HKSAR v. Chen Chiu I

DCCC 229/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 229 OF 2017

-------------------------------

-------------------------------

---------------------------------------

REASONS FOR SENTENCE

---------------------------------------

1.In this case, the defendant, Miss Chen Chiu I, faced the following charges: (1) theft, contrary to section 9 of the Theft Ordinance, Cap 210; (2) obtaining property by deception, contrary to section 17(1) of the Theft Ordinance, Cap 210. She is convicted upon her plea and admission of facts.

2.Briefly put, the defendant stole the credit card of a new acquaintance and almost immediately used the same to purchase four handbags in a shop nearby. 

3.On the 2^nd October 2016, while the female victim was hosting a private party in a restaurant inside a shopping mall on the Hong Kong side, at around 1600 hours, she befriended another woman (“the defendant”) who happened to be in the same restaurant with her baby girl.  They got on so well that they exchanged telephone numbers, and the victim also invited the defendant to join the party. 

4.Whilst at the party, at about 1723 hours, the defendant stole the credit card from the victim’s handbag which had been left unattended on her chair. 

5.At 1836 hours, the defendant went to a shop in the same shopping mall and purchased four handbags at a total price of $8,660.  She paid for the purchase with the stolen card by forging the victim’s signature.

6.On the 3rd day of October 2016, the victim found her credit card missing and that transactions unauthorised by her had been made on the same.  She made a report to the police.

7.The defendant was arrested on 14 December 2016 in her home where two of the four handbags aforementioned were seized.  The rest had never been recovered.

8.Under caution, the defendant admitted to have committed the crimes out of greed.  She also stated that the other two handbags had been left behind in a taxi as she was “afraid at the time”.

Discussions

9.By stealing the credit card, the defendant had breached the trust of a friend who, despite the brevity of their friendship, had been trusting and kind enough to invite her to the party she hosted.  It is akin to a house guest stealing from his host.  It is also an affront to human decency and abuse of position rather than a breach of trust since the latter connotes a person:

“...by virtue of the trust reposed in him, authorised to deal with property belonging to another and, in abuse of that trust, dishonestly misappropriates that property.”

See paragraph 41 of the judgment of Hon McWalters J in the case of HKSAR v Lam See Chung, Stephen CACC 339/2012.

10.I would say that this culpability is akin but slightly higher to pickpocketing from a stranger.  A normal pickpocketing offence warrants a term of imprisonment of 15 months.  It is a kind of behaviour that should be punished severely in order to reflect the society’s disapproval of the same and to restore confidence in the decency of human beings.  I will use 18 months as starting point.

11.In addition, the defendant had used a stolen card to make purchase for which she had no immediate use: for as no person, however vain he or she is, has any use for four handbags at the same time. 

12.On the other hand, I did find this is a one-off incident.  I did not find this one-off incident fits in the definition of an operation which, even for a small one involving credit cards, would warrant a term of imprisonment for 3 years.

13.I further note the handbags she bought were not the most expensive items one can find at upmarket malls such as the one in question.  On that point, I agree with defence counsel’s submission that had the defendant been motivated purely by greed, she would have gone for a shopping spree in other shops that offered much more expensive merchandises.  I accept that greed may not be the only factor involved.  I do not find the other cases involving the use of forged or stolen credit card fit in this category as “an operation”. Therefore, without more, I would adopt a starting point of 12 months. 

Mitigation

14.Counsel for the defence gave a detailed account of the defendant’s history; as did the probation officer in her report.  I would not repeat it in full.  Suffice to point out that the defendant has certainly not in need of money.  She is a 45-year-old woman with an unblemished record, a professional woman, wife and mother to three young children.  Born and raised in Taiwan, she started work as a teaching assistant when she was 16 before going to complete her tertiary education in Japan and the United States.  Before moving to Hong Kong in 2014, she had different jobs in Taiwan and Japan.  Since 2014, apart from being a caregiver to a family of five (that is, three children and her husband), she also managed to hold onto more than one job, including working part-time in her husband’s company and giving Mandarin classes as a private teacher as well as at schools.  Apart from the ailments associated with the hectic life of a working mother, she had no major health issues.

15.From counsel’s submissions, and also the reports and letters pleading for leniency on her behalf, I am satisfied that she is a highly driven employee, dutiful wife and good mother.  She has earned the love and respect of her family members and friends.  I am satisfied there is no apparent reason for her to commit a serious crime.  I note that her own psychologist diagnosed that she suffered from adjustment disorder and mixed anxiety and depressed mood DSM-5 code 309.29: see paragraph 17 of Pui Han Joyce Chao’s psychological assessment and treatment report dated 15 June 2017.

16.The probation officer also took a positive view of the defendant’s rehabilitation.  She stated that she (the defendant) had learnt a grave lesson and had expressed deep remorse.  She recommended a 15 months’ probation.

17.On the other hand, the psychologist’s report is less charitable in her assessment.  I would not repeat them in full but she stated in her report that the defendant’s offence was a series of calculated acts that lasted for an hour, and she chose not to stop during the process, and she considered herself being victimised by her own circumstances.  The clinical psychologist in charge of this case was of the view that there is no genuine remorse.

18.The psychologist’s report has been criticised in detail by the defence counsel, some of which I have my reservation on its propriety.  Nonetheless, I believe that it is within her expertise to give an assessment to adopt the methodology as she did in order to find out more about the circumstances of the case so as to make a positive - in a helpful assessment of her psychological condition at the time of the offence.  I do not believe that the methodology had been wrong or untoward. 

19.Having assessed the circumstances as a whole, I do not believe that a probation order is a viable way to deal with the matter since the case involved some degree of planning and also there had been a breach of position on her part.  As I have said, the offences would usually warrant a term of imprisonment.  The defendant had pleaded guilty.  So they would be reduced to reflect her guilty plea.  So for the first offence, she is sentenced to 18 months’ imprisonment reduced down to 12.  As for the second offence, the 12 months shall be reduced down to 8.

20.As the two offences took place within a very short time, I would order that 2 months of the second offence to run consecutive to the first.  The total sentence would have been 14 months’ imprisonment.

21.I then consider the possibility of a suspended sentence.  There are matters which I have mentioned before which would be to the defendant’s benefit.  The defendant had a clear record; she pleaded guilty; she had been gainfully employed; and she had in her way contributed to the society while as a working mother, a caregiver to the family.  I have been told about her various health issues and the other difficulties, and I have been repeatedly informed that her incarceration has spelt disaster for the family.

22.Having considered the matter as a whole, I think the defendant was not entirely motivated by monetary greed.  Rather, it could be a sign that she is asking for help and she is buckling under pressure.  So I think in this instance, despite the severity of the offence, the present case warrants some degree of compassion.  A term of imprisonment would spell disaster not only to her but to the rest of her family.  So in the circumstances and as an exceptional move, I would order the 14 months’ imprisonment to be suspended for 2 years.

23.The defendant is hereby warned that during the term of suspension, you will have to behave yourself and not to commit any offences of a similar nature or these 14 months would be activated in addition to whatever punishment that might be meted out by the sentencing court.  And I would warn her that the compassion from the court is limited.  It could be good for once but never expect it to come twice.