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DCCC 888/2017
[2018] HKDC 220
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 888 OF 2017
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| Present: |
Ms Susanna Lee, counsel on fiat, for HKSAR
Mr Harrison Cheung instructed by Cheung & Yip, assigned by the Director of Legal Aid for the defendant. |
REASONS FOR SENTENCE
1. The defendant pleads guilty to one charge of theft, contrary to section 9 of the Theft Ordinance[1].
Background
2. In June 2016 Mr Wong Kwong Shing employed the defendant as a domestic helper to work in his home in Tsuen Wan. On 5 August 2017 Madam Tsoi La Kar, Mr Wong’s wife, discovered a bottle of perfume, one jade bracelet and fifteen jade pendants missing. Madam Tsoi searched the defendant’s bedroom and found the missing items in the handbags of the defendant.
3. A report was made to the police. The defendant was arrested the next day and appeared in the West Kowloon Magistracy on 7 August when she pleaded guilty to two charges of theft. The defendant was sentenced to a total of 2 months imprisonment[2].
Admitted facts
4. On the same day the defendant appeared in court Mr Wong terminated her employment. The next day, 8 August 2017, when tidying up the defendant’s room Mr Wong found one box containing twelve gold coins; two boxes each containing a badge and three boxes containing a total of fourteen bracelets; thirty-three ornaments; two rings; two beads and a necklace. All the property belonged to Mr Wong.
5. Mr Wong was also aware that the defendant kept some of her belongings in a dormitory provided by Cheers Employment Limited, a domestic helper employment agency of which Mr Wong was the person in charge. Mr Wong went to the dormitory in the afternoon of 8 August to check whether anything belonging to him was kept there. Mr Wong found nine ornaments; a bag; a bracelet and a pendant belonging to him inside two suitcases belonging to the defendant.
6. Photographs of the stolen property have been submitted to court from which can be seen that most of the items stolen were jade. All the items found in the bedroom are shown displayed on a table. Ms Lee informs the court that the two small boxes contain the two rings and the two beads and that all the items found in the bedroom were contained in a walnut box which is one of the six boxes referred to in the charge and shown in a different photograph.
7. The defendant was arrested on 15 August 2017. Under caution the defendant said that on two occasions in June 2017 she took away the ornaments when nobody was at home.
Mitigation
8. I have carefully considered everything said on behalf of the defendant by Mr Cheung together with the defendant’s mitigation letter and the letters from two of the defendant’s friends. Mr Cheung says one of the reasons the defendant stole from her employer was because she needed money for the medical expenses of her father who suffers from heart disease.
9. I take into account that the defendant has worked in Hong Kong for sixteen years and that until she stole the property of Mr Wong she had never been in trouble with the police.
Valuation of the stolen items
10. Mr Wong estimated the value of the items stolen at $1,789,850. Mr Cheung submitted the court should place no weight on this valuation which was unsupported by any receipts. By agreement sentence was adjourned for the police to obtain a valuation of the stolen property.
11. Sixty-one items of jade and other precious stones were independently valued by the Hong Kong Gems Laboratory[3]. The valuation of the sixty-one items is $49,890.
12. This leaves sixteen items valued by Mr Wong at $122,900 which includes twelve gold coins valued at $120,000[4]. Mr Cheung very properly questions this valuation in particular considering the substantial difference in the valuation of the jade between Mr Wong and the Hong Kong Gems Laboratory.
13. Ms Lee and Mr Cheung conducted a quick search on the internet which revealed that the coins may only be worth between $800 and $2980, a significant difference with Mr Wong’s valuation. Sentence was therefore adjourned to ascertain further information on the value of the gold coins and for the prosecution to inform Mr Wong of the valuation made by the Hong Kong Gems Laboratory[5].
14. Today Ms Lee informs the court that Mr Wong has been informed of the valuation by the Hong Kong Gems Laboratory. Mr Wong has made no specific comments on the valuation. Ms Lee therefore asks the court to base sentence on the valuation made by the Hong Kong Gems Laboratory.
15. With regard to the valuation of the gold coins Mr Wong was only able to confirm his valuation was an estimate. By agreement the parties have submitted a seven page document printed from the website of www.txsc100.com which shows the selling price of a similar set of gold coins as RMB 1200 reduced from the market price of RMB 1500.
16. Taking into account the exchange rate for RMB the revised total value of all the stolen items is about $55,000.
Guidelines
17. By stealing the property of her employer the defendant breached the trust placed in her by Mr Wong. In passing sentence, I have considered the principles laid down in R v Clark[6] as applied inHKSAR v Cheung Mee Kiu[7] and HKSAR v Lee Lai Kit, Kitty[8],cited by Mr Cheung.
18. The guidelines state that a sentence of less than 2 years’ imprisonment is appropriate where the stolen property is less than $250,000.
19. Mr Cheung refers the court to HKSAR v Maramba Rowena Quilang where a domestic helper stole from her employer a necklace valued at $75,000. An appeal against the sentence of 6 months’ imprisonment imposed after trial was dismissed. In my view the sentence appears to be on the low side[9].
20. Taking into account the degree of trust reposed in the defendant as a domestic helper; the value of the stolen property; although charged as one offence the defendant stole property on two occasions (three including the theft subject of the charges in the West Kowloon Magistracy); all the property has been recovered and that the defendant has never been in trouble before, I am satisfied the proper starting point after trial is 12 months’ imprisonment.
21. Giving the defendant full credit for her plea of guilty she is convicted and sentenced to 8 months’ imprisonment.
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(D. J. DUFTON) |
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District Judge |
[1] Cap 210.
[2] The background information is taken from the brief facts of the case in WKCC 3866/2017 a copy of which was shown to Ms Lee and Mr Cheung.
[3] The valuation report lists 60 items. Item 42 consists of two items a pearl and a pearl ring which were contained in one of the small boxes.
[4] These are items 57-62 on the table “Case Exhibits Value” prepared by the police. The gold coins are item 60.
[5] The valuation report was only available on 13 February. Mr Wong and his wife Madam Tsoi were out of Hong Kong on vacation between 10 February and 24 February and therefore the police could not inform them of the valuation prior to the hearing on 15 February 2018.
[6] (1998) 2 Cr App R 137.
[7] [2006] 4 HKLRD 776.
[8] [2009] 6 HKC 265.
[9] See for example R v Monzon Thelma B HCMA 831/1996; HKSAR v David Vilma V HCMA 11/2003; and HKSAR v Lilis Nuraini HCMA 547/2010 and HKSAR v Concha, Marianne Duran HCMA 758/2015.
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