HKSAR v. Saminem

DCCC 176/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 176 OF 2015

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Reasons for Sentence

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1.Defendant, you have pleaded guilty to three theft charges, contrary to section 9 of the Theft Ordinance, Cap 210.

2.You were a domestic helper working for the victim, and in short, you stole pieces of her jewellery, pawned it, and out of the five items pawned, only four have been recovered.  The fifth item, not recovered, was the most valuable item.

3.The facts of this case are straightforward.  The item not recovered, the subject of Charge 1, is an emerald ring valued at HK$1.2 million.  It was placed in a box in a suitcase that was not locked by your employer.  On 31 December 2013 you took it and pawned it for HK$30,000.  On two occasions in 2014 you paid interest on the loan of $30,000. Surprisingly, the victim did not notice this valuable ring was missing until you confessed to her on 5 January 2015 you had taken it and pawned it. This was one year later.

4.For Charge 2, you took two necklaces that had pendants which were worth HK$100,000, and pawned them on 16 December 2014.  You pawned them for $3,200.  There is no documentary evidence as to the value of these items.  It is what the victim told the police.  These items have been recovered.

5.For Charge 3, you took a watch and an earring worth, according to the victim, $260,000 in total, and pawned them on 20 December 2014 for $2,500.  As I have said, these items were also recovered.  The victim did not notice these items were missing either.  All these items were placed in an unlocked drawer.

6.In total, over the three occasions that you pawned the jewellery, you received $35,700.

7.I have been told that you stole the items and pawned them because you needed the money for your family.  Your mother has diabetes and your father has a heart condition.  Neither of them work in Indonesia, but are in charge of your 6-year-old daughter.  All three of them rely on your income to survive.

8.You came to work in Hong Kong as a domestic helper in 2011, and I have received a letter from you explaining that what triggered these offences is a video call to your mother where you saw that her diabetes had caused her limbs to swell up, which indicated she needed immediate medical attention.  Because you could not afford the medication or the medical attention, you committed the first offence.

9.I have been told in mitigation that you are 34 years old.  Prior to coming to Hong Kong in 2011 as a domestic helper, you worked in Singapore for eight years as a domestic helper.

10.This contract with the victim is your second contract in Hong Kong.  It was due to expire on 9 January 2015.  You were not renewing this contract and you were leaving this employer.  Four days before you were due to leave this employer you confessed the offences to the victim. You would probably have not been caught if you had not confessed to the victim, but I have been told in mitigation that you have a conscience and you felt guilty.  You could not leave without revealing the offences.  I will take that into account in sentencing.

11.I also have no doubt that you did not know the true value of the emerald ring being over HK$1 million.  This ring was left unlocked or unsecured in the premises.  This is very trusting of the victim, but what that did was put temptation in front of you, and when you needed money to help your family, you rather stupidly resorted to taking this and pawning it.  It has been put in mitigation that you were perhaps rather naively thinking you would be able to return the ring.  In reality, that would have been financially impossible.

12.Guidelines exist for breach of trust cases, and I have looked at two authorities, HKSAR v Cheung Mei Kiu [2006] 4 HKLRD 776, as well as HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017.  What is relevant in those guidelines set out by the Court of Appeal is that where a breach of trust case occurs and the value of the loss is between $1 million and $3 million, the court should consider a starting point of between 3 to 5 years’ imprisonment.

13.The facts I considered relevant when coming to an appropriate starting point are as follows.  I appreciate the victim has suffered a loss of over HK$1 million, but I also take into account the defendant, unlike some defendants who commit a breach of trust offence, had no idea what the true value of this ring was.  It is not a case of she knew its high value and yet stole it nonetheless.

14.It is also highly relevant that the defendant confessed to the victim voluntarily.  She was not caught out, but stepped up and confessed.

15.You have pleaded guilty today, and I accept you are genuinely remorseful.  You had a clear record in Hong Kong, and bearing in mind you have been here since 2011, that is four years here without any trouble.

16.Defendant, please stand up.  Having considered those relevant factors as well as mitigation put forward, I will, for Charge 1, what should be a 3‑year starting point, adopt a 2 year and 3 month starting point.  For Charge 2 I will adopt a starting point of 1 year imprisonment.  For Charge 3 I will adopt a starting point of 1 year and 3 months’ imprisonment.

17.You have pleaded guilty.  You are entitled to a discount of one‑third.

18.After that discount is applied, for Charge 1, you are sentenced to 1 year and 6 months’ imprisonment.  For Charge 2, you are sentenced to 8 months’ imprisonment.  For Charge 3, you are sentenced to 10 months’ imprisonment.

19.I will order that all three sentences be served concurrently.  The total sentence therefore is one of 1 year and 6 months.  Do you understand that sentence?  Yes.