HKSAR v. Clores Olive Lorenzo

DCCC 937/2021

[2022] HKDC 436

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 937 OF 2021

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one charge of theft.

Admitted Facts

2.The facts admitted by the defendant are as follows:-

(1)  Since early 2018, the defendant worked for PW1 as a domestic helper at PW1’s flat in the mid-levels (the Flat).

(2)  PW1 lives with her family members and domestic helpers. The domestic helpers were PW2 and the defendant. The defendant was entrusted with domestic duties including cleaning PW1’s bedroom. The defendant and PW2 lived in separate bedrooms.

(3)  On 20 May 2021, PW2 told PW1 that she found a lot of items (which belonged to PW1 and her family)  inside the defendant’s room. PW1 then checked all the items in the defendant’s room and found a lot of clothes, food and groceries that belonged to PW1 and her family inside the defendant’s room.

(4)  After discussing the matter with her husband, PW1 and her husband asked the defendant for an explanation in the morning of 24 May 2021. The defendant admitted that she stole from PW1 and her family, and asked PW1 not to report the case to the police. PW1 then dismissed the defendant and asked her to leave the Flat by 25 May 2021.

(5)  On 24 May 2021, the defendant left the Flat with around 17 bags of items. PW1 did not check the defendant’s bags. However, after the defendant left, PW1 found that a number of her jewellery were missing. PW1 then reported the matter to the police.

(6)  PW3 is the security guard of the resident building where the Flat was located. On 24 May 2021 at about 3 pm, he saw the defendant leaving the building with 16 bags of items. The defendant sought assistance from PW3 to call 2 taxis. PW3 called 2 taxis (registration numbers AS 1438 and TH 9790). The defendant loaded her bags onto the taxis and left.

(7)  PW4 is the driver of the taxi AS 1438 (the First Taxi)  at the material time. On 24 May 2021 at about 3:30 p.m., the defendant loaded around 7 bags of items onto his taxi and asked him to go to World Wide House in Central.

(8)  PW5 is the driver of taxi TH 9790 at the material time. On 24 May 2021 at about 3:30 p.m., the defendant loaded around 8 bags of items onto his taxi and asked him to follow the First Taxi to World Wide House in Central.

(9)  PW7 is the person-in-charge of Focus Door to Door Logistic Company in World Wide House, Central (the Logistics Company). On 24 May 2021 at around 3:41 p.m., the defendant arrived at the Logistic Company with her bags. The defendant then repacked the same into 2 boxes and 3 striped bags. She then arranged to send the 2 boxes to the Philippines and instructed the Logistic Company to keep the 3 striped bags in storage.

(10)  On 26 May 2021, the defendant was arrested by the police. She admitted under caution, in the presence of a Tagalog interpreter, that she stole from her employer. She stated that she wanted to return all the jewellery (kept in her residence in North Point)  to her employer. She also said that she wanted to return the rest of the stolen food.

(11)  Later on the same day, the defendant’s residence in North Point was searched where 137 items were seized. A total of 156 items (contained in the 2 boxes and 3 striped bags)  were also seized by the police from the Logistic Company. In gist, a total of 293 items were seized from the defendant’s residence and the Logistic Company.

(12)  Two cautioned interviews (on 26 and 27 May 2021)  and three video-recorded interviews (on 27 and 28 May 2021)  were conducted with the defendant.

(13)  The defendant admitted under caution, in the presence of a Tagalog interpreter, inter alia, that:

(a)  She stole 146 items of valuable goods (including 2 diamond bracelets, 1 diamond ring, 1 wristwatch and other luxury items from PW1);

(b)  As for the remaining clothes and food items seized by the police, the defendant claimed:

(i)  Some of those items belonged to her;

(ii)  PW1 gave some of the items to her; and

(iii)  For the rest of the food items, PW1 intended to discard the same but the defendant picked them up and kept them.

(14)  On 21 July 2021, PW1 confirmed that the 293 items seized from the defendant’s residence and the Logistic Company all belonged to her and her family.

(15)  PW1 confirmed that, among the 293 items, 146 items were stolen property, which included 2 diamond bracelets, 1 diamond ring, 11 bracelets, 12 rings, 4 earrings, 7 pairs of earrings, 3 necklaces, 2 watches, 6 handbags, 5 bags, one receipt, one iPad stand, 6 hair clips, 1 bottle of sunblock cream, one facial mask, 1 bottle of lotion, 1 bottle of shampoo, 1 bottle of conditioner, 1 bottle of detergent, 2 plates, some clothing, some cosmetic products and some food. The estimated value of these items was HK$472,385.

(16)  As for the remaining 147 items, PW1 intended to discard them any way and she did not mind the defendant taking them.

The defendant’s background

3.The defendant is 42 years old, married and has two daughters.  She has been living and working in Hong Kong since 2011 and has a clear record.  She has been working for PW1’s family since 2018.

Mitigation

4.Counsel admitted that this case involves a breach of trust but submitted that the breach was only “to a certain extent”.  He argued that the defendant was responsible for the children and was in effect part of the family.  The court agrees that there was a breach of trust.  However, if counsel is submitting that such breach was anything but serious, then I disagree.  The defendant was employed by PW1 and her family as a domestic helper.  As such, she lived in the Flat and had access to the contents of the Flat.  Even according to her own case, the defendant was treated by PW1 as part of the family.  Her actions were a serious breach of that trust.

5.Counsel further submitted that the defendant was not motivated by greed as she never liquidated the stolen items.  He explained that the defendant was using the stolen items to feed her fantasy of affluence and that the defendant only took away the items when she was summarily dismissed.  The defendant was clearly motivated by greed.  She wanted PW1’s possessions and she stole them for her own use.  When the thefts were discovered, the defendant asked PW1 not to report the matter to the police.  When no report was made and the defendant was dismissed, she took away all the items.  Far from mitigation, this is in fact an aggravating feature.

6.Counsel submitted that the theft of close to 150 items took place over three years.  In other words, this was a course of conduct which persisted over a number of years.  Counsel stated that the family was not even aware of the thefts until the defendant was exposed by PW2.  This is not mitigation.  In fact, but for the exposure by PW2, the defendant would have continued to steal from PW1 and her family.

7.Counsel submitted that PW1 and her family may be emotionally upset but in material terms, the impact was minimal because all the stolen items were recovered.  On the other hand, the effect of this case on the defendant is devastating.  She lost her valued position and the right to remain or return to Hong Kong and hence her ability to earn money for her family.  It is difficult to see how this can be mitigation.  The defendant is the author of her own wrong.

8.Counsel also submitted that the information supplied by the defendant assisted the police in recovering some of the items that she attempted to send to the Philippines.  Prosecution confirmed that she did inform the police that some of the stolen items were in her North Point residence.

9.In other words, apart from her timely plea, there is little other mitigation.  According to the sentencing guidelines set out in HKSAR v Cheung Mei Kiu [2006] 4 HKLRD 776, as amended by HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017, the starting point for stealing HK$250,000 to HK$1 million is 2 to 3 years’ imprisonment.  The value of the stolen property alone would have warranted a starting point of 2 years and 3 months.  However, the value of the property is not the be all and end all.  The court has to consider all the circumstances of the case.  As mentioned above, there are a number of aggravating features, namely the persistent pilfering conduct over a prolonged period of time (which would have continued but for the exposure by PW2), the number of items stolen and the defendant’s deplorable behaviour after the thefts were exposed.  I also take into consideration the fact that all the stolen property has been recovered and the defendant did give some assistance to the police.  Having considered all the circumstances of the case, I adopt a starting point of 2 ½ years.  The defendant has pleaded guilty at the first opportunity, I give her the full one third discount.  The sentence is reduced to 20 months’ imprisonment.