HKSAR v. YEUNG KWUN KUEN

DCCC 729 & 976/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASES NOS. 729 & 976 OF 2012

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REASONS FOR SENTENCE

Procedural History

DCCC 729/2012 was listed for plea before me on 24 September 2012. The defendant pleaded guilty to all the charges therein. Sentencing was adjourned to 9 October pending reports. On 9 October, defence lawyer Mr. HUI applied to adjourn the sentencing until 13 November 2012 since the defendant is involved in another similar case (DCCC 976/2012) which was pending transfer to the District Court; the defendant wishes to have both cases dealt with by the same judge in one go.

2.  The prosecution did not object and I granted the adjournment.  On 13 November, the defendant pleaded guilty to all the charges in DCCC 976/2012.  Today, I give reasons for the sentences in both cases.

3.  In DCCC 729/2012, the defendant faces 1 charge of "Theft" (Charge 1), 4 charges of "Obtaining property by deception" (Charges 2 to 5) and 1 charge of "Attempting to obtain property by deception" (Charge 6).  In DCCC 976/2012, he faces 1 charge of "Theft" (Charge 1), 5 charges of "Obtaining property by deception" (Charges 2, 4, 5, 6 and 7) and 1 charge of "Attempting to obtain property by deception" (Charge 3).

Summary of Facts

DCCC 729/2012

Charge 1

4.  On 23 February 2012, the defendant was a waiter of Fee Fee Bar located at Humphreys Avenue, Tsim Sha Tsui ("the Bar").  About  11:00 pm on that day, Madam YUEN (PW1) and Madam KWOK (PW2) patronized the Bar.  They hung their handbags underneath the same table.

5.  About 1:30 am on 24 February, the defendant approached the table of PW1 and PW2.  Unbeknownst to both ladies, he stole 6 HK$500 notes, 3 US$100 notes, 1 bank card and 1 Octopus card from PW2's wallet.  He also stole a HK$1,000 note and a MasterCard from PW1's wallet.  Both wallets were originally placed in the respective handbags of PW1 and PW2.

Charges 2 to 5

6.  Between 10:25 am and 11:45 am on 24 February, the defendant used PW1's MasterCard to purchase the goods from the 4 shops particularized in Charges 2 to 5.  The total value of the goods purchased is about HK$20,000.

Charge 6

7.  About noon on 24 February, the defendant attempted to use PW1's MasterCard to purchase a belt from the shop particularized in Charge 6; however, the card was rejected by the credit card reader.

The Arrest of the Defendant

8.  On 24 February 2012, Mr. WONG, manager of Fee Fee Bar, viewed the CCTV recording of the Bar.  He saw the defendant approaching the table of PW1 and PW2 and doing some acts underneath their table between 1:30 am and 1:45 am on the same day.

9.  The Police later located the defendant in his residence.  The goods particularized in Charges 3 to 5 (E1 to E3) were found in his bedroom.

10.  Under caution, the defendant admitted that he had stolen some money and cards from the wallets of PW1 and PW2.  Thereafter, he put the wallets back in their handbags.  He further admitted having used PW1's MasterCard to purchase a pair of sport shoes and E1 to E3 from 4 different shops.  He attempted to use the same credit card to purchase a belt from the shop particularized in Charge 6, but the transaction was declined.  The defendant claimed that he had given the pair of sport shoes to someone and had thrown away the MasterCard, a bank card and an Octopus card.

DCCC 976/2012

Charge 1

11.  Madam Wai (PW1) was a waitress of Fee Fee Bar.  When she reported duty in the afternoon on 18 February 2012, she placed her handbag on a table in the Bar unattended.  She went off duty at 1:00 am on 19 February.  She did not check the contents of her handbag before she left.

12.  On 27 February, PW1 wanted to use her China Construction Bank Visa Card, but found the card missing from her handbag.  She reported the matter to the Police.

Charges 2 to 7

13.  Between 2:29 pm and 5:10 pm on 19 February, the defendant used PW1's Visa Card to purchase the goods from the 5 shops particularized in Charges 2, 4, 5, 6 and 7.  The total value of the goods purchased is about HK$5,400.  He also tried to purchase a notebook computer, the price of which was $11,488, from the shop particularized in Charge 3, but the transaction was declined.

The Arrest of the Defendant

14.  The CCTV footage of 4 of the shops captured the defendant shopping therein.  Upon viewing the relevant CCTV footage, PW1 recognized the defendant, who was her colleague, having used her credit card to make purchases.

15.  The defendant was arrested by the Police on 15 August 2012.  Under caution, the defendant admitted that he had stolen PW1's credit card from her handbag in the Bar.  He then used PW1's credit card to purchase goods on 5 occasions.  Thereafter, he sold all the goods to others at about $5,500 in total.

Mitigation

16.  The defendant is now 21 and has a clear record.  He is educated up to F.6.  In mitigation, Mr. HUI submitted a report prepared by the defendant's private psychiatrist Dr. DONG.  Dr. DONG first saw the defendant in 2007 when the defendant was only 15.  The defendant was suffering from Obsessive Compulsive Disorder ("OCD"); symptoms include recurrent and persistent thoughts repetitive as well as behaviours in response to an obsession and according to rules which must be applied rigidly.  Medication was prescribed.  Dr. DONG continued to care for the defendant until February 2012 when follow-up was defaulted.

17.  Mr. HUI has also submitted a bundle of letters written by the defendant, his family members and his supervisor from a real estate agency; their contents are duly noted.  In his letters, the defendant repeated many times that during the remand period, he has reflected upon himself and is willing to accept the responsibilities for his wrongdoing.

18.  At the request of Mr. HUI, I called for a Background Report, a Psychiatrist's Report and a Psychologist's Report.  The government psychiatrist and psychologist both take the view that the defendant is still suffering from OCD; however, no in-patient psychiatric treatment is required.  The government psychologist and Dr. DONG both recommended counselling and continuous out-patient treatment which focus on the defendant's problem solving skills, mood management, impulse control ability and OCD.

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.

20.  Regarding compensation to the victims, I was informed today that the prosecution and defence have come to an agreement as to which party should receive how much.  Mr. HUI has also indicated that the defendant's family members are prepared to pay the respective sums forthwith and that the defendant has written a note promising to repay his family in the future.  I will bear this aspect in mind.

Sentence

DCCC 729/2012

21.  For Charge 1, I treat it as a pickpocketing offence aggravated by an element of breach of trust.  I adopt a starting point of 15 months' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 10 months.  I also give a further discount of 1 month to reflect the compensation element.  Apart from this, I see no other mitigating factors which warrant any further reduction. Hence, the sentence for Charge 1 is 9 months' imprisonment.

22.  For Charges 2 to 6, I have borne in mind the value of the products as well as the primitive and unprofessional manners in which the offences were committed.  I also note that the credit card used by the defendant is not a false instrument (albeit stolen).  I will not treat these charges as forged credit card offences.  I consider a global starting point of 18 months' imprisonment to be appropriate.  I adopt a starting point of 18 months for each charge.  A one-third discount is given for the guilty plea, reducing the sentence to 12 months.  I also give a further discount of 1 month to reflect the compensation element.  Apart from this, I see no other mitigating factors which warrant any further reduction.  Hence, the sentence for Charges 2 to 6 is 11 months' imprisonment each.  Charges 2 to 6 are a series of offences committed by the defendant within a short period of time.  Thus, I order the sentences for Charges 2 to 6 to run concurrently.

23.  On the other hand, Charge 1 is separate and distinct from Charges 2 to 6.  The sentence for Charge 1 should run consecutive to the other 5 charges.  Notwithstanding the totality principle, I order the sentence for Charge 1 to run consecutive to those of Charges 2 to 6, arriving at a total prison term of 20 months for all 6 charges.

DCCC 976/2012

24.  Chronologically, the offences in DCCC 976/2012 took place before those in DCCC 729/2012.  However, prosecuting counsel Ms. GO has confirmed that the defendant was arrested in April 2012 for the offences in DCCC 729/2012 and then in August 2012 for those in DCCC 976/2012.  In other words, the issue of committing further offences whilst on police bail did not arise.

25.  For Charge 1, I treat it as a simple theft offence aggravated by an element of breach of trust.  I adopt a starting point of 12 months' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 8 months.  I also give a further discount of 1 month to reflect the compensation element.  Apart from this, I see no other mitigating factors which warrant any further reduction.  Hence, the sentence for Charge 1 is 7 months' imprisonment.

26.  In determining the proper starting point for Charges 2 to 7, I adopt the same reasons for Charges 2 to 6 in DCCC 729/2012.  I consider a global starting point of 18 months' imprisonment to be appropriate.  I adopt a starting point of 18 months for each charge.  A one-third discount is given for the guilty plea, reducing the sentence to 12 months.  I also give a further discount of 1 month to reflect the compensation element.  Apart from this, I see no other mitigating factors which warrant any further reduction.  Hence, the sentence for Charges 2 to 7 is 11 months' imprisonment each.  Charges 2 to 7 are a series of offences committed by the defendant within a short period of time.  Thus, I order the sentences for Charges 2 to 7 to run concurrently.

27.  On the other hand, Charge 1 is separate and distinct from Charges 2 to 7.  The sentence for Charge 1 should run consecutive to the other 6 charges.  Notwithstanding the totality principle, I order the sentence for Charge 1 to run consecutive to those of Charges 2 to 7, arriving at a total prison term of 18 months for all 7 charges.

28.  Having considered the overall totality of all 13 offences, I order 8 months in the sentences for all charges in DCCC 976/2012 to run consecutive to the sentences for all charges in DCCC 729/2012, arriving at a total prison term of 28 months for both cases.