HKSAR v. CATACUTAN, PRESLYN-SAGA HCMA 31/2007

S’s words:-

A simple case of theft with domestic helper in breach of trust for stealing the properties of her employer. No one would pay attention to this case if the employer was not a famous entertainer Mr. Jacky Cheung.
Although the stolen items were not of any substantial value, the breach of trust element would justify an immediate custodial sentence against a first offender, for example 3 months’ imprisonment in this case. In no doubt, my view is that the original 6 months imprisonment was quite excessive.

--- quote from judgment ---

The Appellant is a woman of previous good character in her early 30s. She was convicted after trial before Winston Leung, Esq. in the Magistrate’s Court at Eastern on two charges of theft. The Magistrate sentenced her to 6 months’ imprisonment by way of concurrent terms of that length on each charge. She now appeals against conviction and sentence.

At the time of the offences of which she was convicted, the Appellant worked as a domestic helper at the home of a well-known entertainer, Mr Cheung Hok-yau. The offences were charged as having been committed at the premises where the Appellant worked. Charge 1 is of stealing a personal letter addressed to Mr Cheung and therefore his property. Charge 2 is of stealing three photographs which were Mr Cheung’s property. The charges did not state the value of that letter or those photographs. But the Magistrate was of the view that they could be of high commercial value given what he called Mr Cheung’s “celebrity status”.

I find no basis on which to disturb either of these convictions, and the appeal against conviction is dismissed.

So I turn to the appeal against sentence. The Magistrate was right to bear in mind that theft by a domestic helper from an employer at his home involves a betrayal of trust.

What does trouble me, however, are the Magistrate’s statements that the Appellant “had all the trappings of a spy in Mr Cheung’s household”; that her conduct is “all the more vicious in that she had the intention of selling the privacy of her employer for money”; and that for the exploitation of an employer’s “celebrity status” the “deterrent must be harsher”.

As it seems to me, the detriment to the employer and the gain to the domestic helper in a case like this might both be considerably less than when the theft is of, for example, a large sum of cash stolen from an employer of relatively modest means.

Depriving someone of timely receipt of a letter can cause them considerable loss and inconvenience. But there is no evidence as to what harm arose out of the theft of the letter to Mr Cheung in the present case. All the items stolen could have some commercial value arising out of Mr Cheung’s position as a well-known entertainer. But there is no evidence as to the value or range of value of any of the items concerned.

This case cannot be regarded as trivial. Even so, I am left with the impression that the Magistrate formed a considerably exaggerated view of the Appellant’s role and the harm she caused. It is impossible to say what lesser sentence he would have passed if he had not, in his anxiety to do the right thing, fallen into that error. Doing the best I can in all the circumstances, I allow the appeal against sentence so as to cut each concurrent term by half, so that the Appellant’s total sentence is reduced from 6 months’ imprisonment to 3 months’ imprisonment.