HKSAR v. Nur Hoiriya

DCCC 1162/2017

[2018] HKDC 506

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1162 OF 2017

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Reasons for Sentence

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1.The defendant pleaded guilty to one charge of theft. Particulars are that she, between February and 1^st November 2017, stole cash of $70,000 and about 30 ornaments that belonged to the victim, Ms Chan, at a flat in Bayview Garden in Tsuen Wan.

Summary of facts

2.The defendant was employed as a domestic helper by the victim to work at the charge premises. Her employment commenced in October 2016.

3.On 1^st November 2017, the victim found that $70,000 cash and around 30 pieces of gold ornament (estimated total value of $300,000) had gone missing, with the gold ornaments having been replaced by imitations of much lower value.

4.The matter was reported to the Police and the defendant was arrested on the same day. The defendant admitted under caution that she had stolen the said property out of greed.

5.The defendant claimed that she had used the key placed in the wardrobe to unlock the drawer where the valuables were kept. She had pawned the gold ornaments after replacing them with fake ones. All the money had been sent to her husband in Indonesia.

6.A total of 25 pawn tickets (with a total amount of $138,380) were seized from the defendant. 14 pieces of the stolen gold ornaments were recovered.

7.It is the defendant’s case that she had pawned all the ornaments that she had stolen.

8.Arrangements were made between the victim and the pawn shops for the recovery of the ornaments that were still in their possession. The victim paid a total of $32,150, being half of the total value of 14 items listed on the recovered pawn tickets.

9.The remaining 16 odd items have not been recovered.

Previous convictions

10.The defendant is of previously clear record.

Mitigation

11.The defendant is 31. She is married. Her husband lives with their two daughters (aged 9 and 11) in Indonesia. The defendant’s mother had passed away. Her father is 60 years old and retired. He suffers from heart diseases and requires medication. The defendant is the family’s sole financial support, shouldering the burden of the family’s living expenses, the children’s education and the father’s medical expenses.

12.I was told that the defendant is remorseful that she had betrayed her employer, who had treated her with the utmost kindness. The defendant had cooperated with the Police from the beginning and had voluntarily produced the pawn tickets, which allowed the eventual recovery of some of the stolen items.

13.Mr Yeung for the defendant accepted that the defendant should be sentenced on the basis that the theft involved a breach of trust element, and that the value of cash and property stolen is worth around $370,000.

Sentencing considerations

14.The maximum sentence on conviction upon indictment for the offence of theft is that of 10 years’ imprisonment.

15.In addition to the presence of the element of breach of trust as mentioned above, the other aggravating feature of the case is that the theft of the various items were conducted over an 8-month period.

16.In the case of HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776, as updated in HKSAR v Ng Kwok Wing and another, CACC 398/2007 the Court of Appeal laid down sentencing guidelines and tariffs for theft involving a breach of trust element. An immediate custodial sentence of 2 to 3 years’ imprisonment is appropriate for cases where the stolen property is valued at $250,000 to $1 million.

17.The total value of property stolen in the present case is around $370,000. An arithmetical application of the sentencing tariff based on that figure would lead to a starting point of slightly more than 25 months’ imprisonment.

18.While I recognize the heavy burden that the defendant has to bear and respect the fact that she has been working hard to provide for her family in Indonesia, I find that her personal circumstances are not such that would allow me to depart from the guideline tariffs.

19.Since this is a first conviction and given that 14 pieces of the ornaments had been recovered, I will adopt a starting point of 25 months’ imprisonment.

20.For the defendant’s cooperation with the Police in providing the information that led to the recovery of the 14 items, I grant the defendant a one-month discount, resulting in 24 months’ imprisonment. 

21.The defendant is entitled to the full one-third discount for her timely plea of guilty.

22.The defendant is sentenced to 16 months’ imprisonment.