HKSAR v. NG SAI WAH AND ANOTHER

 DCCC1168/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1168 OF 2009

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Reasons for Sentence

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1.  The defendants pleaded guilty to Charges 1 to 8 and Charge 10.  They are jointly charged with seven offences of theft to which they pleaded guilty.  The 1st defendant has also pleaded guilty to two further charges of theft, namely Charges 4 and 8.

2.  The offences of theft were committed between 21 November 2008, Charge 1, and 20 August 2009, Charge 10.

3.  The offences involved the theft of items such as cosmetics, healthcare products and toiletries, with a total value of around $20,000.

4.  The modus operandi in the joint charge of theft for the 1st and 2nd defendants was for one of the defendants to take the item off the shelf and put them into a bag held by the other.  They would leave through the cashier counter by taking and paying for some minor items.

5.  The defendants have agreed to the facts and I have convicted them of the offences to which they pleaded guilty.

6.  A brief summary of those charges is that Charge 1 occurred on 21 November 2008 where $1,440 worth of vitamin pills were stolen from Mannings.  In Charge 2, on 20 May 2009, the defendants stole $2,260 worth of skincare products from Mannings.  In Charge 3, the defendants stole $1,814.60 worth of skincare products from Shop Three.  Charge 4 on 26(28?) July 2009, the 1st defendant stole $2,376 of pills from Shop Four.  In Charge 5, the defendants stole on 3 August 2009, $1,456 worth of pills.  In Charge 6, the defendants stole $1,464 worth of healthcare products from Mannings.  In Charge 7 on 9 August, $950.70 worth of healthcare products, stolen from Mannings.  In Charge 8, the 1st defendant stole $7,071 of healthcare products from Sa Sa Cosmetics.  In Charge 10, the defendants stole $1,597 worth of skincare products from Mannings on 20 August 2009.

7.  As far as the antecedents are concerned, the 1st defendant is aged 47 and the 2nd defendant is aged 43.  They are married, they have three children, aged between 10 years and 12 years.

8.  The 1st defendant has 10 previous convictions for theft.  He has served sentences of imprisonment, up to 9 months’ imprisonment, and has been committed to Drug Addiction Treatment Centre.  In 2007, he served a total of 10 months’ imprisonment for theft.  In 2009, served a total of 7 months’ imprisonment for theft.

9.  The 2nd defendant has eight previous convictions for theft.  She has served terms of imprisonment of up to 8 months.  She has been inside the Drug Addiction Treatment Centre in 2002, 2003 and 2004.  2004 was the last time she was in prison, but she has committed offences of theft more recently in this year for which she was fined.

10.  The defendants have been remanded in custody since their arrest in August 2009, which has led to their children being taken into the subject of care and protection order.  Because of that I ordered background reports on the parents, the 1st and 2nd defendants, and also a welfare report on the children.

11.  The report on the children shows they are currently subject to care and protection order and placed at Po Leung Kuk.  The reports I have on the children are positive.  They have adjusted well to their placement at the Po Leung Kuk.  Their care, education, welfare are developing satisfactorily.  They are well cared for and at this stage no cause for concern.  And the position of the children with their parents will be reviewed when the parents are discharged from prison.

12.  The background reports on the parents contain detailed investigation of their circumstances.  The report show both defendants have been addicted to drugs for some period of time.  They have involved themselves in petty crime.

13.  The reports are somewhat critical of the defendants.  One report describes them a family of Bonnie and Clyde with lengthy crime records and welfare service record.  The defendants are in fact they are not bank robbers, they are petty criminals.  One of the reports describes the couple as being irresponsible.  They have certainly ignored the welfare of the -- the 1st defendant’s incapacity, and the mother and their three young children have relied on welfare for many years.

14.  The children have in fact been received into Po Leung Kuk in respect of previous occasions when the defendants have been imprisoned together.

15.  The probation officer says that the parents have failed to support their children physically and emotionally, and they rely on welfare to feed the children, and their reckless criminal behaviour and frequent imprisonment has put their children in moral and emotional danger.

16.  The 1st defendant has been a driver in the past, driven buses, but his life has been very much affected by his drug addiction.

17.  As far as the mother is concerned, that is the 2nd defendant, she is described as being ego-centric and carefree.  The probation officer suspects that she still has involvement in dangerous drugs because she failed urine tests in June 2009.

18.  It says of her that deep in her heart she understands that she and the 1st defendant have done a terrible job of parenting.  She undoubtedly loves her children, but it is not enough for her to rid herself of her cohabitation of the 1st defendant and her drug-taking habit and her habit of thieving.

19.  The reports are unfortunate of the defendants.  But what may be said is that a family relationship still exists with their children, despite the removal of one, or other, or both parents from the family whilst they had been in prison.  There is, undoubtedly, affection that exists within the family.

20.  And what the reports show is that both defendants have struggled with their drug addiction.  They have both been to Drug Addiction Treatment Centre, which does not appear to have ridded them completely of their dependence on drugs.  They rely on welfare and they supplemented that by petty thieving.

21.  The reports show that their petty thieving is persistent and has not been deterred by previous sentences of imprisonment.  Having said all that, the offences are still minor petty offences of theft or shoplifting.  The offences have been committed over a period of 9 months.  They show persistence in frequency.  Both the 1st and 2nd defendants can be described as recidivists.  They have not, as I understand, rendered their own children appropriate care and support.  They have not been deterred by previous sentences of imprisonment.  I see no alternative for them in this case but the imposition of further sentences of imprisonment.

22.  The offences are petty theft, however the sentences in total must reflect the persistence of such offending and also the failure of sentencing in the past to deter their dishonest behaviour.

23.  Sentence as follows:   where the offence is where the defendants are jointly charged, I will take a starting point of 9 months’ imprisonment and reduce that to 6 months’ imprisonment for their plea of guilty.

24.  For the 1st defendant where he is singly charged in Charge 4 and Charge 8, I will take a starting point of 6 months’ imprisonment and reduce that to 4 months’ imprisonment for his plea of guilty.

25.  So that will lead on the 1st, 2nd, 3rd, 5th, 6th, 7th and 10th charges, each defendant will serve 6 months’ imprisonment on those charges.  On the 4th and 8th charge, the 1st defendant will serve 4 months’ imprisonment.

26.  I will deal with how the appropriate overall totality should be calculated.  As far as the 1st defendant is concerned, I shall order that his sentence is run as follows: the 1st, 2nd and 3rd charges will be served concurrently to each other.  The 5th, 6th and 7th charges will be served concurrently to each other.  The 8th and 10th charges will be served concurrently to each other.  The 1st through to 3rd charge, 5th through to 7th charge and 8th through to 10th charge, shall be served consecutively to each other.  Two months of the 4th charge will be served consecutively to those sentences and two months will be served concurrently.  This gives an overall total sentence of 20 months’ imprisonment, which presupposes an overall starting point of 30 months.

27.  As far as the 2nd defendant is concerned, the 1st through to 3rd charges will be served concurrently to each other.  The 5th and 6th charges will be served concurrently to each other.  The 7th and 10th charges will be served concurrently to each other.  The 1st through to 3rd, the 5th through to 6th, the 7th and 10th, however, will be served consecutively to each other, giving an overall total of 18 months’ imprisonment.

28.  That again presupposes an overall total starting point of 27 months’ imprisonment.

29.  So in conclusion the total sentence on the 1st defendant is one of 20 months’ imprisonment, and on the 2nd defendant, one of 18 months’ imprisonment.