HKSAR v. DREO, ERLINDA MOVILLA

HCMA 181/2024

[2024] HKCFI 1782

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 181 OF 2024

(ON APPEAL FROM STCC 3071 OF 2023)

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J U D G M E N T

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1.  The Appellant was convicted after trial of a charge of “theft”, contrary to section 9 of the Theft Ordinance, Cap 210. The Magistrate sentenced the Appellant to 4 months’ imprisonment. She now appeals against the sentence.

2.  For the facts of the case and reasons for sentence, as briefly summarized by the Respondent, on an unknown day between February 2023 and September 2023, the Appellant stole a suitcase valued at $1,099, property belonging to her employer, Madam Hong. The Appellant was a domestic helper. 

3.  In mitigation, it was submitted that the Appellant was 41 years old and of a clear record.  She was married but separated from her husband.  She has four children and has to look after her mother.  She was the sole breadwinner.  She came to Hong Kong in 2018 to work as a domestic helper for Madam Hong for nearly four years.  Her performance was all along good, given that her employment contract had been renewed once. 

4.  While it was a breach of trust case, the value of the suitcase was not high.  It was not the most serious case of its kind.  Even though the logo had been taken out, the suitcase could still be used as the lock and the zippers were still working properly. 

5.  The Appellant would be sent back to her home country and the chance of reoffending was low. Suspended sentence was asked for given that the incident was a one-off incident. 

Reasons for Sentence

6.  The Magistrate noted that for a typical breach of trust case in which a domestic helper stole a suitcase belonging to an employer, the sentencing guidelines in HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776 and 香港特別行政區 對  吳國榮及另一人 (NG Kwok-wing)  [2008] 4 HKLRD 1017 were referred. But the value of the suitcase in the present case was relatively low (around $1,000).  Yet it was generally accepted that the sentence for breach of trust case should be immediate custodial sentence, unless in exceptional circumstances. 

7.  The Magistrate also considered that the matter came to light when the Appellant was asked by Madam Hong for the suitcase in September 2023, which had been placed and stored by the Appellant after Hong’s family trip in February that year. 

8.  The Magistrate also considered that the Appellant had made up a story in the trial by alleging that the suitcase belonged to her and she told lies by saying that it was purchased from a second-hand dealer in Central.   The Magistrate considered that to be an aggravating factor. 

9.  The Magistrate also did not accept the submission that the zipper and the lock of the suitcase were not damaged and thus no substantial loss had been suffered.  But as shown in the photo, the logo of the suitcase was still attached on the corner of the suitcase while in her trip to Japan.  However, at trial, the Magistrate examined the suitcase and found that the logo was damaged.  The logo was damaged by the Appellant with the intention to conceal the suitcase.  That damage could not be recovered and it was also considered to be an aggravating factor. 

10.  The Magistrate found the Appellant did not have any remorse and she was not in a position to restitute or compensate the loss.  So the Magistrate considered that a starting point of 3 months’ imprisonment should be adopted.  It was raised to 4 months, taking into account the above aggravating factors. 

11.  The Magistrate also considered that the Appellant had a clear record, but given that she was convicted after trial, no sentencing discount could be given and that suspended sentence were also considered to be not appropriate.  Therefore the Appellant was sentenced to 4 months’ imprisonment. 

Grounds of Appeal

12.  For grounds of appeal, the Appellant filed the appeal against sentence but did not submit any grounds in support. 

Respondent’s Reply

13.  The Respondents submitted that the Magistrate had already fully considered the circumstances of the case, the background of the Appellant, the mitigation, and the sentence and saying that the sentence was not too severe.  Particularly in a case of theft in breach of trust, immediate custodial sentence should be imposed, save in exceptional circumstances (see the case of R v Barrick (1985)  81 Cr App R 78). 

14.  And also the Appellant’s assertion about the ownership of the suitcase was a deliberate falsehood.  And even though the stolen property had been recovered, permanent damage had been done to it.  So having regard to all the circumstances, 4 months’ imprisonment as a starting point of the offence is entirely appropriate, given that the value of the stolen property was not too low and the Appellant was convicted after trial. 

Consideration

15.  In the recent Court of Final Appeal case HKSAR v Hui Lai Ki [2024] HKCFA 7, it is stated that the magistracy appeal is conducted by way of rehearing on the evidence before the trial court.  On such rehearing, if the judge comes to a different view on the evidence before the court, that itself is an error which justifies appellate intervention to reverse the decision of the magistrate.  Therefore, for sentencing appeal, the court also needs to consider all the evidence of the case, the background of the Appellant, and also the mitigation submitted. 

16.  It was a straightforward case where the Appellant stole the suitcase of her employer and the Appellant had kept it for about 7 months.  And which for trial, the Appellant fabricated that the suitcase belonged to her after buying it from a second-hand seller in Central.  Yet the logo of the suitcase was found to be permanently damaged.  The Magistrate had examined it and found that it was a way to conceal the suitcase. 

17.  The Magistrate had duly considered all the background of the Appellant and knew that she has a clear record.  However, it was clearly a breach of trust case and the suitcase is not of low value.  Therefore the starting point of 4 months’ imprisonment adopted by the Magistrate cannot be said as excessive, given all the background of the case.  I also consider the sentence is appropriate and therefore the appeal against sentence is therefore dismissed accordingly.