HKSAR v. HUANG YU HWA, KONNI

DCCC 103/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 103 OF 2017

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REASONS FOR SENTENCE

1.  Huang Yu Hwa, Konni you have pleaded guilty to one charge of theft, contrary to section 9 of the Theft Ordinance[1](charge 1) and three charges of obtaining property by deception, contrary to section 17 of the Theft Ordinance (charges 2-4).

2.  Full particulars of the offences are set out in the facts admitted by you on 17 August 2017.  In summary on 5 July 2015 you used a stolen credit card, belonging to your sister-in-law Madam Tam, to obtain goods from three shops in Tai Po. 

3.  At 13:46 you used the stolen credit card in Tai Po Plaza to obtain a dress valued at $720 from Miss Fashion Co (charge 2). 

4.  Twenty-three minutes later at 14:09 you used the stolen credit card in Tai Po Mega Mall to obtain a ring valued at $3,330 from Chow Tai Fook.  CCTV footage captured you making the purchase (charge 3). 

5.  At 15:19 you again used the stolen credit card in Tai Po Mega Mall to obtain three gold beads valued at $4,503 from Chow Sang Sang.  CCTV footage also captured you making this purchase (charge 4). 

6.  You were arrested by the police on 26 February 2016 in Tai Po Mega Mall when you left Chow Tai Fook.  

7.  Under caution and in a subsequent video recorded interview you admitted, inter alia, that you picked up the credit card of your sister-in-law which had been left on the sofa in your mother’s home; you used the card to obtain the dress, the ring and gold accessories; you threw the card away in a rubbish bin; and sold the gold accessories back to Chow Sang Sang. 

8.  A house search revealed that the dress and the ring were still in your home. 

Mitigation

9.  I have carefully considered everything said on your behalf by Mr Lee together with the letters written by your children; the medical reports submitted by Mr Lee regarding your psychiatric history[2] and the psychiatric, psychological and background reports called for by the court. 

10.  I take into account that you have reimbursed your sister-in-law for the money debited to her credit card[3].

11.  You cannot be given credit for a clear record having previous convictions for shoplifting in 1996 and 2014. 

12.  Mr Lee outlined your psychiatric history explaining that after the birth of your son in 1994 you suffered from depression.  Symptoms compatible with kleptomania were observed which Mr Lee says explains why you committed shoplifting in 1996 and 2014[4].

13.  Mr Lee further explains that due to your illness you do not have a strong will and sometimes cannot exercise self-control, in particular after conflict with your husband.  Mr Lee says that after the conviction in 2014 you had several fights with your husband which led to you being worried about the relationship with your husband. 

14.  Mr Lee says that you stole the credit card of your sister-in-law out of greed and that after conflict with your husband your self-control was weak and you used the card to commit the offences.  

15.  Mr Lee tells the court that your husband and children realise that they need to pay more attention to you and care more for you so as to allay your fears.  With the full support of your family Mr Lee submits that you are unlikely to reoffend.   

Sentence

16.  In passing sentence, I take into account the factors which a sentencing judge will need to consider in credit card frauds as set out by the Court of Appeal in R v Chan Sui To[5], including the size of the operation; the planning that had gone into perpetrating the fraud; whether there is an international dimension; and whether the accused played a major role.  The factors were not intended however to be exhaustive but provide valuable assistance to the court.  The courts have repeatedly stressed that deterrent sentences are to be imposed. 

17.  Whilst Chan Sui To was a case concerning forged credit cards the factors apply to credit card frauds generally and are not restricted to forged credit cards. In HKSAR v Lam See Chung, Stephen the Court of Appeal held that the starting point of 3 years’ imprisonment or less for simple cases of counterfeit credit card fraud also applied to the fraudulent use of stolen genuine credit cards[6]. 

18.  Using a stolen credit card, just like using a forged credit card, undermines the integrity of the credit card system.  As was said in HKSAR v Wong Wan Shan[7], a case concerning stolen credit cards:

“This court has said, on many occasions, that credit card frauds are an insidious poison in the community; one which affects a large number of citizens and erodes the credit card system, and also damages Hong Kong's standing in the international community. This court has also said that those who engage in it can expect to be dealt with severely by the courts.”

19.  Where the facts of the offence point to a small unsophisticated operation, involving one or a few cards uncomplicated by other evidence materially linking the offender to a larger operation, a starting point of 3 years or less may be appropriate (see for example HKSAR v Tu I Lang[8]cited by Mr Lee).  

20.  Each case must however be decided on its own facts and circumstances.  This requires consideration of individual justice as articulated in the cases of HKSAR v Leung Pui Shan [9]and HKSAR v Yeung Kwun Kuen[10].  

Mental illness

21.  In Yeung Kwun Kuen one of the factors considered by the court was that the appellant had been suffering from long-term mental illness which was connected to the commission of the offences[11].

22.  In summary the various reports show that you first consulted a psychiatrist in 1997 for low mood and unsatisfactory sleep when you were told you were suffering from postpartum depression after the birth of your son in 1994.  You were referred to the psychiatric outpatient clinic of North District Hospital where you were diagnosed with mild depressive episode with panic attacks[12] .

23.  You are said to be easily distressed by marital discord; your daughter’s marital problems and financial stress.  You have attempted suicide leading to your admission to Tai Po Psychiatric Hospital in November 2015.  You were diagnosed as having mixed anxiety and depression disorder and on discharge referred to the outpatient clinic of Alice Ho Miu Ling Nethersole Hospital for follow-up[13]. You were admitted to hospital again in March this year due to anxiety over appearing in court[14].

24.  The psychiatrist Dr Bonnie Siu observes that you are mentally stable and no inpatient psychiatric treatment is required.  You are recommended to continue to attend psychiatric outpatient clinic for treatment and follow-up[15]. 

25.  The clinical psychologist Joe Wong is of the opinion the risk of recidivism is assessed to fall into moderate range and that psychological intervention targeting your mood problem, maladaptive coping, distorted thinking and marital problem might be beneficial to your rehabilitation[16]. 

26.  In HKSAR v Chiu Peng, Richard[17], relied upon by Mr Lee, the Court of Appeal accepted that a court may properly allow a discount in sentence where a defendant is suffering from mental illness which played a part in the commission of the offence.  The court said the justification for a discount in sentence by reason of mental illness was:

“…as a reflection of diminished criminality or culpability on the part of the accused who has committed a crime under an abnormal state of mind. He knew that it was wrong to commit the crime, but he did not appreciate that the commission was as serious as it was: the degree of culpability was thus lessened.”

27.  Chiu Peng, Richard was cited in HKSAR v Chen Xuehui[18]where the court reduced the sentence imposed after trial where the defendant suffered from Bipolar Affective Disorder and displayed florid symptoms at the time of the offence.  McMahon DHCJ in Chen Xuehui said that in determining whether the illness has affected one’s culpability for the offence requires an assessment of the nature and severity of the illness and an appreciation of the relevance of its symptoms to the commission of the offence. 

28.  You told the clinical psychologist that you were misunderstood by your husband for overspending with your credit card.  This made you very upset and angry.  You tried to cope with your negative mood by shopping and therefore picked up the credit card left by your sister-in-law without thinking of the possible consequences[19].

29.  You also told the clinical psychologist that your previous offences of shoplifting were after heated arguments with your husband over your spending and that you relieved your stress by stealing.  You however denied features of kleptomania[20].  Mr Lee explains in court today that this refers to you no longer having features of kleptomania following a change in medication in 2016[21].

30.  You told the probation officer that you had for a long time felt the urge to steal just like somebody pushing you to steal.  You were not however able to explain why you kept your sister-in-laws credit card[22]. With respect to the earlier offences of shoplifting you told the probation officer that you felt the triggering factors were stress from looking after the children, poor relationship with your in-laws and serious conflicts with your husband. You felt hurt when your husband blamed you for spending a lot with your credit card and committed shoplifting as an answer to your husband’s condemnation[23].

31.  I note this is somewhat different to what you told the probation officer in 2014 when you said that you were evoked by an urge to steal when there was no staff attending you in the shop and that you attributed your theft to momentary greediness[24].

32.  Your family told the probation officer that they believed you acted under the influence of your mental problem and your son said you had a quarrel with your husband before committing the present offences[25].

33.  The clinical psychologist is of the opinion that your distorted thinking, such as, minimizing the consequences and harm done of your offending, might contribute to the commission of the offences[26].

34.  Whilst sympathetic to anyone suffering from mental illness and accepting the clinical psychologist’s opinion your illness might contribute to the commission of the offences, I am nevertheless satisfied that this does not diminish your criminality or culpability. 

35.  Unlike the applicants in Leung Pui Shan and Yeung Kwun Kuen, who were both young first time offenders, as noted earlier you have previously been convicted of shoplifting. 

36.  Your last conviction was in 2014 when you were fined $4,000[27].  Prior to sentence the magistrate called for a probation report which I have had the opportunity of reading[28]. You considered that you could behave without statutory supervision and expressed reservation in receiving statutory supervision as you felt anxious and nervous[29].

37.  In view of your supportive family and concrete rehabilitation plan the probation officer was of the opinion you would stand a good chance of rehabilitation without statutory supervision.  Probation was therefore dispensed with and not recommended[30].

38.  The concrete rehabilitation plan to prevent reoffending included receiving community support service at the Integrated Community Centre for Mental Wellness[31]. The report noted that your husband and son were shocked by your stealing as you had led a peaceful life since your offence in 1996.  The family supported your rehabilitation and would take steps to ensure you did not commit further offences[32].

39.  Despite the counselling and support service from the Integrated Community Centre for Mental Wellness and the full support of your family within seven months you were offending again.  Mr Lee has today submitted details of the counselling service you received[33] and tells the court that all you were required to do was fill out questionnaires which was not of sufficient assistance to you. 

40.  Your family say they are confident you will not reoffend and will again encourage you to receive related support services from the Integrated Community Centre for Mental Wellness[34].  I have no doubt your family will continue to fully support your rehabilitation, in particular that your son is now a registered social worker[35].

41.  Notwithstanding your mental illness; that you have made full restitution and that you were arrested over eighteen months ago (which matters I discuss in more detail later), I am satisfied there are no exceptional circumstances to depart from the guidance given that a deterrent sentence is to be imposed for credit card fraud.  

Starting point

42.  I accept the submission of Mr Lee that the theft of the card from your sister-in-law was an opportunistic theft committed out of greed.  Although you abused the trust placed in you by your sister-in-law not to steal her property this is not a breach of trust case[36]. I am satisfied a starting point of 6 months’ imprisonment is appropriate for the theft of the card.

43.  Taking into account only one card was used and that the total value of goods obtained was $8,553, I am satisfied a starting point of 2 years and 6 months’ imprisonment is appropriate for each of the three charges of obtaining property by deception. 

44.  Giving you full credit for your pleas of guilty the sentences are reduced to 4 months and 1 year and 8 months’ respectively.  I am satisfied there are no grounds to suspend the sentences or to impose any other non-custodial sentence.

Restitution

45.  I am told that after you were arrested you fully reimbursed your sister-in-law in March or April 2016.  This was long before you were charged.  Taking into account that no one has suffered loss I reduce the sentences on charges 2, 3 & 4 by 4 months’ imprisonment to 1 year and 4 months’ imprisonment. 

Delay

46.  Where there has been unreasonable delay in bringing an offender to justice this is a mitigating factor which may be taken into account in sentence.  All the circumstances must be looked at including whether the offender has acknowledged guilt; where the delay has given the offender the opportunity to rehabilitate himself; whether restitution has been made; whether there was a legitimate expectation the matter will not be further pursued; the size of the investigation and whether the time taken to bring the case to court was longer than necessary[37].

47.  You were arrested on 26 February 2016 and charged almost 11 months later on 11 January 2017.  Mr Wong has submitted to court a chronology of investigation.  From that chronology further investigation was required because your sister-in-law asked the police not to pursue the incident[38]. This led to the police for example having to obtain fingerprint examination report on the credit card slips.   I am satisfied the prosecution are not at fault in the time taken to investigate and charge you.      

48.  The matter has however now been hanging over you for over eighteen months during which time your mental illness has fluctuated resulting in admission to Alice Ho Miu Ling Nethersole Hospital in March this year[39].  

49.  I am satisfied some credit should be given in sentence for the time taken to bring the matter to court[40].  In the circumstances I reduce the sentence on each charge by 1 month to 3 months and 1 year and 3 months respectively. 

Sentence

50.  You are convicted and sentenced as follows:

Charge 1 – 3 months’ imprisonment;

Charges 2 - 4 – 1 year and 3 months’ imprisonment on each charge.

51.  Although goods were obtained from three different shops, taking into account the same card was used over a short period of time and the total value of the goods obtained was $8,553.00, I am satisfied concurrent sentences are appropriate.

52.  You are sentenced to a total of 1 year and 3 months’ imprisonment, which I am satisfied properly reflects your criminality on the four charges.