HKSAR v. Resurreccion Revelyn Francisco

DCCC 1035/2020

[2021] HKDC 449

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1035 OF 2020

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REASONS FOR SENTENCE

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1.Ms Resurreccion pleaded guilty before me to one charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210. Particulars are that she, on or about 1 May 2020, at Room E, 30/F., Yee King Court, South Horizons, No 8 South Horizon Drive, Ap Lei Chau, in Hong Kong, stole 5 necklaces with pendants, one necklace with two pendant (sic), 5 necklace (sic), 12 pairs of earrings, 20 rings, 3 pendants, 5 bracelets and 4 wrist chains, property belonging to Kwok Lai Chun.

Facts admitted by Ms Resurreccion

2.Since 2014, PW1 Kwok has hired Ms Resurreccion as a domestic helper for the whole family.  PW1 had a habit of putting all her jewelry in several boxes and placed them in two unlocked drawers insider her bedroom.  In September 2020, PW1 checked the boxes and found the jewelry items listed in the charge to the total value of about $294,000 were missing.

3.Next day, Ms Resurreccion admitted to PW1 that she had stolen the items and had pawned them.  According to the pawn tickets, the items were pawned to various pawnshops for a total of $133,560.

4.Upon arrest in October 2020, Ms Resurreccion admitted stealing the jewelry items on or about 1 May 2020 out of greed and she needed the money for financing her sister’s surgery.  She also stated that she pawned the items not in one go but piece by piece between June and September 2020 to avoid arousing suspicion.

Criminal record

5.Ms Resurreccion has a clear record in Hong Kong.

Antecedents

6.Ms Resurreccion is aged 44 (43 at the time of the offence), educated to high school level in the Philippines, was a domestic helper before arrest. Before being remanded in custody, she lived with her employer.  She has no children.  Her parents are both aged 65 and live in the Philippines.

Mitigation

7.Mr Oliver Davies assigned by the Director of Legal Aid mitigated on behalf of Ms Resurreccion.

8.The following is a summary of the mitigation submissions.

9.Ms Resurreccion pawned the jewelry items and obtained a total of $133,560 and handed the pawn tickets to her employer.  In the circumstances, the actual loss would be $133,560 plus any interest payable.

10.From the latest information supplied by the prosecution, it seems that there has been an agreement such that PW1 of the one part and the pawnshops of the other part are to share the loss in equal proportions with the result that the stolen property will eventually be returned to PW1.

11.Ms Resurreccion is single; her father is a farmer and her mother is a housewife.  She has 4 sisters and 3 brothers.  Among the 5 sisters, she is the 2^nd.  The first and fifth sisters are married with children and the other two sisters ie the 3^rd and 4^th sisters are working as domestic helpers in Hong Kong.  She started working as a domestic helper first in her home country, then in Singapore before moving to work in Hong Kong.  She remitted about 80% of her income back home to pay for her father’s medical expenses and farm expenses, the education of her 3^rd and 4^th sisters, as well as the education of her nieces and nephews.  She did not ask her 3^rd and 4^th sisters to contribute because she did not wish to burden them.  As such, her entire life has been one of sacrifice.

12.In around 2019, Ms Resurreccion’s eldest sister was diagnosed with breast cancer.  As a result, Ms Resurreccion sent her entire savings of around PHp200,000 (approx. HK$32,300) to pay for the medical expenses.  Although her sister’s condition improved after surgery, in around May 2020, she was informed that the cancer had metastasized and moved to the bones.  In September 2020, the eldest sister underwent another operation.  It was the expense of the second operation that led Ms Resurreccion to steal the jewelry in order to raise the needed funds.

13.Ms Resurreccion has at the earliest opportunity owned up to her crimes and done her best to mitigate the loss incurred by giving the pawn slips to her employer.  The offence was completely out of character and committed because of desperate family circumstances.  None of the money was spent on herself.

14.Mr Davies referred to the sentencing guideline as set out in HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776 but would urge the court to base the sentencing on the actual loss to the employer rather than the value of the goods stolen.  Mr Davies asked for leniency.

15.Mr Davies also referred to 9 matters mentioned in the headnote of R v Barrick, 81 Cr App R 78, to which a sentencing court should have regard and how they may be applicable to the present case.  In conclusion, Mr Davies submitted, this case is not the most serious of its kind.

16.Mr Davies submitted four mitigation letters respectively written by Ms Resurreccion, her third sister, her father and her eldest sister (with English translation, where appropriate).  The contents generally are that Ms Resurreccion was the only one to support her family members including her nieces and nephews; that she had borrowed too much money and her sister needed surgery so she had no choice but to steal from her employer; that she was a kind, helpful, generous and loving sister and obedient daughter; that she had provided for her eldest sister who had stage 4 breast cancer and for her eldest sister’s children in terms of their education.

17.Mr Davies also provided some medical records and receipts relating to the eldest sister.

18.After taking further instructions, Mr Davies informed the court that the two sisters working in Hong Kong have contributed to the first operation of the eldest sister and they have also to save up for their future marriages.

Sentence

19.I have considered the mitigation submissions made by Mr Davies.

20.This is a clear case of breach of trust which makes the theft a lot more serious than it otherwise would be.  Hong Kong families are routinely served by domestic helpers on a major scale and therefore need to be protected from in-house theft as had taken place in this case.

21.Having no choice but to steal is not a mitigating factor that finds favour in this court.

22.The circumstances of misfortune that knocked on the door of Ms Resurreccion are not exceptional and the court cannot understand why the family expenses including the medical expenses of the eldest sister (at least for the second operation) could not have been shared by all of her siblings two of whom also worked as domestic helpers in Hong Kong.

23.A deterrent sentence is called for.  Custodial sentence is the only option open to the court in such cases.

24.With deterrence of like-minded persons at the forefront of my mind, I apply the guideline laid down in Cheung Mee Kiu to the value of the property stolen ie $294,000, and not to the amount of the monetary loss.  I will adopt a starting point of 2 years and 1 month’s imprisonment.  Ms Resurreccion pleaded guilty in good time and so is entitled to the full 1/3 discount.  I cannot find any other mitigating factors of sufficient weight to warrant a further discount.

(Ms Resurreccion, please stand)

25.The sentence for her is a term of 16 months and 20 days’ imprisonment.