HKSAR v. CHAN LAI PING

HCMA1154/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1154 OF 2002

(On appeal from NKCC 5681 of 2002)

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J U D G M E N T

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1. The appellant was sent to prison for four months for shoplifting. She pleaded guilty to stealing some food from Park'N Shop valued at some $95. She had 10 previous similar convictions. They commenced in 1988 when she was 28 years old. She was then fined; and next year she was put on probation; the year after that, she was given a suspended sentence of imprisonment. In 1991, she was put on probation again. In 1993, she was sent to prison and has returned there on five occasions thereafter.

2. The reports disclose the existence of an unusual mental condition. She had been treated as an out-patient since 1996 at a government psychiatric clinic. She was diagnosed to be suffering from dysthymia, which my dictionary tells me is a mood disorder characterised by mild depression.

3. What the magistrate recognized, and I quote from his Reasons for Sentence :

".... It was very clear to me that she commits these offences as 'a cry for help' , and there is a deep rooted problem there."

The psychiatrist said that there was not much psychiatric treatment could do for her and there was no indication for treatment under a hospital order. The psychologist said that she might be in need of professional support from a social worker to "improve her adaptation in society and enhancing her mood management".

4. The magistrate was not unsympathetic but he said that he felt his hands were tied and that imprisonment was the only option. He said :

".... I was of the view that a short custodial sentence was appropriate in all the circumstances, with a condition as to psychological treatment, and I viewed that as a start to her rehabilitation process. It is to be hoped that upon release she would continue with such treatment."

He endorsed the warrant with the words :

".... all psychological treatment as deemed to be necessary should be given to the appellant during her period of incarceration."

5. I respectfully take a different view. I do not consider prison is the only option. I consider that this case calls for a probation order with suitable conditions. It is over 10 years since her last order, which antedated the diagnosis of dysthymia. I take the view that a probation order is appropriate as the history shows that the appellant needs help rather than punishment. The fact that she may not be curable does not mean she cannot be helped.

6. It is also the case that an order of imprisonment cannot be subject to a condition of psychological treatment as was imposed in this case. No court has power to attach conditions to an order of immediate imprisonment. Though it was well meaning, one just has to ponder for a moment the situation in which the imprisoned person declined "necessary" psychological treatment to see that the imposition of such a condition is simply not on. The course the magistrate took to provide the help which he judged to be needed was not appropriate.

7. Notwithstanding the small amount of property stolen I would support the sentence if the persistent thief persisted with the thieves' usual motivation. That is not the case here. This woman suffers a diagnosed form of mental illness albeit quite mild. She is, to quote from the reports, "not resourceful and socially isolated". She has a sad personal history. Her inadequacies, social and mental, explain and motivate her crime. Persistence is therefore robbed of much of its usual aggravation. The gravity of the crime itself is minimal. Without the persistence no one would have contemplated imprisonment. Her history amply demonstrates that imprisonment is no deterrent for her future conduct.

8. In these circumstances, I would not imprison. I do not expect the probation order will cure her or prevent her from ever stealing again. Success is not a pre-condition to the making of probation orders which exist in good part to help those who cannot function properly or lawfully in our society. Prison is not a convenient social dustbin for such people.

9. Accordingly, having already explained the proposed order with its condition and obtained the appellant's consent to it, I reverse the order of imprisonment. I make an order requiring the appellant to be under the supervision of a probation officer for a period of two years, commencing today with a condition that the appellant comply with the probation officer's reasonable requirements to attend medical, psychological and general rehabilitative counselling or treatment.