HKSAR v. CHAN YUEN LIN

DCCC 718/2020

[2021] HKDC 475

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 718 OF 2020

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REASONS FOR SENTENCE

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1.  Ms Chan pleaded guilty before me to 4 charges of theft, all contrary to section 9 of the Theft Ordinance, Cap 210.

2.  Particulars are that she, on various days, stole various items belonging to different persons at “MR FRESH”, Shop A, Ground Floor, No 36 Yau San Street, Yuen Long, New Territories, in Hong Kong.  Details are as follows:-

(1)  On 3 April 2020, she stole one wallet, cash of $5,400 Hong Kong currency, cash of ¥200 Renminbi and 4 credit cards, property belonging to Mui Yee Ming;

(2)  On 20 April 2020, she stole one coin purse and cash of $2,900 Hong Kong currency, property belonging to Zhu Wanping;

(3)  On 16 May 2020, she stole one wallet , one China Identity Card, one Exit-entry Permit for Travelling to and from Hong Kong and Macau, cash of about $2,000 Hong Kong currency, cash of about ¥700 Renminbi and 3 bank cards, property belonging to Mo Dianhua; and

(4)  On 26 June 2020, she stole one wallet, one Hong Kong Identity Card, one Home Visit Permit, cash of $400 Hong Kong currency and one Octopus card, property belonging to Kwok Yuet Wa.

FACTS ADMITTED BY MS CHAN

Charge 1

3.  The subject shop was a fruit stall.  At about 1:45 pm on 3 April 2020, Ms Mui was shopping there.  Her wallet containing the other items listed in the charge were in her zipped up backpack.

4.  Ms Chan entered the shop at about 1:55 pm and kept looking at the bags carried by other shoppers.  At about 2 pm, Ms Chan followed Ms Mui and unzipped the latter’s backpack and took out the said wallet and left.

Charge 2

5.  At about 1 pm on 20 April 2020, Ms Zhu was shopping at the shop.  Her black coin purse containing the cash specified in the charge was inside her black crossbody bag.  At about 1:26 pm, Ms Chan entered the shop.  She then circled the area where no less than 10 shoppers were picking oranges.  She stopped next to Ms Zhu and took the said purse before walking away from Ms Zhu and leaving the shop.

Charge 3

6.  At about 5:45 pm on 16 May 2020, Ms Mo put her wallet containing the other items listed in the charge in her black backpack before zipping it up. She then went shopping in the shop with her husband.  At about 6:03 pm on 16 May 2020, Ms Chan entered the shop and stood closely behind Ms Mo and took out Ms Mo’s wallet from the backpack.  Ms Chan then left.

Charge 4

7.  At about 12:20 pm on 26 June 2020, Ms Kwok was shopping at the shop. Her wallet containing the other items listed in the charge was placed inside her unzipped handbag.  Ms Chan entered the shop at about 12:34 pm and walked around and kept looking and touching the handbag carried by other shoppers.  At about 12:40 pm, Ms Chan approached Ms Kwok and stood next to her.  Ms Chan then put her left hand into Ms Kwok’s handbag and took out Ms Kwok’s wallet and left the shop right away.

Arrest

8.  In the afternoon of 29 June 2020, police spotted Ms Chan walking somewhere outside the shop.  Because Ms Chan resembled the thief in the CCTV footage, she was intercepted.  Upon questioning, Ms Chan admitted she stole a wallet from a female at the shop 3 days earlier (Charge 4).  She was arrested.

9.  Under caution for Charge 3, Ms Chan admitted she stole another wallet out of greed because she was unemployed; that she took out the cash and threw away the wallet; she had exchanged the RMB into HKD and had used up all the money she stole on daily expenses.

10.  Under caution for Charge 4, Ms Chan admitted that on 26 June 2020, she stole a wallet from an unzipped handbag of a female at the shop out of greed; that she had used up all the money on daily expenses and thrown away the wallet.

CRIMINAL RECORD

11.  Ms Chan has 23 previous convictions spanning between 1979 (when she was 18) and 2018 (when she was 58) 21 of which were either thefts or attempted thefts (with the majority being pickpocketing).  It is clear that she is a chronic recidivist.

ANTECEDENTS

12.  Ms Chan is 60 years old (59 at the time of the offences), educated to P6 level, unemployed.  She was last discharged from prison in June 2019.  Ms Chan is widowed and before arrest lived with her two sons, a daughter-in-law and a granddaughter in public housing in Shau Kei Wan.

MITIGATION

13.  Mr Leon Chan of counsel mitigated on behalf of Ms Chan.

14.  The following is a summary of the mitigation submissions.

15.  Ms Chan is the eldest of five siblings.  The youngest sister Chan Yuen Ching is in court to offer her support.

16.  Ms Chan had a stormy childhood which for privacy reasons is better shielded from the public.  Suffice to say that she spent some time growing up in Po Leung Kuk and Salvation Army Hostel.  She did marry afterwards but her husband passed away in 2002 which was followed by her younger brother in 2016.

17.  Ms Chan used to spend 4 days of the week to work and live in the Mainland; the remaining 3 days would be spent in Hong Kong where she lived with her two sons, his younger son’s wife and their 3-year-old daughter.  Since the onslaught of covid-19, she stopped working in the Mainland and spent all her days in Hong Kong resulting in in-laws conflict while both of her sons went out to work during the day.  The monthly contribution towards household expenses from the two sons amounted to $8,000 at most.

18.  In 2014, Ms Chan suffered from collapsed lung in her right lung and had 3 operations over the span of one month.  However, to this day, Ms Chan continues to suffer residual pain and is still undergoing procedures to ease her suffering.

19.  Mr Chan suggested that it was due to Ms Chan’s “feeling down in the dumps with her medical conditions and other issues, both at home and employment” which led to her commission of the offences; that Ms Chan, in moments of momentary greed and devastated by hopelessness decided to steal from others on impulse.

20.  Mr Chan submitted that the risk of re-offending is low because covid-19 pandemic is near its end and the younger son’s family has moved elsewhere to live; that Ms Chan will continue to manage her medical conditions on release.

21.  Mr Chan referred to HKSAR v Ngo Van Huy [2005] 2 HKLRD 1 at 7G-8F per Ma CJHC (as he then was) and submitted that the guideline sentence for this type of offence is 12-15 months’ imprisonment after trial.

22.  Mr Chan submitted there are no aggravating factors in this case apart from Ms Chan’s previous convictions.  Mr Chan asked for a lenient sentence.

23.  Mr Chan submitted three mitigation letters written respectively by a pastor, the youngest son and the youngest sister of Ms Chan.  The contents are generally that Ms Chan had used thefts as an instrument to deal with her depressive mood; that she committed the offences on relapse; that she had twisted ideas of right and wrong because of a pitiful childhood; that the family would help her seek the advice of professionals to deal with her depression on release.

24.  Mr Chan submitted that Ms Chan is willing to compensate the victims of their monetary loss in terms of both HKD and RMB, whichever is applicable.  The youngest sister Chan Yuen Ching will take the lead in making sure the payments are made.

SENTENCE

25.  I have considered the mitigation submissions.

26.  Although Mr Chan has done his best to explain Ms Chan’s commission of the offences as a combination of factors including in-laws conflict and chronic pain, the court is not persuaded these are the real causes of Ms Chan’s persistent transgressions of the law.

27.  Other than getting into the habit of stealing from others’ person when the opportunity presents itself, there is no other explanation.

28.  In order to protect the community from further unlawful acts of Ms Chan, the only device the court could use is to apply a stronger deterrent on Ms Chan in the form of a harsher punishment.

29.  I shall adopt a basic starting point of 12 months’ imprisonment for Charge 1; for Charges 2 to 4, I shall adopt a basic starting point of 15 months’ imprisonment each to reflect the gravity of multiple offences.

30.  For her being a recidivist, I shall enhance those starting points by 3 months each.  This will result in starting points of 15, 18, 18 and 18 months respectively.

31.  Ms Chan pleaded guilty in good time; this will earn her the full 1/3 discount.  No other mitigating factors that I can see (including her age) will warrant any further discount.

32.  The offences took place on different dates against different victims. In principle, consecutive sentences are called for subject only to totality.

33.  I impose the following sentences.

(Ms Chan, please stand)

34.  For Charge 1, Ms Chan shall go to prison for 10 months; for Charge 2, she shall go to prison for 12 months; for Charge 3, she shall go to prison for 12 months; and for Charge 4, she shall go to prison for 12 months.

35.  I order that 3 months each of the sentences for Charges 2, 3 and 4 are to run consecutively among themselves and the result is to run consecutively to the sentence for Charge 1.  The aggregate sentence is therefore 19 months’ imprisonment.

36.  I also make the following compensation orders under section 73 of the Criminal Procedure Ordinance, Cap 221:-

(a)  HKD5,400 and RMB ¥200 in favour of Mui Yee Ming;

(b)  HKD2,900 in favour of Zhu Wanping;

(c)  HKD2,000 and RMB ¥700 in favour of Mo Dianhua; and

(d)  HKD400 in favour of Kwok Yuet Wa.

37.  All payments are to be made within 7 days.