HKSAR v. YEUNG CHING YIN

HCMA845/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 845 OF 2008

(ON APPEAL FROM ESCC 1800 OF 2008)

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J U D G M E N T

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1. This is an appeal by the appellant against the sentence of 24 months’ imprisonment imposed upon her on 1 September 2008 following her conviction after trial on a charge of theft by pick-pocketing.

2. The victim was shopping at Chaiwan market on the morning of 1 April 2008 and had her mobile phone inside the right pocket of her jacket she was wearing.  She suddenly realised that her mobile phone was missing.  A nearby vegetable stall owner saw the appellant rushing up a nearby escalator.  He chased her and as he did so, he saw her dispose of the victim’s mobile phone on the platform of the escalator.  When a police officer was called the appellant denied that she had stolen the phone and claimed she had just seen it on the escalator.

3. The appellant is now aged 65.  She has six previous convictions for pick-pocketing, the earliest being in 1957 when she was13.  The other convictions were in 1963, 1977, 1982, 1999 and 2005.

4. Until 2005 she had never been sentenced to an immediate term of imprisonment.  She was sentenced to detention in a girls’ home following her first conviction in 1957.  She subsequently received either suspended sentences, a fine or was put on probation.  In 2005 she was sentenced to 15 months’ immediate imprisonment after her conviction after trial of stealing 6 x $10 banknotes from the pocket of a fellow shopper.  She appealed against this sentence.  The judge, after considering the opinion of Dr Peter Yu, a psychiatrist in private practice, and Dr Choi Wing Kit of the Pamela Youde Nethersole Eastern Hospital that the appellant was suffering from a depressive disorder and that further imprisonment might hinder her recovery, coupled with the fact that she had been informed that the appellant was then receiving psychiatric treatment, decided that the term of imprisonment should be suspended.  She said this :

“Having regard to the diagnosis and opinions of the two psychiatrists; the circumstances of the pick-pocketing in the present case, in particular the relatively small amount involved ($60); and the fact that the Appellant has been incarcerated for almost 2 months so she has experienced first-hand what prison-life was like, I am of the view that this is an appropriate case to suspend the 15-months imprisonment for a period of 18 months.  Such a sentence would serve as a deterrent and allow the Appellant the chance to continue with the treatment.”

5. The sentence was suspended on 16 September 2006.  The appellant defaulted on her psychiatric treatment almost immediately.  Very shortly after the period of suspension expired, the appellant committed the offence for which she is now before this court.

6. The sole ground of appeal is that the sentence of two years’ imprisonment, being the maximum sentence the magistrate has a power to impose, was manifestly excessive for this offence.

7. In considering the question of sentence there were a number of matters that justifiably concerned the magistrate.  The prevalence of pick-pocketing offences in Hong Kong, the fact that the appellant had committed similar offences six times previously.  On those occasions the court had given her a chance, she had been fined, put on probation and on three occasions given suspended sentences.  None of these courses of actions had prevented her re-offending. 

8. On the previous occasion when the judge hearing her appeal had allowed her appeal and suspended her sentence, partially at least on the basis that she was undergoing psychiatric treatment, she had almost immediately defaulted on that treatment. 

9. I consider that the magistrate was justified in coming to the conclusion that the appellant could not expect endlessly to be given further chances.

10. However in deciding upon the sentence she eventually imposed I consider that the magistrate overlooked a number of circumstances that took this case out of the ordinary.

11. The appellant was not a professional pick-pocket, in the sense of someone who set out from home to pick-pocket for the rewards it would bring.  Both this offence and the offence for which she was convicted in 2005 appear to have been offences committed on impulse and concerned items of small values ($60 in 2005 and a mobile phone worth $380 in this case).

12. Moreover, and more significantly, both Dr Peter Yu and Dr Choi were of the opinion that at the time of the offence with which the court is now concerned she was suffering from a recurrence of the depressive disorder which had led her to commit the previous offence.  The cause of her relapse is partially her own fault — a failure to continue psychiatric treatment after the suspended sentence was passed in 2005 — but it also may have been precipitated by the illness and death of her mother the previous month.  Her mother had suffered one stroke in 2007 and another one shortly before her death.  The appellant had been caring for her during this period.

13. It also has to be borne in mind that although the appellant has six previous convictions for this sort of offence they were committed over a period of 50 years.  There have been very long periods when the appellant has kept clear of trouble.  It may be of significance that although she had received suspended sentences on three occasions, she has never been convicted of any offence during the period of suspension.

14. According to the doctors the appellant’s depressive condition is capable of treatment but in Dr Yu’s words, “the prospect of remaining symptom-free in the long term depends on her commitment to maintaining her medication and psychotherapy.”  He has undertaken to the court that if the appellant is subject to a suspended sentence to provide or recommend a course of treatment in respect of the appellant in relation to her depressive disorder.  He has also undertaken to inform the Registrar of the High Court in writing if it should come to his notice that the appellant has defaulted on such treatment prescribed or recommended by him during the next 24 months.

15. The appellant has already been imprisoned for 6 months and during that time I understand that she has been receiving psychiatric treatment.  It is very important that that treatment should continue.  Although the appellant’s family have said that they would ensure that she attends treatment, I consider it is important that it is brought home to her that the court will not tolerate her defaulting on treatment as she did on the previous occasion.

16. I am therefore allowing her appeal to the extent that I reduce the sentence of imprisonment imposed upon her to 15 months’ imprisonment but I suspend that sentence for two years from today.

17. It is a condition of the suspension of the sentence not merely that she does not commit any offence punishable by imprisonment during the next two years but that she undergoes, and strictly complies with, any course of treatment provided or recommended by Dr Peter Yu.

18. If the appellant defaults, then she will be obliged to serve the balance of the sentence of 15 months’ imprisonment after taking after into account the period of approximately 6 months she has already served.