HKSAR v.YEUNG KWUN KUEN

CACC 475/2012 & CACC 476/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NOS 475 AND 476 OF 2012

(ON APPEAL FROM DCCC NOS 729 AND 976 OF 2012)

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Hon Stock VP:

1.  On 29 July 2013, we set aside a sentence of 28 months imprisonment imposed upon the appellant after plea by Judge Gary Lam in the District Court for various offences of theft and obtaining property by deception; and we substituted an order placing the appellant on probation for 2 years.

2.  The unusual factual background to this case is fully dealt with by Barnes J in the Reasons for Judgment which follows; but since the case highlights a number of disturbing features which evidence themselves in too many cases and which should be a matter of concern to those interested in criminal justice, I wish to add comments of my own.

3.  In HKSAR v Leung Pui Shan, CACC 317/2007, 5 February 2008, unreported, I sought to emphasise the imperative of individual justice.  It is a matter of some surprise to me that that judgment has not been reported.

4.  It is a matter of further surprise to me that legal aid was refused for the appeal in this case.  Far too often, this Court sees legal aid granted for appeals which bear not a scintilla of merit and, at the other extreme, legal aid denied for clearly arguable cases.  Something is therefore fundamentally amiss.

5.  The instances of those denied legal aid for clearly arguable cases ought to be a matter of considerable concern to those interested in the administration of justice.  But the periodic expressions of concern by this court over the years seem to have no effect.  I accept that the problem is not easy of resolution; but it is certainly one that demands serious and active attention.  So, for what it is worth—though it seems to be worth very little—I once again express my concern about the refusal of legal aid in a clearly meritorious case.

6.  Whilst offences of the type in this case would normally or usually call for a term of imprisonment, the circumstances of the offender and the circumstances in which he came to commit the offences were not normal or usual.  It did not take a great deal of study on our part (nor, obviously, on the part of the single judge who granted leave) to recognise that this was a case which called for the real possibility of an unusual sentencing course:

(1) the appellant was a young man of previous good character;

(2) the appellant was in gainful employment;

(3) the appellant had been suffering from a long-term mental health problem for which he had been receiving treatment—well before the offences were committed, so as to distinguish the case from those where psychiatric problems  present themselves only after arrest and before sentence;

(4) the commission of the offences followed close upon the heels of a traumatic event in the appellant’s life, namely, the death of his grandmother with whom he had been particularly close;

(5) that traumatic event caused or coincided with him coming off his medication;

(6) bipolar disease or not—as to which the psychiatrists were not ad idem—the fact that the offences were committed in these highly unusual circumstances called for particular attention and a degree of compassion ;

(7) the appellant pleaded guilty;

(8) the appellant made full compensation to all those whose loss could be identified and did so before sentence; and

(9) the appellant had secured a new qualification after his arrest which provided fresh opportunity for gainful employment.

7.  We think it obvious that this was not a case that required imprisonment.  To the contrary, it required creative sentencing, whereby a young man who came from and lived with a very caring family, could be helped towards the prospect, at least, though not the guarantee, of rehabilitation.

8.  Two weeks prior to the date upon which we set aside the sentence of imprisonment, we asked for a probation report—which transpired to be positive in the appellant’s favour—and we asked for the two psychiatrists to attend court.  We were grateful for their attendance but more particularly for their assistance in answering our questions in a way which enabled the court to secure a better ‘feel’ for the circumstances in which the offences came to be committed.  We also asked the appellant's sister, a qualified nurse, who was in court, to come forward and we put a series of questions to her.  Her determination and that of her family to keep an eye on the appellant and to help him along, if necessary by some of them moving with him to more congenial accommodation, was singularly impressive, as was the fact that over the years they had put together their meager resources to provide him with the help of Dr Dong.  This was an instance in which hearing from a family member was of immense assistance, better enabling us to deal with the individual justice of the case.

9.  I mention the steps we took because they are basic and obvious steps.  Effective mitigation is an art to which, in general, inadequate attention is given in our courts.  Unlike the practice in other jurisdictions, it is rare indeed in Hong Kong to discover that witnesses have been called in mitigation.  Yet it is a step that can in appropriate cases breathe life into contentions, if well-founded, that there is something special about a case or about the circumstances in which an individual accused came to commit the offence.  So, for example, calling as a witness a doctor who has for long treated an accused prior to the offence, or an employer or teacher or even the police officer in charge of the case who has something particularly helpful to say in aid of mitigation, may often be more useful than a bland letter; yet this seems never to be done.  The art of constructive, though realistic, mitigation needs to be fostered by those who train our advocates and the lower courts need to be receptive to the idea of entertaining potentially useful oral evidence in mitigation. 

10.  Take the present case for example: Dr Dong informed us, in answer to a question we put, that, save to secure the provision of a report, no one in the legal team for the appellant ever contacted him to discuss the case; let alone ask him to come to the first instance court to testify in mitigation.  We are not surprised that this was not done.  We are disappointed that it was not done but not surprised because anecdotal evidence and the evidence of our experience suggests that mitigation is hardly ever brought to life in this way or accorded the concentrated attention that it deserves.  Far, far too seldom is attention accorded to what might distinguish the particular offender or the particular circumstances of his offending from the run of the mill case.  There may in particular cases be little relevant distinction, in which case no harm is done.  But there are cases of peculiar circumstances or characteristics, which are not accorded deserved attention. And that is worrying.  Whether the capping of legal aid fees has something to do with this, I have no idea; but if the capping of fees has that effect, then it is a restriction that is inimical to justice.

Hon Barnes J (giving the Reasons for Judgment of the court):

INTRODUCTION

11.  On 24 September 2012 the appellant pleaded guilty before District Judge Gary Lam to a total of 6 charges (theft, obtaining and attempting to obtain properties by deception) arising out of his theft of money, a credit card, a bank card and an Octopus card from two customers patronizing a bar where he worked as a part-time waiter and his illegal use of the credit card to obtain various goods (DCCC 729/2012).

12.  On 13 November 2012 the appellant pleaded guilty before the same judge to another 7 similar charges arising out of the theft of a bank card belonging to his colleague and using it to obtain goods (DCCC 976/2012).  These 7 offences in fact took place before the theft from the customers.

13.  On 23 November 2012, after having various reports before him, Judge Lam sentenced the appellant to a total of 28 months imprisonment for both cases.

14.  The appellant applied for and was granted leave by Yeung VP to appeal against sentence.

15.  At the conclusion of the hearing which spanned two different days, we allowed the appeal and quashed the respective sentences imposed on the two cases.  We substituted the sentences with a Probation Order of 2 years with special conditions.  We indicated that we would hand down our reasons for the judgment in due course, which we now do.

SUMMARY OF FACTS

DCCC 976/2012

16.  At the material time the appellant worked as a part‑time waiter at an establishment called “Fee Fee Bar” in Tsim Sha Tsui.  On 19 February 2012, while working at the bar, he stole a credit card belonging to his colleague (Ms Wai) which was placed in Ms Wai’s handbag.  He then went on a spending spree that same afternoon, purchasing the following goods worth about HK$5,400: perfume (HK$524); one pair of jeans (HK$400), two pair of shoes (HK$699 and HK$739) and an iPhone (HK$3,090) from different shops.  He tried but failed to purchase a notebook computer valued at HK$11,488. As a result he faced the following 7 charges:

(1) 1 count of theft (Charge 1);

(2) 5 counts of obtaining property by deception (Charges 2, 4 to 7); and

(3) 1 count of attempting to obtain property by deception (Charge 3).

17.  Ms Wai only discovered the bank card missing on 27 February and a report was made to the police.  Upon viewing CCTV footages of the relevant shops, Ms Wai recognized the appellant as the person who had used her card to make purchases without her consent.  The appellant was arrested by the police on 15 August 2012.  The appellant made full admissions to the offences, saying that he had sold the goods to others for about HK$5,500.

DCCC 729/2012

18.  On 24 February 2012 (five days after he had stolen and used his colleague’s bank card), the appellant stole from the handbags hung underneath the table used by two customers: HK$4,000, US$300, one bank card, one credit card and one Octopus card.  On the same morning, the appellant used the credit card to purchase goods at different shops valued about HK$20,000: one pair of sports shoes (HK$463); one pair of leather shoes (HK$3,850); one brown wallet (HK$3,960) and a handbag (HK$12,700).  He also attempted to buy a belt which was unsuccessful.  As a result of these acts he faced a total of 6 charges:

(1) 1 count of theft (Charge 1);

(2) 4 counts of obtaining property by deception (Charges 2 to 5); and

(3) 1 count of attempting to obtain property by deception (Charge 6).

19.  On the same day, when the manager of Fee Fee Bar viewed the CCTV recording he saw the appellant approach the table of the two customers and did some acts underneath their table.

20.  The police located the appellant and found all the items purchased by the appellant except the sports shoes.  Under caution the appellant made full admissions and claimed that he had given the sports shoes to someone as a gift.  He also said he had thrown away the cards.

BACKGROUND AND MITIGATION

21.  The appellant was 21 years old at the time of sentence.  He had never committed any offences before these.  He was the youngest of six children from a loving and supportive family.  The appellant was a high‑achiever while in primary school and his family had high hopes on him.  He attained good results enabling him to enter a “Band One” school.  However, he found that he could not cope with the demand in such a prestigious secondary school and was later relocated to a “Band Three” school which made less academic demand on him. 

22.  When the appellant was 15 years old, he developed Obsessive Compulsive Disorder (OCD).  He received psychiatric treatment from Dr Jimmy Dong since 2007 and was given medication to control his disorder.  In February 2012, the appellant stopped taking the medication and defaulted followed up treatment.  It so happened that his paternal grandmother, with whom he was very close, passed away.  The two incidents of theft and spending spree with the credit cards occurred shortly after the death of his grandmother and the consequent failure by the appellant to take his medication.

23.  In September 2012, Dr Dong saw the appellant at the Pik Uk Correctional Institution and prepared a report on the appellant dated 20 September 2012.  In this report, apart from detailing the diagnosis of OCD and treatment, Dr Dong also diagnosed that the appellant was at the time of the offences suffering from Bipolar II Disorder.  Dr Dong was of the view that the OCD and Bipolar II Disorder caused great distress to the appellant psychologically and affected his judgment.  The symptoms include alternate episodes of depression and hypomania.  During the latter, the appellant would have “elated mood, decreased needs for sleep … impaired judgment and excessive spending”.

24.  The appellant was seen by a visiting psychiatrist Dr Bonnie Siu at the Siu Lam Psychiatric Centre, who prepared a report dated 5 October 2012.  Dr Siu’s opinion was that the appellant has been suffering from OCD and recommended him to continue with private psychiatric treatment.  There was no mention by Dr Siu of the diagnosis of Bipolar II Disorder.

25.  The appellant told Dr Siu he had not committed these offences under the influence of his OCD.  He told the Probation Officer who had prepared the background report that he had committed these offences under extreme distress after he stopped taking the prescribed medication and upon the death of his grandmother.  He told the Clinical Psychologist that he had committed the offences to soothe his low mood following the death of his grandmother.  In his mitigation letter, the appellant told Judge Lam that he had committed these offences out of greed and was remorseful.

26.  Since his arrest for the present offences the appellant lost his job with the bar.  His sister had introduced him to work as a real estate agent and the appellant passed the required examination and secured a Salesperson’s licence in May 2013.

27.  The appellant and his family were also willing to pay full compensation to the victims.

REASONS FOR SENTENCE

28.  Judge Lam was of the view that the appellant’s OCD did not contribute to the commission of the present offences.  The judge commented that the appellant’s story while sad, attracted little sympathy from him.  There was no mention by the judge in relation to the appellant suffering from Bipolar II Disorder.  The judge said:

“19. The defendant no doubt suffers from a psychiatric illness. However, in my view, his OCD did not contribute to the commission of the present offences. The defendant confessed in his letter dated 19 September 2012 that upon seeing the handbags hanging underneath the table, out of an impulse, he allowed his greed to overcome his mind. This thought process of carrying out a stealing act does not differentiate him from an ordinary thief. Worse still, despite having an entire evening of cooling off period, he used a stolen credit card to buy a number of luxurious brand-name products. The defendant’s story is sad, but does not attract much sympathy from me in relation to the present offences.”

DCCC 729/2012

29.  Judge Lam treated the theft from the two customers’ handbags as a “pick‑pocketing offence aggravated by an element of breach of trust” and adopted a starting point of 15 months’ imprisonment.  Apart from the 1/3 discount for plea, the judge also gave a further discount of one month to reflect the compensation made.  The sentence for Charge 1 was 9 months imprisonment.

30.  Judge Lam then took a global starting point of 18 months for Charges 2 to 6, after taking into account the value of the goods obtained and the “primitive and unprofessional manners” in which the offences were committed.  After giving the 1/3 discount and an extra month for compensation, the sentence was 11 months imprisonment for each charge, which the judge ordered to run concurrently.

31.  Judge Lam then ordered the sentence of 9 months for Charge 1 to run consecutively to the 11 months imprisonment for Charges 2 to 6, arriving at a total sentence of 20 months for all 6 charges.

DCCC 976/2012

32.  Judge Lam treated Charge 1 as a simple theft offence aggravated by an element of a breach of trust and adopted a starting point of 12 months imprisonment.  Giving 1/3 discount for plea and another extra month to reflect compensation, the sentence was one of 7 months imprisonment.

33.  The judge also adopted a global approach for Charges 2 to 7 and reached a starting point of 18 months.  After giving the 1/3 discount for plea and an extra month to reflect compensation, the sentence for each charge was 11 months imprisonment.  The judge ordered the sentences for Charges 2 to 7 to run concurrently.

34.  The judge ordered the sentence for Charge 1 to run consecutively to those imposed on Charges 2 to 7, making a total sentence of 18 months imprisonment.

TOTALITY

35.  The judge then considered the overall totality of all 13 offences and ordered 8 months in the sentences for all the charges in DCCC 976/2012 to run consecutively to the sentences imposed on all the charges in DCCC 729/2012 arriving at a total term of 28 months imprisonment.

COMPENSATION

36.  The judge was informed by the prosecution and the defence that an agreement had been reached regarding compensation to be made to the victims and he had taken this factor into consideration when he sentenced the appellant.  The judge had in fact made an order dated 23 November 2012 (the date of sentencing) requiring the appellant to pay into court a total sum of HK$32,765 as compensation to the various victims.

GROUNDS OF APPEAL

37.  The appellant, who was not legally represented, did not submit any written grounds of appeal.  Before Yeung VP, the appellant submitted that the judge did not consider the mitigating factors and the report by the government psychologist and psychiatrist were not detailed enough.

ADJOURNMENT OF THE HEARING

38.  We were concerned at the first hearing of this appeal that no thoughts appear to have been given to the possibility of a connection between the appellant’s Bipolar II Disorder and the commission of these serious offences—particularly when the appellant was a young man of previous good character, and bearing in mind one of the symptoms of Bipolar II Disorder was the “excessive spending”.  As the appellant was not legally represented, we adjourned the matter and asked both Dr Dong and Dr Siu to attend court so that we could clarify the position with them.

39.  We had also called for a Probation Officer’s Report on the appellant, to be available at the adjourned hearing.  We do not think it necessary to go into the details of the report.  Suffice it to say that it was a favourable one and probation with conditions was recommended.

AT THE RESUMED HEARING

40.  We were grateful to both Dr Dong and Dr Siu for attending court on the resumed hearing.

41.  Dr Dong confirmed his opinion that the appellant suffered from Bipolar II Disorder as well as OCD at the time of the offence.  Dr Dong stressed that he had been treating the appellant for a long time and they had developed a good therapeutic relationship and that he was satisfied the appellant had told him truthfully the symptoms suffered by the latter.  Dr Dong informed us a person suffering from Bipolar II Disorder has grandeur ideas and feels that he/she is above the law.  Such a disorder plays a significant part in the appellant’s commission of the present offences.  The death of his grandmother made the appellant’s condition more unstable. The appellant suffered from depression, then followed by a period of hypomania and he would go out to spend money.

42.  Dr Siu informed us that she was not made aware of Dr Dong’s report when she interviewed the appellant.  Based on the information gathered she did not form an opinion that the appellant suffered from Bipolar II Disorder.

43.  The appellant’s mother and his sister (who worked as a private clinic nurse) were both in court during the adjourned hearing.  We ascertained from his sister that the family is willing and able to support the appellant financially and to pay for the medical expenses required for private psychiatric treatment if he were put on probation.  His sister also planned to live in another flat with the appellant so as to provide a more tranquil environment for him.

OUR CONSIDERATION

44.  It is unclear how and why both the defence counsel and Judge Lam made no mention of the Bipolar II Disorder diagnosis by Dr Dong.  Clearly no investigation was made about the existence and/or effect of such a disorder prior to sentence.

45.  We had before us a bright young man who, unfortunately, suffered from OCD since he was 15.  He had been of good character and committed these completely out of character offences.  If he had indeed been suffering from Bipolar II Disorder at the time, such illness would have made him less culpable for committing these offences.  Even assuming that he was not suffering from Bipolar II Disorder, we still could not ignore the fact that he committed these offences in February 2012, the same month when he ceased to take the medication for his OCD; when he ceased to consult Dr Dong and when his beloved grandmother passed away.

46.  As Stock VP said in Leung Pui Shan:

“14. But sentencing is an art which must carefully be moulded not only to the category of offence but to the offender. There is a danger of sentencing becoming over-mechanical with too little regard for unusual circumstances that might arise in relation to the commission of particular offences and too little regard to circumstances peculiar to the offender. Experience suggests that mitigation advanced sometimes takes the form of a mantra in our courts; with the courts being told of the age, health circumstances and number of an offender’s family members and of other matters which have little to do whatsoever with what has led the particular offender to the commission of the offence and what circumstances peculiar to the offender go in mitigation of sentence. There are certain offences – and these are well-known – in which personal circumstances and the circumstances leading to an offence will count much less than in others, because those offences demand, as a matter of public protection, deterrence as an overwhelming consideration. That said, the circumstances of this case provide an opportune moment in which to stress the need for individual justice having regard, of course, to the policy considerations that might dictate in a category of case a stern general approach but never forgetting the fact that the courts are on each sentencing occasion dealing with an individual whose peculiar circumstances, if they exist, always deserve careful attention. Consistency in sentencing is important but consistency does not dictate blindness to individual circumstances of a case and to those of an offender. An overly rigid pre-occupation with uniformity can be inimical to individual justice.”

47.  We were of the view that this is such a case and it was therefore necessary to take into account the individual circumstances of this appellant when sentencing.  The sentence of 28 months imprisonment, in our view, was inappropriate in this case.

48.  After considering the Probation Officer’s report, which we had called for, and after discussing the appellant’s position and prospect of employment with him and his sister who was in court, we were of the view that a Probation Order of 2 years with the following additional conditions were appropriate in each of these two cases:

(a) he shall reside and work as directed by the probation officer;

(b) he shall receive out-patient psychiatric treatment from Dr Dong Yuet Sun Jimmy and should for any reasons Dr Dong Yuet Sun Jimmy withdraw from treating him, then, out‑patient psychiatric treatment as directed by the probation officer.  The probation officer to check his progress periodically with Dr Dong Yuet Sun Jimmy;

(c) he shall take medication as directed by his attending psychiatrist;

(d) he shall be of good behaviour and keep the peace;

(e) he shall keep in touch with the probation officer as directed by the probation officer; and

(f) he shall inform the probation officer at once of any change of his residence or employment.