HKSAR v. Daniati

DCCC 495/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 495 OF 2016

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REASONS FOR SENTENCE

The defendant pleaded guilty to 1 charge of "Theft" (Charge 1); 4 charges of "Giving false information to a pawnbroker" (Charges 2 to 5); and 1 charge of "Breach of condition of stay" (Charge 6).

Summary of Facts

Background

2.Madam CHAN (PW1) resides with her family at the address particularized in Charge 1 ("the Flat").  She began to employ the defendant as a foreign domestic helper in March 2012.  Upon completion of the 1^st contract, PW1 renewed the defendant's contract in March 2014.  The 2^nd contract was due to expire on 17 March 2016.

Charge 1

3.PW1 kept her jewelleries in a jewellery box placed inside a drawer in the master bedroom of the Flat. On 25 January 2016, PW1 prepared RMB 30,000 cash ("the RMB Cash") for her upcoming business trip to the mainland.  She kept the RMB Cash in a silver purse ("the Silver Purse") on the dressing table in the master bedroom.  To prepare for Chinese New Year, PW1 put HK$30,000 cash ("the HK$ Cash") in an envelope ("the Envelope") and placed the Envelope between a drawer and the wall in the master bedroom.

4.On 30 January, PW1 found some jewelleries missing.  PW1 asked the defendant if she had taken them.  The defendant denied.  On 31 January, PW1 found the RMB Cash missing from the Silver Purse and the HK$ Cash missing from the Envelope.  PW1 asked the defendant if she had taken any of the cash, the defendant denied.

5.About 7:30 p.m. on 3 February, PW1 was on her way home.  PW1's father-in-law informed her by phone that the defendant had left the Flat around 6:15 p.m. claiming to go shopping. Upon reaching home, PW1 tried to contact the defendant but was unsuccessful. She found the defendant's passport and some of the defendant's belongings missing.  PW1 suspected the defendant had stolen her properties; she alerted the Police.

6.PW1 checked the master bedroom and found more jewelleries missing from the 2 locked drawers.  The keys to the drawers were kept in her handbag, and her unlocked handbag was placed in the master bedroom.  PW1 also found 2 pawn tickets underneath the kitchen sink.

7.Upon checking, a total of 82 jewellery items as well as the RMB Cash and the HK$ Cash (which amounted to an aggregate sum of about HK$1.46 million) were found missing.

Arrest of the defendant

8.About 4:15 p.m. on 28 February, the defendant was arrested in Mongkok as a result of a "stop and search".  At the time of arrest, she was living at her friend's home in Yau Ma Tei.  The Police searched the premises with nil result.

Recovery of the Stolen Properties

9.Police investigation revealed that the defendant had pawned a total of 61 pieces of jewellery belonging to PW1 (which amounted to a total sum of about HK$1 million) at 7 pawnshops.  By pawning the 61 pieces of jewellery, the defendant received a total sum of HK$47,550.

Admissions

10.In her video recorded interviews, the defendant admitted, inter alia, that she had stolen and pawned the 61 pieces of jewellery (which were shown to her in the interviews). She used the money received from the pawnshops to help her friend Susi, but has no means to contact Susi anymore.  The defendant claimed that she first stole from PW1 in March 2015.  She, however, denied stealing any cash from PW1.

11.On the 4 occasions particularized in Charges 2 to 5, the defendant provided the same false address to the respective pawnshops.  In her video recorded interviews, she admitted that she had provided a false address to the pawnshops in order to prevent disclosure of her workplace.

12.Regarding Charge 6, by leaving the Flat on 3 February 2016 and not having returned since, the defendant unilaterally terminated her employment contract with PW1.  She did not apply to the Immigration Department to extend her stay or submit a new visa application for another employment contract.  In other words, she overstayed in Hong Kong from 18 to 28 February 2016.

Mitigation & Sentence

13.The defendant is 30 and has a clear record.  Defence solicitor Ms. LAM informed me that the defendant has a mother and 3 siblings in Indonesia.  Her father passed away 3 months ago.  With the defendant serving her sentence in Hong Kong, her family now depends solely on her elder brother.

14.In mitigation, Ms. LAM submitted that in early 2014 and 2015, the defendant borrowed $20,000 and $30,000 respectively from financial institutions.  Her friend Susi acted as a guarantor for those loans.  The defendant gave $25,000 of her 2^nd loan to Susi, who promised to repay the defendant upon renewal of her employment contract.  At the same time, Susi borrowed $22,000 from a bank and the defendant acted as her guarantor.  In short, the defendant was heavily in debt in the past 2 years.  Out of stupidity, she stole from PW1.  She used the money received from the pawnshops to make partial repayments of her loans and gave some of it to Susi as well.  The defendant continued to renew the pawn tickets hoping she could redeem the properties upon renewal of her employment contract.  Unfortunately, Susi disappeared in December 2015.  The defendant thus became liable to repay Susi's loan.

15.I understand that many foreign domestic helpers want to improve the financial situation of their families by coming to work in Hong Kong.  It is also perhaps common knowledge that in order to secure their employment contracts, many of them have incurred debts in a significant sum even before their arrival.  Be that as it may, it makes no sense for them to take out loans which are simply beyond their ability to repay.  Working in Hong Kong may enable them to earn a meaningful income (by their homeland standard), but it does not mean they would become rich overnight and be able to meet all demands of everyone in their families back home.  They need to work earnestly and accumulate their wealth step by step like everyone else in our society.

16.As Ms. LAM has rightly accepted, this case is a classic Barrick type of breach of trust situation.  According to HKSAR v NG Kwok Wing [2008] 4 HKLRD 1017, if the amount stolen is between $1 million and       $3 million, the sentence ranges from 3 to 5 years' imprisonment.

17.For Charge 1, the defendant stole properties with an aggregate value of almost $1.5 million[1].  Properties with an aggregate value of about $1 million were recovered.  According to prosecuting counsel, PW1 is negotiating with the pawnshops.  It is likely that she needs to pay half of the total sum paid to the defendant by the pawnshops (i.e. about $24,000) in order to reclaim all the pawned properties.  In other words, PW1 would still suffer a net loss of about $480,000.  Bearing in mind the recovery of almost ¾ of the stolen properties, I adopt a slightly lower starting point of 3 years' imprisonment.  With the guilty plea, the sentence is reduced to 2 years.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 2 years' imprisonment.

18.For Charges 2 to 5[2], I adopt a starting point of 3 weeks' imprisonment each.  With the guilty plea, the sentence is reduced to 2 weeks.  I sentence the defendant to 2 weeks' imprisonment for each charge.

19.For Charge 6, I adopt a starting point of 12 days' imprisonment.  With the guilty plea, the sentence is reduced to 8 days.  I sentence the defendant to 8 days' imprisonment.

20.In my view, Charges 2 to 5 are part and parcel of the defendant's stealing.  I therefore order the sentences for Charges 1 to 5 to run concurrently.  On the other hand, Charge 6 is separate and distinct.  Having considered the totality principle, I order the sentence for Charge 6 to run consecutive to Charges 1 to 5.  Hence, the total prison term for all 6 charges is 2 years and 8 days.