HKSAR v. ERNAWATI

DCCC 1154/2022

[2023] HKDC 1391

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1154 OF 2022

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  The defendant pleaded guilty to one charge of Burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210.

Facts

2.  Madam Chan Tung Ha (“the victim”)  rented a house at No  62E Nga Yiu Tau Tsuen, Tai Shu Ha Road East, Yuen Long (“the house”).  She and her husband occupied the master bedroom, while the rest of the house was sublet to others.  One of the sub-tenants was the defendant.

3.  The master bedroom’s ensuite bathroom has a door which opens onto an alley (“the alley”)  leading to the backyard of the house.

4.  CCTVs cameras overlooking the common corridors inside the house and the backyard outside were installed at various parts of the house.

5.  Around 6:42 pm on 15 June 2022, the victim left her master bedroom after locking up HK$40,000 and RMB¥10,000 cash in a drawer inside her wardrobe.  When she returned to her room around 2:30 pm on 17 June 2022, she discovered that the drawer was damaged and the cash was missing.  The matter was reported to the police.

6.  From the CCTV footage, the defendant can be seen walking past the master bedroom on 15 June 2022 around 7:01 pm, remaining in the backyard from 7:02 pm onwards, entering the area leading to the alley around 7:06 pm, then leaving the master bedroom counting banknotes and putting them inside her dress around 7:11 pm.

7.  The defendant was arrested around 8:37 pm on 17 June 2022 for burglary.

The defendant’s Background

8.  The defendant is a 35-year-old Indonesian woman who came to Hong Kong in 2010 to work as a domestic helper.  She has been a Form 8 holder since 2012.  She is married to a Pakistani Form 8 holder and they have 4 children aged between 1 and 9.  The family lived together in a room in the house at the material time.

9.  The defendant has been known to the mental health service since 2017.  She has had 4 psychiatric admissions since that time.   According to the medical reports, during her first admission in 2017, she was diagnosed with severe depressive episode with psychotic symptoms, and dissociative amnesia.  During her second admission in 2018, the diagnosis was revised to schizophrenia.  During her last admission in 2019, she was diagnosed with paranoid schizophrenia with depressive features.  Her mental state has remained largely stable since her last admission, and she continues to have regular follow up in Tuen Mun Mental Health Clinic.

10.  She has two previous convictions, one of which was for shoplifting, for which she was fined $1,000 in November 2020.

Mitigation

11.  Citing HKSAR v Lau Pang [2004] 3 HKLRD 565, defence counsel Mr Marray pointed out that the usual starting point for burglary of domestic premises is 3 years’ imprisonment.  However, the starting point can be lowered in the case of opportunistic burglaries, which was what the court did in the case in HKSAR v Tsang Chun Yin CACC 170/2017 involving a university student stealing from fellow residents in a university student hostel.

12.  Mr Marray submitted that the burglary committed by the defendant is not the usual type of domestic burglary in that the house was shared by the victim, the defendant and other persons, and the doors to the master bedroom were not locked, as disclosed in the victim’s statement to the police.  It was through the unlocked backdoor that the defendant entered the victim’s room.

13.  Admittedly, the defendant being a Form 8 holder is an aggravating feature.  However, there is no guideline on the amount of increase in sentence for this feature.  Having regard to the circumstances of the case and that this is not a case which affects the society at large, as drug trafficking does, Mr Marray urged the court to enhance the sentence by a small margin, if at all. The case of HKSAR v Maristela & Calveen CACC 246/2021 was referred to in this context.

14.  For her guilty plea, the defendant is entitled to a full one-third discount.

15.  The defendant explained that she stole because her family in Indonesia was in a desperate situation.  She feels sorry for what she did, and asks for the court’s leniency.

16.  She has applied to the Immigration Department to go back to Indonesia with her four children.

Sentencing considerations

17.  As Mr Marray rightly pointed out, the starting point for burglary of domestic premises is usually 3 years’ imprisonment.

18.  In HKSAR v Sim Ka Wing CACC 450/2000, a case of burglary of non-domestic premises, the Court of Appeal said, “The conventional starting-point can be lowered in the case of the opportunistic burglar, akin perhaps to the sneak thief who walks into an open office to steal whatever he can find.”[1]

19.  This court agrees that what the defendant did was taking the opportunity presented to her by the unlocked doors of the victim’s room and entered the room to steal therein.  However, the damaging of the locked drawer for the purpose of stealing what was inside shows a more determined and purposeful effort to steal, as compared to the sneak thief who takes whatever he can find.

20.  In those circumstances, and given the amount of money stolen, 2 years’ imprisonment would be an appropriate starting point for the offence.

21.  The defendant being a Form 8 holder is an aggravating feature which calls for an enhancement of the sentence.  Guidance was provided by the Court of Appeal in HKSAR v Singh Gursevak[2]in considering the extent of the enhancement.  It is worth-noting that the Court of Appeal had this to say:-

“44. Clearly, the more serious the impact of the crime in the adverse way required by the authorities, the greater will be the amount of the enhancement. If the enhancement is to have a deterrent effect then it will usually be at least 6 months but it can, obviously, be greater than this amount and there is no reason why it cannot be greater than 18 months…”

22.  It can fairly be said that what the defendant did in this case is not as harmful and detrimental to the society as robbery or drug trafficking offences. If an enhancement of at least 6 months would be expected for the serious offence of trafficking in dangerous drugs, as the Court of Appeal in HKSAR v Ali Saif [3] seems to suggest, then a lesser enhancement would seem warranted in this case.

23.  In light of the nature of the offence, and of the fact that this is the second time that the defendant has committed an offence since she became a Form 8 holder in 2012, an enhancement by 4½ months would seem right. So enhanced, the starting point would be 2 years 4½ months’ imprisonment.

24.  The defendant will receive a one-third discount for her timely plea, which is the only effective mitigating factor. The sentence after discount is 19 months’ imprisonment.