HKSAR v BAYOGO JONAH EDURIA

DCCC 691/2022

[2023] HKDC 679

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 691 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant is charged with one count of Theft, contrary to section 9 of the Theft Ordinance, Cap 210, Laws of Hong Kong. She pleaded guilty to the charge, admitted the summary of facts and was convicted accordingly.

Summary of facts

2.  The defendant was a former employee of a money exchange shop “DVFX Money Exchange” which was situated at Shop No A1, Ground Floor, Wheelock House, 20 Pedder Street, Central, Hong Kong (“the Shop”).  The Shop was owned by Globlex Exchange Limited and had a staff of 4 members.

3.  The Shop was equipped with an anti-burglary alarm system with CCTV cameras in operation.  The entrance to the Shop was secured by a roller-shutter which could only be opened with a key.  The entrance was further secured by a glass door which could only be opened by an electronically operated smart card. 

4.  The defendant left the employment in early June 2019.  When she left, she did not return the key and the smart card to the Shop and had been out of contact since then.

5.  At about 6 p.m. on 28 June 2019, the staff of the Shop checked and made record of the amount of money in the Shop including cash in Hong Kong dollars and other currencies which were kept in two locked drawers under the counter. After activating the anti-burglary alarm system, the staff left the Shop.

6.  In the next morning, the staff of the Shop discovered that all the cash kept in the two locked drawers was missing.  The missing cash includes :-

(a)  $104,211 Hong Kong dollar;

(b)  $6,845 United Arab Emirates Dirham;

(c)  $6,980 Australian dollar;

(d)  $2,550 Canadian dollar;

(e)  Fr. 2,960 Swiss Franc;

(f)  ¥236,364 Renminbi;

(g)  €3,060 Euro;

(h)  £3,210 pound sterling;

(i)  18,130 Indian Rupee;

(j)  ¥1,137,000 Japanese Yen;

(k)  $3,080 Macau Pataca;

(l)  RM12 Malaysian Ringgit;

(m)  $5,920 New Zealand dollar;

(n)  ₱105,300 Philippines Peso;

(o)  $21.375 Singapore dollar;

(p)  ฿40,880 Thai Baht;

(q)  $33,700 Taiwan dollar;

(r)  $3,977 US dollar; and

(s)  đ5,200,000 Vietnamese Dong (Collectively referred as the “Stolen Cash”)

7.  CCTV footage of the Shop captured the defendant entered the Shop at 7:27 pm on 28 June 2019.  It was also captured that she took the Stolen Cash from the two drawers.  She then put the Stolen Cash into a canvas bag and left the Shop.

8.  A report was made to the Police and the defendant was placed on the wanted list by the Police.  On 6 May 2022, the defendant was arrested at the Hong Kong International Airport when she returned to Hong Kong from the Philippines.  

9.  Subsequently, a video recorded interview was conducted with the defendant.  In essence, the defendant made the following admissions :-

(a)  At about 7:27 pm on 28 June 2019, she entered the Shop with the key and the smart card. She then took the Stolen Cash from the drawers;

(b)  She left Hong Kong and returned to the Philippines by flight on 28 June 2019; and

(c)  She used all the Stolen Cash to repay the debts of her husband.

10.  At the material times, the defendant stole the Stolen Cash which belonged to Globlex Exchange Limited.  The total value of the Stolen Cash amounted to HK$833,596.

Mitigation

11.  The defendant is 42 years old and is married.  She is a person of clear record.  She received university education in the Philippines and came to Hong Kong to work as a domestic helper in 2004.  She was employed by the money exchange shop in question between 2018 and 2019.  During her time in Hong Kong, she married a Hong Kong resident and was granted right of abode.  Her husband used to work as a construction site worker but was unemployed at the time of the offence.  They have a son who is now 13 years old.

12.  Defence submitted that at the time of the offence the husband of the defendant was heavily indebted of about HK$300,000 due to over borrowing and gambling.  Her family was constantly harassed by debt collectors.  Out of desperation and error of judgment, the defendant committed the present offence to help her husband.   

13.  Defence submitted that the defendant committed the offence out of her love to her husband.  The Stolen Cash was all used to repay the debts of her husband.  Now She is very remorseful and fully understands the seriousness of the offence. She asks the court for forgiveness and leniency.  She is willing to bear the legal consequence and that is the reason for her to come back to Hong Kong after 3 years and to surrender herself to the authority.

14.  All in all, Defence urges the court to impose a lenient sentence.

Sentencing consideration

15.  In HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776, the Court of Appeal laid down the sentencing guidelines for theft involving breach of trust.  For amount falls between HK$250,000 to HK$1 million, the starting point should be 2 to 3 years of imprisonment.

16.  The amount involved in this case is HK$833,596.  On a pure mathematical calculation, the starting point should be about 33 months.

17.  In considering the sentence, the court has considered all the circumstances of the case, the personal background of the defendant, her clear record, the mitigation put forward and the authorities submitted.  The court is of the view that this is indeed a serious case of breach of trust involving quite substantial amount of money.  While the court accepts that it does not involve complicated planning but it certainly was not committed purely out of momentary greed. 

18.  It was submitted by the Defence that the only reason for the defendant to commit the offence is to raise money to repay the debts of her husband.  She did it out of love to her husband.  While the court has some sympathy for the defendant, it is unfortunately not a mitigating factor that the court can give her any deduction in sentence.

19.  There is however a mitigating factor that the court should consider. Though the defendant left Hong Kong shortly after she committed the offence, after 3 years she decided to return to Hong Kong knowing full well that she would be arrested and brought to justice.  She also fully co-operated with the Police and eventually pleaded guilty to the offence.  For her voluntary surrendering to the authority, a 3-month discount is appropriate in these circumstances.

20.  Considered all of the above, the appropriate starting point for this case should be 30 months’ imprisonment.  The defendant pleaded guilty to the charge at the earliest opportunity and is entitled to full one-third discount. As a result, the sentence is 20 months’ imprisonment.