HKSAR v. Romos Charity Faith Esloyo

DCCC 276/2019

[2019] HKDC 1165

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASES NO 276 OF 2019

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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. 

Admitted facts

2.At all material times, Yu Pui Yan (“PW1”) lived with her husband and her son at the address in Ho Man Tin, Kowloon (the ‘Flat’).  Since 8 May 2017, the Defendant had been working as a domestic helper in the Flat and had lived there.

3.At all material times, PW1 kept her jewellery in a locked drawer (“Drawer”) in the master bedroom of the Flat.  She kept the drawer key in the cabinet just above the Drawer. 

4.On 19 December 2018, PW1 found some jewellery missing from the Drawer. She then checked around the Flat and found, amongst the Defendant’s belongings, several receipts issued by some pawn shops.  PW1 then made a report to the police.

5.Upon more thorough checking, PW1 confirmed that jewellery including one diamond ring, two diamond necklaces, one diamond bracelet, 6 gold wrist chains, 13 gold necklaces with pendants, one gold ring, one pair of diamond earrings, two necklaces (totaling about HK$395,000 in value) and cash of CNY$2,000 had gone missing from the Flat.

6.The Defendant was arrested.  During the cautioned interview in the presence of a Tagalog interpreter, the Defendant admitted having stolen PW1’s jewellery from the Drawer and that she had pawned the stolen jewellery.  She claimed that she had spent all the money she received from the pawnshops from pawning the jewellery.

7.Thirteen pawn receipts and two pawn renewal receipts issued by nine pawnshops between 7 May 2018 and 18 December 2018 were seized by the police from the Defendant.  The police could only recover 7 pieces of the jewellery from the pawnshops and which were identified by PW1 as her missing property.

8.At all material times, the Defendant stole one diamond ring, two diamond necklaces, one diamond bracelet, 6 gold wrist chains, 13 gold necklaces with pendants, one gold ring, one pair of diamond earrings, two necklaces belonging to PW1.

The Defendant’s criminal records and mitigation

9.Mr Wong of the prosecution informed me that the value of the items recovered from the pawn shop amounts to about HK$245,000.  In other words, PW1 could never recover some items with total value of HK$150,000.  Ms Lai for the Defendant has no comment on that point.

10.In mitigation, Ms Lai submitted that the Defendant has a clear record. She is 42 years old and mother of three children.  They are aged 15, 12 and 8 respectively.  Her husband is a farmer and the Defendant is the sole bread winner of the family.  She expressed remorseful and the reason for her dishonest act was one of financial reason in that the monies obtained was used to cover family and medical expenses. 

11.Ms Lai further submitted that the amount falls within the fourth band - that is, HK$0.25 million to HK$1 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 guideline for the fourth band is 2 to 3 years of imprisonment for the amount between HK$0.25 million and HK$1 million. 

12.Ms Lai asked for a starting point of not more than 30 months[1].

Sentencing consideration and discussion

13.This is a case of breach of trust between PW1 as employer  and the Defendant, the domestic helper, which is an aggravating feature.  I enquired from the prosecutor if the stolen items contain sentimental value and the employer stood up from the public gallery.  I asked the prosecutor to provide information as to what items are of sentimental value.  I was told that of the stolen items remained unrecovered, 13 items were either marriage gifts or gifts from grandparents (5 gold wrist chains, 7 gold necklaces with pendants, and one gold ring as mentioned in the particulars of offence).  Ms Lai has no comment on that.  Further, the amount falls within the fourth band - that is, HK$0.25 million to HK$1 million - of the Cheung Mee Kiu guideline (HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776; HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017).  The guideline for the fourth band is 2 to 3 years of imprisonment for the amount between HK$0.25 million and HK$1 million (see also HKSAR v Lee Lai Kit Kitty [2009] 6 HKC 265). 

14.In HKSAR v Cheung Mee Kiu CACC 99/2006 the Court of Appeal gave guidelines on the appropriate range of sentence for theft which is based on the amount involved:-

(1) over $15 million - 10 years more;

(2) $3 million to $15 million - 5 to 9 years;

(3) $1 million to $3 million - 3 to 4 years;

(4) $250,000 to $1 million - 2 to 3 years;

(5) less than $250,000 - less than 2 years.

15.In HKSAR v Ng Kwok Wing CACC 398/2007 the Court of Appeal adjusted the second and third bands of Cheung Mee Kiu as follows:-

(2) $3 million to $15 million - 5 to 10 years;

(3) $1 million to $3 million - 3 to 5 years.

16.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.

17.The Defendant has worked for PW1 since 8 May 2017 until the discovery of theft on 19 December 2018.  As revealed from the pawn receipts, the offence period lasted for at least 8 months.  Undoubtedly, PW1 had placed plenty of trust on her.  The value of the stolen property is about HK$395,000.00.  Apart from the monetary value, I also take into account of their sentimental value (effect upon the victim).  An arithmetical application of the sentencing tariff based on that figure would lead to a starting point of about 26 months’ imprisonment.  Most of the stolen property were recovered with value of about HK$245,000.  I make a downward adjustment of one month to 25 months’ imprisonment.  A similar comparable can be found in the case of HKSAR v Nur Hoiriya DCCC 1162/2017 where the value of the stolen property was about HK$370,000.

Sentencing the defendant

18.Having considered all the circumstances of the case, the overall criminality of the Defendant, the total value of the monies stolen, the sentimental value of some items, the background of the Defendant, her clear record, the mitigation put forth on the Defendant’s behalf, in my view, the appropriate starting point is 25 months.  I do not see any other powerful mitigation which would warrant a further reduction in sentence.  I shall give the Defendant the full one-third discount for her timely plea of guilty.  That is a reduction of 9 months, bringing the sentence down to 16 months’ imprisonment.