HKSAR v. LEE LEI LEI

DCCC 801/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 801 OF 2015

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Reasons for Sentence

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1.  The defendant has pleaded guilty to five charges of theft that occurred between August and November of 2014. The charges involve the theft of luxury items such as furs, garments and jewellery, totalled at almost $1 million.

2.  The first charge concerns a theft that occurred on 18 August 2014, when the defendant went to a fashion shop in Causeway Bay, purporting to be a fur retailer and asked to view some furs.  She tried on a number of items and stole a fur valued at $30,000.  That fur was later recovered from the defendant’s house in November during a house search.

3.  The following two charges (that is, the second and third charge) occurred on 18 and 20 September the same year. 

4.  The first charge involves a shop in Central that sells Indian garments and the defendant had patronised that shop since about 2013 and would visit once or twice a week.  On 18 September she went to the shop and stole four shawls which had a value of $25,400.  They had been imported recently and were displayed in the shop, and she reported the matter to the police.  By chance, the defendant had left a wallet in the shop.

5.  The third charge involves a theft that occurred on 20 September.  The victim in the second charge was attending a jewellery exhibition at the Hong Kong Convention and Exhibition Centre and saw the defendant wearing one of the shawls, the police were called over and the defendant was searched, various pieces of jewellery (in fact, nine pieces of amber accessories) were found from the defendant and she admitted stealing those that day from the owner of a booth in the Convention and Exhibition Centre exhibition, those nine pieces of jewellery  were valued at $23,960.

6.  Subsequently, the remaining garments from the second charge were recovered from the defendant’s home.

7.  As far as the fourth charge was concerned, that occurred some time between 17 and 21 November, that involved a theft of jewellery totally valued at $122,933 from a shop at a jewellery show, again in the Convention and Exhibition Centre.  A total of four items were taken from the shop and these items were all recovered from pawn shops which the defendant had pawned them at.

8.  Finally, in Charge 5, that involved an item of jewellery valued at $795,000, this was stolen on 27 November 2014, again from a shop at the jewellery show held at the Hong Kong Convention and Exhibition Centre.

9.  The defendant admits having stolen those items. There were a total of four items.  She pawned two of the items which were later recovered.  However, two of the items valued at $125,000 have not been recovered.  The defendant admitted stealing those items from the shop when interviewed.

10.  The defendant was arrested by police, but absconded from police bail on 5 December 2014 and was subsequently rearrested on 7 August 2015, which is again another aggravating factor of these offences.

11.  The defendant’s antecedents have been admitted. She is aged 59 years old.  As far as family is concerned, she has a son who she is in contact with, although there are two children:  a daughter and a son.  In 2005 her son moved back to Hong Kong and has been living with her. 

12.  Also of relevance are two previous convictions, the most relevant of those being that in November 2008 the defendant was sentenced to 20 months’ imprisonment for obtaining property by deception. That, of course, is an offence of dishonesty, so it is a similar type of offence to the ones which the defendant is currently convicted of.

13.  The mitigation of the defendant disclosed that she had a number of illnesses, both mental and physical and so as a result of that I have obtained reports on the defendant:  firstly, a psychiatric report; secondly a psychological report; thirdly, a medical report; and finally a background report.

14.  I will deal firstly with the psychiatric report.  This shows that the defendant is suffering from depressive illness and anxiety disorder at this time.  These are said to be under control and she receives medication for those matters.  The defendant was first known to Mental Health Services in 2005, so the illnesses are over 10 years old now and she has been prescribed sedatives.

15.  The psychological report goes into some detail on the defendant’s motivations for committing these offences.  The conclusion is that the defendant is described as self-centred and irresponsible, with a sense of grandiosity, so she had lied about her past because she had a deep sense of shame and inferiority as to her origins, and she created a fake background or false background and tried to impress others as successful and respectable. 

16.  She had a lavish lifestyle, buying luxury goods and associating with high society, giving her a sense of superiority and satisfaction, and it says the offences of stealing luxury goods were her problematical way to achieve the sense of satisfaction and emotional relief during times of financial pressure. 

17.  There is no sign of kleptomania, but she has weak mood management, poor stress coping, lack of social support and shallow insight.  That means there is, of course, a risk of re-offending.  She would benefit from mood management treatment and stress coping treatment, and the prognosis, given that she does not receive any treatment at present, is guarded.

18.  What the report does help in outlining is that the defendant’s motivations for committing these offences are unusual, not an ordinary case of dishonesty.  The defendant has psychological problems that lead her to try and create a false identity.

19.  The third report is also of significance.  That is the medical report on the defendant.  This shows the defendant has a history of depression and anxiety, which we know about from the psychiatric report. She is said to have defaulted follow-up in the past at the Western Psychiatric Centre.  Secondly, she has diabetes, but that is controlled by diet.  Thirdly, she has liver problems that have been disclosed in Mainland China, with a recent admission to the Northern District Hospital.

20.  The current physical examination in November of this year showed abdominal distension with the presence of what is described as ascites, which is swelling.

21.  She has been referred to Queen Elizabeth Hospital on a few occasions because of the increasing distention and abdominal discomfort.  There is a provisional diagnosis of Hepatitis B cirrhosis, with ascites and splenomegaly, and she is currently on medical treatment for her ascites and has been sent to the surgical clinic at Queen Elizabeth Hospital, which is pending.

22.  Of course, this is a provisional diagnosis, not a final diagnosis.  Hepatitis B cirrhosis is a serious illness and the presence of ascites shows that it is in a more advanced stage.  There is no prognosis at present and probably cannot be until the follow-up at the surgical clinic of the Queen Elizabeth Hospital, so it is not possible at present to ascertain how far along in the disease the defendant is, but I will take it on the basis that she is suffering from serious illness.

23.  The background report goes in more detail into the difficulties that the defendant suffered in her life.  It notes the defendant suffered from mental illness for 10 years.  She was born and brought up in a working-class family in China and had two children.  Her former cohabitant had left with the two children, left her in 2005, which is when she had the onset of mental illness.

24.  It describes her as becoming a shopaholic, which is a strange phrase but it is probably accurate.  She has borrowed a lot of money from relatives and friends and even finance companies.

25.  The son has returned six years ago and helps to look after her, and he is the source of some of the information.  He says she needed to wear jewellery and clothing in front of friends to fulfil her self-fulfilled prophecy to be a rich person and avoid losing face.

26.  But it is clear that the son has support for her and asks for a lenient sentence on her behalf.  Clearly, he is a good source of support to his mother and this man is here in court today.

27.  It has been submitted that I should bear in mind the defendant’s medical conditions as a basis for mitigating her sentence.  At this stage, the defendant is clearly suffering from serious illness due to her cirrhotic liver and swelling.  However, the outcome and prognosis is at this stage unknown.

28.  There is reference, of course, to the case of R v Chan Kui Sheung [1996] 3 HKC 279, where four principles in respect of this were outlined:

(1) a medical condition which might at some unidentified future date affect either life expectancy or the prison authority’s ability to treat a prisoner satisfactorily might call into operation the exercise of a prerogative of mercy but was not a reason to interfere by the Court of Appeal in an otherwise appropriate sentence;

(2) a serious medical condition does not automatically entitle an accused to a lesser sentence that would otherwise be appropriate; and

(3) a serious medical condition might enable a court, as an act of mercy in exceptional circumstances, to impose a lesser sentence than would be otherwise appropriate.

29.  I think, as far as the medical evidence is concerned, in this case, we have not quite reached that stage yet.  We do not know how serious the medical prognosis in this case is, and it may well be if it turns out to be more serious on later investigation, it may be a basis for the exercise of prerogative by the Executive.

30.  The defendant’s medical condition is a ground for sympathy, but not necessarily a reason in this case for a reduction of what would be an otherwise appropriate sentence.  One can be confident that she will receive proper care and attention in a custodial environment.

31.  What can be said as a result of the reports is the defendant’s motivation for the crimes arises out of her poor mood management and use of a highly inappropriate method of coping, the thefts being partly to fulfil her grandiose expectations of herself.

32.  Nevertheless, this does little to, in fact, mitigate the offences. 

33.  A mitigating factor is that most of the property has been recovered, which is suggestive of the fact the defendant wished to have the property for display, although some of the items, the more valuable items, were pawned, no doubt to fund her lifestyle, but fortunately they all, save two of the items, have been able to be recovered.

34.  Another mitigating factor is the defendant is clearly remorseful.  She is in poor health and, as a result of custodial sentence, will be separated from her son who gives her support and she will be denied the society of her son.

35.  In respect of the offences, they were cases where the defendant has acted alone and they could be described as relatively unsophisticated, likely to result in her being apprehended in any event in a number of these cases.  She was known to the people whom she stole from and she pawned the goods under her own identity.

36.  Although two of the offences involve thefts from the Convention and Exhibition Centre, and the exhibitions that go on there, one could not describe these offences as having an international dimension.

37.  There is no sentencing guideline for these kind of thefts.  The prosecution has helpfully provided me with the case of HKSAR v Padilla Gerardo Gonzaga & Ors, which can be found at CACC 275/2011, which involves theft of diamonds from Hong Kong Convention and Exhibition Centre.  The facts are, of course, different from this defendant and that involved in one of the cases the theft of a diamond valued at $251,000 from a jewellery exhibition.  The starting point for sentence for that offence of 3 years’ imprisonment was described as unobjectionable.

38.  In this case, certainly in the fifth charge, the jewellery concerned was valued at $795,000 (it is a high-value item); in the fourth charge, at $122,933.

39.  Having borne in mind those factors of mitigation, there are also factors of aggravation. 

40.  One is the fact that the defendant has a previous conviction of dishonesty in 2008 and clearly has not been deterred by the sentence of 20 months’ imprisonment that was imposed then from further offending.

41.  The second one is the defendant’s failure to attend police bail in December and being absent until August 2015, which is again another aggravating factor in that it prevented resolution of the case.

42.  Taking all these factors into account, I consider the appropriate method of sentence, duration of sentence for the defendant is as follows.

43.  The five offences involve different amounts of different values of items, so the starting points of sentence will necessarily have to reflect those different valuations.

44.  As far as the first three offences concerned (Charges 1, 2 and 3), they involve the theft of items from shops valued respectively at 30,000, 25,400 and 23,960 dollars.  I will adopt a starting point of 9 months’ imprisonment for each of those.  The defendant has pleaded guilty.  There will be a sentence of 6 months’ imprisonment on each of the Charges 1, 2 and 3.

45.  Charges 4 and 5 involve thefts from the jewellery shops at the Convention Centre during an exhibition.  Clearly, they are a more serious kind of offence and the sentences should reflect that and should reflect the greater value of the jewellery involved.

46.  As far as Charge 4 is concerned, the jewellery involved is valued at $122,930.  I will take a starting point of 18 months’ imprisonment and reduce that to 12 months’ imprisonment for her plea of guilty.

47.  On the 5th charge, the jewellery value totalled $795,000. I will take a starting point of 3 years’ (36 months’) imprisonment, reduce that to 24 months’ imprisonment by one-third for the defendant’s plea of guilty.

48.  These offences all occurred on different occasions, so they can be served consecutively if the court so ordered.  The offending also represents a series of offences - it is not one offence; it is over a period of time - a persistence in offending.  So I consider that the offences will, to a certain extent, have to be served partly consecutively.

49.  What I shall order to achieve what is I consider to be the overall correct totality, having regard to all the factors I have set out, I will deal with the offences as follows.

50.  I will order the first three offences (Charges 1, 2 and 3), the 6 months’ imprisonment on those sentences be served concurrently to each other.

51.  I will order that the sentences in respect of Charges 4 and 5 be served concurrently to each other.

52.  However, I will order that the sentences in Charges 4 and 5 be run consecutively to those on the first three charges.

53.  This gives an overall total of 30 months’ imprisonment, which presupposes an overall starting point for sentence of 45 months’ imprisonment, which I consider, having regard to the value of goods and the aggravating factors, is the correct starting point.

54.  So the sentence of imprisonment will be one of 30 months’ imprisonment in respect of these offences.