HKSAR v. MA KE ZONG

HCMA 534/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 534 OF 2013

(ON APPEAL FROM TWCC NO 1771 OF 2013)

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JUDGMENT

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1. The appellant pleaded guilty to one count of ‘theft’ (Charge 1) and one count of ‘obtaining property by deception’ (Count 2), contrary to sections 9 and 17(1) of the Theft Ordinance, Cap 210 respectively. She was sentenced to 6 and 8 months’ imprisonment to be served concurrently. She now appeals against that sentence.

Facts

2. The facts as prepared by the police and on which the appellant had pleaded read as follows:

“On the evening of the 17^th April 2013 PW1 was inside the Cathay Pacific VIP lounge named The Wing, in the Departure Hall of Hong Kong International Airport, and placed her hand-carry rucksack unattended on a bench.

PW1 suddenly discovered her bag missing, and the case was reported. PW2，an unconnected passenger had seen a female (the defendant) pick up the bag and take it into the female toilet, from where the bag was recovered.

However, upon checking the bag, PW1 discovered her wallet missing. The wallet was recovered in a baby changing room near Departure Gate 15 a short time later, and PW1 initially found nothing missing.

On her return to Hong Kong from an overseas trip, PW1 was advised by her bank that her Hang Seng Visa card …. had been fraudulently used for purchase of Exh 1 (one wrist watch valued $54,500) at 2104 hours on the 17^th April 2013 at the Chanel shop on the Level 6 Departure Hall. PW1 then realized that the card was missing from her wallet.

CCTV of The Wing and Chanel was viewed, which confirmed the person removing the bag, and subsequently using the credit card, was the same person.

The Guest List of The Wing was viewed, and the defendant was identified.

At 1645 hours on the 5^th July 2013, the defendant was arrested at Arrival Gate Number 4 by PW4, on arrival in Hong Kong International Airport on board a Dragon Air flight from Taiwan. Under caution the defendant denied the offences.

The defendant was wearing Exh 1 on her wrist, from where it was recovered, and later identified by PW3 as that purchased from her at the Chanel shop on the 17^th April 2013.

On the 6^th July 2013 the defendant was charged with the offences for which she appears before the Court and after caution made no reply.”

The sentence passed

3. The sentencing magistrate, Mr Casewell, said as follows:

“The Appellant is a Taiwanese citizen. She was subsequently arrested on her return to Hong Kong on 8^th July 2013.

The Appellant is educated to Doctorate level. She was working as a Assistant Professor at Kaohsiung Medical University. She is of clear record in Hong Kong I obtained background and psychiatric reports on her.

The Appellant has previously suffered from depression and had required treatment for the last six years including in patient treatment in Taiwan in May 2013. The psychiatric report said that she suffered from depression. She was alert and conscious when she committed the offences.

The Appellant had taken PW1’s rucksack, taken out the card and then used that to dishonesty and fraudulently obtain a valuable item of jewelry. I considered that these were serious offences of dishonesty.

Passengers at the airport are particularly vulnerable to thieves. The courts must ensure that sentences reflect the need to protect the property and persons of people who pass through the territory. The theft of baggage from passengers even if unattended is a serious matter. Here there was a consequent use of the stolen card to obtain valuable property.

Offences of such a nature committed in such public facilities warrant a sentence of imprisonment.

I noted that the Appellant was of clear record, well educated and had suffered from psychiatric problems. However none of these factors lessened her culpability for her conduct.

I took her acts as effectively one course of conduct.  I believed these offences warranted a starting point of twelve months imprisonment.  I gave a full discount of one-third to eight months imprisonment.  I accordingly sentenced her to six months imprisonment for theft and eight months imprisonment for obtaining properly by deception.  The sentences [are] to run concurrently to a total of eight months imprisonment.”

This appeal

4. Counsel for the appellant does not contest the correctness of the sentences passed, whether individually or in composite term. He submits that given the appellant’s personal circumstances, a suspended sentence would instead be appropriate.  He prays in aid judicial comments that “the imperative of individual justice” must prevail in certain cases.  An example is Stock VP’s judgment in HKSAR v Yeung Kwun Kuen CACC 475 & 476/2012 where a young man pleading guilty to various offences of theft and obtaining property by deception was put on probation on the appeal.

Analysis

5. The magistrate was correct in emphasizing the importance of keeping air passengers safe from theft in the airport.  He was not wrong in taking the view that, generally speaking, the appellant’s crime should be met by an immediate term of imprisonment.  He cannot be faulted in setting the individual and overall sentences at the given quanta.

6. That being said, the government psychiatrists who had compiled reports did not question the appellant’s assertion that she was suffering from a pre-existing state of depression.  They found cut marks of self-inflicted injury over her left arm.  The appellant’s mother whom the probation officer contacted confirmed that the appellant had an unpleasant childhood.

7. The appellant makes reference to her involvement with a married man, a relationship that she was forced to give up shortly before the present offence.  She says she too had had things stolen in the VIP lounge – her sunglasses previously and, on the day in question, a camera – which was what prompted her to steal from others for revenge and to vent her emotions.

8. All this the appellant explains in a long hand-written letter to the court for the appeal whereas little coverage was given to her condition in the magistrate’s reasons even if less was known at the time of her sentence.  Now before me, counsel for the respondent is not in a position to refute what the appellant says.

9. The appellant is 35 years of age (hence mature), of previously good character and was highly educated and in a good position in terms of employment, which only goes to show that what she did was completely against the grain.  In addition, she did and still does suffer from depression, a condition exacerbated by an alleged relationship problem which the respondent is unable to challenge.  On the contrary, government psychiatrists have found on her arm a number of telling injury marks.

10. In the circumstances, and taking into account the fact that she has been incarcerated since early July, I am persuaded that the appellant’s sentence can be suspended.

Judgment

11. The 6- and 8-month terms for Charges 1 and 2 to be served concurrently are upheld, but suspended for 2 years.