state the proper starting point after trial where the amount stolen is less than $250,000 is less than 2 years’ imprisonment. 

24.  Mr Lee submits the offences were not pre-meditated and can be regarded as a one-off incident committed under an abnormal mental condition[11].  Mr Lee submits there are exceptional circumstances whereby the court can depart from the normal starting points and impose a non-custodial sentence[12].

25.  In support of his submissions Mr Lee refers the court to a number of sentencing cases from the District Court[13]. I have considered all the cases submitted by Mr Lee.

Individual justice

26.  In determining whether there are exceptional circumstances I have carefully considered the need for individual justice, as articulated in the cases of HKSAR v Leung Pui Shan[14] and HKSAR v Yeung Kwun Kuen[15], cases concerning obtaining money by deception and theft.  

27.  In Leung Pui Shan the appellant, aged 19, had not set out to deceive purely for personal gain, the offences being committed in the midst of emotional confusion.  In Yeung Kwun Kuen, the appellant, aged 21, who had been suffering from a long-term mental health problem committed the offences close upon the heels of a traumatic event, namely the death of his grandmother. 

28.  Exceptional circumstances were also found in HKSAR v Lam Ka Sin, a money laundering case, where the Court of Appeal adopted the individualised approach to sentence[16].

Mental illness

29.  I have read the psychiatric reports prepared by Dr Wan Chun Wah and Dr Henry W.M. Kwok.

30.  Dr Kwok is of the opinion that the defendant was not acting directly under the influence of psychotic symptoms and that the offences were likely to be an attempt by the defendant to solve her debts when she was at a loss in a crisis[17].

31.  I take into account that after her arrest the defendant was diagnosed to be suffering from First Episode Psychosis consisting of auditory hallucinations and paranoid delusion. 

32.  From the information placed before the court it would appear the family were unaware of the defendant’s mental and financial problems which only came to light with her arrest.  The family have pulled together to ensure the defendant does not reoffend.  The defendant continues to receive psychiatric treatment and has received counselling to treat what Mr Lee describes as the defendant’s “gambling” problem (investing in the stock market)  [18].

33.  Dr Kwok is of the opinion that with continued supervision and support, the chance of recidivism should be low. 

Sentence

34.  After careful consideration and taking into account all the circumstances of the offences including the relatively small amount of money stolen, $6,880 for which full restitution has been made; the defendant’s personal circumstances, including her mental health and how the family has addressed the defendant’s illness and “gambling” problem to ensure the defendant does not reoffend and that the defendant has a clear record, I am satisfied that there are exceptional circumstances whereby I can depart from the guidelines.

35.  In view of the defendant’s mental health, clear record, strong family support and the need for counselling, the probation officer is of the opinion probation supervision would be helpful and beneficial to the defendant’s rehabilitation. Probation is recommended with special conditions relating to psychiatric treatment. 

36.  Having explained a probation order to the defendant and the defendant having consented to the making of a probation order, the defendant is convicted and sentenced to 18 months’ probation with the special conditions set out in the report concurrent on each charge[19].

37.  The defendant is ordered to pay Ms Mak Yee Wah compensation of $3,950 on charge 1 and $2,930 on charge 2.  The sum of $200 is to be paid from the money seized from the defendant on arrest and the balance of $6,680 from the monies paid into court by the defendant’s husband.