HKSAR v. Risnawati

DCCC955/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 955 OF 2008

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Before:   H H Judge S. D’Almada Remedios

Date: 13 March 2009 at 2.40 pm

Offence:  Theft (盜竊罪)

Reasons for Sentence

1. Defendant, you have pleaded guilty to three charges of theft, contrary to section 9 of the Theft Ordinance.  Those are charges 2, 3 and 4 of the re-amended charge sheet.  In respect of the 2nd charge, you are charged that on divers days in 2005 you stole from a flat in Lower Baguio, cash in the total sum of $6,000, the property of your employer, Mr Tien.  In respect of the 3rd charge, it was an unknown day in July 2006 where you again stole from your employer from the same premises a pearl ring.  In respect of the 4th charge, it was on divers dates between 1 September 2008 and 4 October 2008, this time at a different premises, that is in Upper Baguio, you stole $2,000 cash again from your employer. 

2. In respect of the 2nd charge, you admitted that you had stolen the money when it was placed on the desk and in a drawer of your employer’s master bedroom on several occasions.  In respect of the 3rd charge, you admitted that you stole the ring from, again, the premises.  In respect of the 4th charge, you admitted stealing the money from the pocket of your employer’s trousers placed in his premises between that period of time.

3. When you were arrested on 4 October, you admitted under caution that you stole, you “knew it was wrong in stealing mister’s things, I know I was wrong”.  In respect of the 2nd charge, that was the $6,000 stolen in 2005, at that time you had repaid your employer by deduction from your salary.  In respect of the 3rd charge, you had voluntarily confessed that you had stolen this ring and without your confession the offence may not have come to light.  In respect of the 4th charge, out of the $2,000 you stole, you returned $1,700 to your employer.

4. You are 29 years of age, are of clear record and come from Indonesia.  Mr Beel, your counsel, has made very full and thorough mitigation on your behalf today which I have taken into account when sentencing you.  Mr Beel has also helpfully submitted three cases for me to consider which are also taken into regard when sentencing you.  A helpful case in respect of thefts committed by domestic helpers is submitted in the case of HKSAR v David Vilma V which is a HCMA 11 of 2003.  This is clearly, as Mr Beel accepts, a case of breach of trust.  There are many domestic helpers employed in Hong Kong who live with their employers and is their utmost trust that these employers place in the employees as they live and eat with them.  It is no doubt clear that for this type of breach of trust an immediate sentence of imprisonment is the only appropriate sentence.

5. The value of cash in this case is one of $6,000 in charge 2 and $2,000 in charge 4, that makes a total of $8,000 cash.  I am not informed of the value of the pearl ring but I am informed that this was a ring belonging to the late wife of your employer.  Of the cash that was stolen, you had repaid the full $6,000 in charge 2 and returned $1,700 of that in charge 4, leaving a sum of $300 unrecovered.  You had also returned the pearl ring.

6. In the case of David Vilma, McMahon J had in that case considered the value of the sums involved in the offences totalled the equivalent of $7,760 and all the moneys there were recovered except for $1,000.  It is clear that each case differs on its own facts and is fact-dependant and as McMahon J says;

“Sentencing levels in previous cases of theft involving domestic helpers are not of great assistance but such cases do give some indication of the approach of previous courts and consistency in sentencing is a desirable goal.”

In David Vilma V, McMahon J took a global starting point of 12 months’ imprisonment.  That starting point incorporated into it two aggravating factors, that is the breach of trust, and further, the fact the offences formed part of a premeditated pattern of criminality. 

7. In this case there is a clear breach of trust, as I have mentioned and also a premeditated pattern of criminality in that at various times throughout this period you had gone to your employer’s trousers pocket or drawers and took small amounts of money out.  In respect of charge 2, it is not known of the time span of the offences, but in respect of charge 4 it was for a period of approximately just over a month. 

8. In this case, I do take a global approach as was taken in David Vilma V., and taking into account the fact that generally that these offences were from day one, shall I say, committed really over a period of some two years, that is between 2005 and 2006 and again in 2008, and a further factor is the fact that although you were caught and repaid the money in 2005, you nevertheless, despite the leniency granted to you by your employer, Mr Tien, in continuing to re-employ you, you stole again in the following year.  You then left his employment and, as said from Mr Tien’s evidence, in August 2006 you said you were going to return in some three weeks, you did not, but you called him again some six months later and asked to be re-employed and he again took you back to his employment and terminated his other maid so he could employ you.  Then some six months or so after you were employed, you then started stealing from him again. 

9. I take these matters into consideration and I do consider that a starting point of 15 months’ imprisonment is the appropriate one for charges 2, 3 and 4.

10. Turning to charge 2, of course you have pleaded guilty and I give you the full one-third discount for your plea and I reduce the 15 months to one of 10 months’ imprisonment.  You have made full restitution on that and the fact that that offence was some three years ago from the time you were charged, I reduce that by a further 2 months and sentence you to 8 months’ imprisonment on that charge.

11. On charge 3, I give you again the full credit for your plea of guilty and reduce that term to 10 months’ imprisonment and accept that this was a voluntary confession of yours that you had stole the ring and had it not been for your confession this offence might not have come to light and I give you a further discount there of 1 month imprisonment such that that term is reduced to 9 months’ imprisonment to which you are so sentenced on charge 3.

12. On charge 4, I give you full credit again for your plea of guilty and reduce that term to one of 10 months’ imprisonment and give you again a further reduction of 1 month for the money you returned, and sentence you to 9 months’ imprisonment on that charge.

13. I have considered the principle of totality.  These three offences were all separate and distinct offences committed in three different years, 2005, 2006 and 2008.  I consider that part of these sentences should be served partly consecutively.  In the circumstances, I order 1 month in charge 2 and 3 to be served consecutively to charge 4 making a total of 11 months’ imprisonment to which you are so sentenced.