HKSAR v. CONSEJO ELYNOR CONSOLACION

DCCC 773/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 773 OF 2015

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REASONS FOR SENTENCE

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1.  Defendant, you came before me this morning and pleaded guilty to a single charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210.

2.  The victim of this case is your employer and you stole altogether 10 pieces of jewel including three pairs of earrings, six rings and one necklace with pendant when you were working as a domestic helper to your employer, Madam Tam Lai Han.

The facts

3.  The facts of this case is straightforward. According to the facts which you have admitted, your employer placed those 10 pieces of jewels in a wardrobe which was unlocked in her bedroom located on the 1^st floor of the house which is situated in Tai Mei Tuk, Tai Po.

4.  Sometimes in July this year, Madam Tam checked the wardrobe and found the jewels had gone missing and therefore a report was made to the police. 

5.  Upon the investigation by the police, it was revealed that you had pawned five of the missing jewels, namely two pairs of earrings, two rings and one necklace with a pendant, valued at HK$389,400 in total to three pawnshops.  The pawn receipts and the jewels were retrieved from the relevant pawnshops and Madam Tam positively identified that the jewels retrieved actually belonged to her.

6.  You were therefore arrested for this case on 21 July 2015.

7.  Upon arrest, you remained silent under caution. In the video-recorded interview, finally, you admitted that you were the person who pawned those five pieces of jewel to the relevant pawnshops.  Also, you had received a total of HK$10,500 from pawning these five pieces of jewels.  You also told the police that you knew that your employer had placed the jewels in the wardrobe which was unlocked.  You stole the jewels from the wardrobe but you could not remember the exact quantity of jewels that had been stolen. 

Criminal record and the background of the defendant

8.  You are a Filipino national and you came to Hong Kong in 2012 working as a domestic helper.  You have a previous similar conviction record of theft in Hong Kong which is dated in June 2015 for which you were originally sentenced to 4 months’ imprisonment but was later, after review, substituted with a 2 months’ imprisonment.  In other words, you have already served your sentence.  I was told that the victim of that case is also the same employer, Madam Tam, and the stolen property is HK$200.

9.  You are married in 2001.  All your family members are now in Philippines.  You have two sons and one daughter and they are all students, aged respectively 13, 11 and 9.  Your husband is unemployed and he is suffering from lung disease. 

Mitigation

10.  I have listened very carefully to the mitigation by Miss Katherine Lam, instructed by the Director of Legal Aid on your behalf.  Miss Lam told me that the reason why you committed the present offence is because of the heavy economic burden placed upon your shoulder to look after not only your own family but also your maiden family.  I was told that you are the eldest child in the family and your father is an alcoholic and your mother is suffering from some kidney problem.  She has to undergo an operation. Medical certificate was submitted to support this claim and as a result, you went into financial difficulties. 

11.  Miss Lam told me that you are not evil by nature but only out of foolishness you committed the present offence.  Miss Lam also told me that your first conviction of theft was committed simply because the money you pawned for the stolen jewelleries was still not enough to cover for the medical expenses for your mother and so you resorted to stealing from your employer again.

12.  Miss Lam acknowledged that what you have done is serious in that a breach of trust was committed against your employer and for which a starting point as high as 3 years may be warranted according to the tariff sentence laid down by the Court of Appeal for this type of offence. However, Miss Lam still urged the court to be as lenient as possible and take into account your family circumstances perhaps when passing the sentence.

Sentencing consideration

13.  I accept this is a straightforward case.  You are a domestic helper employed by Madam Tam.  According to your lawyer, you have already worked in a second contract with Madam Tam.  No doubt Madam Tam had placed considerable trust on you so much so that according to the facts, the total value of the jewels in question was close to HK$900,000, and yet still perhaps with hindsight, out of carelessness, those 10 pieces of jewels were just placed in a wardrobe which was not locked. 

14.  I understand that you were suffering from severe financial difficulties when you committed this offence.  However, the court can never accept economic reasons for committing crimes.  For serious offences such is this, the Court of Appeal had repeatedly stressed that family circumstances virtually played no part in mitigation. 

15.  You have informed the court that you committed the theft of the 10 pieces of jewels one by one.  According to the charge, it is committed between 1 March 2014 and 11 June 2015.  In other words, during this period of time, you have committed the theft systematically and repeatedly over a course period of the time.  What is more, you have pawned the jewelleries altogether, and I was told, in the sum of only HK$15,000, substantially less than the value of the jewels. 

16.  At the moment, five jewels have been retrieved but it is still not certain whether the remaining five pieces of jewels which amounts to about HK$500,000 could still be recovered or not.  The financial consequences to your employer is serious.

17.  I can detect no effective mitigating factor in your case other than the fact that you have pleaded guilty.

18.  According to the Court of Appeal decision in HKSAR v Ng Kwok Wing [2008] 4 HKLRD 101, in a breach of trust case, if the sum involved is between HK$250,000 to HK$1,000,000, the starting point should be 2 to 3 years.  As I said, the total amount involved in this case for the 10 pieces of missing jewels were close to HK$900,000.  In the end, I decided to use 2 years and 9 months as the starting point.  You pleaded guilty for which you are entitled to a one-third discount. 

19.  In the end, I sentence you for this offence to 22 months’ imprisonment.