HKSAR v. LAI HOI YAN VIVIAN

DCCC 936/2024 & DCCC 1337/2024

(Heard Together)

[2025] HKDC 1530

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS 936 OF 2024 & 1337 OF 2024

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REASONS FOR SENTENCE

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1.  DCCC 936/2024 and DCCC 1337/2024 are heard together though they are not consolidated.

DCCC 936/2024

2.  In DCCC 936/2024, Ms Lai pleaded guilty before me to 5 charges on a Charge Sheet as follows.

3.  Charges 1 and 2 are both Theft, contrary to section 9 of the Theft Ordinance, Cap 210.

4.  Particulars of Charge 1 are that she, on 5 October 2023, outside Shop B, Ground Floor, Shung Tak Building, No 16 Kik Yeung Road, Yuen Long, New Territories, in Hong Kong, stole one wallet containing cash of $300 Hong Kong currency and one ATM card, property belonging to Wong Mei Ki.

5.  Particulars of Charge 2 are that she, on 31 October 2023, at Shop D, Ground Floor, No 14 Yuen Long Pau Cheung Square, Yuen Long, New Territories, in Hong Kong, stole one coin bag containing cash of about $1,600 Hong Kong currency and one ATM card, property belonging to Liu Wenjin.

6.  Charge 3 is Attempted theft, contrary to section 9 of the Theft Ordinance, Cap 210, and section 159G of the Crimes Ordinance, Cap 200. Particulars of Charge 3 are that she, on 31 October 2023, at Shop No 11B, Ground Floor, Healey Building Shopping Centre, Nos 211-223 Castle Peak Road – Yuen Long, Yuen Long, New Territories, in Hong Kong, attempted to steal two iPhones, property belonging to another.

7.  Charge 4 is Possession of dangerous drugs, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134.  Particulars are that she, on 31 October 2023, near Lamppost No FB5837, Hi Lee Path, Yuen Long, New Territories, in Hong Kong, had in her possession dangerous drugs, namely 4 tablets and two tablets fragment containing 0.05 gramme of midazolam, and 17 tablets containing 0.06 gramme of diazepam.

8.  Charge 5 is Assaulting a police officer in the execution of her duty, contrary to section 63 of the Police Force Ordinance, Cap 232.  Particulars are that she, on 31 October 2023, at Search Room, Yuen Long Police Station, No 246 Castle Peak Road – Yuen Long, Yuen Long, New Territories, in Hong Kong, assaulted Woman Detective Police Constable 26189, a police officer of the Hong Kong Police Force acting in the execution of her duty.

DCCC 1337/2024

9.  In DCCC 1337/2024, Ms Lai pleaded guilty before me to one charge of Theft on a Charge Sheet, contrary to section 9 of the Theft Ordinance, Cap 210.

10.  Particulars are that she, on 20 August 2024, inside a light rail train compartment, Siu Hong Light Rail Station, Tuen Mun, New Territories, in Hong Kong, stole one backpack, one wallet, two Hong Kong Identity Cards, one Birth Certificate, one driving licence, 5 credit cards, one ATM card, one Octopus card, one E-payment card of the Hong Kong Housing Authority and cash of $600 Hong Kong currency, property belonging to another.

Facts admitted by Ms Lai

Charge 1 of DCCC 936/2024

11.  On 5 October 2023, PW1 Ms Wong Mei Ki brought her 2-year-old daughter to a photo shop in Shung Tak Building, Yuen Long, to take photos.  She left her baby trolley on the pedestrian path outside.  Her wallet containing $300 and an ATM card were placed inside the trolley.  After 10 minutes, she went outside and found the wallet missing.  CCTV showed Ms Lai took the wallet and fled.

Charge 2 of DCCC 936/2024

12.  On 31 October 2023, PW2 Liu Wenjin a waitress working at a restaurant in Yuen Long Pau Cheung Square left her handbag on a table next to the cashier. There was a coin bag inside the handbag.  The coin bag (valued at $50) contained cash of about $1,600 and one ATM card.  When she was about to leave work in the afternoon, she found the coin bag missing.  CCTV showed that Ms Lai took the coin bag at 1328 hours.

13.  PW2’s ATM card was subsequent recovered from Ms Lai’s trousers pocket after the latter’s arrest (see below).

Charge 3 of DCCC 936/2024

14.  On 31 October 2023, at 1500 hours, PW3 Ms Wu and a Ms Yuen were working at a store in Healey Building Shopping Centre, Yuen Long.  They left two iPhones on a shelf unattended.  Ms Lai entered the store and picked up one of the two said iPhones (the one belonging to PW3) from the shelf.  PW3 saw what happened and snatched it back.  Ms Lai then tried to pick up the other of the said iPhones but PW3 prevented her from succeeding.  Ms Lai fled.  CCTV captured the course of the incident.

15.  Later the same day, police arrested Ms Lai for theft.  Under caution, Ms Lai denied the offence.

Charge 4 of DCCC 936/2024

16.  Police searched Ms Lai’s handbag.  As a result, they found inside it one transparent plastic bag containing 1 foilpack containing 3 tablets and 1 tablet fragment containing a total of 0.04 gramme of midazolam (E1).  Police arrested Ms Lai for possession of dangerous drugs.

17.  From inside the same handbag, police further found another transparent plastic bag containing:

(a) 1 tablet and 1 tablet fragment containing a total of 0.01 gramme of midazolam (E2);

(b) 1 foilpack containing 9 tablets containing a total of 0.03 gramme of diazepam (E3); and

(c) One plastic bag containing 8 tablets containing a total of 0.03 gramme of diazepam (E4).

Charge 5 of DCCC 936/2024

18.  On 31 October 2023, at 2134 hours, when WDPC 26189 (PW6) was interviewing Ms Lai inside the search room of Yuen Long Police Station, Ms Lai suddenly turned emotional and grabbed a paper cup filled with lukewarm water from a table and threw it at PW6, splashing her T-shirt with water.  PW6 did not suffer any injury.

The sole charge in DCCC 1337/2024

19.  On 20 August 2024, Ms Wong Tung Nei was travelling in a light rail train compartment in Tuen Mun with her daughter seated in a baby stroller.  Ms Wong’s backpack was hung on the handle of the baby stroller.  The backpack contained:

(a) Ms Wong’s wallet;

(b) The HKID cards of hers and her daughter’s;

(c) Her daughter’s Birth Certificate;

(d) Ms Wong’s driving licence;

(e) Five credit cards;

(f) One ATM card;

(g) One Octopus card;

(h) One E-payment card of Hong Kong Housing Authority; and

(i) Cash of $600.

20.  Ms Lai was also inside the compartment.

21.  At Siu Hong Light Rail Station, when Ms Wong was alighting, Ms Lai helped Ms Wong push the baby stroller off the compartment but at the same time Ms Lai took hold of the backpack.  After helping Ms Wong, Ms Lai returned to the compartment with the backpack and continued with the journey.  CCTV captured what happened.

22.  Case was reported after Ms Wong discovered her backpack was missing.

23.  On 21 August 2024, Ms Lai was arrested.  Under caution, she admitted that on the day in question, she stole the backpack out of greed while pretending to assist Ms Wong with the baby stroller.

24.  Ms Lai admitted that she committed the offence under DCCC 1337/2024 whilst on court bail for the case of DCCC 936/2024.

Criminal record

25.  Ms Lai has 60 previous convictions of which 38 were for theft or attempted theft, 5 were for possession of dangerous drug, and one was for assaulting a police officer.

Antecedents

26.  Ms Lai is aged 48 (46-47 at the time of the offences), educated to F2 level at school but later completed F5 level in Training Centre.  She has previous worked in various capacities but she was unemployed at the time of arrest.  Ms Lai’s father passed away when she was about 11 years old.  Ms Lai’s mother (66) lives in Tuen Mun.  Ms Lai has a younger brother (44) in full employment.  Ms Lai’s husband (58) is unemployed and her daughter (15) is a student.

Mitigation

27.  Ms Cecilia Liang of counsel assigned by the Director of Legal Aid mitigated on behalf of Ms Lai.  The following is a summary of the mitigation submissions.

28.  Ms Lai aged 48 is single, living on public assistance and unemployed. Ms Liang submitted a medical report dated 19 December 2024 regarding Ms Lai’s psychological (sic) medical history.  The theft offences were basically caused by her drug induced psychiatric medical condition.  The root to her criminal path was the drug problem.  After a long custody since arrest, Ms Lai said she is now clear from her drug problem and therefore would not engage in these thieving behavior anymore.

DCCC 936/2024

29.  The facts of Charge 1 involve the taking of a wallet from a baby trolley.  Charge 2 involved the taking of a coin bag from a handbag left on a table.  Charge 3 involved the attempt to take two mobile phones put on a shelf unattended.

30.  Strictly speaking, they are not pickpocket cases as the stolen properties were not taken from the victim’s person; but in the case of HKSAR v Wu Chung Keung [2020] HKDC 1176, it was observed there shouldn't be any distinction between taking unattended property and pickpocket.

31.  Therefore, the guidelines for sentencing in HKSAR v Ngo Van Huy [2005] 2 HKLRD 1 (CACC 107/2004) would be applicable.  A term of 12-15 months’ of imprisonment would therefore be adopted as a starting point.

32.  In line with the guidelines in Ngo Van Huy, there should be consideration for aggravating factors.  In the instant case, there was no weapon, and the facts of the case did not indicate it was part of “an organized or professional ring of thieves.”  All three charges happened in a shop, so it shouldn't be considered as a crowded public place.

33.  The stolen properties in these three charges are personal properties, two mobile phones containing personal particulars and two ATM cards.  The total amount of value of cash stolen is $1,900.

34.  Indeed, Ms Lai had 37 similar dishonesty criminal record.  However, she shouldn't be considered as a professional pickpocket as she didn't steal from the victims’ person unnoticed.  She only stole because she was suffering from psychological illness and was driven by her drug addiction at a time to repeatedly commit similar offences.  She didn't manifest any special skill in stealing the items and, at best, should be considered as opportunistic.  She only preyed on unattended items.  Of course, that shouldn't be a mitigating reason, but she was not a trained or skilled pickpocket taking items from victims’ person unnoticed.

35.  In a case of HKSAR v Wong Kang Sun [2014] 1 HKLRD 622 (CACC 265/2013), 12 months’ imprisonment starting point was adopted, but the defendant in that case had an appalling record of 58 previous (9 months added).  The theft occurred in a crowded market (3 months added).  It was submitted that neither aggravating factors would apply in the instant case.

36.  In the case of HKSAR v Chiu Suet Yee, Angel CACC 105/2010, for the 5 charges of theft the defendant there was sentenced to 14 and 12 months’ imprisonment for each charge.  However, a further 3 months’ imprisonment was added for the aggravating factor of happening in a crowded market, 6 months added for poor criminal record and 3 months for jointly acting with another.

37.  It was submitted that in consideration of the facts of these 3 charges of theft (sic), a starting point of 13-14 months of imprisonment would be appropriate.  There shouldn't be any aggravating factor to warrant an additional imprisonment sentence.  The location of the offences was not a public crowded place, and the defendant’s previous convictions were not due to her professionalism but due to her drug addiction.

38.  The dangerous drug in Charge 4 was found on defendant upon search after arrest.  For the charge for possession of Midazolum, Ms Lai should be sentenced to a short imprisonment term, especially now that she had been in custody for over a year, and her addiction had been cured.

39.  The assault in Charge 5 involved the throwing of a paper cup of water at a police officer.  No injuries were caused.  That was just an emotional outburst due to her emotional problem at that time.  Her psychological problem is now under control due to her staying away from drug.  It was submitted that the Ms Lai should be sentenced to a short imprisonment term.

40.  Two cases of theft (sic) occurred on 31 October 2023, while one case of theft occurred earlier on 5 October 2023, discovered upon the arrest of Ms Lai on 31 October 2023.  Charges 4 and 5 happened also upon the arrest of Ms Lai. It was submitted that Charges 2 to 5 should be sentenced concurrently.  Charge 1 should also be served concurrently in view of the reason behind the offences was her drug addiction and emotional illness.  And there should be the consideration of totality even if imprisonment sentence of Charge 1 should be partly served consecutive.

DCCC 1337/2024

41.  Ms Lai was charged for theft of a backpack left on a baby stroller inside light rail train.  Inside the backpack were personal identity items, ATM card and credit cards.

42.  The guidelines for theft in Ngo Van Huy should likewise apply. Although it is not strictly speaking a pickpocket case as the backpack was taken from a baby stroller.

43.  It was submitted that in consideration of the offence happening in a public transport, a three months’ addition of imprisonment would be added to the basic starting point of 12 to 15 months of imprisonment.  There shouldn't be any aggravating factor to warrant an additional imprisonment sentence in view of her criminal record for the reasons stated earlier.

44.  It was submitted that the imprisonment sentence imposed under this case should also be partly served concurrently to that of the other case in consideration of totality.

45.  Ms Liang acknowledged that the fact that Ms Lai committed the offence under DCCC 1137/2024 whilst on court bail for DCCC 936/2024 is an aggravating factor.

46.  Ms Liang submitted on behalf of Ms Lai two mitigation letters written in Chinese by respectively Ms Lai’s mother and a pastor.  The letter writers urged the court to give another chance to Ms Lai and to sentence her leniently.

47.  Ms Liang also submitted two letters from Castle Peak Hospital dated 2 January 2024 and 25 June 2024 respectively.  They certified that Ms Lai has been suffering from Stimulant induced psychosis and Emotional unstable personality disorder, borderline type; that she has been receiving treatment from Tuen Mun Mental Health Centre; that she was admitted to Castle Peak Hospital between 31 May and 26 June 2024.

48.  At the sentencing hearing, Ms Liang submitted another mitigation letter written in Chinese by Ms Lai.  The contents generally are that Ms Lai committed similar theft offences since her youthful days because of her impoverished background and weak social consciousness and low moral values; that she decided to change her ways in 2023; however, in October of the same year, she separated with her girlfriend and this caused her to engage in substance abuse as a relief; she found herself bent on stealing things; so she asked to see the resident social worker in Castle Peak Hospital; however, this did not stop her from commiting another offence in August 2024 whilst on bail.  Ms Lai in her letter finally asked for another chance and asked the court not to impose a heavy sentence.

49.  Ms Liang also referred to parts of the psychological report lately obtained in her further mitigation.  Ms Liang submitted that Ms Lai has promised to keep all medical appointments after release from prison.

Reports

50.  A psychiatric report and a psychological report were obtained as a result of Ms Liang’s mitigation submissions.

51.  The psychiatric report has the following significant narratives:

“2. Lai says of the theft charges that at the times she was unhappy because of her boyfriend of many years leaving her, and she was in the habit of using hypnotics every day.

3 she had limited herself to only hypnotics lately, some 10 tablets a day for “relaxation”.

…

5. Over the years she had been sent to hospital many times, the last admission was to the Castle Peak Hospital 31 May to 26 June 2024 for “stimulant intoxication”.

6. Lai has been in remand for many months, and examination now finds her settled, coherent, of neutral mood and not showing signs of mental disturbance.

7. Opinion: Lai has long had a problem with drug abuse and a history of repeated psychiatric complications arising therefrom. In abstinence her mental condition is stable. She should continue to visit the psychiatric outpatient clinic for prescription and advice.”

52.  The psychological report has the following narratives:

“11. She was impressed to have maladaptively relied on drugs and offending for distress coping over the years, and the index offences were seemingly examples demonstrating such characteristic. It was inconclusive whether Ms Lai was suffering from pathological stealing as the influence from drugs could not be ruled out at this juncture. She also had history of committing stealing for secondary gain, ie to relieve financial stress, to put herself into prison to meet with partner. With reference to results of The Level of Service Inventory – Revised, a common appraisal tool for general offending, the prognosis of her stealing behaviours was suggested to be poor with high risk of re-offending.

Conclusion and Recommendation

12. Ms Lai is a re-offender with chronic history of thievish acts. She was also known for polysubstance misuse and unstable mental state, and had psychiatric follow-up for over 20 years. Information collected in the present assessment suggested that she had strong tendency of maladaptive stress coping, and she seemed to commit the current offences out of the frustration she experienced after breakup. It was inconclusive whether Ms Lai was suffering from pathological stealing at present, but given her limited insights and low motivation to change, her prognosis was suggested to be poor with high re-offending risk…”

Sentence

53.  Prosecution told the court that the victim in DCCC 1337/2024 has actually recovered all her lost property.  So as far as that case is concerned, there was no loss.

54.  Also, in relation to the two respective victims under Charge 1 and Charge 2 of DCCC 936/2024, Ms Lai agreed to take out from money seized from her the sums of $300 and $1,600 respectively to be returned to the two victims for their monetary losses.

55.  I accede to the submission of Ms Liang that the sentencing guidelines in Ngo Van Huy be adopted for the theft and attempted theft offences. However, I reject the submission that allowance can be given to Ms Lai because of her psychological issue which might be said to have contributed to why she committed the offences.

56.  Under DCCC 936/2024, for Charge 1, I will adopt an initial starting point of 15 months’ imprisonment (HKSAR v Suen Ping [2024] HKCA 701, para 11 considered).  Because of the aggravating factor of Ms Lai being a persistent offender, I increase that starting point by 6 months to become 21 months’ imprisonment.

57.  For Charge 2 under DCCC 936/2024, again I will adopt an initial starting point of 15 months’ imprisonment.  The theft took place at about 1:30PM in a restaurant on a weekday.  It can be inferred that the restaurant was reasonably crowded at that time.  For the dual aggravating factors of Ms Lai being a persistent offender and the crime scene being a crowded public place, I increase the starting point by 7½ months to become 22 ½ months’ imprisonment.

58.  For Charge 3 under DCCC 936/2024, again I will adopt 15 months’ imprisonment as the starting point.  There is no evidence of how busy the store was at the relevant time.  Although the subject of theft being a mobile phone will usually aggravate the offence because of its immense value in the present age, I will not enhance the starting point on this score because the attempt was unsuccessful.  I will simply increase the starting point by 6 months to become 21 months’ imprisonment to reflect the aggravating factor of Ms Lai being a persistent offender.

59.  For Charge 4 under DCCC 936/2024, because of the small amount of drugs involved, I will adopt an initial starting point of one month’s imprisonment. Because of her status as a repeat offender, I add ½ month to it to become 1½ months’ imprisonment.  Enhancement for latent risk is unnecessary.

60.  For Charge 5 under DCCC 936/2024, the maximum imprisonment sentence for the offence is 6 months’ imprisonment.  For the reasons that it did not take place in public and there was no injury caused to the constable, I adopt a lower starting point of 1½ months’ imprisonment.

61.  Under DCCC 1337/2024, again I adopt the initial starting point of 15 months’ imprisonment.  For the dual aggravating factors of Ms Lai being a persistent offender and the offence taking place in a public transport, I increase the starting point by 7½ months.  For the aggravating factor that the offence was committed whilst on court bail, I increase the starting point further by 1½ month to become 24 months’ imprisonment.

62.  Ms Lai pleaded guilty in good time earning for herself the customary 1/3 sentencing discount.  For Charge 1 and Charge 2 under DCCC 936/2024, and for the sole charge under DCCC 1337/2024, because of the fact that monetary losses have been recouped or all lost property has been recovered, I reduce one more month after the 1/3 reduction.  I can find no other mitigating factors of weight to reduce the sentences further.

63.  Although some of the offences were committed on the same day, all offences were separate and distinct, and none of them was concomitant to the others.  In principle, their sentences ought to run consecutively to one another.  However, I will bear in mind the principle of totality when determining the aggregate sentence under DCCC 936/2024 and the final sentence that Ms Lai is to serve under both DCCC 936/2024 and DCCC 1337/2024.  I will also alert myself to the possibility of an excessive final sentence in light of the fact that the aggravating factor of Ms Lai being a persistent offender of theft has been factored into all the theft and attempted theft offences herein.

(Ms Lai, please stand)

64.  In the case DCCC 936/2024, the sentences are as follows:

(a) The sentence for Charge 1 is 13 months’ imprisonment.

(b) The sentence for Charge 2 is 14 months’ imprisonment.

(c) The sentence for Charge 3 is 14 months’ imprisonment.

(d) The sentence for Charge 4 is one month’s imprisonment.

(e) The sentence for Charge 5 is one month’s imprisonment.

65.  In DCCC 936/2024, I order that 7 months of the sentence on Charge 2 and 7 months of the sentence on Charge 3 are each to run consecutively to the consecutive sentences of Charges 1, 4 and 5.  The aggregate sentence under DCCC 936/2024 is therefore 29 months’ imprisonment.

66.  In the case DCCC 1337/2024, the sentence for the sole charge is 15 months’ imprisonment.

67.  Finally, I order that 4 months of the sentence under DCCC 1337/2024 is to run consecutively to the aggregate sentence under DCCC 936/2024 of 29 months’ imprisonment.

68.  In other words, the final sentence under both DCCC 936/2024 and DCCC 1337/2024 is 33 months’ imprisonment.