HKSAR v. BANISAL LIGAYA AO WAT

DCCC 209/2023

[2023] HKDC 1109

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 209 OF 2023

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REASONS FOR SENTENCE

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Charge

1.  The defendant pleaded guilty to one count of Theft, contrary to section 9 of the Theft Ordinance, Cap 210, Laws of Hong Kong.  She was convicted upon her own plea and admission of the prosecution case.

Brief facts

2.  The defendant had been employed by the victim of this case, Madam Hui Sau Ling, since 2016 at a residential apartment in Lohas Park, Tseung Kwan O, prior to her arrest in October, 2022. 

3.  Madam Hui used to store her jewellery in a drawer of a wardrobe in her bedroom.  A few years ago, Madam Hui threw away one of the two keys to the drawer and kept the remaining one for her own use.  However, the defendant retrieved and kept the one that had been discarded by Madam Hui.  Between November 2021 and October 2022, the defendant stole jewellery belonging to Madam Hui from the aforesaid drawer by using the key she had kept.  She also pawned those stolen jewellery for cash.

4.  On 16 October, 2022, Madam Hui found that 40 pieces of her jewellery were missing in the aforesaid drawer.  The total value of these jewellery amounts to about HK$400,000.  Madam Hui confronted the defendant, who confessed her stealing acts.  Upon Madam Hui’s request, the defendant produced 36 pawn receipts relating to those stolen jewellery. 

5.  Police arrived after a report had been made.  The police searched the defendant’s room and found the key that she used to open the aforesaid drawer.  She was then arrested. 

6.  Under caution with the assistance of a Tagalog interpreter, the defendant admitted that she had stolen the jewellery from the aforesaid drawer and had pawned them for cash on different occasions.  She did so in order to repay her debts.

Background of the defendant

7.  The defendant is aged 43 and was born in the Philippines.  Her family, consisting of her aged mother and 3 children aged 21, 16 and 14 respectively, are living in the Philippines.  The father of her children abandoned the family long ago.  She is the sole breadwinner of the family and her children are all studying.

8.  The defendant received tertiary education in the Philippines but could not complete her studies.  She came to Hong Kong to work as a domestic helper in 2016.

9.  The defendant has a clear criminal record in Hong Kong. 

Mitigation

10.  The learned counsel for the defendant advanced orally and in a written submission several mitigating factors on her behalf.

11.  It has been submitted that the defendant has been suffering from bulging disks in her back, which has been causing her constant pain and daily medication is required.  This condition has been deteriorating as she has been required to perform manual labour while she was in custody.  Besides, being incarceration in Hong Kong means that her family in the Philippines could not visit her while a local detainee or prisoner would not so suffer.

12.  Furthermore, 17 stolen jewellery were recovered by the police from the pawn shop so that the loss of the victim has been reduced.  I am told that the worth of the recovered jewellery is about $113,000 and the outstanding loss of the victim would be around $278,000.

13.  The learned counsel has also submitted that the conviction in this case would adversely affect her chance of getting future employment in Hong Kong.

14.  Letters of mitigation from the defendant herself and her family members were submitted on her behalf.  Her children have all ceased going to school as a result of the defendant’s failure to remit money to pay for their tuition in the Philippines.  Her family are in great debts.

15.  The learned counsel relied on the Court of Appeal judgment in HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017 and suggested a starting point in the range of 2 to 3 years’ imprisonment.  The learned counsel also submitted two other cases which had been dealt with by two other District Judges.

16.  The learned counsel urged the court to consider not just the value of the stolen property but also the recovery of some of them, the unlikelihood of future employment in Hong Kong, the hardship of the defendant caused by her incarceration and her timely plea.

Discussion

17.  First of all, each case has its own merits.  Reasons for Sentence passed by other District Judges are not binding on this court and have not been upheld by the Court of Appeal.  Since the Court of Appeal has laid down sentencing guideline in the case Ng Kwok Wing, I would focus on this authority.

18.  This case involves breach of trust in that an employee stole from her employer.  I agree with the learned counsel for the defendant that, given the value of the stolen property in this case, the appropriate range of starting point, according to the case Ng Kwok Wing, should be 2 to 3 years’ imprisonment.

19.  It is true that part of the stolen property has been recovered so that the victim’s loss was reduced.  It is also true that these jewellery would not have been recovered but for the confession and co-operative attitude of the defendant. Therefore, credit should be given and this is a valid mitigating factor.

20.  However, I do not accept that hardship, if any, suffered by the defendant when she was in custody may amount to a mitigating factor.  If the defendant does not want her family members in the Philippines to suffer as a result of her incarceration, she should not commit crime and end up being detained.  If she wants to see her family members more often, she should not have come to Hong Kong and then stolen from her employer.  She should have stayed in the Philippines. 

21.  Moreover, I do not accept that the manual labour she performed in custody has worsened her back pain.  It is well known to the legal profession and even laymen that detainees and prisoners in Hong Kong are all provided with sufficient medical care.  Every one being detained in a prison or a correctional institute could seek medical treatment and any illness or discomfort diagnosed would be recorded properly and known to the warders.  It defies common sense to say that doctors and warders in the institutions run by the Correctional Services Department in Hong Kong would allow a detainee or prisoner to perform manual labour while her physical condition does not allow.

22.  It is true that the defendant’s chance of getting future employment in Hong Kong would be jeopardized by her criminal conviction in this case.  In my view, everyone who works in a foreign country should have known full well that he or she should be law-abiding at all time and any breach of the local criminal law might end up with his or her working visa being revoked and never re-issued.  If the defendant is not allowed to work in Hong Kong in future, she has herself to blame.

23.  Finally, stealing from one’s employer to repay one’s debt has never been accepted as a valid mitigating factor.

24.  Having considered the facts of this case, particularly the value of the stolen property, the clear record of the defendant and all the mitigation advanced on her behalf, I adopt 27 months’ imprisonment as the starting point. Owing to her guilty plea, I reduce it to 18 months’ imprisonment.  I take into account the recovery of part of the stolen property.  On this basis, I further reduce 2 months from her sentence, making it a term of 16 months’ imprisonment. 

25.  There is no other valid mitigating factor.

Sentence

26.  Owing to the above reasons, I impose a term of 16 months’ imprisonment on the defendant.