HKSAR v. LEE LEI LEI

CACC 206/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 206 OF 2016

(ON APPEAL FROM DCCC NO. 801 OF 2015)

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REASONS FOR JUDGMENT

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1.  The applicant seeks leave to appeal out of time against the sentences of imprisonment imposed on her by District Court Judge Casewell on 17 November 2015, following her pleas of guilty on 3 November 2015 to five charges of theft, contrary to section 9 of the Theft Ordinance, Cap. 210 (Charges 1 to 5). The applicant was sentenced to a total of 30 months’ imprisonment.

2.  The applicant filed Form XI with the Court on 13 July 2016, by which she gave notice of her application for leave to appeal against sentence out of time.  In an affirmation attached to Form XI, she addressed the grounds of appeal against sentence which she wished to advance, but she gave no explanation for the delay of seven months in filing Form XI.  She said that she was suffering from cirrhosis, pleural effusion, depression, diabetes and hyponatremia.

The facts

3.  The thefts the subject of the five charges involved thefts from shops of items to a total value of about $1 million in the period from August to November in 2014. 

Charge 1

4.  On 18 August 2014, the applicant went to a fashion shop in Causeway Bay and presented herself a fur retailer.  Having tried on a number of items, she stole a fur valued $30,000.  Subsequently, it was recovered from the applicant’s residence.

Charge 2

5.  On the same day, the applicant went to a shop in Central, which sold Indian garments.  The applicant had patronised that shop since late 2013.  She stole four shawls valued at a total of $25,440.  Subsequently, the applicant was found wearing one of the stolen shawls.  The other three were retrieved from her residence.

Charge 3

6.  On 20 September 2014, the victim of the theft the subject of Charge 2 saw the applicant wearing one of the stolen shawls as they were both present at a jewellery exhibition at the Hong Kong Convention and Exhibition Centre.  The police having been called, a search was conducted of the applicant.  Nine pieces of jewellery valued at HK$23,690 were found on the applicant, which she admitted having stolen from a booth at the Exhibition Centre that day.

Charge 4

7.  From 17 to 21 September 2014, Mr Hung, a salesman of PIN (Hong Kong) Limited, participated in a jewellery exhibition at a booth at the Hong Kong Convention and Exhibition Centre.  During that period four pieces of jewellery, valued at $122,933 in total, were stolen.  He confirmed that four pieces of jewellery, which had been retrieved by the police from pawn shops were the stolen items.  The records of the pawn shop confirmed that it was the applicant who pawned the jewellery.  Subsequently, in an interview conducted under caution on 18 August 2015, the applicant admitted having stolen the four pieces of jewellery.

Charge 5

8.  On 27 November 2014, the applicant visited a booth at a jewellery show at the Hong Kong Convention and Exhibition Centre.  After around an hour, the applicant left the booth.  Subsequently, it was found that four pieces of jewellery, valued at $795,000 in total, were missing.  Two of the pieces of jewellery were retrieved from pawn shops.  The records of the pawn shop confirmed that it was the applicant who pawned the jewellery.  The other two pieces of the stolen jewellery were not recovered. In the record of interview conducted of the applicant on 18 August 2015, she admitted having stolen all the four pieces of jewellery.

9.  The applicant was arrested by the police on 20 September 2014, but absconded whilst on police bail on 5 December 2014.  She was re-arrested on 17 August 2015.   

Mitigation

10.  The applicant was 59 years old at the time of sentence.  She had come to Hong Kong from the Mainland in 1977.  She did not have a permanent job, but traded jade ornaments.  In mitigation, it was submitted that the applicant was suffering from a number of illnesses, both mental and physical.  In consequence, the Court ordered the preparation of four reports, namely a psychiatric report, a psychological report, a medical report and a background report. 

11.  The psychiatric report indicated that the applicant was suffering from depressive illness and anxiety disorder, which were under control; the psychological report indicated that the applicant was self-centred and irresponsible with a sense of grandiosity.  The offences of stealing luxuries were to be regarded as her problematical way of achieving a sense of satisfaction and emotional relief during times of financial pressure.  The medical report described the applicant’s history of depression and anxiety, but noted that she had defaulted in follow-up treatments.  She had diabetes and liver illness.  A provisional diagnosis said that her increasing distention and abdominal discomfort was due to Hepatitis B cirrhosis with ascites and splenomegaly.

12.  The background report described her recent family circumstances.  In 2005, the applicant’s former cohabitant left with their two children.  That coincided with the onset of her mental illness.  Her condition worsened and she became a “shopaholic”.  To fund those expeditions she borrowed a lot of money from relatives, friends and even finance companies.

Reasons for sentence

13.  In sentencing the applicant, the judge noted that the applicant had two previous convictions.  In November 2008 she had been sentenced to 20 months’ imprisonment obtaining property by deception.  Of that conviction, he said “...it is a similar type of offence to the ones which the defendant is currently convicted of.”

14.  Of the psychological report, the judge noted that there was “a risk of re-offending”.  Also, the judge noted “the defendant has psychological problems that lead her to try and create a false identity.”  Of the medical report, the judge noted that the applicant was receiving treatment for what had been provisionally diagnosed as Hepatitis B cirrhosis with ascites.  Of that, he said “Hepatitis B cirrhosis is a serious illness and the presence of ascites shows that it is in a more advanced stage.”  And the result, he said that he treated the applicant as “suffering from serious illness.”  Nevertheless, he concluded by saying “the outcome and prognosis is at this stage unknown.”

15.  Having adverted to the judgment of this court in R v Chan KuiSheung [1] the judge said of the applicant’s medical condition:[2]

“ 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.”

16.  Of the mitigating factors, which he accepted and took into account, the judge said:

“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.

... Another mitigating factor is the defendant is clearly remorseful.

... 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.”

17.  Having said that “there is no sentencing guideline for these kind of thefts”, the judge said that he noted that the judgment of the Court in HKSAR v Padilla Gerado Gonzaga & Ors [3] a starting point taken for sentence of 3 years’ imprisonment for the theft of a diamond valued at $251,000 from the Hong Kong Convention and Exhibition Centre had been described as “unobjectionable”.  In that context, the judge noted that the total value of the jewellery stolen in the fourth and fifth charges was $795,000 and $122,933 respectively.

18.  Finally, the judge said that the fact that the applicant had absconded whilst on police bail and was at large from December 2014 to August 2015 was “another aggravating factor” in the commission of the offences.

Starting point for sentence

19.  The judge stipulated a starting point of 9 months’ imprisonment for each of the steps we subject of Charges 1, 2 and 3.  In doing so, he noted that the value of the goods stolen was $30,000, $25,400 and $23,960 respectively.

20.  In respect of Charges 4 and 5 the judge said that they were to be regarded as “a more serious kind of offence” and regard was to be had to the value on the property stolen, namely $122,930 and $795,000 respectively.  The judge stipulated a starting point for sentence for Charge 4 of 18 months’ imprisonment and of 36 months’ imprisonment for Charge 5.

Discount

21.  To reflect the applicant’s pleas of guilty, the judge discounted the starting points taken for sentence by one-third.

Totality

22.  Noting that the applicant had committed multiple offences over a period of time the judge said that her conduct evidenced “a persistence in offending.”  In consequence, he said that it was appropriate to order that some of the terms of imprisonment be served consecutively.  In the result, he ordered that the sentences of 12 months’ imprisonment and 24 months’ imprisonment imposed in respect of Charges 4 and 5 respectively be served concurrently with each other, but consecutively to the sentences of 6 months’ imprisonment imposed in respect of each of Charges 1, 2 and 3.

23.  Of the resulting total of 30 months’ imprisonment, the judge noted that it presupposed an ‘overall starting point’ of 45 months’ imprisonment, which he said was the correct starting point for sentence.

Grounds of appeal against sentence

24.  In written submissions filed with the Court on 22 September 2016, the applicant said that she was suffering from multiple illnesses that caused her to frequently pass out and be hospitalised.  She said that she had been detained in prison for 13 months.  She said that Mr Thomas Kwok, a tycoon, had been granted medical parole.  She asked the Court for the same treatment. 

Application out-of-time

25.  In her oral submissions the applicant sought to explain the fact that her application for leave to appeal was made out of time by saying that at first she had thought it appropriate to be submissive, particularly given that she acknowledged that she had committed the offences.  However, recently her health deteriorated and she wished to seek treatment from a doctor privately, although she acknowledged that she had been treated at Queen Elizabeth Hospital on the occasions that she had been ill whilst in custody.  It was her daughter who had urged her to make the application.  She was a doctor in the United States of America and was prepared to come back to Hong Kong to look after her.

The respondent’s submissions

26.  Of the fact that the application was made some seven months out-of-time, Mr Hui submitted on behalf of the respondent that the applicant had advanced no valid reasons.

27.  In respect of the grounds of appeal against sentence, he submitted that the judge had considered all the circumstances of the case and that the starting points taken for sentence were consistent with the judgment of this Court in HKSAR v Padilla Gerado Gonzaga & Ors.  He contended that the overall sentence of 30 months’ imprisonment was an appropriate sentence, given the value of the stolen property and the aggravating factors in the commission of the offence.

28.  Of the applicant’s medical condition, he invited the Court to note that no evidence had been advanced to support the applicant’s contention that her medical condition had deteriorated.  In any event, he submitted that there was no dispute that the applicant was receiving medical attention as required. 

29.  Finally, Mr Hui invited the Court to note that Mr Thomas Kwok had not been granted a medical parole.  He had been granted bail pending appeal.

30.  In the result, Mr Hui submitted that the Court ought to refuse the application.

A consideration of the submissions

Application out-of-time

31.  The applicant has advanced very little by way of a valid explanation for making her application for leave to appeal against sentence out of time by some seven months.  It appears that at its height, her explanation was that, against a background of deteriorating health, she had been persuaded to make the application by her daughter.

Sentence

32.  It is clear that the judge paid careful regard to the issue of the applicant’s health, both mental and physical.  He was entitled to conclude, as he did, that the state had not yet been reached where it was appropriate to impose a lesser sentence of imprisonment than would be otherwise appropriate.  As he noted, in appropriate circumstances, in the face of developing grave illness, the Executive may choose to exercise the prerogative power.

33.  The applicant’s reference to the case of Thomas Kwok is utterly irrelevant.  His application for leave to appeal against conviction having been granted by the Appeal Committee of the Court of Final Appeal on one question of law, the Appeal Committee granted him bail pending the hearing of his appeal.[4]

34.  As noted by Mr Hui, the applicant has placed no additional medical evidence before this Court.  Her contentions of a deteriorating medical condition are bare assertions, unsupported by any evidence.

35.  Obviously, it was correct for the judge to have regard to the different value of property stolen and the different charges in determining the appropriate starting point to be taken for sentence.  Similarly, he was entitled to regard to the fact that, in Charge 5, two items of property valued at $125,000 had not been recovered.  The range of starting points that he stipulated were within the range of appropriate sentences in his discretion.

36.  The judge was entitled to regard as a factor of aggravation in the commission of the offences the fact that the current offences had been committed after the applicant had been sentenced to 20 months’ imprisonment in 2008 for an offence of obtaining property by deception.  Furthermore, as he noted, the fact that she had absconded whilst on police bail had “prevented resolution of the case.”

37.  The fact that the applicant had committed the five offences in a period of one month was aptly described by the judge as evidencing “a persistence in offending”.

38.  Having regard to all the circumstances described earlier, in my judgment it is not reasonably arguable that the sentence of 30 months’ imprisonment imposed by the judge on the applicant was manifestly excessive.

Conclusion

39.  Accordingly, I refused the application for leave to appeal out of time against sentence.

40.  At the hearing I advised the applicant that she had the right to renew her application for leave to appeal against conviction to the full Court.  Also, I advised her that, if the full Court was satisfied that the renewal of the application was without justification, it had power to order that some of the time during which the applicant has been held in custody from the time of the giving of the notice of her application to the hearing of her application shall not count towards completion of her sentence.

[1] R v Chan Kui Sheung [1996] 3 HKC 279.

[2] Reasons for Sentence, paragraph 30.

[3] HKSAR v Padilla Gerado Gonzaga & Ors (CACC 275/2011; unreported, 30 November 2011).

[4] HKSAR v Kwok Ping Kwong, Thomas (FAMC 9/2016; unreported, 12 July 2016).