HKSAR v. Heri Tiyas Winanti

DCCC 1105/2018

[2019] HKDC 675

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1105 OF 2018

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REASONS FOR SENTENCE

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Background and facts

1.The defendant pleaded guilty to a charge of theft, contrary to section 9 of the Theft Ordinance, before me this morning. 

2.The defendant is an Indonesian national working as a domestic helper in Hong Kong and PW1 had employed the defendant since 2008.

3.At the time of the offence, the defendant had worked over 10 years for PW1’s family.  PW1, his wife and the defendant lived in the same flat.  PW1, a 90-year-old man, and his son, PW2, jointly held a bank account which was mainly used for savings.  PW1 kept the ATM card for this bank account and he was the one who mainly handled this account.  The defendant knew the password of the ATM card because she once saw the password when she accompanied PW1 to withdraw money at an ATM machine.

4.From 17 January 2018 to 13 October 2018, there were a total of 235 withdrawals made by the defendant, consisting of a total amount of HK$1.609 million. 

5.Defendant was arrested on 15 October 2018.  Her room was searched and the following items were found and seized, namely:-

(a) HK$3,099;

(b) eight prepaid SIM cards;

(c) two notebooks;

(d) one Samsung mobile phone; and

(e) some receipts.

6.Two pairs of earrings worn by defendant were later seized.

7.Defendant attended a video recorded interview and admitted under caution the following:-

(a) Every morning at around 9 am she would go to PW1’s room and take the ATM card from PW1’s wallet. The defendant would then go to the ATM in Tsim Sha Tsui area to withdraw money using PW1’s ATM card. She then would hide the money withdrawn in her room in the flat. Defendant would withdraw around HK$5,000 to HK$8,000 each time, with no regular pattern;

(b) PW1 did not know that defendant took the ATM card each time;

(c) defendant made the withdrawals to pay for her expenses of raising her children in Indonesia. She also remitted some of the stolen money back to Indonesia. She spent the money in purchasing clothes and shoes and sent the goods back to Indonesia. She even purchased land in Indonesia, built a house and paid for her father’s medical and funeral expenses;

(d) the eight prepaid SIM cards, two pairs of earrings, the mobile phone seized were all bought by using PW1’s money withdrawn from the ATM. The defendant admitted that she would sell the prepaid SIM cards to make some profit;

(e) the last withdrawal made by the defendant was on 13 October 2018. She withdrew HK$7,000 at the ATM in Tsim Sha Tsui area and used almost HK$3,000 to pay her friend’s debt as she was the guarantor.

8.Defendant admitted that she stole cash in the total amount of HK$1.609 million, the property belonging to another.

Mitigation

9.The defendant has a clear record.  She is 44 years old, married with five children.  All her children are adults.  Defendant’s oldest son is studying at university, whereas the other two daughters and two sons are married.  The defendant has two grandchildren.  The defendant’s education level is up to high school in Indonesia.  Her father passed away in early 2018.

10.The defendant came to Hong Kong in 2005 as a domestic helper and she worked for PW1’s family for the last 10 years.  The defendant would like to convey her apologies to the victim.

11.Defence solicitor, Mr Tang, submitted that the background of the present offence was due to PW1’s decline to the defendant’s request for long-service payment.  When the defendant first committed the offence, she only wanted to withdraw an amount equivalent to her long-service payment.  However, she then made the subsequent more than 200 withdrawals out of greed.  The stolen properties were either remitted back to Indonesia or used up by the defendant. There is no prospect of recovering the stolen monies and the amount involved is HK$1.609 million.

12.Mr Tang further submitted that the amount falls within the third band - that is, HK$1 million to HK$3 million - of the Cheung Mee Kiu guideline (HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776), which has been adjusted in HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017.  The revised guideline for the third band is 3 to 5 years of imprisonment for the amount between HK$1 million and HK$3 million. 

13.It is submitted that, as the defendant is likely to be deported out of Hong Kong after serving her sentence, the chance for her re-offending is extremely low.

14.Defence solicitor asked for a starting point not more than 4 years.

Sentencing considerations

15.This is a classic case involving a breach of trust between PW1, a 90-year-old employer, and the defendant, the domestic helper.  The court has said time and again that, when a theft involves a breach of trust, this is regarded as a particularly serious type of dishonesty.  It is in fact an aggravating factor.

16.Defence solicitor, Mr Tang, has rightly pointed out that the revised guidelines laid down in Ng Kwok Wing is applicable to the defendant’s case.  In fact, the revised five bands of tariff are further explained and approved by the Court of Appeal in HKSAR v Lee Lai Kit Kitty [2009] 6 HKC 265. 

17.The principles held in R v Barrick [1985] 81 Cr App R 78 are also applicable here.  In determining sentence in breach of trust cases, the court should have regard to the following matters:-

(a) the quality and degree of trust reposed in the offender, including his rank;

(b) the period over which the thefts have been perpetrated;

(c) the use to which the money or property dishonestly taken was put;

(d) the effect upon the victim;

(e) the impact of the offences on the public and public confidence;

(f) the effect upon fellow employees;

(g) the effect on the offender himself;

(h) the offender’s history;

(i) those matters of mitigation special to the offender; and

(j) finally, any help given by the offender to the police.

18.Looking at the defendant’s case, this is a serious breach of trust case and it is a very mean offence.  The defendant, as a domestic helper, worked for PW1 and his family for over 10 years.  Undoubtedly, PW1 had placed plenty of trust on her, relying on her to take care of him and the family. 

19.In discharging her duties, the defendant was allowed to gain access to PW1’s room, thus enabling her to obtain the ATM card from PW1’s wallet whenever she wanted.  Not only that, defendant was expected to look after PW1 by accompanying him to the ATM to withdraw money.  Unfortunately, she took the chance to memorise the password and embarked on a series of criminal conduct to extract PW1’s money day by day.

20.The offence took place over a substantial period, for almost 10 months. During the offence period, there were altogether over 200 withdrawals totalling HK$1.609 million.  Had the offences not been discovered by the son (PW2), the defendant would certainly continue the withdrawals until all the monies in the bank account are exhausted. 

21.The offence is clearly premeditated and well planned.  After the first successful withdrawal, the defendant found it easy to use the same modus operandi for the subsequent more than 200 times successful attempts.  Even though it concerns the defendant only and it looks like a one-man job, the defendant had developed a systematic and well-organised venture by using PW1’s money as the source of funding. 

22.In her video recorded interview, the defendant had given a full account as to how she used the monies withdrawn from the ATM.  She admitted that she used the monies to pay for her expenses of raising her children in Indonesia, remitting some of the stolen monies back to Indonesia, spending in purchasing clothes and shoes and sending the goods back to Indonesia, purchasing land and building a house in Indonesia, paying for her father’s medical expenses and funeral expenses.  Not only did she remit the stolen money back to Indonesia, she also brought the money back to Indonesia when she went back to her homeland.

23.The prepaid SIM cards, earrings and mobile phones were all bought by the defendant by using PW1’s money from the bank account.  The defendant admitted that she would sell the prepaid SIM cards in order to make profit.  She had her own notebooks or the ledger books to make the record of the amount of money she gave out to her family and relatives.  And the last withdrawal she made on 13 October 2018, she withdrew HK$7,000 and used almost HK$3,000 to pay her friend’s debt as she was the guarantor.

24.The defendant’s monthly salary was only HK$4,810, so here it is clear that she used PW1’s money to develop her own profit-making business and to maintain her family’s expenses in Indonesia.  By doing so, PW1 had lost the savings, which is a huge amount of money, for his remaining years, and there is no prospect of recovering the stolen monies.

25.It is no excuse to claim that PW1 declined defendant’s request for long-service payment and therefore she had committed the present offence.  The defendant had worked in Hong Kong for a long time.  She knew very well that, if she had any labour or salary or long-service payment disputes, she could resort to proper channels, for example, the Labour Tribunal, to resolve her problems.

26.In the end, I find the defendant’s criminal conduct appalling, by extracting a 90-year-old man’s savings to finance her own lavish spending in Hong Kong and her family’s expenses in Indonesia.  Undoubtedly, after the first successful withdrawal, the defendant had indulged herself regularly to take out PW1’s money from the ATM machine to maintain her spending.  The defendant’s heart had been hardened by totally neglecting PW1’s needs.  As I said, this is a serious breach of trust case and it is a very mean offence.

Sentencing the defendant

27.Having considered all the circumstances of the case, the overall criminality of the defendant, the total value of the monies stolen, the background of the defendant, her clear record, the mitigation put forth by defence solicitor, in my view, the appropriate starting point is 3½ years; that is, 42 months.

28.I shall give defendant the full one-third discount for her timely plea of guilty.  That is a reduction of 14 months, bringing the sentence down to 28 months.

29.I do not see any other powerful mitigation which would warrant a further reduction in sentence.

30.Defendant, you are to serve 28 months’ imprisonment.