HKSAR v. Li Ho Wai
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DCCC 554/2014 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 554 OF 2014 -----------------------------------
---------------------------- 1.The defendant faces 11 charges of theft and 1 charge of failing to surrender to custody without reasonable cause (charge 3). He pleaded not guilty to 2 of the theft charges (charges 1 and 7), which are ordered to be kept on file and not to be proceeded with against the defendant without the leave of court. The defendant pleaded guilty to all the remaining charges and was duly convicted. Summary of facts 2.All of the 9 theft charges involve victims whom the defendant befriended via social networking applications on the mobile phone. All 9 victims were girls, aged between 15 and 23. Charge 2 3.The defendant came to know the victim via a social networking application on the mobile phone on 28th May 2013. They agreed to meet the following day. When they were outside the Canal Road public toilet at Canal Road East in Wanchai, the defendant borrowed the victim’s phone, saying that his phone’s battery had gone flat. The defendant appeared to be using her phone for a minute and then went into the public toilet. When the defendant failed to return, the victim asked a cleaner to look for him but the defendant was nowhere to be found. The matter was reported to the Police. Charge 3 4.The defendant was arrested 6 days later for charge 2 on 3rd June 2013 and was charged with theft. He was released on court bail after pleading not guilty to the charge at the Eastern Magistracy. The case was set down for trial on 16th August 2013 but the defendant failed to appear as appointed. Charges 4 to 6, 8 to 12 5.Subsequent to his failure to appear in court, the defendant went on to commit the remaining offences on 22nd August 2013, 23rd January, 16th February, 1st April, 2nd April, 8th April, 27th April and 28th April 2014. In each of the cases, the defendant befriended the victim through social networking applications on the mobile phone, made an appointment to meet up with the victim at a hotel, stole the victim’s mobile phone (and other properties in certain cases) while the victim was taking a shower and then left. 6.The defendant was re-arrested on 2nd May 2014 for those subsequent thefts as well as his failure to appear in court. Previous convictions 7.The defendant has 11 previous convictions from 5 court appearances. The first ones were in 2008 when he was convicted of 2 counts of fraud and was sentenced to the rehabilitation centre. His next 2 convictions were in 2010 when he was convicted of driving while disqualified and using a motor vehicle on a road against third party risks. He was again convicted of the same 2 offences on 2 separate occasions in June and October of 2011. In the same year, he was convicted of 3 counts of theft where the facts were almost identical to that of charge 2 of our present case, involving the defendant befriending the female victims through MSN, an internet messaging application. The defendant stole their mobile phones while on a date by borrowing their phones, making an excuse to leave and then not returning. The defendant was sentenced to a total of 9 months’ imprisonment for the 3 charges. Mitigation 8.A psychologist report was ordered to be prepared on the defendant. 9.The defendant is 26 years old and from a well off family. He was expelled from school for his conduct problems without completing Form 1. He was sent to Birmingham in England for education but returned to Hong Kong after 3 months due to homesickness. The defendant stayed home for about a year and then was sent to another secondary school in Leeds. He was allegedly bullied and came back to Hong Kong after one year. The defendant then went to London to study for the GCE A-levels in 2006. He returned to Hong Kong in 2009 without managing to get into a university. 10.After his return, the defendant worked in a department store and later a salon for less than a year. He had been unemployed since 2011. The defendant is financially dependent on his parents, who would give him no less than $10,000 for expenditure every month. 11.The defendant in his interview disclosed that he did not commit the thefts for the monetary value of the phones. He only sold a few of them and had kept most. He was interested in the personal messages and photos of the victims. The defendant experienced a sense of tension before, and a sense of achievement and excitement after the commission of the offences. 12.It is the opinion of Clinical Psychologist Mr. Pau that the defendant suffers from “Anti-social Personal Disorder”, which presents as a pervasive pattern of disregard for, and violation of, the rights of others. The defendant is also a kleptomaniac and the risk of his re-offending is “extremely high”. Long term psychological treatment targeted at his personality disorder, impulse control and motivation to change is “highly recommended”. Sentence The theft charges 13.The maximum sentence for theft is that of 10 years’ imprisonment. 14.On the one hand, all the theft offences were premeditated. The defendant targeted the young women and exploited their affection in order to steal from them. The defendant has a bad record and he had adopted a similar modus operandi to steal from young women in 2011. According to the clinical psychologist Mr. Pau, The risk of the defendant’s re-offending is ‘extremely high’. 15.On the other hand, the amount of valuables stolen in each charge is relatively small, with the overall value coming to $77,030, and the defendant pleaded guilty to all charges. In relation to Charge 2 16.In relation to charge 2, although the defendant did eventually plead guilty to the charge, I find that he should not be given the full one-third discount. The usual one-third discount is meant for a timely guilty plea, which would have been the first day of trial at the latest. The defendant’s failure to appear and enter that timely plea must be reflected in a lower discount for his guilty plea now. 17.For each of the 9 theft charges, I adopt a starting point of 6 months’ imprisonment. Save for charge 2, which is reduced to 5 months’ imprisonment upon the defendant’s guilty plea, the defendant is sentenced to 4 months’ imprisonment for each of the remaining 8 theft charges after a full one-third discount for his guilty plea. Charge 3 18.The maximum sentence for failing to surrender to custody without reasonable cause is that of a fine of any amount and imprisonment for 12 months. 19.According to the amended summary of facts, the defendant claimed that he failed to appear in court because he had forgotten about it. The defendant was re-arrested on 2nd May 2014. I was told that the re-arrest was not as a result of him surrendering to the Police. The period over which the defendant had failed to surrender to custody is just under 9 months. 20.Bearing in mind the length of the failure to surrender and the maximum sentence, I will adopt a starting point of 6 months’ imprisonment, granting the defendant the full one-third discount and sentence him on charge 3 to 4 months’ imprisonment. The defendant’s kleptomania 21.The defendant suffers from Anti-social Personal Disorder and is a kleptomaniac. As early as 10 years old, the defendant repeatedly stole money from home, shoplifted from stationery store, played truant and ran away from home. The seriousness of his problem is reflected in his expulsion from school when he was in the first year of his secondary education. The defendant’s first convictions were for fraud when he was 20 years old, where he issued bad checks to pay for mobile phones. 3 years later he committed his first theft case. Another 3 years later he committed the present offences. 22.Although the defendant did exploit the victims’ affection for him in order to steal, he did not take advantage of the fact that they were all willingly inside the hotel room with him. The defendant could very well have had an intimate encounter first and then steal from the victims but he did not. Now that the defendant’s kleptomania condition has been explained by the psychologist, the defendant’s behaviour becomes understandable. 23.Had the defendant’s parents been given proper advice on the defendant’s behavioral problems at an earlier stage and sought help, the defendant’s life story might have been very different. 24.I find that the defendant’s kleptomania is a mitigating factor as it reduces, but not removes, his moral culpability. 25.I have also considered whether this is a case where the interest of the society might be better served by the defendant receiving proper treatment regarding his personal disorder and more importantly his kleptomania, rather than by locking him up for a prolonged period of time. 26.It would appear that if the defendant continues to disregard his psychological condition, it would just be a matter of time before he re-offended. Should that happen, his method may very well evolve, just as it has 3 years after his first theft convictions. Given his disorder, the new possible victims may not be as fortunate as the present ones. 27.One possible way to force the defendant to receive treatment is by ordering the sentences to be suspended with the added condition that the defendant must seek psychological treatment from a registered psychologist within the period of suspension. Should the defendant then re-offend or be in breach of the condition, he would then be brought back to court and the sentence will most likely be activated in full. I have however decided that this is not an appropriate way to deal with him for the following reasons. 28.This is not the defendant’s first offence. There had been plenty of indications both to the defendant himself and to his parents over the years that the defendant needed help. Yet the defendant did nothing. Furthermore, the defendant had been made the subject of a suspended sentence before and he was in breach of that order. Everything points to the almost inevitable outcome of the defendant either re-offending or ignoring any future suspension order. It would be unfair to the defendant, knowing that he will most likely be in breach and still order the suspension. Lastly, given the nature of his multiple offences committed over a relatively long period of time, justice requires the defendant to be incarcerated immediately. 29.Nevertheless, I find that the defendant’s kleptomania should be taken as a mitigating factor and this will be considered when applying the principle of totality towards his sentences. Totality 30.Charges 4 to 6, 8 to 12 were committed over a period of around 8 months and whilst the defendant was being wanted for the theft he committed in May 2013. Each of the theft charges had a different victim and was committed on different days. The only connection between the different charges is that they were all committed by the defendant. This is not the defendant’s first criminal conviction and he had committed similar offences in a very similar manner before. 31.Having taken a step back and considered all the circumstances of the case including the defendant’s personal background, I make the following orders in relation to the application of the totality principle. 32.The sentences in charges 2 and 3 to be served wholly consecutively (5 + 4 = 9 months). 33.The sentences in charges 4, 5 and 6 to be served wholly consecutively to the sentences in charges 2 and 3 (12 + 9 = 21 months). 34.1 month in the sentence of each of charges 10, 11 and 12 to be served consecutively to the above sentences, the balance to be served concurrently (3 + 21 = 24 months). 35.The sentences in charges 8 and 9 to be served wholly concurrently to the rest of the sentences. 36.As I mentioned before, for the defendant’s kleptomania condition, I will further reduce this sentence by 3 months. The defendant’s final sentence is therefore that of 21 months’ imprisonment. 37.I would urge the defendant to seek psychological treatment while serving his sentence as I understand it can only be provided at the request of the prisoner. The defendant is now aware of his anti-social personal disorder and his kleptomania, it is his duty to seek help so that other members of the society will be less likely to fall victim to his condition. Compensation Orders 38.Pursuant to s.73(1)(b) of the Criminal Procedure Ordinance, Cap.221, I find it reasonable to make the following compensation orders against the defendant in favour of the victims of the theft charges, to be paid forthwith. 39.$5,500 to the victim of charge 2; $9,000 to the victim of charge 4; $6,130 to the victim of charge 5; $25,000 to the victim of charge 6; $4,000 to the victim of charge 8; $3,500 to the victim of charge 9; $11,800 to the victim of charge 10; $6,500 to the victim of charge 11; $5,600 to the victim of charge 12.
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