HKSAR v. Amandeep Kaur

DCCC 924/2018

[2019] HKDC 618

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 924 OF 2018

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REASONS FOR SENTENCE

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1.The defendant was convicted of a charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210 (1^st charge) and a charge of arson being reckless as to whether life would be endangered, contrary to section 60(2) and (3) and 63(1) of the Crimes Ordinance, Cap 200 (2^nd charge) on her own plea and agreement to amended summary of facts.

2.PW1 aged 44 lived at Room 44, 5^th Floor, Block B, Buxey Lodge, 37 Conduit Road, Mid-Levels, Central, Hong Kong (“the flat”) with her husband aged 45 (PW2), their 15-year-old son (PW3), their daughter and PW1’s elderly parents.  The defendant was the family’s domestic helper at the time.

Facts

3.PW1 and family planned to immigrate to Canada in September 2018.  On or about 20 July 2018, PW1 informed the defendant of the termination of the defendant’s employment contract with the defendant’s last day being 21 August 2018.

4.At about 4:30 pm on 4 August 2018, PW1 last checked 319 pieces of CAD$100 banknotes and 25 pieces of HK$1,000 banknotes in her Louis Vuitton handbag inside the unsecured wooden cabinet (E1) in her bedroom.

5.At around 3:30 pm on 5 August 2018, she left the flat for work.

6.At around 4:30 pm on the same day, while PW1 and 2 were away from the flat, PW3 was playing videogame in the living room of the flat when he noticed a strong burnt smell.  PW3 checked the flat and found a fire burning in E1 in his parents’ bedroom.  PW3 fetched a bucket of water and put the fire out.  At the time, PW3’s grandfather, sister and the defendant were present in the flat.  The case was reported.

7.Fire services arrived and the cause of the fire could not be ascertained.

8.On being informed of the fire, PW1 returned home and found the following:-

(i) 11 pieces of burnt CAD$100 banknotes, the rest of the Canadian Dollars banknotes missing;

(ii) 3 piece of burnt HK$1,000 banknotes, the rest of the Hong Kong Dollars banknotes missing;

(iii) the Louis Vuitton handbag damaged (valued at about HK$7,000);

(iv) one Coach black leather handbag damaged (valued at about HK$1,800);

(v) one Kate Spade black handbag damaged (valued at about HK$800).

9.PW2 felt suspicious that so many banknotes were missing/burnt.  At about 7:00 am on 7 August 2018, he searched the common garbage area outside his flat and found a white plastic bag with red characters (E6) hidden in the corner.  Inside E6 was a small leather bag with the words “Megaslim” on it.  PW2’s family used to use this Megaslim leather bag to store thermos flasks.  Inside there was another white plastic bag (E8) containing 308 pieces of CAD$100 banknotes and 22 pieces of HK$1,000 banknotes.  The case was reported to police.

10.At about 7:54 am on the same day, the woman police constable (PW6) came and PW2 assisted in translation for this woman police constable and the defendant as the defendant could only speak Punjabi.

11.Upon PW6’s enquiry, the defendant admitted the following:-

(i) while cleaning PW1 and 2’s room in the morning of 5 August 2018 she found the money inside E1 and took 319 pieces of CAD $100 banknotes and 25 pieces of HKD $1,000 banknotes out of greed;

(ii) the defendant then used a blue lighter from the living room to burn 11 pieces of CAD $100 banknotes and 3 pieces of HKD $1,000 banknotes out of the stolen banknotes and the inside lining of the LV handbag to pretend the fire had burnt all the banknotes; and

(iii) she hid the remaining banknotes in the garbage area which was later found by PW2.

12.Under caution in a subsequent interview, with the assistance of an English translator and a Punjabi interpreter, the defendant said, “I stole my master’s money out of greed and made a story by burning the bag inside the cabinet.”

Criminal record

13.The defendant has a clear record in Hong Kong.

Mitigation

14.Mr Sio, counsel for the defendant, submitted that the defendant is aged 23.  She is single.  Her parents, one younger brother and two younger sisters are all in India.  At the material time, she is a foreign domestic worker in Hong Kong earning $5,463 per month.  She has received education up to secondary school level in India.

15.Concerning the 1^st charge, Mr Sio admitted that the same involved a breach of trust and the amount is not small. He says the defendant has since learned her lesson and she was deeply remorseful and vows not to repeat offending.  It is also said that she has committed the present offence out of greed.

16.The 2^nd charge offence was committed with a view to cover up the 1^st charge offence.

17.He said that it was lucky that no one was injured in the incident or nor was there substantial damage to property.  The fire was put out quickly and easily.  It was also said that the defendant did not really intend to injure anyone with the fire although she admitted being reckless to endanger the lives of others.

18.He asked this court to be lenient on the defendant who has frankly admitted the charges, saving the court’s time and trouble and that she should be entitled to a sentencing discount.

19.Mr Sio also referred this court to the landmark case of HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776 where the Court of Appeal laid down clear sentencing guidelines for theft involving breach of trust. It was said that where the value of stolen property is less than HK$250,000 and HK$1 million, the range of sentence should be less than 2 years.

20.As for the 2^nd charge, he referred this court to the case of HKSAR v Kung Pak Fu [2008] 2 HKCLRT 240 where the Court of Appeal said there are no sentencing guidelines for offences of arson; the gravity varies from case to case.

“23. Arson is an extremely serious offence. That said, we do not consider it appropriate to lay down sentencing guidelines for this offence because its gravity differs from case to case, particularly in cases involving family disputes or souring of relationships. The court must impose a sentence which properly reflects the gravity of the particular case.”

21.And the second case referred to this court is HKSAR v Liu Li [2016] HKDC 1644 (unreported, 28 July 2016, DCCC 486/2016). The defendant there pleaded guilty to one charge of arson like the present case, contrary to sections 60(2) and (3) of the Crimes Ordinance, Cap 200.  In that case, the fire that the defendant set was put out quickly causing no injury to persons although there was damage to property.  The damage to the flat, and in particular to the master bedroom where the fire was started, was quite extensive.  The fire had not spread to any other flat in the building. Fortunately, the children were not at home and no one was injured. Nevertheless, what the defendant did was still extremely dangerous.  The starting point was 3 years and after a one-third discount for the plea of guilty, the sentence imposed is 2 years.

22.It is said that in the present case no one was injured.  The defendant did not use accelerant or inflammable items nor was the property damage serious.  The fire was put out quickly and easily with the assistance of the defendant and the fire had not spread to other places. 

23.It was also mitigated on the defendant’s behalf that the fire was in daytime and not at night when everyone was asleep, that the case does not involve triad, revenge or intimidation. 

24.The amount of CAD$31,900 is roughly HK$188,300 and HK$25,000, totalling HK$213,300. 

25.It was also urged on the defendant’s behalf the defendant committed the same out of momentary greed and that because of her guilty plea she should be entitled to a full one-third sentencing discount.

26.Mr Sio suggested to this court a sentencing starting point of 2 years for the 1^st charge and 3 years for the 2^nd charge.  He urged this court that as the two offences were committed in a single incident, albeit of a different nature, the sentences for both charges should run concurrently.

27.A mitigation letter from the defendant was lodged.  The defendant indicated her remorse for committing the offence.  She said as her mother was ill and she needed money for both her medical expenses and the household expenses, she therefore committed the offence out of greed.

Discussion

28.Before passing sentence, this court has considered all that was said on her behalf as well as the mitigation letter lodged with court.

29.For the 1^st charge, the appropriate sentencing starting point is one of 21 months adopting the sentencing guideline in the case of Cheung Mee Kiu. 

30.The defendant has pleaded guilty and is therefore entitled to the full one-third sentencing discount.  Accordingly, she is sentenced to 14 months’ imprisonment for the 1^st charge.

31.As for the 2^nd charge, the flat was situated in a building consisting of 10 storeys with two flats on each level. It would therefore appear that though the offence was committed in a multi-storey building, the risk posed to others is relatively less than that of an arson committed in the public housing estate.  Any fire in any unit in a multi-storey building, however, could go easily uncontrolled and still pose a serious threat to other occupants in the building. 

32.It is noted that the fire was put out easily. It is also noted as said that the property damage was not extensive and that no one was injured. 

33.Nevertheless though the defendant did assist in putting out the fire, the conduct obviously was directed to cover up her arson offence.

34.Arson committed in the circumstances remains a serious offence.  The maximum sentence for such an offence is one of life imprisonment.  There is no evidence that the defendant committed the offence because she was affected by a mental illness.  It is obvious that she has no regard for the safety of the other occupants in the same building or the flat.

35.This court does not consider the fact that she needed money constituted a good mitigating ground.  She has committed a more serious offence, ie arson, to cover up a less serious offence. 

36.It is true however that the intention of the defendant’s committing the 2^nd charge offence was merely to cover up the offence in the 1^st charge. 

37.It was 4:30 pm in the afternoon and there was an elderly person and one child in the flat at the time.  It is lucky that no one was injured.

38.In the case of HKSAR v Lo Po Tak, CACC 608/1997, the defendant, with eight previous convictions of arson, was convicted of two charges of arson under section 60(1) and (3) of the Crimes Ordinance.  These two offences were committed in the early hours of the same morning in the common area of a housing estate, ie in the lift lobby and some garbage outside a refuge room.  The court in that case adopted a sentencing starting point of 6 years and the sentence of the two charges was made concurrent.

39.Our case here involved conviction under section 60(2) which is more serious.  The fire was set during the daytime but, as the flat was situated within a ten-storey building, one would expect people working night-shift resting still in their rooms or old or ill people with mobility difficulties still within their flats.  The fire within the flat posed a serious threat to life and safety of these people apart from threats of course to the properties.  Nevertheless, as said above, there is no inflammable liquid or accelerant used.

40.The defendant has pleaded guilty timely and is therefore entitled to a full one-third sentencing discount.  This court considers a sentencing starting point of 3 years appropriate for the 2^nd charge.  Having regard to the clear record of the defendant, her remorse and all mitigation done on her behalf, she thereby is sentenced to 2 years’ imprisonment for this charge.

41.Theft and arson are offences of a different nature.  So, in the circumstances of this case, they had been committed immediately one after another.  The commission of the 2^nd charge offence obviously adds to the culpability of the 1^st charge.

42.Having regard to the totality principle, a just and proportionate sentence considering the circumstances and the overall culpability of the defendant in this case would be a sentencing starting point of 4 years’ imprisonment. 

43.The defendant has pleaded guilty and therefore is entitled to a one‑third sentencing discount bringing the sentence to 2 years and 8 months.  Accordingly, 18 months of the imprisonment of the sentence in the 2^nd charge shall run consecutive to the sentence in the 1^st charge and the other 6 months’ imprisonment shall run concurrent to the sentence in the 1^st charge, making a total sentence of 2 years and 8 months’ imprisonment.