HKSAR v. Leung Pui Shan

CACC 317/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 317 OF 2007

(ON APPEAL FROM DCCC NO. 643 OF 2007)

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

BETWEEN

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

Before : Hon Stock JA and Yeung JA in Court

Date of Hearing : 5 February 2008

Date of Judgment : 5 February 2008

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

J U D G M E N T

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

Hon Stock JA (giving the judgment of the Court) :

1.This is an application for leave to appeal against sentence.

2.On 4 September 2007, the applicant was sentenced by Deputy District Judge Yim to undergo a period of training in a Training Centre.

3.The applicant was aged 19 years at the date of the offences to which she pleaded guilty.  She was a person of previous good character.

4.There were eleven charges upon the charge sheet and she pleaded guilty to seven of them: Charges 2 to 8 inclusive.  The remainder were left on the file.

5.The applicant completed school in July 2005 and then worked as a beauty adviser in a number of department or other stores earning a good salary.  What happened was that she had formed a relationship with a young man but the relationship was in trouble.  When it appeared to be on the point of breakdown, she became distressed and she took two credit cards from two work colleagues which she used to buy designer label products in order to pretend to him that they were from a new male friend in the hope that jealousy might encourage a renewal of interest.

6.On 19 December 2006 she made three purchases with one of the Visa cards: a ring, a wallet and some cosmetic products.  These formed the basis of the second, third and fourth charges to which she pleaded guilty; each of which was a charge of obtaining property by deception by falsely representing that she wasauthorised to use the credit card for the purchase of the property.

7.On 3 January 2007 she committed two further offences (the fifth and sixth charges), on each occasion purchasing some skincare products with the card she had used on 19 December. 

8.She then replaced that card with its owner but took the card of another colleague.  This resulted in the seventh charge which was one of theft of that card.  With this card she attempted, on 5 January 2007 to purchase a digital camera (the eight charge, namely, one of attempting to obtain by deception).

9.The value of the property actually obtained was $13,744 and the camera she attempted to obtain was worth $2,890, so we are talking about a total amount of about $16,600.

10.The judge accepted the defence submission “that the commission of the crime was initially motivated by the thought to regain the affection of her boyfriend,” and that the applicant was “very remorseful for her wrong and has made full restitution.”  The judge took the view however that a community service order, which had been urged upon her by those representing the applicant, was inappropriate given the number of offences and the fact that they must have involved a degree of planning.  The judge concluded that the “defendant requires intensivecounselling and supervision” that was available by the making of a training centre order.  The judge said: “I am satisfied that it is in the interest of the community and that having regard to the defendant character and previous conduct, and to the circumstances of the offence, it is expedient for her reformation and for the prevention of crime that she should undergo a period of training in a training centre.”

11.The contention on her behalf in this application is that in the light of the applicant’s age, guilty plea, restitution, positive good character, her demonstrable remorse, and the circumstances in which she came to commit the offences, the sentence imposed was manifestly excessive.

12.We agree.

13.That is not to say that credit card offences are to be treated lightly.  There is ample authority which enjoins courts to treat such offences seriously and to impose deterrent sentences, for they are a running scourge.

14.But sentencing is an art which must carefully be moulded not only to the category of offence but to the offender.  There is a danger of sentencing becoming over-mechanical with too little regard for unusual circumstances that might arise in relation to the commission of particular offences and too little regard to circumstances peculiar to the offender.  Experience suggests that mitigation advanced sometimes takes the form of a mantra in our courts; with the courts being told of the age, health circumstances and number of an offender’s family members and of other matters which have little to do whatsoever with what has led the particular offender to the commission of the offence and what circumstances peculiar to the offender go in mitigation of sentence.  There are certain offences – and these are well-known – in which personal circumstances and the circumstances leading to an offence will count much less than in others, because those offences demand, as a matter of public protection, deterrence as an overwhelming consideration.  That said, the circumstances of this case provide an opportune moment in which to stress the need for individual justice having regard, of course, to the policy considerations that might dictate in a category of case a stern general approach but never forgetting the fact that the courts are on each sentencing occasion dealing with an individual whose peculiar circumstances, if they exist, always deserve careful attention.  Consistency in sentencing is important but consistency does not dictate blindness to individual circumstances of a case and to those of an offender.  An overly rigid pre-occupation with uniformity can be inimical to individual justice.

15.We do not thereby suggest that in this case the mitigation advanced was inadequate or that this judge was not concerned with individual justice.  Our remarks are intended as a general observation.  But it does seem to us, with respect, that in this case insufficient weight was given to the powerful mitigating factors attaching to this offender and the circumstances of her offence.  Those factors, which are to be regarded cumulatively, are as follows :

(1)	the applicant was aged only 19 years at the time of her offences;
(2)	she was a person without any prior criminal record;
(3)	the training centre suitability report which was placed before the court below showed that she was in constant employment after she left school and, although dismissed from the employment that she held at the time of arrest, she was soon re-employed and was described by her employers as hardworking, courteous, punctual and smart.  The company was prepared to re-engage her if she was released;
(4)	she made full restitution from her own funds after her arrest but before she was charged;
(5)	she pleaded guilty.  There was never any question of her doing otherwise;
(6)	she was a person of positive good character, the report recounting the fact that she had joined voluntary services in various organizations;
(7)	she showed, as the court accepted, significant remorse;
(8)	although she committed a number of offences, this was far from a classic credit card fraud case.  She had not set out to deceive purely for personal gain and although of course her conduct was dishonest for which reason she will hereafter be tainted by a criminal record, she committed these offences in the midst of emotional confusion when her misguided hope of re-attracting her former boyfriend clouded her good sense and judgment.  In other words, these offences were wholly out of character; and
(9)	she comes from a law-abiding and supportive family, to whom, according to the reports, she has always been loyal.

16.It seems to us that in these unusual circumstances, there was clearly a suitable way of dealing with her other than by way of a training centre order.  In our judgment, although a number of offences of this kind over such a two-week period might well in the normal course of events attract such an order, the making of the order in this case gave insufficient weight to the circumstances in which they came to be committed and, more particularly, to the factors individual to this offender and her background.

17.This Court has had the benefit of valuable submissions from counsel on both sides and at the written suggestion of counsel for the respondent we commissioned a probation officer’s report which is a most helpful report and for which we are grateful.  Itemphasises this applicant’s good work and points out that her school record, although blemished by some minor violations, showed her to be a person of some naivety.  It describes afresh the upset state in which she found herself at the time the offences were committed and tells us that she was active at school in extra-curricular activities, and was also a member of Junior Police Call.  In a letter to this Court from the applicant she tells us that she has taken part in anti-drug work amongst youth, has participated in the Hong Kong Road Safety Patrol as a chief team leader and in the Civil Aid Service.

18.The applicant has now been in custody at a Training Centre for about five months and it seems to us that in the particular circumstances of this case the appropriate order, both of the time of sentence, and now, is a probation order.  The suggestion made by the probation officer is that that should be an 18-month order with conditions that she shall study, work and reside as directed by her probation officer and attend such treatment,counselling groups and programmes as deemed suitable by her.  With this proposed course, we agree.  We have put the proposal to the applicant and she agrees to such an order and to the particular conditions which we have specified.

19.Accordingly, we grant this applicant leave to appeal against sentence, treat the hearing of this application as the appeal, allow the appeal, set aside the Training Centre order and substitute therefore an order that she be placed on probation for 18 months with the conditions we have specified.

Mr James McGowan, instructed by Messrs Tang Wong & Cheung for the Applicant

Ms Mary Sin, SADPP of the Department of Justice for the Respondent