HKSAR v. Molina Luz Ursulum

DCCC414/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 414 OF 2010

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Reasons for Sentence

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1.The defendant has pleaded guilty to two counts of theft, contrary to section 9 of the Theft Ordinance, Chapter 210, and one count of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Chapter 210. The defendant denied a third count of theft, Charge 2 on the indictment. This has by agreement of the parties been ordered to be left on file, not to be proceeded with without leave of the court.

2.Two premises are involved herein: Flat 1, namely, Flat B on the 8th Floor of Mei Foo Sun Chuen, Stage 6, Nos. 15‑17 Humbert Street, Kowloon, and Flat 2 which is Flat B on the 13th Floor of Mei Foo Sun Chuen, Stage 6, No. 32 Nassau Street in Kowloon.  At all material times, the defendant was employed as a domestic helper by Yip Fat-chun and resided with Yip and his wife in Flat 2.  Yip’s mother and his mother-in-law resided in Flat 1.  The defendant was not allowed to enter Flat 1 without their permission.

3.PW1 had since 2009 kept a ring inside her jewellery box stored in a wardrobe in her bedroom inside Flat 1.  On 12 February 2010, she also placed $8,000 in cash in the pocket of a jacket which was kept inside the wardrobe in her bedroom in Flat 1.

4.In February of 2010, she left Hong Kong for a few days.  On her return, she saw signs of ransacking inside Flat 1 and found upon checking that her ring, the cash and two keys were missing, these being the subject matter of Charges 3 and 4.

5.On 21 February 2010, PW2 checked her flat, Flat 2, and found two rings and one wrist chain and two pendants missing. These items were kept in a drawer of a computer desk in her bedroom since 2007.  These are the subject matter of Charge 1.

6.PW2 confronted the defendant who admitted having stolen the items in Flat 1.  A report was made to the police and the defendant was arrested on 20 February 2010.  She admitted stealing some money and rings under caution.  On 21 February 2010, the defendant handed over $11,000 in cash to the police.

7.When interviewed under caution, the defendant admitted entering Flat 1 on an occasion in December of 2009 and admitted stealing a ring (Charge 3).  She had entered the flat with permission; hence, the charge of theft.  She pawned the ring she stole for $2,000 on 13 December 2009.  The ring has been recovered.

8.On 19 February 2010, she had used keys to enter Flat 1 and stole $8,000 cash.  She did not have permission to enter the flat; hence, the 4th count of burglary.  She also admitted stealing some jewellery, including a ring, a wrist chain and a jade pendant from her employer’s bedroom in mid-2009 (the 1st count).

9.The total value of the jewellery stolen was $17,500, of which $10,000 has been recovered.  8,000 cash has not been recovered.  Thus, the total loss to the victims is $15,500.  The defendant has surrendered 11,000 cash to the police.  10,000 of this will be returned to the victims herein and will set off their losses.

10.The defendant is now aged 41.  She has a previous clear record.  Prior to her arrest, she had been employed as a domestic helper earning $3,480 a month.  She has been working for her current employer for four years. 

11.The defendant herself has written two letters, one in English and one in Tagalog which the Ilocano interpreter in court has very kindly translated.  The defendant has set out her background in great detail and asked for leniency.  I have before me also a letter written to the defendant by her friend which again has been translated into English by the Ilocano interpreter in court today. 

12.The defendant has four children aged between 14 and 23 years, all of whom are financially dependent on her.  She also has elderly and ailing parents that she supports.  She committed the present offences because of financial need as a result of her own financial burden supporting her four children and her parents.  Her father has also been in ill health.  Three of her children are adults aged 23, 22 and 21, and one has even recently had a baby.  She has had no financial support from her husband for a long time.

13.The normal starting point in respect of domestic burglary for a first offender of full age is an immediate custodial sentence of 3 years’ imprisonment in the absence of any aggravating factors.  Here, there is an aggravating factor.  The premises she burgled were those of her employer’s mother and mother-in-law.  She entered these premises using keys. Clearly, there is a breach of trust which I would view to be an aggravating factor.  Defence counsel in his submissions has also acknowledged that there has been a breach of trust by the defendant.  I accept that at the material time of the burglary, there was no one in the premises. 

14.In respect of the two counts of theft, again these are offences involving a breach of trust because she stole from her employer.  The guidelines set down by the Court of Appeal in HKSAR v Cheung Mee Kiu [2006] HKCA 451 is that for amounts of less than 250,000, the sentence should be less than 2 years’ imprisonment.

15.I have had sight two of the authorities handed up by counsel and considered them, these being HKSAR v David Vilma V. HKMA 11 of 2003, HKSAR v Cheng Ho Wai CACC78 of 98, and HKSAR v Lau Pang CACC252 of 2004. 

16.McMahon J as he now is in HKSAR v David Vilma V., supra, an appeal against sentence by a domestic helper for stealing from her employer and her employer’s guest at her employer’s residence where the five offences of theft of a total of $7,760 over a five-day period was involved said at paragraph 5:

“The amount of cash stolen over the five days was substantial and the circumstances of the offence demonstrated a premeditated course of action of a pattern of offending which, even for a first offender, could properly be said to have warranted a custodial sentence.”

He identified in his judgment two aggravating features in paragraph 7:

“Firstly, not only was the appellant in breach of the trust reposed in her as an employee of the victim but also the thefts were part of a series, and formed a pattern of conduct over a period of several days.”

17.These two aggravating features are also present here.  The thefts and the burglary were over a period of several months.

18.I accept that the defendant is not a typical criminal and she foolishly resorted to illegal means to try to resolve her financial problems.  To some extent, I do sympathise with her.  Hers is the typical story of a Filipino domestic helper weighed down with a heavy financial burden for their families in the Philippines.  But be that as it may, the element of breach of trust is involved and there are multiple offences over several months, and these are aggravating features.

19.Her greatest mitigation is her plea of guilty. She has also surrendered $11,000 to the police, of which 10,000 will be returned to the victims which will help to set off the loss of the victims, and she deserves credit for this.

20.On Charges 1 and 3, on each of these, I take as a starting point 6 months’ imprisonment, discounted by one-third to reflect her plea and a further discount of 1 month to reflect that there has been some restitution.  On each of these charges, she will be sentenced to 3 months’ imprisonment.

21.On Charge 4, I will take a starting point of 3 and a half years to reflect the breach of trust involved, discount this by one-third to reflect her plea and a further discount of 4 months to reflect that there has been some restitution.  She is sentenced to 2 years’ imprisonment on Charge 4.

22.These are separate and distinct offences over a period of months and warrant consecutive sentences, but bearing in mind the totality principle, I order that these sentences be served concurrently. Therefore, the total is one of 2 years’ imprisonment.