HKSAR v. HO YIU MAN

DCCC 528/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 528 OF 2015

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REASONS FOR SENTENCE

1.  Ho Yiu Man you have pleaded guilty to fifteen charges of theft, contrary to section 9 of the Theft Ordinance, Chapter 210 and one charge of criminal damage, contrary to section 60(1) of the Crimes Ordinance, Chapter 200.

2.  Full details of the offences are set out in the facts admitted by you on the 24 August.  Briefly on thirteen occasions between the 29 December last year and the 31 March this year you stole luxury brand named handbags, wallets and back packs from various shops, including Givenchy; Gucci; Fendi; and Bvlgari to the total value of $389,780.

3.  You were arrested on the 31 March when a sales lady of Bvlgari witnessed you taking a handbag (charge 15).  When you fled from the shop the sales lady and a security guard chased after you and intercepted you outside the shopping plaza.  The police were called and the handbag recovered. 

4.  The next day whilst in police detention you broke the fire sprinkler in the cell resulting in the cell being flooded and the fire alarm activated.  Firemen were called and the cell closed for one day for repair.  The repair cost was $2,581.65 (charge 16).

5.  Your dishonesty was not limited to stealing from shops.  On the 5 January this year whilst working as a delivery worker for Lam Yuen Wholesaler you collected $1,443 from Yee Hing grocery shop for delivery of goods.  You did not give the money to your employer and instead spent the money (charge 2).

6.  On the 16 March this year whilst working as a delivery worker for Global Fine Foods Limited you stole a mobile phone, valued at $7,100, from a colleague whilst he was taking a nap at the office during lunch time (charge 11).

7.  When interviewed by the police you admitted the offences and in most cases told the police that you had spent all the money you received from selling the bags, wallets and back packs.  You also told the police you sold the mobile phone and spent all the money.

Mitigation

8.  In passing sentence I take into account everything said on your behalf by Mr Lai, including that due to an unhappy childhood you suffer from depressionwhich “forced” you to repeatedly steal.  At the request of Mr Lai I therefore called for psychiatric and psychological reports before passing sentence.   

Shop theft

9.  There are no guideline sentences for shop theft.  In HKSAR v Cheng Sau Yuk [2012] 5 HKLRD 415 the appellant was sentenced after trial to a total of 4 years imprisonment having on three separate occasions, as a member of a team of professional shoplifters, targeted shops selling luxurious goods.  Three handbags were stolen valued at $13,800; $29,100 and $13,000. 

10.  The appellant was a persistent offender and committed the offences a few months after serving a 5 year sentence.  The trial judge adopted a 2 year starting point for each offence and ordered one year of the sentences for the second and third offences to run consecutively making the total of 4 years imprisonment. The Court of Appeal in dismissing the appeal said they were not persuaded that the individual sentences or the total sentence imposed was a day too long.

11.  In HKSAR v Nguyen Anh Cuong CACC 414/2011 the applicant pleaded guilty, inter alia, to five charges of conspiracy to steal garments from a number of stores on three different days.  The applicant was part of a highly organised, sophisticated and successful gang who used a bag modified with an additional lining of tin foil so that the stolen items would not activate the stores’ alarm systems.

12.  When the applicant was arrested a total of 819 garments, some with the anti-theft devices still attached and 9 accessories were recovered by the police.  406 garments and the 9 accessories were later confirmed to be stolen.  No value of the goods is however mentioned in the judgment or the reasons for sentence. 

13.  The trial judge adopted a 3 year starting point for each offence which he discounted by one third to 2 years.  9 months of the sentence for the second offence was ordered to run consecutively making a total of 2 years and 9 months imprisonment for the five offences.  The sentence was then the subject of enhancement under the Organized and Serious Crimes Ordinance resulting in a sentence of 44 months.

14.  The Court of Appeal in dismissing the appeal said that the sentence was in no way manifestly excessive and that they would not have interfered with a sentence of at least 4 years imprisonment for a systematic and highly organised gang. 

15.  Even though you are not part of a gang or used a bag modified so that the stolen items would not activate the stores’ alarm systems these are nevertheless very serious shop thefts.  Some required a great deal of skill to commit for example when you took the Prada handbag between a gap between the security sensor and the shop entrance so the security sensor would not be activated (charge 8). 

16.  In my view you are a professional thief who targets high value luxury brand name goods to steal.  The value of the goods for twelve of the offences range between $4,550 (charge 9) and $18,000 (charge 15).  In respect of charge 3 the handbag was valued at $253,000 although I accept you may not have known how valuable the handbag was.  Save for the handbag subject of charge 15 none of the goods have been recovered. 

17.  I am satisfied that the appropriate starting point on the shop theft charges, save for charge 3 is 1 year and 3 months imprisonment.  By reason of the very high value of the handbag a starting point of 1 year and 6 months is appropriate for charge 3. 

18.  You are also a persistent offender.  You have previously appeared in court on 22 occasions amassing a total of 50 convictions of which 38 are for theft.  You last appeared in court on the 3 July last year when you were sentenced to concurrent sentences of 10 months imprisonment for three charges of shoplifting by the Kowloon City Magistracy (KCCC 2093/2014). 

19.  I have had the opportunity of reading the case papers and note the shop thefts are also of luxury brand name goods including Chanel and Gucci.  I must say in my view you were leniently dealt with on that occasion by the imposition of wholly concurrent sentences.  You were released from that sentence on the 23 December and committed the first of the shoplifting offences six days later on the 29 December.

20.  By reason of your persistent offending I increase the starting points by 3 months to 18 months and 21 months respectively.  Full credit for your guilty pleas reduces the sentences to 12 months and 14 months.

Charge 2 – theft from employer

21.  Guidelines to sentence can be found in HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776.  In view of the relatively low amount $1,443 I am satisfied a starting point of 3 months imprisonment is appropriate.  Full credit for your plea of guilty reduces the sentence to one of 2 months imprisonment.

Charge 11 – theft of a mobile phone

22.  This was a mean offence stealing from a colleague while he was sleeping.  Not only was the mobile phone valuable the theft of a phone causes substantial inconvenience to the owner.  I am satisfied a starting point of 6 months imprisonment is appropriate.  Full credit for your plea of guilty reduces the sentence to one of 4 months imprisonment.

Charge 16 – criminal damage

23.  The damage to the water sprinkler caused a good deal of inconvenience to the police.Firemen were called and the cell closed for one day for repair.  This makes the act more serious than in HKSAR v Singh Guriar HCMA 641/2008 which I referred the parties to at an earlier hearing.  In the circumstances I am satisfied a starting point of 6 months imprisonment is appropriate.  Full credit for your plea of guilty reduces the sentence to one of 4 months imprisonment.

Totality

24.  In assessing your overall culpability sight cannot be lost of the fact that in just over three months you committed a large number of theft offences.  A meaningful sentence is to be imposed which is not disproportionate to your culpability (see HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242). 

25.  For the thirteen shop theft offences I am satisfied an overall sentence after plea of 3 years and 4 months imprisonment is appropriate.  For the two remaining theft offences which are separate and distinct from each other and from the shop theft offences I am satisfied an additional one month imprisonment for each offence is to be ordered to be served consecutively to the sentence for the shop thefts.  Similarly the criminal damage is a separate and distinct offence for which I am satisfied an additional two months imprisonment is to be ordered to be served consecutively to the sentence for the theft offences.

26.  This makes a total sentence to be served by you of 3 years and 8 months imprisonment which I am satisfied properly reflects your criminal culpability on the sixteen charges. 

Mental illness

27.  The reports detail your unhappy childhood.  The psychiatric report notes that you had persistent low mood because you were unable to let go of the grievance you held towards your mother for sending you to boarding school.  The psychological report notes that because of this separation you felt rejected and abandoned by your family and grew up with intense hostility, anger and frustration towards your family. 

28.  Both reports show that you have no psychotic symptoms or cognitive impairment.  The psychiatrist Dr Choi is of the opinion that you have longstanding personality problems and that you may also suffer from a mild form of depression.  Follow up treatment in a psychiatric outpatient clinic is recommended.  The clinical psychologist Sherry Im strongly recommends intensive and regular psychological treatment on your stealing behaviour.   

29.  In HKSAR v Chiu Peng, Richard [2002] 1 HKC 401 the Court of Appeal accepted that a court may properly allow a discount in sentence where a defendant is suffering from mental illness which played a part in the commission of the offence.  The court said the justification for a discount in sentence by reason of mental illness was:

“…as a reflection of diminished criminality or culpability on the part of the accused who has committed a crime under an abnormal state of mind. He knew that it was wrong to commit the crime, but he did not appreciate that the commission was as serious as it was: the degree of culpability was thus lessened.”

30.  Chiu Peng, Richard was cited in HKSAR v Chen Xuehui HCCC 19/2012 where the court reduced the sentence imposed after trial where the defendant suffered from Bipolar Affective Disorder and displayed florid symptoms at the time of the offence.  McMahon DHCJ said that in determining whether the illness has affected one’s culpability for the offence requires an assessment of the nature and severity of the illness and an appreciation of the relevance of its symptoms to the commission of the offence. 

31.  You told the clinical psychologist that you believed your stealing was triggered by frequent arguments with your family and girlfriend; that you regarded stealing as a way to ventilate your anger and retaliate against your family; that your early offences were attributed to greediness; excitement and attention seeking; and that you perceived stealing as an exciting and challenging behaviour claiming to enjoy a sense of competence if you were successful in your stealing (see paragraph 11 of the psychological report).

32.  You also told the clinical psychologist that the offences were triggered by arguments with your mother; that stealing luxurious products was more exciting and provided you with a greater sense of achievement and that you stole the mobile phone and money from your employer out of greed (see paragraph 12 of the psychological report). 

33.  Whilst sympathetic to anyone suffering from mental illness I do not accept that your illness diminishes your criminality or culpability for the offences you have committed.  I am satisfied in the circumstances of this case there should be no discount by reason of your illness. 

Sentence

34.  You are convicted and sentenced as follows:

Charge 1 – 12 months imprisonment;

Charge 2 – 2 months imprisonment with 1 month consecutive and 1 month concurrent to charge 1;

Charge 3 – 14 months imprisonment consecutive to charges 1 & 2;

Charge 4 – 12 months imprisonment with 8 months consecutive and 4 months concurrent to charges 1-3;

Charges 5, 6, 7, 9 & 12 – 12 months imprisonment on each charge concurrent and concurrent to charges 1-4;

Charges 8, 10, 13 - 15 – 12 months imprisonment on each charge concurrent with 6 months consecutive and 6 months concurrent to charges 1-7, 9 & 12;

Charge 11 – 4 months imprisonment with 1 month consecutive and 3 months concurrent to charges 1-10 & 12-15; and

Charge 16 – 4 months imprisonment with 2 months consecutive and 2 month concurrent to charges 1-15.

Breach of suspended sentence

35.  On the 11 February last year you pleaded guilty in the Tuen Mun Magistracy (TMCC 71/2014) to eleven offences of causing wasteful employment of the police and one offence of criminal damage.  I have also had the opportunity of reading the case papers.

36.  Notwithstanding that you appear to have at that time been serving a sentence of 4 months imprisonment imposed on the 21 January (TWCC 68 & 69/2014) you were nevertheless sentenced to concurrent sentences of 6 months imprisonment suspended for 3 years. No reasons appear to have been given for suspending the sentences.   I also note that 6 months imprisonment is the maximum sentence for causing wasteful employment of the police.

37.  Your convictions today place you in breach of the suspended sentence.  The commission of the three offences in KC 2093/2014 also placed you in breach of the suspended sentence.  Again no reasons appear to have been given as to why the suspended sentence was not activated. 

38.  I am satisfied there are no exceptional circumstances whereby it would be unjust to activate the suspended sentence.  Taking into account that the maximum sentence was imposed for causing wasteful employment of the police thereby giving you no credit for your pleas of guilty; that you were serving a period of imprisonment when the suspended sentence was imposed and the overall totality of sentence to be served by you I order that the suspended sentence be activated with 2 months consecutive to the sentence imposed today and 4 months concurrent. 

39.  This makes a total sentence to be served by you of 3 years and 10 months imprisonment which I am satisfied properly reflects your criminal culpability in both cases.