HKSAR v. MATUTE METCHIE PINATED

DCCC 1003/2025

[2026] HKDC 447

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1003 OF 2025

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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.

Summary of Facts

2.  The Summary of Facts admitted by the Defendant are as follows:

(1) LAI Siu-yuk (aged 68) (PW1) lived at Room 1002, Heng Kong House, Heng On Estate, Ma On Shan, Shatin, New Territories, Hong Kong (the Flat). Since July 2023, the Defendant worked as PW1’s domestic helper. The Defendant lived with PW1 at the Flat. PW1 and the Defendant were the only two persons living in the Flat.

(2) PW1 had stored various pieces of jewelry in the cabinet in her bedroom in the Flat (the Cabinet) from June or July 2024.

(3) At about 8 pm on 8 March 2025, PW1 opened the Cabinet. Upon checking, PW1 discovered the following jewelry items stolen from the Cabinet (the Stolen Items):

(i) 7 bangles;

(ii) 1 gold ornament;

(iii) 4 gold necklaces with pendant;

(iv) 14 rings;

(v) 3 gold ornament fragments;

(vi) 1 watch; and

(vii) 13 gold wrist chains.

(4) The total value of the Stolen Items was $325,860.

(5) PW1 asked the Defendant what happened. The Defendant replied that she had taken away the Stolen Items out of financial need. The case was reported to the police.

(6) At about 11:15 pm on the same day, the police arrived at the Flat. PW1 provided 10 pawnshop receipts to the police. PW1 found these receipts from the bedside cabinet of the Defendant’s bed. All the receipts bore the Hong Kong Identity Card number of the Defendant.

(7) The Defendant was arrested. Under caution, she admitted that “I needed money in Philippines so I stole porpor’s (PW1) gold”.

(8) Upon search of the Defendant in the police station, a further 17 pawnshop receipts were found on her.

(9) The 17 pawnshop receipts were shown to the Defendant. Under further caution, PC 61937 (PW3) asked the Defendant “what are these 17 receipts.” The Defendant replied “sold porpor’s (PW1) gold”.

(10) In the subsequent video-recorded interview, the Defendant admitted under caution that:

(i) She worked and lived at the Flat with PW1. PW1 was her employer;

(ii) She started stealing gold wrist chains, gold necklaces and watch in August 2024. She stole things from PW1 in the room. She took items from the Cabinet inside the room that she shared with PW1. She saw those items once when she was cleaning the room;

(iii) She pawned the Stolen Items in three different pawn shops because she only knew those three pawnshops. She pawned all the items that she stole from the Flat to pawnshops. She pawned them at different times;

(iv) She sent all the money she got from pawning the items she stole from PW1 to her family in the Philippines;

(v) She hid the 17 pawn receipts which were seized from her at the time of the search in her underwear so that her employer could not see them;

(vi) Every time after she had stolen a few items, she sold them at the pawnshops. She knew it was wrong to steal things;

(vii) The last time she stole was around December 2024. She stole from PW1 between August 2024 to December 2024; and

(viii) She remembered the items stolen included gold bracelets, necklaces and a watch.

(11) Amongst the Stolen Items, 3 gold ornament fragments, 1 watch, 2 gold chain pendants, 2 rings and 1 gold wrist chain were recovered from the pawnshops.

The Defendant’s background

3.  The Defendant is 41 years old, she was educated up to year 3 of college level at Kalinga-Apayao State University.  She was divorced in 2009 and has a daughter and a son aged 21 and 5 respectively.  The son  is not her former husband’s child.  The children are taken care of by the Defendant’s mother.

4.  The Defendant first came to Hong Kong to work as a foreign domestic helper in 2009. After working for 2 employers for 4 years and 3.5 years respectively, she went to work as a cleaner in Macau for 2 years. She then came back to Hong Kong to work for PW1. She worked for PW1 for 1.5 years before the present offence.

5.  The Defendant has no criminal record in Hong Kong or elsewhere.

Discussion

6.  There is no dispute that the present case involves a breach of trust.

7.  The Court of Appeal laid down sentencing guidelines for the offence of theft involving breach of trust in HKSAR v Cheung Mei Kiu [2006] 4 HKLRD 776.  Those guidelines were updated in HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017 as follows:

(a) involving $15 million or more: 10 years or above;

(b) involving $3 million to $15 million: 5 to 10 years;

(c) involving $1 million to $3 million: 3 to 5 years;

(d) involving $250,000 to $1 million: 2 to 3 years; and

(e) involving $250,000 or less: below 2 years.

8.  The amount stolen is an important factor but not the only factor to be considered.  In HKSAR v Lee Lai Kit Kitty [2009] 6 HKC 265, the Court of Appeal accepted that the other factors set out in R v Barrick (1985) 81 Cr App R 78 should also be taken into account.  They include:

(1) the quality and degree of trust reposed in the offender, including his rank;

(2) The period of which the fraud or the thefts have been perpetrated;

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

(4) The effect upon the victim;

(5) The impact of the offences on the public and public confidence;

(6) The effect upon fellow-employees, or partners;

(7) The effect on the offender himself;

(8) His own history;

(9) 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.

9.  Counsel conceded that the appropriate starting point in the present case is 2 to 3 years’ imprisonment.

10.  Counsel referred the Court to HKSAR v Rosete Cyrill Duque DCCC 910/2023 [2024] HKDC 1121.  The Defendant, a domestic helper pleaded guilty to one count of theft.  She had been working for her employer since 2015.  In February 2023, the employer placed $520,000 cash into a safe and $20,000 cash in a locked drawer.  The keys to the safe and the drawer were attached to the employer’s house keys.  In July 2023, the employer discovered that the keys to the safe and drawer were separated from the house keys.  She checked the safe and the drawer and discovered that all the cash was gone.  Upon arrest, the Defendant admitted that she had stolen the cash from the safe and the drawer with the keys between February 2023 and 1 July 2023.  She had deposited the money into bank accounts of various persons and also into an investment platform called BigSeller Marketing.  The Defendant had a clear record and would most likely be deported.  In mitigation, the Defendant stated that she had stolen the money because of her family’s medical needs.  The learned Judge adopted a starting point of 2 years and 3 months’ imprisonment.  After the discount for her guilty plea, the sentence was reduced to 18 months’ imprisonment.

11.  Firstly, the case cited by Counsel is a District Court case.  In 律政司司長對唐健帮 CAAR 13/2022, [2023] HKCA 896, the Court of Appeal stated:

「35. 第一，雙方於本案存檔了多份區域法院的判刑理由書，希望藉此支持己方立場。本庭在 律政司司長訴溫達揚 案第 27 段已指出：

「… 因為這些判刑，從來就沒有經過上訴而被肯定，也沒有什麼量刑原則可言，對量刑既沒有約束力也沒有參考價值，根本起不了任何指導作用，根本不應稱之為『案例』…

況且，「意圖而傷人」及「暴動 / 非法集結」罪的案情，以及某被告人的背景、犯案動機、於該案所扮演的角色等事項，可謂千變萬化，任何單純對案件判刑作出比較的做法，都不能協助本庭處理原審判刑是否恰當這個議題。歸根究底，控罪要旨（gravamen of the offence）及適用的量刑因素才是重點所在，而非個別案件的判刑。

12.  In 香港特別行政區對劉晉旭及其他人 CACC 243/2021, [2023] HKCA 1098, the Court of Appeal reiterated:

「51. 在完結前特別一提。申請方曾在他們的書面陳詞援引區域法院另一宗2號橋暴動案的原審判刑（香港特別行政區訴陳起行 [2021] HKDC 874），作為適用 蔡家輝 案的支點以支持本案量刑基準過高的主張，結果終被勸退。本庭已在過往指出過多次，在今年的 律政司司長對唐健帮及另二人 [2023] HKCA 896 (判案理由書日期：2023年8月25日）又再重申；未經上訴的原審判刑對同級法院沒有約束力，對上訴法庭也沒有任何參考價值，不應被業界用作上訴時的依據。」

13.  In the present case, not only was the Defendant the only person living with the elderly victim, they shared the same bedroom.  The degree of trust was very high.  The value of the Stolen Items was over $350,000, a substantial amount.  The Defendant stole the items over a period of 4 months (August to December 2024).  However, her behaviour was very frequent and persistent.  The number of pawnshop receipts demonstrate that she stole the items on at least 27 occasions.  In my judgment, the appropriate starting point is 2 years and 6 months’ imprisonment (i.e. 30 months’ imprisonment).

Mitigation

14.  The Defendant pleaded guilty at the earliest opportunity.  She is entitled to a one-third discount.  The sentence is reduced to 20 months’ imprisonment.

15.  Counsel submitted that the Defendant has a clear record both in Hong Kong and elsewhere. Sentencing in Hong Kong 11th edition stated:

“[7-6] Credit for a clear record is, however, by no means a given. Much will depend upon the nature of the offence and the position of the offender. In HKSAR v Law Num-chun [2014] 6 HKCA 606, 617, Lunn VP said:

[T]he principle is that good character is not a factor relevant generally to determining the starting point to be taken for sentence in serious criminal offences for which a deterrent sentence is required.…

[7-12] If the accused has a clear record, this may be of little, if any relevance if he is guilty not of a one-off instance of dishonesty but of dishonesty of an ‘ongoing nature’: Secretary for Justice v Schmitt [2008] HKCU 979 (CAAR 12/2006, 17 June 2008, unreported). In HKSAR v Dos Passos Anthony Joseph [2002] HKCU 1202 (CACC 517/2001, CACC 527/2001, 27 September 2002), a case of conspiracy to defraud, Cheung JA said that ‘in offences of this type where criminal acts are repeatedly being committed, it is wholly artificial to describe an offender as having a clear record, even though technically this may be correct’ … In R v Barrick (1985) 81 Cr App R 78, 81, Lord Lane CJ said:

The type of case with which we are concerned is where a person in a position of trust, for example, an accountant, solicitor, bank employee or postman, has used that privileged and trusted position to defraud his partners or clients or employers or the general public of sizeable sums of money. He will usually, as in this case, be a person of hitherto impeccable character. It is practically certain, again as in this case that he will never offend again and, in the nature of things, he will never again in his life be able to secure similar employment with all that that means in the shape of disgrace for himself and hardship for himself and also his family. …

[7-14] The practice of the courts in recent times has been to give an accused who pleads guilty a sentencing discount of one-third … Since the ‘one-third rule’ has solidified into principle, there is no scope for a further discount, save in exceptional circumstances, such as where assistance is provided to the authorities …

[7-15] … In Secretary for Justice v Lee Cho-keung and Ors [2004] 4 HKC 179, 189, the court noted that ‘

the established course is now to view the presence of good character as part and parcel of the 1/3 discount given upon a plea.’ … Secretary for Justice v Tso Tsz-kin [2004] 2 HKC 139, 144 …

[7-17] In HKSAR v Wong King-wai [2008] 2 HKC 614, 623, Stuart-Moore ACJHC said:

Personal circumstances including a clear record may, of course, have a bearing on mitigation for offences which are comparatively minor in nature. However, for serious offences we have indicated time and again that, with the introduction of the ‘one-third rule’ which in usual circumstances provides a discount of a third of the prison sentence that would normally have been imposed after trial following timely pleas of guilty, there should be no further discount for a clear record unless evidence of positive good character is forthcoming …”

16.  Counsel further submitted that the Defendant committed the present offence for financial reasons.  He explained that the Defendant’s family lived in an area with violent tribal conflicts and as a result, the Defendant’s father was murdered in 2020.  The Defendant wanted to help her family relocate to a safer area. Counsel rightly conceded that financial reasons do not amount to mitigation.

17.  Sentencing in Hong Kong 11th edition stated:

[30-143] Many people face financial difficulties, but do not resort to crime. Financial pressure is not an excuse for offending: R v Kwok Yau-fat (CACC 537/1996, 28 February 1997, unreported). Whilst it might help to explain why the crime occurred, it cannot provide mitigation: Attorney General v Yan Chun-fong [1993] 1 HKCLR 42, 45 …

[30-145] That the accused committed the offence because he owed money to loan sharks due to gambling losses will not avail him: R v Ying Lai-chau [1990] 1 HKC 218 … Neither will the fact that the motive for the offence was to raise money for his family: Attorney General v Shek Sui-tai [1989] 1 HKLR 178, 179 … Financial difficulty and personal circumstances are not relevant as mitigation in serious cases, no matter how desperate or tragic the situation of the accused: Secretary for Justice v Nones Carmelita Galay [2023] 1 HKC 139 …

18.  Counsel also submitted that the Defendant is very remorseful.  In HKSAR v Ngo Van Nam [2016] 5 HKC 231, the Court of Appeal pointed out that the discount for a guilty plea already includes remorse and is the high watermark; unless there are exceptional circumstances, no further discount should be given.

19.  Counsel further submitted that the Defendant would like to return to the Philippines to look after her family.  It is trite law that the effect of a sentence on the accused’s family does not amount to mitigation: Sentencing in Hong Kong 11th Edition, paras [30-130] to [30-142].

20.  The Court understands that the Defendant is unlikely to be ever able to come to work in Hong Kong as a domestic helper again. However, she is the author of her own wrong.  The Court also notes that part of the Stolen Items has been found. However, this was not due to any effort from the Defendant and the owner has to pay the pawnshop for the return of the items.

21.  In the present case, apart from her guilty plea, there are no other mitigating factors.  Accordingly, I sentence the Defendant to 20 months’ imprisonment.