HKSAR v. SRI HANDAYANI

DCCC 94/2018

[2018] HKDC 793

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 94 OF 2018

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.  The defendant has pleaded guilty to a single count of burglary.

2.  The burglary was committed in a residential building in Tai Kok Tsui in Kowloon.  The facts show that the burglary was committed at the home of a lady described as PW1, and she was the mother of PW2.  The defendant is the domestic helper for PW2, and as such, she had an access card into the residential building where PW1 lived.

3.  The defendant’s employer, PW2, also had a set of keys for PW1’s premises, and what the defendant did was that she went to PW1’s premises, using the resident access card to get in, and then used PW2’s keys which she had taken to access PW1’s premises, and when she was in there, she stole some 1,200 Renminbi which had been left in a purple wallet which was in an unlocked drawer in the living room of the premises.

4.  The theft was eventually discovered, and the defendant was confronted with that, and she admitted, in fact, to PW2 that she had stolen the money from the premises.

5.  The actual taking of the money occurred on about 20 September 2017.  It was not until November 2017 that her employer, PW2, confronted the defendant about the missing 1,200 Renminbi in cash.

6.  The defendant was later interviewed by police. She said on the afternoon of 22 September she had to fetch the child of PW2 from school, and she took the keys to PW1’s premises from her employer’s residence and went over to PW1’s residence, where she stole the cash from the drawer.  Her reason for doing so was repaying debts to friends, and she was remorseful.

7.  It can be seen from these facts that the case does not easily fit into what I should call the conceptual framework of a burglary, although it certainly is an illegal burglary; there is no doubt of that.  The case involves elements of abuse of position and breach of trust and unlawful access to a premises.  It does not involve the access of breaking into a premises by prising a door or destroying a lock.  It is a premises that is familiar to the defendant, and it did not involve any ransacking of the premises, and these are factors which, of course, must be considered when an appropriate starting point for sentence is borne in mind.

8.  As far as the defendant’s background is concerned, she is aged 44.  She is Indonesian, and has been working in Hong Kong as a domestic helper.  She is educated up to secondary school level. She is married, and her husband lives in Indonesia.

9.  As far as the mitigation is concerned, I am told that she has no children.  She was in the habit of remitting money to her husband for his expenses.  Evidently, the money she was able to remit was insufficient; she also borrowed money to make payments to her husband, and it was as a result of being pressed for repayment of her debt to another domestic helper that she decided to take money from the drawer, and she was aware, from her having been into the premises, that money was sometimes kept in the drawer in the living room of PW1’s premises.

10.  I am told the money was taken to repay a debt and has been spent on that purpose.

11.  As far as her employment record is concerned, she has worked as a domestic helper almost continually in Hong Kong since 2010, and worked for the present employer since 2014.  She, of course, will inevitably be deported from Hong Kong on completion of any prison sentence, so she will not be in a position to return.

12.  In mitigation, defence counsel says the defendant is remorseful; that it is not a normal domestic premises burglary; there was no risk or threat to anybody in the premises - she went there when it was empty.  In any event, she would be known to the occupant.  There was no ransacking or damage to the premises.  The defence say this is, in effect, a case of abuse of position, and involves an element of breach of trust.

13.  When she was confronted with the offence, she readily admitted it to her own employer.

14.  Having considered all these matters, I find that the case itself does not readily fit within the conceptual guidelines for burglary cases.  This is a residential burglary.  In a residential burglary there is a guideline for sentencing.  That guideline is that for a person of clear record who pleads not guilty, a starting point for sentence of 3 years’ imprisonment is appropriate, and after reduction for a plea of guilty, that would lead to a sentence of 2 years’ imprisonment.

15.  In this case, I have to consider the nature of what has happened here.  The defendant has abused her position, taken hold of keys that she had access to, together with the resident access card, and found her way into another premises of her employer’s family, where she knew there would be money.  She has then taken what is a relatively small sum, 1,200 Renminbi.  Is this the appropriate set of facts for the imposition of the starting point for a residential burglary?

16.  I consider the court must approach this with some flexibility to take into account the unusual nature of the facts of this case.  I shall therefore depart from the normal guideline for a residential burglary.

17.  Taking into account all the factors I have already outlined, I consider the appropriate starting point for sentence for this defendant will be one of 27 months’ imprisonment.

18.  After deduction for her plea of guilty, that leads to a final sentence in this case of 18 months’ imprisonment.