HKSAR v. Corpuz Merlie M

DCCC 871/2018

[2019] HKDC 815

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 871 OF 2018

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Reasons for Sentence

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1.Originally, the defendant was charged with two counts of burglary and intended to plead guilty to both charges on 23 May. This court raised certain issues relating to the Prosecution case and doubted if the brief facts so presented could support the offence of burglary, and whether the facts in fact support offences of handling of stolen goods instead. Both parties agreed to seek further instructions, and the plea and sentence of the case was adjourned to 27 May. 

2.Now the prosecution sought to amend the charges and two counts of handling under section 24 are laid against the defendant.  Defence counsel has no objection to the amendment. Leave was granted and the defendant pleaded guilty to the amended charges of handling.

The Prosecution Case

1st Charge

3.The victim, Ms Li, was living in the premises at Flat B, 50th Floor, Branksome Crest, Tregunter Path, The Peak (“the premises”). At the material time, the defendant worked as a domestic helper at Flat A on the same floor of the building which is just opposite to the victim’s premises. 

4.In June 2017, the victim’s domestic helper, Winarti, returned to Indonesia for one month. She asked the defendant to assist in doing the housework at the victim’s flat. It was believed that by then the defendant had the key to the victim’s flat.

5.On 9 June 2018, the victim placed a pair of diamond earrings worth around HK$ 100,000 in the toilet of the master bedroom. On 14 June 2018, she realized that the said pair of earrings had gone missing.

2nd Charge

6.The victim last saw her ankle chain worth about HK$ 5,000 in her toilet on 16 June 2018. In the afternoon on 17 June, the victim’s son found the drawer in his bedroom opened, and the victim also found her ankle chain disappeared. A report was made.

7.Upon investigation, on 21 June 2018, the police located the defendant. In the defendant’s wallet, the police found two pawn tickets from Shing Fung Pawnshop, two promissory notes of HS Finance & Credit Company Limited and seven loan repayment slips.

8.The pawnshop cheque revealed that the items pawned were a pair of earrings and a gold-coloured ankle chain. The staff of pawnshop confirmed that the defendant produced her Hong Kong ID card to pawn the items. On 14 June, the defendant pawned a pair of earrings for HK$ 800. On 17 June, the defendant pawned the ankle chain for HK$ 2,000.

9.Subsequently, the victim identified these two items to be her stolen property. A palm print of the defendant was found on the outside door handle of the rear entrance of the victim’s premises.

10.Under caution, the defendant made the following admissions:

(i) She owed a debt of HK$ 29,000 to a finance company. She has to repay HK$ 3,639 per month and to remit HK$ 1,000 to HK$ 1,500 back home per month.

(ii) Winarti, a domestic helper working in the premises, asked her to work in the premises for a month in June 2017. She worked in the premises for six to seven times.

(iii) She confirmed that the Hong Kong ID card number appeared on the pawn tickets and admitted that she went to pawn the items.

(iv) The defendant claimed that it was Winarti who gave her the items to pawn. The defendant pawned the earrings for HK$ 800 and gave the money to Winarti who gave her HK$ 100. Later the defendant pawned the ankle chain for HK$ 2,000 and gave the money to Winarti who then gave her HK$ 300.

11.The victim terminated the employment contract with Winarti on 14 June 2018. It was said Winarti returned all the keys and the building smart card, and her access right to the building ceased.

12.CCTV of the building captured that on 14 June 2018 Winarti left the building at 9:40 am, returned back at about 6 pm, and then left at 6:37 pm on the same day. Security guards of the building said they did not see Winarti returning to the building thereafter.

Mitigation

13.The defendant is now 56 years old and is a widow since 2007. She has three children and is the breadwinner of the family.  She came to Hong Kong in 1990 and worked for her first employer for 18 years. She later worked for her second employer for about 10 years. Her second employer is willing to re-employ her if that can be done. 

14.It was said the stolen properties were given to her by Winarti who worked next door in the building. The defendant pawned the items and only got HK$ 100 for pawning the earrings and HK$ 300 for pawning the ankle chain. 

15.The defendant is remorseful. The stolen properties were recovered. It is likely that the defendant has to return to the Philippines and cannot work in Hong Kong, hence, her chance of reoffending is low. 

16.It was submitted that there was no professional planning involved and the defendant was approached by the original offender.  There is no evidence to suggest that the defendant was involved in the planning or instigation of the original theft offences.

17.The Defence cited three cases for court’s consideration, namely Tang Ho Yeung v R[1980] HKLR 357, R v Chan Wing Kwan and Another CACC 121/1985 and HKSAR v Yip Chi Wai CACC 121/2002.  Defence counsel asked for a lenient sentence so that the defendant can return home soon.

Sentence

18.Unlike burglary offences, there is no sentencing guideline for offences of handling. From the facts so presented by the Prosecution, it is clear that the offences of handling, instead of burglary, were made out. It is a wise decision for the defendant to indicate her guilty pleas at the first opportunity.

19.As mentioned earlier, I have serious doubt as to the actual value of the so-called diamond earrings. The victim said it worth around HK$ 100,000 but the pawnshop staff paid HK$ 800 (see the photo of the earrings, MFI-1). The defendant said in her cautioned statement that she got HK$ 100 out of this.

20.For the ankle chain, the victim said its value is around HK$ 5,000 and the pawnshop staff paid HK$ 2,000. The defendant said she got HK$ 300. I think it is common commercial sense that the pawnshop would not drastically reduce the value of a pawned item so as to maximize its profit as that would literally drive the pawnshop out of business. I cannot speculate whether the victim had overstated the value of the earrings for some ulterior motive but I would not accept that the value of the property amounted to around HK$ 100,000. It may just worth about a few thousands. That of course has a bearing on sentence.

21.In her mitigation letter, the defendant said she has been working in Hong Kong for some 28 years. Since her remand, her family has been struggling daily and she hopes to return home to ease things off, financially, emotionally and physically.

22.In my view, this is not a case of breach of trust.  Taking all factors into account, for Charge 1 which involved a pair of earrings, with the value of a few thousands at most, I would adopt a starting point of 12 months. I will give a full one-third discount to the defendant and sentence her to 8 months’ imprisonment.

23.For Charge 2, as the stolen property has a higher value, I would adopt a starting point of 15 months, and with her plea, I sentence her to 10 months’ imprisonment. I will take a lenient approach and order that both sentences be served concurrently.

24.That means, the total imprisonment term remains to be 10 months.