HKSAR v. SABAG SHMUEL

DCCC 247/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 247 OF 2015

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Reasons for Sentence

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1.  There has been an application that I adjourn the sentence at this stage for a more detailed medical report based on the defendant, Sabag’s, medical condition.

2.  I have a report dated 27 December 2015, and I know that the defendant has been treated at the Queen Elizabeth Hospital quite extensively since his remand.  At present, what I do know is that the defendant has been seen by the cardiac team of Queen Elizabeth Hospital, and the angiogram he has been subjected to shows that he has minor coronary artery disease with symptoms of angina.  He has been referred to, and consulted with, the cardiologist, and an option has been made for what is described as “elective coro”.  I understand from the defendant that that will be a catheterisation, which I understand to be in the nature of an exploratory surgery.  The defendant is receiving medical attention and appropriate medication.  It would appear the hospital will proceed with a degree of urgency.

3.  I am confident from the report I have that the defendant is well cared for, as well cared for as he can be, given the report that he has coronary artery disease.

4.  Nevertheless, I do not consider the matters as so advanced that I should defer sentence at this stage any further, and I will proceed to sentence.

5.  The defendant has been convicted of theft after trial.  A very short summary is the defendant has done this by pawning diamonds he received on consignment.  These are diamonds with a value of over $1 million pawned value.  For greater detail of the offence, I refer to my reasons for verdict.

6.  The defendant is a man aged 56 years old; of clear record to date; I understand a citizen of Israel, working in his own diamond business in Hong Kong.  He is a father of five.  Only his daughter Natale lives here in Hong Kong.  The rest of his family, I understand, live in Israel, and he has six grandchildren.

7.  Of importance from the defendant’s background is that this is a first offence in later middle age.  This of itself is unusual, and I believe it would be correct to say that the offence itself is out of character for this gentleman.

8.  His own daughter has written to the court, and I have summarised this as follows.  It says:  “I don’t agree with his acts.  Poor judgment of him” - I think she means “by him” - “led to the wrong act.”

9.  When the offence was in progress, two other factors appear to have been in operation.  The defendant has been suffering from heart disease for one year.  Also, around the time the offences were committed, the defendant’s mother had passed away, and he had to return to Israel.  I understand from information I have received from the family that he was close to his mother.  Secondly, the defendant is a person who has, by his own strength, committed a number of public good works.  I particularly rely on a letter that has been sent to me by Rabbi Asher Dadon from Netanya in Israel.  He speaks highly of the defendant.  He is warmly recommended to me for his being a giving and generous man of the first degree.  This is underscored by the fact that the defendant has built a soup kitchen for the needy with his own hands, providing it for 200 meals.  This was done some 12 years ago, and he participates personally in doing this when he is in Israel.  It is also said he is a person who is respectful of his parents.

10.  But nevertheless, he clearly has pursued what I call public-spirited works in Israel, and that is something I will consider in the process of sentencing today.  This, as is clear from the letter, is a long-term work, and illustrates what the rabbi has described as a giving and generous man.

11.  The third factor that I must consider in sentencing today is the defendant’s medical condition.  I have already briefly outlined what that is when dealing with the earlier application of Mr Ng, but the medical report I am relying on is the one I have referred to earlier of 27 December 2015.  The defendant is diagnosed as having minor coronary artery disease, and some form of surgery is going to take place very shortly.

12.  Obviously this introduces a degree of uncertainty into the defendant’s future, but no quantification of risk can be found in the report.  However, the defendant will necessarily be hospitalised for some time while this take place.  This will no doubt put some additional stress and burden upon him, especially as he will be in custody at the time. However, I can be satisfied the defendant will receive appropriate medical care and attention whilst in custody.

13.  Now I deal with the approach to sentencing.  I have been referred to a case which has a number of similarities to the instant case, and that is HKSAR v Hung Fan Kit CACC 399/2011.  That involved a theft of diamonds valued somewhere in the region of a million dollars, and involved a consignment operation.  The court in that case, on considering those facts, agreed with the submission by Mr Acton-Bond in that case that this is not a classic breach of trust situation and that what would be the 3-year starting point in the case of Cheung Mei Kiu can be mitigated.  It is said by the court:

“The quality and degree of trust reposed in the applicant was not great. The offence involved straightforward commercial transaction between independent parties dealing at arm’s length, no elaborate cover-up or false accounting, a short period over which the offence was committed, and arose as the result of a failure of legitimate business; nor any obvious aggravation from the use to which the stolen property was put, or the effect on the victim company.”

14.  It would appear to me that those factors also are present in this case.

15.  It has also been observed by Mr Leung that in this case, the victimised company also retained the GIA certificates of the diamonds, which again showed a further reduction in the element of trust placed in the defendant by that company.

16.  In the instant case of Hung Fan Kit a starting point of 2 years’ imprisonment was adopted in that case.  It is clear for an offence of this nature a sentence of imprisonment is the correct disposal of it, and the starting point for sentence must be in the region set out in the case of Hung Fan Kit.

17.  Taking all the factors that I have already outlined into consideration, I consider that in this case, on this charge, the appropriate starting point for sentence should be one of 21 months’ imprisonment.  It appears to me there are also two other factors I should consider when finalising the sentence.  That is the effect of the defendant’s clear record, which in this case is of the nature of a positive clear record, and also the effect of any uncertainties that exist about the defendant’s health.

18.  It appears from the testimonials that I have received from Israel, and also from the rabbi in Hong Kong, that the defendant is a person of what I call positive good character who has a charitable and exemplary character prior to his fall from grace in this case, and I consider that because of that, it is appropriate that that is taken account of in the sentence that I impose, and I will further reduce the starting point of my sentence by 3 months’ imprisonment to reflect that.

19.  I turn to the defendant’s ill health, which has become manifest in the last two years, and I refer again to the medical reports.  This generally is not a ground to depart from an otherwise proper sentence, given that the defendant will receive careful medical attention whilst he is in custody, and he is capable of being cared for whilst in custody.

20.  The defendant nevertheless will no doubt experience hardship because of his physical condition, and it is proper to take into account circumstances of the prisoner which make his imprisonment more burdensome than would otherwise be the case, and this will no doubt include his ill health, which he must endure without the comfort and society of his close family, particularly his daughter, and also, no doubt, the difficulties in communication that he may experience whilst in a Chinese or English language environment.

21.  I think some deduction can be made for that in the sentence I impose, and I will reduce my starting point for sentence by a further 2 months to reflect that.

22.  This will lead to an overall sentence of imprisonment for the charge that the defendant faces of 16 months’ imprisonment.  That is the sentence I will impose.