HKSAR v. DESTAJO MAY ANN MORENA

DCCC 1406/2024

[2025] HKDC 936

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1406 OF 2024

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REASONS FOR SENTENCE

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1.  The Defendant pleaded guilty to one count of “theft”, contrary to section 9 of the Theft Ordinance, Cap. 210.

Facts

2.  According to the Re-amended Summary of Facts dated 26 May 2025 agreed to by the Defendant:

(1)  At the material time, the Defendant was a cashier at Pacific Ace Finance Limited (“the Company”), a finance company specialising in providing remittance and credit services to Filipino clients in Hong Kong.

(2)  The Company’s clients could make their loan repayments by paying cash at its office situated in Central.

(3)  On 26 August 2023, the Head Cashier of the Company and the Defendant’s supervisor, Ms Ynopia, noticed a transaction amount of HK$3,261 missing in the bank passbook, but recorded as a bank payment in the computer system by the Defendant on 25 August 2023. Subsequently, the Defendant admitted to Ms Ynopia that she had stolen the cash. The Defendant later repaid the amount to the Company.

(4)  The accounting staff of the Company, Ms Yeung, did a review of the accounting records from 2 December 2020 and 26 August 2023, and found that repayments totalling HK$1,072,109 received in cash by the Defendant from clients were missing in the bank passbooks and had been falsely recorded by the Defendant in the computer system (335 times)  as online payments to the Company’s bank accounts, and the money had been stolen by the Defendant. Upon being confronted, the Defendant admitted to having stolen cash belonging to the Company.

(5)  Between August 2023 and April 2024, the Defendant paid back a total sum of HK$258,496 to the Company.

(6)  The case was reported to the police on 9 May 2024 and the Defendant was arrested on 21 May 2024. Under caution, the Defendant admitted, inter alia, that she had stolen the Company’s money from 2020 to 2023, and she had used the money on online games and stock trading.

(7)  At the material time, the Defendant stole cash totalling HK$1,072,109, being property belonging to the Company.

Mitigation

3.  The Defendant is aged 37. She has a clear record. She came to Hong Kong from the Philippines in October 2017, and married her husband, who is a Hong Kong resident. She started working at the Company in November 2017.

4.  The Defendant has two young children, aged 6 and 1 year 4 months. Because of being in remand for the present offence, she has been separated from her children since 21 May 2024. The children are being taken care of by her husband and mother-in-law. She misses her children very much and hopes to be reunited with them as soon as possible. The defence submitted mitigation letters written by the Defendant and her husband.

5.  The Defendant committed the offence because of her gambling habit and to fund her stock trading. She subsequently found that she had been scammed. The Defendant admits her lack of control regarding gambling, but she has since amended her ways. She is very remorseful and indicated she would plead guilty at the first instance.

6.  The Defendant has paid back a total of HK$258,496 to the Company up until April 2024, thus she has made restitution of part of the sum stolen before she was arrested and charged. Moreover, the Defendant has a clear record and she is unlikely to reoffend.

7.  As to the appropriate sentence, the defence agrees that the case involves breach of trust, and the guidelines in HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 770 (para 22)  as adjusted in HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017 (para 19)  are applicable. The proper starting point after trial is between 3 to 5 years’ imprisonment where the amount stolen is between $1 million to $3 million. The defence also relies on R v Barrick (1995)  81 Cr App R 78 cited in HKSAR v Lee Kai Kit Kitty [2009] 6 HKC 265, wherein the Court of Appeal stated that the following matters should also be taken into account in a case such as this: 

“(i)  the quality and degree of trust reposed in the offender including his rank;

(ii)  the period over which the fraud or the thefts have been perpetrated;

(iii)  the use to which the money or property dishonestly taken was put;

(iv)  the effect upon the victim;

(v)  the impact of the offences on the public and public confidence;

(vi)  the effect upon fellow-employees or partners;

(vii)  the effect on the offender himself;

(viii)  his own history;

(ix)  those matters of mitigation special to himself such as illness; being placed under great strain by excessive responsibility or the like; where, as happens, there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial; finally, any help given by him to the police.”

8.  The defence further relies on the case of HKSAR v Leung Shuk Man [2002] 3 HKC 424 regarding the discount for restitution.

9.  The defence submits that given the amount stolen is approximately $1.07 million, a starting point of 3 years would be appropriate; and in light of the amount of restitution (being around 25% of the stolen sum)  made before the Defendant was charged and her special circumstances as a mother with small children, the defence urges the Court to reduce her sentence by 5 months in addition to the one third discount for her guilty plea.

Sentence

10.  This is a theft case involving breach of trust. The amount stolen is around HK$1.07 million. The Defendant made restitution of around HK$260,000 before her arrest, amounting to approximately 25% of the total amount.

11.  In respect of theft cases involving breach of trust, the Court of Appeal has laid down sentencing guidelines in HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 770 and HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017.  The range of sentence for an amount between HK$1 million to HK$3 million is 3 to 5 years’ imprisonment.

12.  Given the amount stolen by the Defendant is around HK$1.07 million, the appropriate starting point is 3 years. In light of her guilty plea, the sentence is reduced by one third to 2 years.

13.  It is trite that restitution when coupled with a plea of guilty is a mitigating factor; voluntary restitution is to be encouraged; and the reduction should be made on top of / after the discount for having pleaded guilty (see Sentencing in Hong Kong, Eleventh Edition, [30-344] to [30-351]; HKSAR v Leung Shuk Man [2002] 3 HKC 424; and HKSAR v Wong Mei Heung CACC 273/2010). 

14.  In HKSAR v Cheung Suet Ting [2010] 6 HKC 249, the Court of Appeal held that: “26. … Of course, the weight to be attached to restitution as a mitigating factor will always depend on the circumstances. We are mindful of what was said by Stuart Moore VP in SJ v Lin Ming Ying & Anor [2002] 2 HKLRD 823 @ page 830 that of course, it is much stronger mitigation to be able to show that a defendant has immediately faced up to his responsibilities and made every effort at an early stage to repay any dishonest gains to the victim. However, even when restitution is paid much later in time, whatever the defendant’s motives for making reparation, the fact that dishonest gains have been repaid is nonetheless a material factor in mitigation.”

15.  As the Defendant has compensated the Company for 25% of its loss at an early stage, I am of the view that a reduction of 3 months would be appropriate. Furthermore, from her mitigation letter, I can see that the Defendant is truly remorseful and has learned her lesson, and the chance of her re-offending is slim. Given the Defendant’s clear record and personal circumstances, I exercise my discretion to give her a further discount of 2 months.

16.  As such, the Defendant is sentenced to 19 months’ imprisonment.