HKSAR v. QOMARIYAH

DCCC 819/2017

[2018] HKDC 119

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 819 OF 2017

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

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

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

Reasons for Sentence

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

1.  The defendant pleaded guilty to one count of theft and she was convicted accordingly.

2.  The defendant was an Indonesian domestic helper working for PW1 Lau for almost two years.  At the material time, both of them were residing in a flat on Blue Pool Road, Happy Valley.

3.  On 31 July 2017, PW1 discovered that some of his valuables, namely, one 18K gold ring and two rings with diamond were missing.  He made a report to the police.  Upon search, the police found no signs of burglary.  Instead, the police discovered nine pawn tickets, under the name of the defendant with her Hong Kong ID card number, in a bag belonging to the defendant.

4.  The defendant was arrested.  Under caution, the defendant said she wanted to return to Indonesia but dared not to tell her employer.  She stole things in order to be fired by the employer.

5.  A pawnshop check was conducted.  It transpired that between 3 November 2016 and 28 July 2017, the defendant had pawned a total of 26 pieces of jewelleries for a range of $3,000 to $150,000.  Out of these pawned goods, PW1 was able to confirm and identify 18 items.

6.  In three video-recorded interviews held on 31 July and 1 August 2017 respectively, the defendant made the admissions as follows: 

(1) PW1 was her employer.

(2) She stole and pawned three rings belonging to PW1.

(3) The pawn tickets No. 1 to 9 found in her bag belonged to the defendant.

(4) In the pawn tickets No. 1 to 3, four rings belonged to PW1.

(5) She worked in the premises with PW1.

(6) She took three rings belonging to PW1 when she was doing cleaning work in the house.

(7) The defendant identified 15 items of stolen properties belonging to PW1 (SP1 to 4, SP7 to 10 and SP12 to 18 as appeared in the table in the Summary of Facts prepared by the prosecution).

(8) She stole things.

(9) She could not recall the details of how she stole the properties.

(10) She pawned those stolen properties in her name.

7.  PW1 confirmed that he did not give the stolen properties to the defendant as a gift.  The total value of the stolen properties amounted to about HK$749,000, and those properties were pawned for about $47,700.  PW1 last saw these properties, namely, SP1 to SP18, before 1 January 2017.

Mitigation

8.  The defendant is now aged 31 and had no criminal record in Hong Kong.  She had worked as a domestic helper in Singapore from 2005 to 2008.  She came to Hong Kong in 2009 and had worked for the late mother of PW1 for three years before she was employed by PW1 in or about 2015.  It was submitted that out of foolishness and financial burdens, the defendant committed the present offence.  The defendant would like to apologise to PW1 for the breach of trust that PW1 has placed on her for the past five years.  It was said the defendant promised that she would not commit any offence again.  Defence lawyer urged the court that the actual loss of PW1 would be much less than $749,000 as PW1 could redeem the properties from the pawnshop.  Defence lawyer asked for a lenient sentence.

Sentence

9.  This is a typical breach-of-trust case whereby the defendant, working as the domestic helper for the victim, stole various valuables belonging to her employer.  The defendant committed the offence for nearly eight months and was able to steal valuables of about $749,000.  The defendant pawned these properties for $47,700.  Assuming that the redemption periods of these pawned items are not expired, theoretically, PW1 might have to spend more than $47,000 to redeem the properties in the interpleader proceedings.

10.  At times, there were reports that foreign domestic helpers working in Hong Kong were abused or exploited.  This should not be tolerated or condoned, but the scenario should not be overgeneralised or categorised.  The present case provides a good example that local employers were exploited and their valuables were stolen by greedy domestic helpers who might well exploit the old age and/or the lax attitudes of the employers.  This case could also be the tip of the iceberg.  The defendant only needed to look after one person in the family, but she did not treasure this good job in Hong Kong.

11.  Instead, she preyed on an old but relatively wealthy male employer.  The present defendant committed the theft acts over nearly eight months.  She blatantly abused the trust placed on her by the employer.  Some of the jewelleries stolen might well have certain sentimental values to PW1.  It is apparent that had PW1 not made a report to the police, the stealing by the defendant would continue until the whole case came to light.  I cannot see any remorse from the defendant nor was she in the position to restitute or compensate the loss suffered by her employer.  

12.  The sentencing guidelines in the breach-of-trust cases can be found in HKSAR v  Cheung Mee Kiu [2006] 4 HKLRD 476 and HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017.  If the value of the stolen property amounted between $250,000 to $1 million, the starting point would be around 2 to 3 years.  However, it is accepted that value of the stolen property is only one of the sentencing considerations.  The period of the stealing, the degree of the breach of the trust and the chance of restitutions are all factors to be considered.

13.  I would not accept that the defendant stole things out of her foolishness.  She committed the offence repeatedly over a long period of time and was able to pocket the stolen proceeds.  The strongest mitigating factor is the defendant’s guilty plea.  In fact, the evidence against the defendant is so strong that the defendant was literally caught red-handed.  I am also sure that the defendant knew that her acts of theft would eventually be discovered.  I would not speculate whether the defendant stole anything from PW1’s late mother, but I can only sentence the defendant based on the Summary of Facts that she agreed.  

14.  Taking all factors into consideration, I would use 2½ years as the starting point.  I would give the full one-third discount to the defendant and sentence her to 20 months’ imprisonment.