HKSAR v. PARANAS BERNADETTE MARQUEZ AND ANOTHER

DCCC 720/2023

[2024] HKDC 1217

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 720 OF 2023

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REASONS FOR SENTENCE

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1.  On this charge sheet the 1^st defendant has pleaded guilty to charges 1 and 2 which are a charge of conspiracy to steal and then theft. The 2^nd defendant has pleaded guilty to the 1^st charge of conspiracy to steal and three further charges, that is charges 3, 4 and 5, charges of theft.

2.  The defendants were employed as domestic helpers. The 1^st defendant was a domestic helper in a flat at Cheung Shing Court, Kowloon City, called Flat A, working for PW1 and PW2. The 2^nd defendant was a domestic helper who worked in an opposite flat on the same floor, that is Flat B, working for PW2 and his wife. Both these ladies are Filipinos, of clear records in Hong Kong and they are both parents, they are both mothers.

3.  The facts that have been agreed show that PW1 left his home in Hong Kong in May 2021 for business and returned in November 2022. He found that valuable items had gone missing from the house and it was the case put before the court that between May 2021 and December 2022, being the wider possible dates, the 1^st and 2^nd defendants conspired to steal watches, chains or jewellery valued at about $3,000,052. Many of these items were subsequently pawned and that is the facts of the 1^st charge. Of course the period is prescribed by the victim, that is PW1’s absence from Hong Kong. The pawning record which the prosecution have put into their Summary of Facts show that most of the items that were recovered were pawned between August 2022 and November 2022 which helps in somewhat narrowing down the period of operation of this theft.

4.  As far as charge 2 is concerned, the 1^st defendant also was found to have stolen a ring from PW2, who is PW1’s mother, from the flat, that is Flat A. The ring was valued at some $5,500, was pawned for $1,800 and of course recovered.

5.  As far as the 2^nd defendant’s other charges, these were various items found in charge 3 through to 5, a watch, two watches, one with a black leather strap, and another a Cartier watch, silver diamond Cartier ring. These items were taken from the Flat B by the 2^nd defendant. They are totally valued at $170,000. We know that one of the items was pawned on 17 October 2022 for $6,000 that is the IWC watch valued at $80,000.

6.  The charges show that the 1^st and 2^nd defendants were involved in a theft from the Flat A with total stolen properties of over $3 million. As far as the 1^st defendant is concerned, that would have been a breach of trust in relation to her employer. As far as the 2^nd defendant is concerned, she would have been involved in a conspiracy to commit a theft that was a breach of trust in respect of the 1^st defendant which would be an aggravating factor as far as she is concerned.

7.  The other charges, which is charges 2, 3 through to 5, are respectively charges that involve breaches of trust by the individual defendants which again is an aggravating factor in relation to those thefts.

8.  The defendants were quickly apprehended in respect of these matters and the obvious targets and they both made video recorded interviews in which they made admissions to their involvement in the conspiracy and also the pawning of the items.

9.  As far as the defendants’ backgrounds are concerned, in Hong Kong they are both of clear record, it would appear there is no evidence they have committed any offences anywhere else, especially in the Philippines.

10.  The 1^st defendant’s mitigation says she is aged 41, the prosecution says she is aged 40 but I will take 41 to be her actual age. Born in the Philippines, married, husband works as a driver, she has a son age 22 who has completed university. I am told she is remorseful and her explanation is similar to the 2^nd defendant’s explanation in that she came to work in 2015 for this family. In 2021, she took out loans that were obtained in order to send back to the Philippines to assist members of her family. This is a very common thing that happens with people in her position. Of course the loans have high interest rates and quickly become unaffordable and as defence counsel points out often triad societies are used to enforce these loans and this puts the particular person under pressure, in this case the defendant, and she takes the opportunity to steal from her employer, being the most obvious source of money for her. That is her motivation for committing the offences, to help pay off the loans.

11.  The 2^nd defendant was born in the Philippines I am told in July 1987. She has a daughter called Precious now aged 15 years old residing with the 2^nd defendant’s sister. I have seen letters from her and also in respect of the 1^st defendant as well. This defendant came to Hong Kong in 2014, employed by the same household in Flat B. She started to incur debts in the Spring of 2022. I will not go into the quantity of the debts but again she came under pressure from debt collectors and succumbed to the temptation to involve herself in stealing from the 1^st defendant’s employer and from her own employer.

12.  I turn to the approach to sentencing in cases such as this. I have been referred to a number of authorities in respect of the approach to sentencing. The most recent case is Secretary for Justice v Nones Carmelita Galay CAAR 15/2021, however, there are other cases such as HKSAR v Ng Kwok Wing and HKSAR v Cheung Mee Kiu set out guidelines which are based on the value of the items stolen and these guidelines relate to cases of theft involving a breach of trust. For an amount involving $250,000 or less, the sentence is open and below 2 years’ imprisonment, a starting point of below 2 years’ imprisonment. For an offence involving a sum of $3 million to $50 million, the sentence should range between 5 to 10 years’ imprisonment and we can immediately see that in respect of the 1^st charge the value of the items taken is just in excess of $3 million so that would present a figure that the court can work on in assessing the starting point.

13.  The case of Nones provides some other guidance as to the approach the court should make to sentencing. In the headnote it says “The court should consider any aggravating factors including any specific enhancement for the respondent’s repeated offending and then discount the notional sentence for mitigating factors” and the court sets out the potential aggravating factors in cases such as this would involve the respondent’s careful planning and execution of the thefts and disposal of stolen property, criminality involving multiple thefts over a period in that case of 15 months. It says the respondent distancing herself from thefts, covering up of the theft, trauma effect on the victims and the sentimental value to any of the victims of unrecovered items.

14.  I note the list of aggravating factors that can be present in cases such as this. Obviously these offences as bracketed by the pawning records would show the offences were committed sometime between August and November of 2022 which is a substantial period but the defence counsel, I think quite rightly, urges that I balance that against the mitigating factors in the case, mitigating factors being the pleas of guilty by these particular defendants.

15.  Secondly, the defendants I am dealing with being ladies of clear record who have families and responsibilities in the Philippines and these are mitigating factors that I will take into account that so of course to arrive at a starting point sentence for each of these charges. It is also necessary to consider what an overall starting point should be for all the offences taken together as committed by each defendant. Now I will pass the individual sentences initially then I will deal with the question of totality after that.

16.  On the 1^st charge, I consider that having taken all the factors into consideration, both the aggravating and mitigating factors, as far as the 1^st defendant is concerned, the starting point should be I shall take into account the guideline and start at what is the lowest point on that guidelines which is 60 months’ imprisonment. The defendant is entitled to a full one-third discount from that which would lead on the 1^st charge to a sentence of 40 months’ imprisonment.

17.  As far as the 2^nd defendant is concerned, she of course is equally involved but it is not her employer so there is some mitigation in that and I think a lower starting point is appropriate to be taken for her on the 1^st charge. I take a starting point of 54 months’ imprisonment, reduce that to 36 months’ imprisonment having regard to her plea of guilty.

18.  On the 2^nd charge, these are all charges now that relate to the lowest point on the guideline, that is under $250,000. I will simply take a starting point of 6 months’ imprisonment, reduce that to 4 months’ imprisonment for her plea of guilty. On the 3^rd charge in respect to the 2^nd defendant, I am going to take a starting point at 9 months’ imprisonment, reduce that to 6 months’ imprisonment for her plea of guilty. On the 4^th charge, take a starting point of 6 months’ imprisonment, reduce that to 4 months’ imprisonment for her plea of guilty and on the 5^th charge, again a starting point of 6 months’ imprisonment, reduce that to 4 months’ imprisonment for her plea of guilty.

19.  I now must consider the overall totality for these defendants having regard to these offences. In a way their overall criminality is pretty much equal. I consider that the overall figure of 60 months’ imprisonment as a starting point is appropriate for both defendants in respect of their criminality in these offences. So what I shall do is give each defendant an overall total sentence of 40 months’ imprisonment and I achieve that as follows.

20.  I shall order that in respect of the 1^st defendant charges 1 and 2 be served concurrently, a total of 40 months’ imprisonment.

21.  As far as the 2^nd defendant is concerned, I shall order that charges 3 to 5 be served concurrently but 4 months be served consecutively to charge 1 and the balance concurrently.