HKSAR v ROSETE CYRYLL DUQUE

DCCC 910/2023

[2024] HKDC 1121

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 910 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant has pleaded guilty to a single charge of theft which occurred between February 2023 and 1 July 2023. The facts show that the defendant was employed as a domestic helper at a flat in Hong Kong throughout that period and in fact she worked for the same employer, who was PW1, since 2015. In February 2023, the employer placed various sums of money into a safe and a locked drawer. The facts show there were $520,000 in cash placed into a safe and approximately $20,000 in cash into a locked drawer both situated in the bedroom of PW1. Both these storage areas was secured by locks which were buckled onto PW1’s house keys. The $500,000 in cash was kept in a brown paper bag and a further $20,000 was contained in various sealed red packets. The contents of the safe were checked in February 2023. No money was taken from the safe or the drawer. In July 2023, PW1 discovered the keys for the safe had been separated from her house keys and as a result of that she checked upon both the money in the safe and the drawer, found that of the safe money, some $520,000 had gone, the money in the paper bag and the red packets had been taken and then checked into the draw where the red packets were and found another around about $20,000 had been taken from there.

2.  As a result of that, the defendant was arrested on 1 July 2023 and she made admissions to theft of the sums of money. She had stolen the money from both the safe and the drawer and had used the keys to do that. She had taken the money over a period of time in smaller units and replaced the items on the basis with the hope that they would not be found and she told the police that she deposited the cash into the bank accounts of various persons and also into an investment platform called BigSeller Marketing. Those facts constitute full admission to the charge and I have convicted her accordingly.

3.  The defendant is on her antecedents of clear record. She is employed in Hong Kong as a domestic helper but had received university level education in the Philippines and is a Philippine National. That means on the conclusion of any sentence for this she will most likely be deported from Hong Kong.

4.  The defence in mitigation point out that she has admitted the offence from an early stage, from 1 July when she was arrested, so she is entitled to a full credit for that and her plea of guilty which she has always indicated that she would enter. She admits that she had worked from 2015 at PW1’s residence as an employer and that that places her in a position of great trust and responsibility within the family and she admits that she has abused that position. She says in mitigation that she comes from a poor family in the Philippines and members of the family have a need of medical treatment and she had moved money back to the Philippines in order to pay for that. She does admit that some money would also be placed into an investment platform.

5.  As far as the approach to sentencing is concerned, the case involving theft where there is a breach of trust, there is a set of guideline sentences and I have been helpfully provided with the sentencing authorities by the defence and I will just list the cases which are relevant. There is the HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776; that was suggested in HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017 and then a further explanation was provided in the case of HKSAR v Lee Lai Kit, Kitty [2009] 6 HKC 265. Those cases referred to the English case of R v Barrick [1985] 81 Cr App R 78 which sets out the factors that the court should take into regard when sentencing for theft involving a breach of trust. I am aware of those factors.

6.  I am also aware that the three Hong Kong cases that I have listed set out a sentencing guideline which shows that from the amount taken between $250,000 to HK$1 million, the sentencing guideline lies between 2 to 3 years’ imprisonment as a starting point for a person convicted after trial with a clear record.

7.  The amount taken here is $540,000 so it is some way down in respect of the guideline that I have set out. I have also been helpfully provided with similar cases decided within the District Court over a period of time which show how these courts have approached that guideline involving various sums of money.

8.  I consider overall, taking into account it is only a guideline and guidelines are subject to a discretionary approach, that the appropriate starting point for sentence for this defendant should be one of 2 years and 3 months’ imprisonment, that is 27 months’ imprisonment. She is entitled to a full one-third discount which on my calculation leads to a final sentence of 18 months’ imprisonment for this offence.