Q: I happen to have 2 friends who were convicted of theft in Hong Kong. Juan was sentenced to a fine of HK$ 3,000 for stealing 20 t-shirts at Giordano worth HK$ 1,500 while Maria was sentenced to 6 months imprisonment for stealing the ring of her employer which was worth HK$ 1,500. Why were the sentences different? Don’t you think the sentence of Maria was very severe when the worth of money she stole was the same with Juan?

 A: THEFT, ROBBERY, BURGLARY, ETC. under section 9 of the Theft Ordinance of Hong Kong Cap 210 states that any person who commits theft shall be guilty of an offence and shall be liable on conviction upon indictment to imprisonment for 10 years. Section 2 defines theft as (1) A person commits theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and "thief" and "steal" shall be construed accordingly. (2) It is immaterial whether the appropriation is made with a view to gain, or is made for the thief's own benefit.

 Both Juan and Maria committed theft as both dishonestly took property owned by another without consent, namely 10 t-shirts owned by Giordano and a ring owned by the employer, permanently depriving them of their belongings. They were properly convicted and the question is why the discrepancy in the sentencing, a fine as against 6 months imprisonment.

 First, the reason of the discrepancy is Juan committed simple theft commonly known as shoplifting while Maria committed aggravated theft also known as breach of trust. Juan is a stranger to Giordano while Maria is an employee of the owner of the ring. Maria was hired to do a job inside the house of the employer as a domestic helper. She was entrusted a high degree of trust and confidence by letting her enter, live and work inside the house of the employer. It is in the course of Maria’s duties to safeguard the belongings of the employer found inside the house. Abusing the trust is an aggravating factor to the crime committed. The same is true if Maria stole the ring from her best friend.

 Second, there is duty of the courts to protect the public from employees who abuse trust. Hong Kong is an international business centre of the world and integrity of the employees is of paramount importance.

 Maria could have been a person other than a domestic helper, a person of trust, for example, a money remittance teller, a bank manager or employee, accountant, salesperson, who has used the privilege attached to her position, trusted by the company to do a job, and then defrauded the company, clients, employers and even the general public for a sum of money. Maria in all certainty will lose her job and by the nature of things, she will never again in her life secure employment in Hong Kong given the criminal conviction, the disgrace for herself and the hardship to her family.

 Nevertheless, in general, a term of imprisonment is inevitable for Maria as compared to Juan, who could be a first time offender and could be dealt with a monetary penalty. Save in very exceptional circumstances where the amount of money involved was small. Take the case of Rowena Sacdalan Gregorio {HCMA 197 of 2002), a domestic helper who stole HK$ 20 grocery money and she was sentenced to 3 months in jail. On appeal, the jail term was considered too harsh a punishment and was squashed but replaced with 28 days imprisonment suspended for 12 months, meaning, she will not serve the 28 days imprisonment if she is of good behaviour for the next 12 months. The judge said, light-fingered domestic helpers must be severely punished for breaching the trust of their employment, but without diminishing the gravity of the situation, sentence must be in proportion to the HK$ 20 stolen.

 Most domestic helpers are foolish, committing such offence due to momentary greed. In other cases, they are in desperate need of money due to emergency situation in their family back home. They steal valuable objects innocently lying around the house of their employers, pawn the items, hoping to redeem it and returning the items. But alas! This is still theft and it is a crime in Hong Kong, irrespective of alternate intentions.

 The additional hardship Maria brought to herself, is loosing her job, the immigration department revoking her visa and never be allowed to work again in Hong Kong, the court passing a sufficiently substantial term of imprisonment to warn the public of the gravity of the breach of trust. The sum involved is obviously not the only factor but it serves as a guide.

 In the case of Trevor Clark, [1998] 2 Cr. App. R. S, less than 10,000 sterling pounds to less than 18 months imprisonment; less than 50,000 pounds to less than 3 years imprisonment; over 100,000 pounds to more than 3 ½ to 4 ½ years of imprisonment; over 150,000 pounds up to 5 years imprisonment; over 1 million pound up to 9 years.

 In the case of R v Barrack [1985] 81 Cr. App. R 78, the following are some of the matters that the court would consider in determining the proper level of sentence: (1) the quality and degree of trust reposed in the offender including his rank; (2) the period over which the fraud and thefts have been perpetrated; (3) the use of the money or property dishonestly taken was put; (4) the effect on the victim; (5) the impact of the offences on the public and public confidence; (6) the effect on fellow employees or partners; (7) the effect on the offender himself; (8) his own history; and (9) those matters of mitigation special to himself such as illness; being placed under great strain by excessive responsibility or the like; where, as sometimes 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.

 Considering the total background of the case and the personal circumstances of Maria, I could assume that she is a first-time offender, pleaded guilty to the offence and was deeply remorseful. Her 6 months imprisonment is not severe. If she was convicted after trial, she could be imprisoned for much longer.

 So mga kababayan, huwag nakawan si Bossing, mabigat ang sentensiya mo at siguradong walang lusot, deretso ka sa kulongan.