HKSAR v. ROSIMO RACHEL BAYAO

DCCC 373/2018

[2018] HKDC 1227

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 373 OF 2018

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

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

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

Reasons for Sentence

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

1.  Defendant faced 2 charges including burglary and breach of condition of stay, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210, and section 41 of the Immigration Ordinance, Cap 115 and by virtue of Regulation 2 of the Immigration Regulations, Cap 115A.

2.  The facts were as follows, Mr Bagui, PW1, and the defendant are the only employees of the office of Sante Barley (Hong Kong) Limited at Room 1003, 10th Floor, Lansing House, Queen’s Road Central, Hong Kong office.  The defendant has only been given permission to work as a foreign domestic helper as a condition of her stay in Hong Kong between May 2017 and 6 February 2018.  The defendant however took up employment as an administrative staff of the above office in this period and in breach of the said condition of stay.

3.  In her video-recorded interview on 6 February 2018, the defendant stated under caution that she had worked at this office as an administrative staff since May 2017, doing reports for sales, inventory counting and cashier customer service.

4.  At around 1900 hours on 7 February 2018, PW1 locked the office main door and the storeroom before leaving the office.  He also ensured that the cash box with cash of HK$180,000 inside was locked and that the box’s key was placed inside the drawer near it.

5.  On the following morning, on 3 February 2018, PW1 was informed by the defendant that the office was broken into.  When he arrived, he found the cash box had its key inserted in the key hole and the cash of $180,000 therein, belonging to the Sante Barley (Hong Kong) Limited was missing.

6.  CCTV footage from Lansing House captured the defendant fully covered in black clothes and a mask, entering and leaving Lansing House at 0747 and 0756 hours respectively on 3 February 2018.

7.  On 6 February 2018, police arrested the defendant and the defendant admitted to stealing cash of 180,000 from the office because she needed money.  Cash totalling $15,990 comprising of 28 of Hong Kong 500 notes and also other notes were recovered from the defendant’s place of residence at Room E, 9th Floor, Hong Chiang Building, Wan Chai, Hong Kong. 

8.  In her video-recorded interview on 6 February 2018, the defendant further admitted that only PW1 and herself had the keys to the office.  She woke up early on 3 February 2018 to meet up with a Filipino woman called Jessica in Central.  And Jessica’s Filipino Husband, David also turned up.  Jessica told her to walk up to the office by stairs because the lifts have CCTV.  She saw Jessica by the door of the office and later Jessica told her that the situation was under control, money was taken from the office.  The clothes defendant wore that day was given to her by Jessica.  Their plan was for them to go into the office in January but she could not do it then.  Jessica and the defendant knew in January and the defendant would be depositing about $180,000 for the company for its sales in December 2017.

8. Jessica and David stole that sum of money from the office. It was a plan and the defendant knew that they were going to take the money. She had told them where all the keys in the office were and she was told by them that they would help repay her debt, being a loan taken out with Public Finance. They have repaid $6,000 for the defendant’s debt and had given the defendant $10,000 on 4 February 2018 through a man and they had promised to fully repay the defendant’s debt. Another $10,000 she received from Jessica was in her boarding house in Wan Chai. The cash of $10,000 of that $15,990 found in her place of residence was the cash that Jessica had passed her through an unknown man.

10.  The defendant now admits, together with other persons unknown, having entered the office as trespassers and stole cash of $180,000. 

11.  The defendant, aged 35, clear record, a national of Philippines. married with 2 children of 6 and 12.  Ms Hui submits that the defendant came to Hong Kong to work as a domestic helper but her employer was not nice and the defendant wanted to earn more money to repay loan and that eventually the defendant found a job to work part-time as an administrative staff.  She had been told that working visa would have been applied for her.  And while staying in a boarding house, she met Jessica and David whom said they would help her to repay the loan and finally they had repaid 6,000 for her and also gave her 10,000 cash. 

12.  The defendant now regrets so much for what she had done and she had made an early admission and helped police to find Jessica and David by phone but in vain.  Ms Hui further said that the defendant had been in full cooperation with police and do ask for a lenient sentence.

13.  Burglary is a serious offense.  The Court of Appeal in quite some cases already stated that concerning non-domestic premises, the starting point should be 2½ years’ imprisonment.  But the more serious aspect of the present case was clearly that the defendant had not only in breach of the trust placed by her employer and that altogether, three persons were involved, where a higher starting point may be adopted.

14.  However, taking into account the early admission by the defendant and that quite some cash had already been recovered.  After consideration, I still adopt 2½ years’ imprisonment as a starting point and that be reduced to 20 months upon her guilty plea.  And as to the 2nd charge, the breach was continuous for a period of about 9 months.  The fact was serious.  I consider it appropriate to impose 3 months’ imprisonment and that be reduced to 2 months upon her guilty plea.

15.  And lastly on totality, I consider that the overall sentence of 2 charges should be 21 months’ imprisonment and that shall be as follows: 

1st charge: 20 months’ imprisonment;

2nd charge: 2 months’ imprisonment, from which 1 month be made consecutive to the 1st charge.

17.  So altogether, defendant is sentenced to 21 months’ imprisonment for both charges.