HKSAR v. Lam Hau Ling

DCCC1156 & 1159/2011 (CONS)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS. 1156 & 1159 OF 2011 (CONS)

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Reasons for Sentence

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1.The defendant enters a plea of guilty to four charges of theft, laid against her under section 9 of the Theft Ordinance, Cap.210, and to one charge of handling stolen goods, preferred under section 24 of the same Ordinance.

Facts

2.The facts to which the defendant agrees are as follows. 

3.On 1 June 2011, when Miss K Y Yuen was having a meal at a Spaghetti House in Mongkok, she felt some strange movement of her bag and turned around only to see the defendant holding Ms Yuen’s cardholder, which contained Ms Yuen’s personal documents, Octopus card, $10 Hong Kong Currency, and $50 RMB (Charge 1 -  Theft).  A police officer was called to the scene, and the defendant was arrested.  Under caution, the defendant admitted to stealing the cardholder, but explained that she was sick and could not control herself. 

4.On 4 June 2011, a security guard in civilian clothing was performing his duty at Sa Sa Cosmetic Company Limited in Tsim Sha Tsui when he saw the defendant take some lipsticks and put them inside her bag and hide other lipsticks under her clothes.  When the defendant left without paying for the lipsticks, the security guard stopped her and took her back into the shop for enquiry.  From underneath her clothing, the defendant took out seven lipsticks worth a total of $966 (Charge 2 - Theft).  She confessed upon arrest by the police she had stolen the items out of momentary greed and explained that she was sick. 

5.On 29 July 2011, Miss H W Shum met her daughter at a McDonald’s Restaurant in Mongkok and took her to a tutorial class.  During the class, her daughter called home and said that Ms Shum’s mobile phone had gone missing.  A report was made to the police.  The CCTV of the McDonald’s showed the defendant took Miss Shum’s mobile phone from her bag (Charge 3 - Theft).

6.On the afternoon of 5 August 2011, a saleslady of the In and Out fashion shop in Mongkok spotted the defendant tucking a pair of trousers belonging to the shop inside her shirt.  When the defendant walked out of the shop without paying for the trousers (Charge 4 - Theft), the saleslady went after her and took her back inside the shop.  There the defendant took out the trousers.  A police officer arrived to investigate the case.  The defendant was arrested and under caution, she denied stealing the trousers, saying she just had not paid for them.

7.In the defendant’s possession were also found a total of 12 mobile phones.  The police managed to locate owners of five of them. Four of the owners had had the mobile phones stolen between 28 July and 3 August 2011 (Charge 5 - Handling).  The fifth owner was Miss Shum (see paragraph 5 above).

Conviction

8.By pleading guilty to Charge 5, the defendant admits receiving the four mobile phones believing they were stolen goods. 

9.The court finds the defendant guilty as charged. 

10.The defendant has had 26 criminal records, 24 of which relate to theft offences.  She was last sent to prison on two charges of theft for 22 months on 25 October 2010, and was discharged from prison in May 2011.

Mitigation

11.In mitigation, the defence puts forward the following matters for the court’s consideration. 

12.The defendant agrees with and relies on the contents of the two psychiatrist reports and the background report.

13.The defendant has had a terrible life.  A slow learner, she could barely finish her junior high school on the Mainland.  She came to Hong Kong when she was about 20, only to find her only relative having passed away.  She was unable to fend for herself, and became a beggar. 

14.She was later looked after by a nun who had her installed in a temple.  But soon afterwards, she was diagnosed to be suffering from Dissocial Personality Disorder, Borderline Personality Disorder, Adjustment Disorder, and Kleptomania.  Her intellectual assessment revealed that she has an IQ score of 60.  In other words, she has Mild Grade Mental Retardation. 

15.Counsel submits that the defendant committed repeated acts of stealing to ventilate her stress and depression. 

16.The defendant has sought counselling services from the International Social Service, Hong Kong Branch, since June 2011.  The defence therefore asks the court for a chance for the defendant to continue to receive this counselling service. 

Discussion

17.The defendant is a repeat offender and has been sent to prison for long periods on previous occasions.  She must be taken to be fully aware of the serious consequences of fresh offending. 

18.Worse, the agreed facts show that she must have committed the offences in Charges 2 to 5 while on police bail.

19.For a repeat offender, one who breaks the law again while on bail, the offences in Charges 1, 3 and 5 would call for a stiff sentence. 

20.In the court’s view, an overall starting point of three years would be appropriate. 

21.Every population would have its share of under-privileged members.  The court notes that the defendant lives very much a solitary life in Hong Kong and has no one to look after her despite her health problems.  However, her difficult life situation pales into insignificance when viewed against her lengthy criminal history.

22.Apart from the defendant’s guilty plea, nothing in her family circumstances would warrant any further reduction in sentence.  The court notes that the defendant has begun to receive voluntary counselling services in June 2011; however, the present offences were committed in July and August 2011.  The voluntary counselling services do not appear to be effective. 

23.The court is, however, prepared to grant the defendant an extra reduction in sentence because of her mental illness. 

24.In the result, the court would adopt a starting point of 18 months for Charges 1 and 3 each, which is reduced by one-third on account of the defendant’s plea to one of 12 months’ imprisonment. 

25.A six-month starting point would be adequate for Charges 2 and 4 each, which is reduced to four months’ imprisonment to take account of the defendant’s pleas. 

26.A starting point of two years would be appropriate for Charge 5, which is likewise reduced by one-third on account of the defendant’s guilty plea to 16 months’ imprisonment. 

27.Having considered the principle of totality, the court would order that the sentences for Charges 1 to 4 to run concurrently, making a total sentence of 12 months for the four charges, and that 12 months of the sentence for Charge 5 should be served consecutively to the sentences for Charges 1 to 4, resulting in a sentence of 24 months for the five charges.

28.An extra reduction of four months is given on account of the defendant’s mental conditions. 

Order

29.For the five charges of which the defendant stands convicted, she is sentenced to a term of imprisonment of 20 months.

30.Psychiatric treatment should be provided to the defendant in prison.