HKSAR v. Emperador Edarlyn Arcalas

DCCC 1025/2020

[2021] HKDC 501

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1025 OF 2020

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REASONS FOR SENTENCE

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1.The defendant pleads guilty to one charge of theft, contrary to section 9 of the Theft Ordinance[1].

2.Full particulars of the offence are set out in the summary of facts admitted by the defendant today.  In summary the defendant was employed as a domestic helper in the home of Ms Leung since 1996.  At around 8 p.m. on 3 August 2020 Ms Leung discovered that her Rolex watch; a Roger Dubuis watch; a Piaget watch; three Patek Philippe watches; one pair of Hermes earrings; a Roger Dubuis necklace with pendant and eight gold ingots were missing. 

3.At around 11 p.m. on 6 August 2020 Ms Leung confronted the defendant about her missing property.  The defendant confessed that she had stolen the jewellery. 

4.The case was reported to the police the next day.  When the police arrived at the home they found in the defendant’s trouser pocket six pawnshop receipts from three different pawnshops and the Rolex watch. The defendant was then arrested for theft.

5.Under caution and in a subsequent video recorded interview the defendant admitted, inter alia; that she was greedy; she had pawned the jewellery for her own expenses and sent the rest of the money to her hometown in the Philippines and that she had stolen other property apart from the property Ms Leung had found missing. 

6.Police enquiries with the pawnshops revealed that except the pair of Hermes earrings and seven of the gold ingots the defendant had pawned the jewellery found missing by Ms Leung. 

7.The police also discovered that the defendant had pawned another Rolex watch; a Waltham watch, four necklaces with pendants; eleven pairs of earrings; six pendants; six rings and four necklaces belonging to Ms Leung. 

8.The defendant had pawned the property of Ms Leung on twenty-three occasions between 6 April 2020 and 17 July 2020 in six different pawnshops for a total sum of $298,250.

9.The total value of the stolen property was $1,189,500 all of which has been recovered except the pair of Hermes earrings and seven of the gold ingots valued at $55,000.  

10.Ms Tsang informs the court that the jewellery pawned will be returned to the police pending application under the Pawnbrokers Ordinance[2].

Mitigation

11.In passing sentence, I have carefully considered the oral and written submissions of Mr Sherry, in particular that the defendant aged 51, is now single with three sons aged 7, 15 and 29; the two younger sons live with the defendant’s elderly mother in the Philippines who is very ill and that the defendant is the main breadwinner of the family[3].

12.I have read the defendant’s letter of mitigation in which she explains why she stole her employer’s property.  This is also detailed by Mr Sherry in his written mitigation[4].

13.In summary after the family home in the Philippines was demolished in 2012 the defendant had to take out a loan from a loan shark to finance the new home. Family tragedies followed leading to the defendant borrowing more money. 

14.In 2019 the defendant began to borrow money from Ms Leung.  When the defendant needed more money to pay the medical expenses of her mother she borrowed more money from Ms Leung and a finance company.  By February 2020 the defendant had borrowed $95,000 from Ms Leung of which she had only paid back $5,000. 

15.The defendant in debt to the equivalent of HKD250,000 began to steal Ms Leung’s property out of financial desperation[5].

16.I take into account that the defendant has worked in Hong Kong for Ms Leung for twenty-three years and that until she stole the property of Ms Leung the defendant had never been in trouble with the police. 

Guidelines

17.By stealing the property of her employer the defendant breached the trust placed in her by Ms Leung.  In passing sentence, I have considered the principles laid down in R v Clark[6] as applied in HKSAR v Cheung Mee Kiu[7] as adjusted in HKSAR v Ng Kwok Wing[8].

18.The guidelines state the proper starting point after trial where the amount stolen is between $1 million and $3 million is 3-5 years’ imprisonment.

19.In determining the sentence the following matters are to be considered: (i) the quality and degree of trust reposed in the offender including his rank; (ii) the period over which the theft was perpetrated; (iii) the use to which the money dishonestly taken was put; (iv) the effect upon the victim; (v) the impact of the offences on the public and public confidence; (vi) the effect upon fellow-employees or partners; (vii) the effect on the offender; (viii) the offender’s own history and (ix) those matters of mitigation special to the offender such as illness; being placed under great strain or where there has been a long delay[9]. 

20.This was a mean offence.  The defendant betrayed the trust built up with her employer over twenty years.  Ms Leung no doubt appreciating the long time the defendant had worked for her and having sympathy with the defendant tried to help the defendant by loaning her money.

21.As indicated in court I have reservations about all that has been said leading to the defendant stealing her employer’s property.    No documentary evidence in support has been produced to court and when interviewed by the police the defendant said she was greedy and made no mention of any of the matters in her mitigation letter.  Furthermore, having obtained almost $300,000 from pawning the jewellery, more than what the defendant owed, she still did not repay the loans made by her employer.  I am however prepared to accept that the defendant was in debt and out of desperation stole the jewellery.

22.Taking into account the degree of trust reposed in the defendant as a domestic helper; the value of the stolen property; although charged as one offence the defendant stole property over a period of four months; most of the property has been recovered and that the defendant has never been in trouble before, I am satisfied the proper starting point after trial is 3 years’ imprisonment.

23.Giving the defendant full credit for her plea of guilty she is convicted and sentenced to 2 years’ imprisonment.

[1]  Cap 210.

[2]  Cap 166.

[3]  See §§1-6 of the written mitigation.

[4]  See §§6-22 & 26-27 of the written mitigation.

[5]  See §§17 & 22 of the written mitigation.

[6]  (1998) 2 Cr App R 137.

[7]  [2006] 4 HKLRD 776.

[8]  [2008] 4 HKLRD 1017.

[9]  See R v. Barrick (1985) 81 Cr. App. R. 78 and HKSAR v Lee Lai Kit, Kitty [2009] 6 HKC 265 cited by Mr Sherry.