Yung Siu-ken v. The Queen

CACC000990/1981

BETWEEN

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Coram: McMullin, V.-P., Li & Silke, JJ.A.

Date: 12 March 1982

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J U D G M E N T

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McMullin, V.-P. :

1. The appellant pleaded guilty to five charges of obtaining property by deception contrary to the provisions of section 17(1) of the Theft Ordinance.

2. The circumstances of these offences are briefly as follows. She went to a shop known as the 'Mona Lisa' a boutique of some description on the 17th September, 1980 and she purchased a ladies' skirt and paid for it a cheque for $450. On the same day she also purchased from the same shop a ladies' suit and blouse and gave for those a cheque for $260.

3. On the following day she returned to the same shop and purchased a ladies' suit and blouse giving for those items a cheque for $780.

4. All of these cheques were presented by the proprietor of the shop and were dishonoured. There was some negotiation between the proprietor and the defendant as a result of which another cheque for $700 post-dated to the 17th October was given but it also was dishonoured. Meantime, the owner of the shop had reported the matter to the police.

5. No immediate police action seems to have been taken and in December of 1980, the appellant purchased two motor-cars from two different people, giving for the first of them a cheque on the 12th December to a person called Lee, who was the owner; that cheque was post-dated to the 20th December and when presented upon that date, it was dishonoured.

6. The other motor-car was purchased from a man called Cheng and he received from the appellant a cheque for $16,300 on the 14th December and that was post-dated to the 22nd December. It was presented on the 29th and was dishonoured.

7. It would appear that Lee and Cheng then got together and approached the appellant who went with them to Aberdeen Police Station where they lodged a complaint.

8. In the course of those proceedings, the earlier cheques concerning the clothing purchased from 'Mona Lisa' came to light and resulted in the presentation of the present charges.

9. When pleading guilty before the lower court, the appellant asked for four other similar offences to be taken into account. Those offences involved a quantity of clothing articles to the value of $51,459.

10. So between the offences which were taken into account, and the present offences, by these means, she had obtained in all some $82,000 odd.

11. The District Judge called for reports from the probation officers and also for a psychiatric report. The psychiatric report is very general in its terms. The appellant was not found to be labouring under any identifiable psychiatric disease but the doctor noted that she had suffered from depressive periods while incarcerated in Tai Lam Women's Prison in respect of a series of previous offences. He said that she did not require at present any in-patient psychiatric treatment.

12. Also, it is to be noted that it was between the time when she was released after serving a prison sentence for seven previous offences of a similar character that she committed the four other offences which she asked to be taken into account. These were committed by her subsequent to the date of the last of the present offences, which was the 16th December, 1980, and the date of her arrest in connection with the present case on the 16th January, 1981. Again, we do not have the details of those offences.

13. It is thus evident that she had engaged for a considerable period of time in a course of dishonesty involving the issue of dud cheques whereby she gained a considerable quantity of valuable property.

14. The two motor-cars which were obtained by cheques which are charged in the 4th and 5th charges were subsequently mortgaged by her for a sum in total of $18,000.

15. When this case came before us on the 10th February, 1982, we wished for further information in respect of a number of facts. These included the date of her previous convictions and of her release from prison thereafter and the nature of the offences. Also, we wanted to know how long she had been away from the matrimonial home after her first release from prison, and whether her husband wished to take her back.

16. We have had a report from Mrs. Man, the probation officer, in the interim. It does not put the matter very much further. The appellant has an unhappy background, both prior to and during the marriage with her present husband.

17. When she left the prison, in September 1980, she was, so she claims, too ashamed to go back to her husband and she rented premises which cost her $1,000 per month. This required her to pay not only that rent but a month's rent in addition by way of advance and a deposit of an equal amount, in other words, some $3,000 in all.

18. She accounts for the financial dealings which got her into trouble and which are the subject of the present charges, by alleging that she had fallen into the hands of an unregistered money dealer or loan shark who, after the fashion of such people, demanded a very high rate of interest, in fact a sum of about $1,500, to be paid with repayment of capital within three months from the date of the loan; in other words, about $1,000 by way of interest. She alleged that she had reported this to the police.

19. It was this aspect of the matter which more particularly had excited our attention on the previous occasion.

20. It was mentioned by the judge when he was giving reasons for sentence. He notes that "Crown Counsel had at the last hearing asked the police to look into this allegation".

21. We have had the assistance of Mr. Plowman who appears for the Crown. He has endeavoured to discover the truth of the matter but it appears not successfully because of the very large number of complaints made to the particular police station which was mentioned by the appellant within the relevant period.

22. The appellant herself was unable to give a date upon which, as she alleged, she had reported the activities of this loan shark to the police.

23. Her allegations in that connection are of a very strange character. She said that he was putting pressure on her despite the fact that she had repaid all the money, including the interest. He had refused to return her cheques which she gave him by way of repayment and, in addition, he had threatened her family and herself; the threats included threats against her two young daughters which went so far as to suggest that if she didn't do what he said he would assault and rape them.

24. It was as a result of that, she said, that she was driven to the extremity of raising money in the way I have described.

25. The prior offences for which she had received a year's imprisonment, had arisen she says because of debts which she had got into in running a business making dolls, together with a partner, and also because her husband, she alleges, was in financial difficulties and asked her to borrow $10,000. She had raised money from a friend on that occasion and the loan shark was not involved.

26. It must be said at once that the sentences imposed, which total 2½ years for these offences are, taken on their face, neither wrong in principle nor excessive in amount. Nevertheless, we feel that the background circumstances of this defendant, such as they have now been disclosed to this court, indicate that she is a person suffering at least from a character defect which prolonged imprisonment is not likely to improve. We do not say that she did not know what she was doing was wrong because clearly she did. She appears to be, apart from a possible character defect, a woman of considerable intelligence.

27. We also have regard to the fact that she has two small daughters and that the husband, in consultation with the probation officer, indicated his readiness to take her back. In that connection, it is to be noted that she had in fact rejoined her husband in April of 1981 while she was on bail pending the trial of the present offences.

28. We feel that the element of punishment cannot be wholly denied in view of the serious nature of these offences and the interests of society in that regard must be served.

29. At the outset we had considered, before we were fully apprised of the nature of her case and her personal background, the possibility of suspending the present sentences but we are satisfied that that would not be a proper course. Instead of that, and wholly as a matter of clemency but, particularly, in regard to her condition and the possibly adverse effect upon her of prolonged imprisonment and, in addition, the desirability that her young daughters should reasonably soon regain the care and attention of their mother, we allow the appeal to the extent of setting aside the sentences of 2½ years' imprisonment on the first charge. For that we will substitute a period of 1 1/2 years and the sentences on the other four charges will be sustained and they will run, as they do at the present, concurrently with the sentence upon the first charge.

30. The result, therefore, is that instead of 2 1/2 years the sentences total 1 1/2 years.

Representation:

Appellant in person

Mr. G. Plowman, Crown Counsel, for respondent/Crown