HKSAR v. LEUNG BIK WAI, BETTY

DCCC 901/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 901 OF 2013

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to two offences of theft, contrary to section 9 of the Theft Ordinance, Cap 210. Those were Charges 1 and 2.

2.  You admitted the facts and I convicted you.

3.  In respect of Charge 3 which is also theft, you pleaded not guilty and I ordered that that matter be left on file and not to be proceeded with without leave of this court or the Court of Appeal. 

4.  The facts are as follows.  At about 7.10 pm on 18 July last, Wong Tan-yiu, who is PW1, was standing in the area located between the escalator and lift on the 3rd Floor of Kwai Chung Plaza, Kwai Chung.  She placed her brown wallet into her shoulder bag and zipped it shut.  After 10 minutes she found her blue shoulder bag had been unzipped and her brown wallet had been removed.  She reported this matter to the police.

5.  Her wallet was worth $300 and the wallet contained her identity card, a Home Visit Permit, $800 cash, 505 Renminbi, a personal Octopus card, a Bank of China ATM card, a Chu Hai student card and two government library cards. 

6.  The person standing with PW1 informed the police that a female aged about 40, with dyed green hair had approached and spoken to them at the material time. 

7.  At 8.39 pm that day, PC 5044 (PW5) was searching Kwai Chung Plaza.  He spotted you and he followed you.  You were seen stretching out your right hand into the side pocket of the rucksack owned by Lam Hoi-ching (PW2) outside a shop on the 2nd Floor of Kwai Chung Plaza and you took out a black PSP player valued at $700.  This you placed into the right rear pocket of your jeans. 

8.  PW5 intercepted you at 8.45 pm and arrested you and cautioned you.  You admitted that you had stolen the PSP player for your daughter.

9.  WPC 11191 conducted a search of you and found the following items from your left rear trouser pocket: PW1’s Bank of China ATM card and an Octopus card belonging to PW1.  In the right rear pocket the PSP player belonging to PW2 was also found.

10.  In your waist bag there was a purse containing 505 Renminbi, HK$480 and US$1.

11.  In the subsequent video-recorded interview, you claimed that you had picked the ATM card and Octopus card from a toilet whereas the cash inside your wallet belonged to you. 

12.  You admitted to 36 previous convictions, 23 involving dishonesty and 6 pickpocketing. 

13.  Mr Booth entered mitigation on your behalf. Very helpfully, he provided me with written notes in mitigation.  From those notes, I gleaned the following that you are 40 years of age, single; you are the mother of a 14-year-old daughter whose father died some years ago.

14.  Your mother passed away some 15 years ago.  Your father is 66 years of age and though you are not particularly close, you are concerned for him.  I am told that he suffers, and it is confirmed by report, from diabetes and cataract, and that his financial position is not good and he refuses to apply for CSSA.

15.  You yourself have a very fragile mental state, this is supported by a report from a psychiatrist.  You suffer from substance-induced psychosis.  Out-patient treatment is recommended. 

16.  You began to commit offences in 2000, this was caused by your mental condition and your poverty.  You have been unemployed for many years and rely on CSSA at $2,070 per month, so you find it very difficult to survive.  You are therefore unable to provide material support to your daughter.  Indeed Charge 2 arose because you wished to obtain the player to give to your daughter.

17.  I do note the content of the letter that you have written and it is read out to court.  The tenor of that letter is that you wish to change in order to accommodate the hopes and aspirations of your daughter.  I am told that your daughter is a reasonably good pupil with hopes of university, that she has expressed her view that if you have to steal in order to provide for her education, she would rather give up, to your credit, to have different plots. 

18.  Mr Booth realistically accepted that your very poor criminal record was an aggravating feature.  However, he pointed out that in mitigation that all property had been recovered, you had expressed -- you have pleaded guilty and you have already been in custody for some 5 months.  He asks for a chance on your behalf.

19.  He referred me to the usual sentencing authorities, the main gist of which provides for a starting point of some 12 to 15 months after trial in respect of a first-time offender.  You of course are not a first-time offender.

20.  I turn now to the sentence.  You are a lady of 40 years of age, with a very bad criminal record indeed.  I accept that you have had a hard life, suffering mental problems from your addiction to drugs. Also, that you have suffered great financial hardship.  You have spent much of your life since 2000 in prison.  You had to suffer the loss of your mother and of course of the father of your daughter.

21.  Whilst I do feel a great deal of sympathy for you, I must point out that there are others in just as poor position as yourself who do not turn to crime.  I accept that you do care for your daughter.  I accept that you are sincere and your intention to change.  I hope on a personal note that you are able to do so.

22.  Perhaps I am stating the obvious by saying the only real choice is prison in this case.  Whilst your poor record is an aggravating feature, I do accept that nothing was lost, you acted alone and you have pleaded guilty.

23.  The following sentences will be imposed.  I take in each case a starting point of 21 months, that is reduced to 14 months’ imprisonment on each charge.

24.  Applying the principle of totality, on the 2nd charge, 12 months will be concurrent and 2 months will be consecutive.  You will go to prison for 16 months.