HKSAR v. MATULIN JILL LABONITA

DCCC 891/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 891 OF 2016

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REASONS FOR SENTENCE

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1.  Matulin Jill Labonita you have pleaded guilty to one charge of burglary, contrary to section 11 of the Theft Ordinance[1].

2.  Full particulars of the offence are set out in the facts admitted by you today.  In summary in July last year you burgled the home of the employer of one of your friends.  When you went to see your friend you found she was not at home.  You then entered the home through an open glass door and stole various items of jewellery including diamond earrings; two bracelets; a silver necklace; two rings and three watches, valued at almost $500,000.  You subsequently pawned most of the items at different pawn shops. 

3.  You were arrested in July this year.  In a video interview you admitted burgling the home and stealing the jewellery which you subsequently pawned at different pawn shops.   

Recovery of the stolen property

4.  The police recovered the silver necklace; a gold bracelet; the two rings and two of the watches from two pawn shops.  In the video interview you told the police the diamond earrings were pawned at a pawn shop on Queen’s Road West.  Mr Choi informed the court the police were unable to find a pawn shop at the address you gave.    

5.  In court you said there was a pawn shop on Queen’s Road West and asked the police to further investigate.  Although the prospects were slim, the diamond earrings being the most valuable item of jewellery stolen, I agreed to adjourn sentence to see if the police could locate the pawn shop and recover the earrings. 

6.  Today I am told the police went to a pawn shop at 485 Queen’s Road West where they found you had pawned five items between March and June this year.  These were however unrelated to the burglary.  The police also went to another pawn shop at 540 Queen’s Road West however there were no records in the pawn shop showing you had pawned any items there.      

Mitigation

7.  In passing sentence I have carefully considered everything said on your behalf by Miss Yuen together with your letter and a letter written by your husband.  

8.  I have also considered the content of the psychiatric and psychological reports[2]. You have no psychiatric illness but are recommended to continue psychological counselling while serving your sentence. 

9.  I am told you came to Hong Kong in 2008 and worked as a domestic helper until April 2013.  Your husband at that time was working in Hong Kong as a driver so you decided to stay in Hong Kong so as to be together with your husband.  I note this is somewhat different to what you told the psychologist that you worked as a waitress and overstayed because you found the salary in Hong Kong more attractive[3].

10.  In December 2013 your husband’s employment was terminated and he returned to the Philippines.  At the same time you discovered you were pregnant.  You had nowhere to live and relied on friends for somewhere to stay. 

11.  Having been told you needed a lot of money to pay for hospital bills for the birth of the child you became worried.  Desperate for money you committed the burglary and pawned the property you stole.  Clearly the desperate situation you found yourself in was very much brought about by your overstaying in Hong Kong. 

12.  A baby son was born on 15 August last year and is now aged sixteen months.  The Correctional Services allow you take care of your son while you are in custody. 

Starting point

13.  The correct starting point for a single burglary of residential premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years imprisonment.   

14.  Miss Yuen submits the burglary was opportunistic and considering the desperate situation you were in a lower starting point is appropriate.  Whilst lower starting points have been taken where the burglary is said to be opportunistic this is usually where someone passes by an open door or vacant premises and steals food or items of little value[4].

15.  Although you may not have known the true value of the jewellery you stole you must have realised that the diamonds and watches were of substantial value.  The psychological report reveals you knew where the jewellery was kept having been shown the jewellery on a previous visit to see your friend[5].

16.  Whilst some of the property has been recovered three of the most valuable items, the diamond earrings; the diamond bracelet and the Cartier watch valued just over $400,000, have not been recovered. 

17.  Notwithstanding the burglary may be described as opportunistic the stealing of property of substantial value is an aggravating feature of sentence for which the starting point may be increased.  However taking into account the apparent desperate situation you found yourself in I do not increase the starting point. 

18.  Giving you full credit for your plea of guilty reduces the sentence to 2 yearsimprisonment.

Totality

19.  You are presently serving a total sentence of 10 months imprisonment imposed on 18 August this year at the Tsuen Wan Magistracy for offences of theft and overstaying.  I have read the case papers. 

20.  You say you told the hospital you were an overstayer yet apparently this was not reported to the police.  Consequently after giving birth you continued to overstay until you were arrested for pickpocketing in July this year.  You told the police on that occasion you needed money to buy food for your son.  Once again by overstaying in Hong Kong you had brought yourself into even more trouble.  

21.  The offences are entirely separate and distinct.  The theft was committed one year after the burglary and you had already overstayed over one year before committing the burglary.  Consecutive sentences are therefore appropriate.  Considering totality of sentence I am satisfied a total sentence of 2 years and 8 months imprisonment properly reflects your criminality for the three offences.  You are convicted and sentenced to 2 years imprisonment with 1 year and 10 months consecutive and 2 months concurrent to the sentence you are now serving.

[1] Cap 210.

[2] I was told that the defendant was receiving psychiatric treatment whilst in custody therefore on agreeing to adjourn sentence I also called for the reports to give me further information about the defendant. 

[3] See §§ 4& 5 of the psychological report.

[4] See for example HKSAR v Cheung To Ming [2006] 2 HKLRD 260 and HKSAR v Chau Man Ying CACC 439/2011.

[5] See §9 of the psychological report.