HKSAR v. Yik Man Ying

[English Translation - 英譯本]

HCMA 49/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CASE NUMBER: MAGISTRACY APPEAL NO 49 OF 2014

(ON APPEAL FROM TMCC 2642 OF 2013)

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Reasons for Judgment

1.The appellant was charged with one count of theft^[1]. She pleaded not guilty when she appeared in the Tuen Mun Magistrates’ Court. A deputy magistrate (hereinafter called “the magistrate”) convicted her after trial and sentenced her to 6 months’ imprisonment. She appealed against both the conviction and sentence. Before the hearing of the appeal, she informed the court that she would abandon the appeal against conviction and that appeal was dismissed accordingly. I will only deal with the appellant’s appeal against sentence.

The prosecution case

2.The appellant worked in a boutique. The prosecution alleged that she had stolen a mobile phone from the handbag of PW1, a lady who paid a visit to the person in charge of the boutique. She denied the allegation at the time of her arrest. In her subsequent interview she admitted stealing the mobile phone. The events captured on the CCTV installed inside the shop supported some of the allegations against the appellant.

Mitigation

3.The mitigation submitted by Mr James Wong, counsel for the appellant at trial, was mainly as follows:

(1) The appellant had a clear record;

(2) Her son was only 1 and a half years old;

(3) She was jobless after the incident and was living on CSSA;

(4) It was an isolated incident and it did not involve her employer’s property.

Background report

4.The magistrate called for a background report before passing sentence.

5.It was said in the report that the appellant had postnatal depression after giving birth to her son and required regular follow-up treatments.

Reasons for sentence

6.While passing sentence, the magistrate had considered the following facts:

“32. Although the phone stolen did not belong to the defendant’s employer, it was her duty as an employee to pass any items left in the boutique by the customers to her employer for disposal. CCTV footage showed that the defendant once had the phone hidden, an indication that the defendant did plan to steal the phone.

33. Having considered the modus operandi of the defendant, the value of the phone as well as the obligation of the defendant to her employer, for the present charge I sentence her to 6 months’ imprisonment and order her to pay restitution in the sum of $7,000 to PW1.”

Grounds of appeal

7.Miss Annie Lai, counsel for the appellant on appeal, raised the following grounds:

(i) As the background report stated, the appellant suffered from postnatal depression. She had an 18-month-old child. She required regular follow-up treatments at the psychiatry department of Kowloon Hospital and private psychiatrist’s clinic since 2012. Mood swings did occur.

(ii) The appellant did not have any previous record. According to the conclusion of the background report, “the defendant was a law-abiding citizen who led a normal life”. In this case she acted entirely out of character.

(iii) This was not a premeditated or organised crime that lasted a long time. It was rather an opportunistic offence which was similar to walking off with other people’s thing;

(iv) The appellant possibly committed the offence out of momentary greed;

(v) This case did not involve any dishonest use of power on the part of the employee or abuse of her employer’s trust;

(vi) In passing sentence the magistrate failed to give full consideration to other non-custodial or rehabilitative sentences, such as community service order and suspended sentence;

(vii) The magistrate failed to take into account that the appellant had spent 28 days in custody, which had a short but sharp impact on her. Given all the mitigating factors, the remand had adequately reflected the seriousness or criminality of this case and the culpability of the defendant.

Discussions and considerations

8.During this appeal hearing there was a lengthy discussion between parties on whether this was a case of breach of trust.

9.The appellant had stolen the mobile phone of a customer placed inside the shop she worked. As Mr Cliff Ip, public prosecutor for the respondent, suggested, the way the victim put her mobile phone might of course indicate that she found PW2 and the appellant could be trusted. But it was also possible that she was just careless. It is reasonable that a customer trusts the staff of the shop to a certain extent. No customer would expect her property placed in the boutique to be stolen by an employee there when she was using the fitting room. But after all, the breach of trust situation in R v Barrick[2] is not comparable to this case.

10.Mr Ip contended that after taking away the phone from the chair the appellant put it underneath the chair before finally putting it in a handbag. The theft lasted 2 hours. The appellant was sophisticated when she carried out her plan to steal, which was an indication that she did not act out of momentary greed.

11.Whilst the offence lasted 2 hours, during which the appellant had ample time to think over her conduct and stop her crime, what one can be sure is that the offence was not premeditated and her modus operandi was not sophisticated.

12.There is no dispute that the appellant was suffering from postnatal depression. Miss Lai confirmed that the mental condition was not such that it would have a bearing on her mens rea. She urged the court to take a humanitarian approach and bear in mind that the appellant was a first offender and the facts of this case were not particularly serious.

13.Miss Lai also asked this court to consider that the appellant had paid a restitution of $7,000 to the victim, which was the purchase price of the mobile phone. I noticed that the magistrate had made a restitution order, but it was the prosecution who applied for a restitution order before the defence made any submissions in mitigation. I will not rely upon the fact that the appellant did not take the initiative to make restitution as the basis of my consideration.

14.Another argument of Mr Ip, with which I agree, was that the appellant’s act made PW1 lose her mobile phone, which was an iPhone, not a phone just for making phone calls. No evidence in this case could tell exactly what information and messages were stored in this phone. However, common sense dictates that it was inevitable that private information and messages were involved. Losing the mobile phone would lead to intrusion into her privacy and cause considerable inconvenience to her. Therefore, when the court passes sentence in regard of mobile phone theft, apart from the facts of the case and the value of the phone, the court should also take into account what was stored in the data bank of the phone since this is about the impact of the crime on the victim.  If the phone contains reasonably expected data, the defendant can hardly reduce his culpability by claiming he did not know what was stored in the mobile phone.

15.The magistrate’s remarks that it was a premeditated stealing of the mobile phone on the part of the appellant seem to be too harsh. But in general, custodial sentence is appropriate in mobile phone stealing cases.

16.In HKSAR v Lee Cheuk Fai[3], the appellant did not return the phone to its owner after borrowing it. Deputy High Court Judge Barnes (as she then was) agreed with the view above. She found the starting point should be 4 months after taking into account the fact that the appellant knew the owner of the phone and made use of their relationship to commit the offence. Having taken the previous record of the appellant into account, she sentenced the appellant to 5 months’ imprisonment.

17.The facts of this case were no more serious than Lee Cheuk Fai. The adoption of the starting point of 6 months was excessive.

18.The appellant had a clear record at the time of the sentence. I have considered whether the facts of this case and the circumstances of the appellant would justify a non-custodial sentence if a term of imprisonment of no more than 4 months is appropriate.

19.I do not see how her character had anything to do with the commission of this offence, so I do not think she needs the assistance of probation.

20.On the premise that whether a custodial sentence was an appropriate punishment, I have considered the possibility of suspended sentence and found that it was not the right thing to do for there was a lack of special circumstances which could warrant suspended sentence.

21.I have also considered the possibility of making a community service order. For this purpose, a community service order report had been called for[4].

22.The appellant’s remorse is an important factor when deciding whether community service order should be imposed.

23.Mr Ip contended that the appellant had not shown full remorse. She pleaded not guilty to the charge and even denied the allegation in the background report that the magistrate called for.

24.The submission of Mr Ip is reasonable, but the appellant after all had withdrawn her appeal against conviction; and she frankly admitted having committed this offence when the probation officer interviewed her. I accept that the appellant now has full and genuine remorse.

25.The probation officer passed favourable comments on the appellant in the report. However, being a person suffering from depression, her ability in dealing with stress was in doubt, thus community service order was not recommended.

26.Having carefully considered that the appellant had a clear record when being sentenced, she had been detained for 28 days in this case, she is now remorseful and reformed, she is working again whilst on bail pending appeal, and better result can be achieved when she is receiving professional counselling and psychiatric treatment outside without worrying about her son, I find that community service order is appropriate in the appellant’s case.

27.For the reasons above and under special circumstances, the appellant’s appeal is allowed. The term of imprisonment is set aside and replaced with a community service order. Since the appellant was once detained, the number of hours shall be 80.

Annie Lai, instructed by Y.S. Lau & Partners, assigned by Legal Aid Department, for the appellant

Cliff Ip, Public Prosecutor, of the Department of Justice, for the respondent (29 July 2014) and Joey Ma, Senior Public Prosecutor (Acting), of the Department of Justice, for the respondent (26 August 2014)

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr P. Y. Lo, Barrister-at-law.