HKSAR v. Ng Yuk Ching Polly

CACC000098A/2001

CACC 98/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 98 OF 2001

(ON APPEAL FROM DCCC 1063 & 1172 OF 2000)

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Coram: Hon Stuart-Moore V-P and Woo JA in Court

Date of hearing: 7 August 2001

Date of judgment: 7 August 2001

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J U D G M E N T

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

This is an appeal against sentence brought by NG Yuk-ching, Polly, leave having been granted to her by Keith JA on 13 June 2001.

2.The appellant was D1 and CHIU Sau-lan was D2 before Judge Chua in the District Court. They together faced a total of nine charges. Charge 1 was against D1 only, in that she had obtained property by deception, contrary to section 17(1) of the Theft Ordinance, Cap. 210. Charge 2 was also against her for attempting to obtain property by deception. Charge 3 was against both D1 and D2, for using the identity card of LUI King-hung, Jennifer, without lawful authority or reasonable excuse, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap. 177. Charge 4 was against D1 only for attempted theft, contrary to section 9 of the Theft Ordinance. Charge 5 was also against D1, for using the identity card of Jennifer Lui. Charge 6 was also against D1, for using the same identity card. Charge 7 was against D2 only, for burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance. Charges 8 and 9 were against D2 only for using the same identity card.

3.Both D1 and D2 pleaded guilty. The facts of the case were succinctly described by the Judge in her Reasons for Sentence, which were derived from the Summary of Facts admitted by both defendants. On 12 July 2000, D2 acted as a lookout in the burglary referred to in Charge 7. The victim in this charge, ie, Jennifer Lui, had lost a number of items including a mobile phone, an MD player, a camera, six rings, two bracelets, one watch, one necklace with pendant, one handbag, one wallet, some money, five Visa cards, her Hong Kong identity card, her birth certificate, three cheque books, three bank passbooks, etc.

4.Before the victim was able to cancel her missing credit cards, D1 had gone to Watsons just after the burglary and bought two bottles of perfume and three cartons of cigarettes with a Chase Manhattan Visa Card in the victim's name, which was amongst the credit cards stolen. The total amount that was so obtained was almost $2,000. That was the subject matter of Charge 1.

5.Emboldened by her success at Watsons, D1 then went to another shop in Tsimshatsui. She selected a mobile phone costing $5,300. By this time, the loss of the credit card had been reported and on presentation of the credit card by D1, the salesman was told to contact the bank. D1 fled the scene. This was the subject matter of Charge 2.

6.In the morning of 13 July, D1 and D2 went to the Hang Seng Bank and using the victim's identity card, they successfully opened a "Bank-in-One" account. This was the subject matter of Charge 3, against both D1 and D2.

7.Following the opening of the account, D1 went to another branch of the Hang Seng Bank and using a chequebook stolen from the burglary, she presented a cheque for $108,000 for deposit into the newly opened account. This was successfully deposited but not cleared because an alert bank officer spotted the forged signature. This related to Charge 4,

8.On 18 July, D2 went to the Dah Sing Bank in Hong Kong and successfully opened a bank account using the victim's identity card but there were no further transactions. This was the subject matter of Charge 8 against D2 alone.

9.On the same day, 18 July, D2 used the victim's identity card to buy and register a portable SIM card with China Motion Telecom Company. This was the subject matter of Charge 9.

10.On 25 July 2000, D1 used the identity card of the victim to attend a shop to sell a mobile phone belonging to the victim for $1,400. The victim's identity card was used to register the details. This was the subject matter of Charge 5.

11.On 8 August, D1 went to the Nanyang Commercial Bank in Aberdeen to open a phone-banking account. The Judge described this as the first step in order to write a cheque so D1 could transfer monies in the victim's account with that bank to the newly opened account. The victim was a regular customer at this bank and the bank clerk, realising D1 was presenting the victim's reported stolen identity card, summoned the police. D1 was arrested.

12.Both defendants had clear record. The Judge imposed a sentence of training centre for the six charges against D1 who was 19 years of age and made an order against D2 for D2 to perform 160 hours of community service on Charges 3, 7, 8 and 9. D2 was 24 years of age at the time.

13.In her application for leave to appeal against sentence dated 19 March 2001, D1 mentioned her grounds of appeal. She said:

"The reason for my appeal is that I have two children who need to be looked after. Due to my boyfriend's abetment, I committed the offence on this occasion. I am really remorseful. My two sons, aged one and two, need to be taken care of by me. Thus, I wish Your Lordship could impose a lenient sentence."

14.The same ground of appeal was before Keith JA when he granted leave on 13 June 2001. He had this to say:

"I grant the Applicant leave to appeal against her sentence. I do not do so on the basis that it is arguable that the judge erred in principle in sentencing the Applicant to be detained in a training centre. On the material before the judge, an order that the Applicant be detained in a training centre was appropriate in the light of the serious crimes which she had committed. However, the Applicant is still only 19, and she has been in custody for 5 months and undergoing training in the training centre for 4 months. It may be that she has now learned the lesson that people who resort to crime get punished. Her expressions of remorse, regret and her desire to start a new life with her two young sons away from the malign influence of her boyfriend appear genuine.

Though she undoubtedly deserved a custodial sentence for what she did, it is, I think, arguable that the period for which she will have been in custody by the time her appeal is heard will have done everything which requiring her to complete her training in the training centre would have taught her in terms of the need to live a life in which she does not commit crime. It is also arguable that showing her mercy when her appeal is heard will be more likely to encourage her to lead an honest life than requiring her to complete her period of training, especially when her older co-defendant, no doubt for good reasons, was only ordered to perform community service."

15.Keith JA also directed that an up-to-date report on D1 be prepared which should address two questions: how she has been performing in the training centre, and the effect which custody has had on her resolve to lead a crime-free life in the future.

16.By a progress report dated 18 June 2001, the Aftercare Officer of the training centre in which D1 was serving her sentence stated that though D1's learning progress was assessed to be slow, her general conduct was satisfactory so far. She had not incurred any disciplinary offence in the past four months. The Aftercare Officer continued:

"Constant counselling and guidance are rendered to her by the staff in the institution. During the interviews, NG [the appellant] shows remorse towards her misdeed and has motivation to lead to a crime-free life. Nevertheless, she is so simple-minded that she is vulnerable against adverse peer's influence. Since she has been addicted to 'Ice' in the past two years, it would be difficult for her to refrain from maintaining a drug-free life because of her weak self-determination character. Though she came from an intact family, she received insufficient parental supervision since her parents were busily engaged in work. NG's family members paid few visits to her during her detention. It is observed that her parents would have difficulties to render effective supervision and support to her."

17.The Aftercare Officer concluded that while D1 had behaved herself by following the instructions given during her detention period, her character was weak and therefore she needed close guidance to lead her to the right track. She considered that D1 was a suitable subject to be rehabilitated in the training centre.

18.While, as Keith JA did, we also consider that showing D1 mercy might encourage her to lead an honest and normal life, the progress report prepared by the Aftercare Officer, however, has revealed that D1 is simple-minded and vulnerable to adverse peer influence. What is most significant is that D1 has been addicted to 'ice' for two years and it would be difficult for her to maintain a drug-free life in the light of her weak self-determination character. She has little effective supervision and support from her family. Though she repeatedly urges us to give her a chance, we think that releasing her now, without her being sufficiently rehabilitated by the training provided to her in the training centre, may well subject her to the various difficulties described in the progress report, instead of encouraging her to lead a crime-free life.

19.There is nothing wrong in principle with the sentence passed on her by the Judge, nor is the sentence of training centre in any way excessive. The treatment of D2 in a different way by the Judge was, as Keith JA had opined, well justified in the light the very different criminality of D2's involvement. In the circumstances, we feel that the proper thing for us to do is to dismiss the appeal. We trust that it will benefit her more by allowing her to go through the rehabilitation and supervision programme of the training centre and by leaving it to those who are best suited to decide when it is proper that she should be released.

20.We appreciate that the appellant might have been harbouring a false hope because Keith JA had granted her leave to appeal. We feel that in the future, in a case like the present, perhaps it would be better for a single judge of this Court dealing with an application for leave to refuse the application and to leave it to the applicant to renew his application if the applicant considers it proper to do so. That is the right of any applicant whose application has been refused by a single judge, as conferred by s 83Y(3) of the Criminal Procedure Ordinance, Cap 221. That should be a more satisfactory course to adopt especially where the single judge concludes, as in this case, that the trial judge has not erred in principle and the sentence is not manifestly excessive. Any false hope of a success that might be given rise by the granting of leave would thus be avoided.

21.In the result, the appeal is dismissed.

Representation:

Ms Ho May Yu Lily, SGC of the Department of Justice, for the respondent.

Ng Yuk-ching Polly, D1 (the appellant), in person.