HKSAR v. BUGTAQUEN MERLYN QUILA

DCCC 997/2023

[2024] HKDC 318

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 997 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant is convicted of a charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210, on her own plea and agreement to Amended Summary of Facts.

Facts

2.  PW1 hired the defendant as a domestic helper since March 2022.  They lived together at a flat in Tai Po.

3.  At around noon on 25 December 2022, PW1 put cash of HK$50,000 inside a cabinet in her bedroom.  PW1 confirmed that a diamond ring and cash of ฿5,000 Thai Baht and $15,000 New Taiwanese currency were still inside the cabinet at that time.  She left Hong Kong and went to Canada on the same day.

4.  On her return on 9 March 2023, she found that the cash and diamond ring were missing when she put a gold pendant and a gold necklace inside the cabinet.  She spent some time looking for the missing cash and diamond ring but in vain.

5.  On 19 March 2023, PW1 enquired with the defendant who admitted to PW1 that she had stolen the cash and the diamond ring from the cabinet as she was urgently in need of money.  The defendant promised PW1 that she would return them.

6.  Later, at around 10 pm on 25 March 2023, PW1’s daughter (PW2)  suggested PW1 to conduct a check again.  PW1 therefore checked the cabinet again and found the gold pendant and the gold necklace also missing.  She then further checked the safe at the storeroom and found some jewellery missing.  She generally put the keys of the cabinet and the safe inside the drawer of a desk in her bedroom.  She had written down the password of the safe on a piece of paper which was kept inside her wallet.

7.  PW1 then made enquiries with the defendant who admitted stealing all these missing jewellery, she had pawned the stolen jewellery at different pawn shops and put the pawn tickets at a boarding house.

8.  On 26 March 2023, the defendant brought PW2 to a house and took out 38 pawn tickets from a bed and handed them to PW2.  PW2 estimated the value of the lost items to be HK$800,000.  The case was reported to police on the same day.

9.  A pawnshop check revealed that the defendant had 58 transactions in 19 pawnshops in Hong Kong between September 2022 and March 2023.  The gold necklace and the gold pendant put into the cabinet by PW1 on 9 March 2023 were recovered from the pawnshops. 

10.  PW1 confirmed that 10 bracelets, 9 bangles, 20 pendants, 31 rings, 12 necklaces, one necklace with pendant, one watch, one pair of earrings, cash of HK$50,000, cash of ฿5,000 Thai Baht and cash of $15,000 New Taiwanese currency were missing from the flat.

11.  When a police officer arrived at the flat for investigation on 26 March 2023, the defendant handed over the pawn tickets to the police officer.  A body search was conducted on her with a pearl pendant of PW1 found inside her wallet.

12.  The defendant was arrested for theft.  Under caution, she admitted stealing the jewellery, gold ornaments and cash of her employer for her own use out of greed.

Criminal Record

13.  The defendant has a clear record in Hong Kong.

Mitigation

14.  The defendant was aged 31 at the time of arrest.  Defence counsel conceded that the total value of goods stolen was around HK$0.9 million.  He invited the court to consider the case of HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017 and said that the appropriate sentence starting point in this case fell within 2 to 3 years’ imprisonment.  He said the defendant should be given a one-third sentencing discount by reason of her guilty plea.

15.  He also submitted that there was voluntary partial restitution by the defendant referring to the pendant in the defendant’s wallet at the time of the body search.  He further submitted that as the defendant had voluntarily brought PW2 to retrieve the pawn tickets, the conviction and the evidence involved were all premised upon her own confession and voluntary handing up of the pawn tickets.  Therefore, she should be entitled to a further discount, relying on the case of HKSAR v Chu Kwok Chu [2013] 6 HKC 357.

16.  He said that the defendant committed the offence to repay debts of the family and to pay medical expenses of her late brother, and that she would be deported to Philippines when she finished her imprisonment term.  It is also said that the present case was not as serious as some of the other cases of the same type.  Defence counsel urged for leniency for the defendant.

Discussion

17.  Before sentencing, the court has carefully considered all that was said on behalf of the defendant as well as the cited authorities. 

18.  Upon conviction on indictment of this charge, a person is liable to imprisonment for 10 years.

19.  The present theft case involved a breach of trust.  The defendant lived alone with the elderly victim, PW1, at the flat.  PW1 entrusted the flat together with the contents of the flat to the safekeeping of the defendant when she was away from home. 

20.  The total estimated value of the items stolen was around HK$0.9 million.

21.  This court noted in particular that the defendant continued to steal from PW1 after PW1 notified her of her discovery of the loss of the money and the diamond ring on 19 March 2023.  There was a pawn ticket dated 21 March 2023 in relation to a gold necklace and a pawn ticket dated 25 March 2023 in relation to a K gold pendant and two K gold necklaces.  She also kept the properties stolen from PW1 without returning them to PW1 even after she admitted to PW1 that she had stolen from her.  PW1’s pearl pendant was found in her wallet on 26 March 2023, ie 7 days after she knew PW1 was aware of her theft.  There was absolutely no regret on her part.  These constituted aggravating features in sentencing as they added to the culpability of the defendant.

22.  Dates of the pawn tickets showed that the defendant not later than 10 September 2023 started the stealing spree.  There were 58 transactions in 19 pawnshops between September 2022 and March 2023.  The vast number of pawn tickets evidenced that the defendant had treated this elderly victim as a cash cow.

23.  Considering the Ng Kwok Wing case and having regard to the circumstances of this case, the appropriate sentencing starting point is 3 years and 3 months’ imprisonment.  The defendant has pleaded guilty and is therefore entitled to a full one-third sentencing discount.

24.  This court did not accept the return of the pendant in the wallet of the defendant as voluntary because it was only discovered by police on a body search of the defendant. 

25.  The fact that the defendant committed the offence for the good of her family again is not a valid mitigating factor.  It is also well established that a defendant’s clear record and remorse has been subsumed in the one-third sentencing discount.

26.  In this case, this court would not exercise its discretion and afford the defendant further sentencing discount by reason of her disclosure of the pawn tickets.  The fact of her co-operation with police and her confession after arrest again should be subsumed within the one-third sentencing discount, as said in the Chu Kwok Chu case.

27.  Accordingly, the defendant is sentenced to 2 years and 2 months’ imprisonment.