HKSAR v. DAVID VILMA V.

HCMA11/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.11 OF 2003

(ON APPEAL FROM STCC 1258 OF 2002)

---------------------

----------------------

-----------------------

J U D G M E N T

-----------------------

1. This is an appeal against sentence only.

2. The appellant was convicted on her own pleas of five offences of theft. The offences were committed whilst she was employed as a domestic helper and involved her stealing sums of money, both in Hong Kong and United States currency, from her employer and a guest of her employer at her place of work at her employer's residence. The sums involved in the offences totalled the equivalent of about $7,760. The offences were committed over a five-day period. All the stolen monies, except for $1,000, were recovered.

3. The sentencing magistrate adopted a starting point of sentence of 18 months' imprisonment in respect of each offence. He reduced that to 16 months' imprisonment in respect of each offence after taking into account the appellant's plea of guilty and clear record. He ordered that all sentences imposed run concurrently except that two months of the sentences imposed in respect of the 2nd and 5th charged offences run consecutively to each other and to all other sentences. That resulted in a totality of sentence of 20 months' imprisonment.

4. The appellant generally says these sentences were too severe and more specifically advances two grounds of appeal. Firstly that the starting point of sentence in respect of each offence was too high and secondly that the magistrate was wrong not to allow the appellant the full one-third discount for her plea of guilty.

5. Neither of those grounds of appeal is opposed by the prosecution. Mr Cheng for the prosecution concedes that on the facts of the case the starting point of sentence was too high and that in any event there was no sufficient reason not to allow the appellant a full one-third discount for a plea of guilty which was entered on the first day of trial. It is common ground that given the seriousness and circumstances of the offences the magistrate cannot be criticized for imposing a custodial sentence. That in my view is correct. The amount of cash stolen over the five days was substantial and the circumstances of the offences demonstrated a premeditated course of action and pattern of offending which, even for a first offender, could properly be said to have warranted a custodial sentence.

6. That leaves then the question of the appropriate starting points of sentence. In this regard, Mr Wong for the appellant has relied on a number of cases involving theft by domestic servants from their employers including HKSAR v. Maramba Rowena Quilang, HCMA 1003 of 2000; and The Queen v. Monzon Thelma B., HCMA 831 of 1996

7. But I think it should be borne in mind that while those cases are of some assistance, theft is an offence which can vary greatly in its individual circumstances and facts. In the present case there were two aggravating features present, firstly not only was the appellant in breach of the trust reposed in her as an employee of the victim but also the thefts were each part of a series, and formed a pattern of conduct over a period of several days.

8. The magistrate in his sentencing in this case took identical starting points of 18 months' imprisonment for each offence. As an initial matter, in my view, the taking of an identical starting point of sentence for each offence even though the amount of cash stolen on each occasion varied cannot be criticized.

9. Where, as here, the circumstances are such that each sequential offence is identical factually except for the somewhat arbitrary amount stolen, I do not see anything necessarily to be gained by distinguishing between the individual offences so far as starting points of sentence are concerned. Once custodial sentences have been found appropriate each sequential offence, in the circumstances of this case, could properly attract the same starting point of sentence. As I say that was the global approach the magistrate took and I do not think it can be said to be wrong.

10. However I accept that the starting point of sentence adopted by the magistrate of 18 months in respect of each offence was too high. In Maramba's case, the theft by a domestic helper of a necklace valued at $75,000 resulted in a sentence of six months' imprisonment after trial. That sentence was not interfered with. In Monzon's case, the theft of an "Ebel" watch, which I am informed is a valuable watch, resulted in the imposition of a sentence of six months' imprisonment after discounting a starting point of nine months' imprisonment. As I say sentencing levels in previous cases of theft involving domestic helpers are not of great assistance as each case falls to be determined on its own facts. But such cases do give some indication of the approach of previous courts and consistency in sentencing is a desirable goal.

11. It seems to me, on the facts in the present case, that a more appropriate global starting point of sentence, bearing in mind the totality of cash stolen, would have been 12 months' imprisonment. That starting point has incorporated into it the two aggravating factors of the appellant's breach of trust and further the fact that the offences formed part of a premeditated pattern of criminality.

12. I also accept that the appellant was entitled to a full one-third discount for her plea of guilty. The magistrate did not apply the full discount upon the appellant's plea of guilty as "she had not pleaded guilty at the first available opportunity despite being caught red handed".

13. With respect to the learned magistrate I do not think, without more, that that is a sufficient reason to have disallowed the appellant the full one-third discount concomitant with her plea of guilty. The fact that a person is caught red handed is not a good reason to disallow them the full one-third discount upon plea : HKSAR v. Chu Shi Keung, CACC 520 of 1999. Nor is the fact that plea is entered on the first day of trial : HKSAR v. Lo Chi Yip & Another, CACC 546 of 1999; HKSAR v. Lau Sai Kit, CACC 614 of 1997. In short I do not think there was any sufficient reason to disallow the appellant a full discount of sentence upon plea.

14. In my view also the magistrate was entitled to allow a further small discount to reflect the fact that the appellant was of previous good character. Accordingly the starting point of sentence of 12 months' imprisonment in respect of each offence should be reduced to a sentence of seven months' imprisonment. Each sentence should run wholly concurrently with the other sentences imposed. That in my view reflects not only the overall criminality of the offences but also reflects the fact that the commission by the appellant of a number of offences has been taken into account as an aggravating factor in arriving at the starting point of sentence.

15. The appeal is allowed. I order that the present sentences be set aside and replaced with sentences of seven months' imprisonment in respect of each offence. All sentences are to be served concurrently. That is a totality of seven months' imprisonment.