HKSAR v. Yuni Hastutik

DCCC 91/2021

[2021] HKDC 942

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 91 OF 2021

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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] and one charge of burglary, contrary to section 11 of the Theft Ordinance.

2.Full particulars of the offences are set out in the summary of facts admitted by the defendant today[2]. In summary the defendant was employed as a domestic helper in the home of Madam Yap since 2014.  Madam Yap lived together with her husband and her mother who has suffered from dementia since 2019. 

3.The home consisted of four bedrooms, the maid’s room and a storeroom.  The storeroom was usually locked and only Madam Yap had the keys to the storeroom. The defendant was not permitted to go in the storeroom.

4.Between 2 September and 14 September 2020 Madam Yap and her husband went on a trip outside Hong Kong.  When they returned Madam Yap found the home was very messy and the storeroom was open.   

5.On 27 September 2020 Madam Yap checked the defendant’s room.  Inside the room Madam Yap found items belonging to her and her family as particularised in charge 1. Most of the items were placed inside suitcases.  Madam Yap also found in the room a candelabra which had originally been placed inside the storeroom (charge 2).

6.The total value of the stolen property was $44,775 including the candelabra which was valued at $10,000. 

Mitigation

7.In passing sentence, I have carefully considered the oral and written submissions of Ms Mohamed, in particular that the defendant aged 37, is a single parent with a daughter aged 10 who is living with her auntie in Indonesia; the defendant remits her salary to Indonesia to support her daughter and that the defendant stole the property of her employer because she needed to repay a loan she had taken out to buy her family home which had been sold by her brother[3].

8.I take into account the defendant has worked in Hong Kong for the same employer for nearly six years and has no previous convictions. 

Guidelines

Theft

9.By stealing the property of her employer the defendant breached the trust placed in her by Madam Yap.  In passing sentence, I have considered the principles laid down in R v Clark[4] as applied in HKSAR v Cheung Mee Kiu[5] as adjusted in HKSAR v Ng Kwok Wing[6]. 

10.The guidelines state the proper starting point after trial where the amount stolen is less than $250,000 is less than 2 years’ imprisonment.

11.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[7]. 

12.This was a mean offence.  The defendant betrayed the trust built up with her employer over six years. 

13.Taking into account the degree of trust reposed in the defendant as a domestic helper; the value of the stolen property; that all the stolen property has been recovered and that the defendant has never been in trouble before, I am satisfied the proper starting point after trial is 15 months’ imprisonment.

14.Giving the defendant full credit for her plea reduces the sentence to 10 months’ imprisonment.

Burglary

15.I agree with the oral submission of Ms Mohamed that this is not the usual domestic burglary for which a starting point of 3 years’ imprisonment is appropriate.  There was no breaking and entry of the premises, only of a storeroom inside the home where the defendant worked.  

16.I am satisfied in the circumstances of this case a 15 months’ starting point is also appropriate.  Giving the defendant full credit for her plea reduces the sentence to 10 months’ imprisonment.

Totality

17.Ms Mohamed asks for concurrent sentences.  Although the candelabra also belonged to her employer, I am satisfied that the burglary of the storeroom adds to the culpability of the defendant.  I am satisfied a total sentence of 15 months’ imprisonment properly reflects the defendant’s overall criminal culpability on the two charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[8].

Sentence

18.The defendant is convicted and sentenced as follows:

Charge 1 - 10 months’ imprisonment; and

Charge 2 – 10 months’ imprisonment with 5 months consecutive and 5 months concurrent to charge 1.

The total sentence to be served by the defendant is 15 months’ imprisonment.

[1]  Cap 210.

[2]  §10 of the summary of facts was amended in court.

[3]  See §§2 & 6 of the written mitigation.

[4]  (1998) 2 Cr App R 137.

[5]  [2006] 4 HKLRD 776.

[6]  [2008] 4 HKLRD 1017.

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

[8]  See HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690.