HKSAR v. Li Ka Yee

HCMA648/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.648 OF 2004

(ON APPEAL FROM NKCC4199 OF 2004)

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

BETWEEN

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

Before : Hon Lunn J in Court

Date of Hearing : 27 August 2004

Date of Judgment : 27 August 2004

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

J U D G M E N T

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

1.The appellant pleaded guilty to a single charge of theft, contrary to section 9 of the Theft Ordinance, Cap.210 in North Kowloon Magistrates’ Court.  Mr Tallentire remanded her in custody for probation, community service, rehabilitation centre and training centre reports.  On 11 June 2004, Mr Tallentire made a training centre order.  

The facts

2.The appellant accepted by the Summary of Facts for the purposes of her conviction and sentence that she had stolen $50,236.20.  The victim of the theft was her employer St. Sara Fashion Co., by whom she was employed to perform miscellaneous accounting duties.  On the morning of 29 January 2004, the officer‑in‑charge of the Accounts Department of that company had entrusted to her no less than $44,841.00 in cash together with several cheques.  The appellant was instructed to deposit the sum of cash into the bank account of the company and to obtain cash from some of the cheques with which she was entrusted.  However, the appellant did not deposit the sum of $44,000.00 odd rather she stole it together with $5,395.20 which she obtained from cashing the two cheques.  The appellant simply did not return to work.  At the end of that day’s of work, the matter was reported to the police. 

3.On the following day, 30 January 2004, the appellant surrendered to Cheung Sha Wan Police Station.  Having been arrested and cautioned for the offence of theft, the appellant denied culpability.  However, on 9 February 2004, in response to a letter from the company’s solicitors, the appellant returned the whole of the sum of money which she had stolen.  

Reasons for sentence

4.On 30 June 1999, the appellant had been made the subject of a probation order for 18 months following her conviction of inciting, inviting and/or inducing another to become a member of a triad society.  As a result of a breach of that probation order on 23 February 2000, the probation order was discharged and a training centre order made.  In consequence, the reports obtained by the magistrate state that by virtue of section 4(2)(c)(ii) of the Rehabilitation Centres Ordinance, Cap.567 the appellant was not eligible for detention in a rehabilitation centre.  However, she was stated to be suitable for detention in a training centre.  The reports stated that neither a probation order nor a community service order was recommended.  In the training centre report, the opinion was expressed that the appellant had “deep‑rooted problems” for which it was recommended “a period of character training cum psychological treatment in a confined setting is deemed essential to the rehabilitation of Defendant”.

5.Mr Tallentire states that he was under the misapprehension at the time of sentencing that a community service order, which was not recommended in any event by the probation officer, was not a sentencing option available to him because he believed the appellant to have been recalled under a training centre order.  In the event, noting the very serious nature of the offence, it being a substantial breach of trust and the positive recommendation of the Commissioner of Correctional Services he ordered the appellant to be detained in a training centre.  He stated that this is the sentence he would have imposed irrespective of his earlier misconception. 

Grounds of appeal against sentence

6.The appellant, who appears in person, submits that the sentence imposed was too severe.  In an articulate, succinct submission she made to the court, she submitted that the offence was committed as a result of her lack of education.  She acknowledged that education was the route to change her fate.  She asserted that she had now resolved to study.  She invited the court to substitute some other penalty rather than training centre.  She said that she had undergone 23 months of training centre already.  In answer to the questions from the court, she indicated that she had learnt from those programmes skills in both computers and music. 

7.It is apparent from the reports available to the magistrate that the appellant was 19 years and 3 months of age at the time of the offence in January 2004.  Having completed Form 2 she left school in July 1998.  On 30 June 1999 she was placed on probation for 18 months.  As a condition of probation, she was required to reside at Fanling Girls’ Home for nine months.  However, as a result of her misbehaviour, the appellant was convicted of a breach of the probation order on 2 February 2000 and made the subject of a training centre order.  On 11 January 2002, she was discharged and after a month’s residence at Bauhinia House she returned to live at home.  However, having failed to comply with the requirement to meet her supervising officer she was recalled to Tai Tam Gap Correctional Institution.  That was on 4 February 2003, a little over one year since her discharge.  She was discharged from that recall order on 9 June 2003.  Thereafter, the reports described the appellant as having had a series of casual jobs, but noted that she was unemployed for much of the time.

8.On 19 December 2003, the appellant obtained employment in the Accounts Department of St. Sara Fashion Co. i.e. the victim of the theft, so that she was in employment there for no more than six or seven weeks before this breach of trust. 

9.In the period after her arrest at the end of January 2004 and prior to her conviction in late May 2004, the appellant is described in the reports as having “led a loose and goalless life”.  She was described as having frequented bars in Shenzhen, abused dangerous drugs and indulged in gambling, falling into debts.  She claimed to have stolen the monies in the present offence to repay her debts.

10.It is clear from the reports that the appellant is beyond the advice let alone the control of her family.

11.In the context of recommending a training centre order it was noted in the reports of the appellant that she was “a rebellious and self‑centered youngster whose self‑control was poor with acquaintance problem”. 

Conclusion

12.As the magistrate stated the offence in respect of which sentence was passed was of a “very serious nature” being “a substantial breach of trust”.  The repayment of all of the monies stolen entitles the appellant to “a significant discount, above and beyond the usual 1/3 for plea of guilty”.  See HKSAR v. Leung Shuk Man [2002] 3 HKC 424.  The magistrate took cognizance of the repayment of the monies.

13.In the circumstances of this case, given the background of the appellant, the circumstances of the offence and the recommendation of a training centre order, the order made by the magistrate was clearly the appropriate one to make.  Certainly, that sentence was not one that was manifestly excessive. 

14.For those reasons, this appeal is dismissed. 

Representation:

Miss Vinci Lam, GC, of Department of Justice, for the Respondent

Appellant in person