HKSAR v. PANG SIU HANG

DCCC 320/2020

[2021] HKDC 294

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 320 OF 2020

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Reasons for Sentence

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1.  The defendant has pleaded guilty on 17 December to one charge of burglary and a second charge of attempted burglary.

2.  The facts that the defendant has agreed show that in respect of the 1st charge that a scaffolding had been erected for a commercial building in Tai Kok Tsui at the rear lane for engineering works.  In the morning of 11 January 2020, the defendant climbed up that scaffolding and entered a unit on the 1st floor of the building.  A number of items were taken: cash of $183,300 and three gold necklaces (each was valued totally at $15,000).  Defendant appears to be inside the unit for around some 10 minutes, leaving via the toilet.

3.  The second offence occurred at about 5.15 am on 24 January 2020.  In that case, the defendant walked into the rear lane of the building wearing a surgical mask, climbed up the scaffolding of the building, and then about 15 minutes later, climbed down the scaffolding again and was intercepted.  At that point, he was found to be in possession of gloves, a torch and a screwdriver.  The defendant’s aim had been to burgle the building, but apparently, nothing had been taken.  So the charge is one of attempted burglary.

4.  The defendant made admissions to the first burglary after his arrest on 24 January 2020.  He said he had entered the premises through an open window and stolen the items inside.  At the time, he had a screwdriver, a pair of gloves and a surgical mask.

5.  Defence made a full admission to his involvement in both charges to which he pleaded guilty.

6.  As far as the defendant’s background is concerned, he is now aged 42 at the time when his antecedent statement was taken.  He was educated up to the Form 1 level, worked in security but has not been able to do that since 2010 because of his convictions.  He has been a construction worker and was earning money at the time of his arrest.

7.  The defendant has a number of criminal convictions dating from 2010 when he was convicted of assault and fined.  There are relevant convictions in 2016.  He was sentenced in November 2016, in respect of offences of burglary and theft, to 2 years and 2 months’ imprisonment and also a further burglary to 14 months’ imprisonment which is partially consecutive to the earlier offences, and the defendant apparently was discharged from custody on 20 February 2018.

8.  The other mitigating factor put before the court today is the defendant’s state of health.  The most recent iteration of the defendant’s state of health can be found in the medical report from his physician dated 19 January 2021 - reports of the Queen Mary Hospital. 

9.  The defendant is said to be under the care of the hospital for treatment of stage four classical Hodgkin lymphoma.  The defendant already presented in November 2020 with symptoms which were indicative of a Hodgkin lymphoma - loss of appetite, loss of weight and neck lump.  Tests then revealed the presence of the lymphoma.  He has got enlarged lymphoma to the neck, a dissimilar left axilla, multiple bone lesions in his skeleton.  Spleen is involved as well.  And the defendant is assessed to have a stage four disease.  He has been treated with a combination of chemotherapy and some drugs.  He has had two cycles of chemotherapy so far and demonstrated improvement on clinical grounds evidenced by improvement of appetite and resolution of neck and axillary swelling.

10.  The conclusion of the report: as to the prognosis of his lymphoma, it is generally quoted that patients with stage four classical Hodgkin lymphoma have a long-term cure rate of between 50 to 60 per cent. Defendant was due for interim assessment on 21 January 2021 to review his response to chemotherapy.  The defendant has seen the doctor but with no information as to any change in the prognosis that was given in the report of 19 January 2021.

11.  Now, turning to the approach of sentence, the defendant has pleaded guilty to offences of non-domestic premises burglary. The normal starting point for sentence for a person convicted of a non-domestic premises burglary for a person of clear record after conviction after trial will be 30 months’ imprisonment.  The sentence can be increased if there are aggravating factors.  The aggravating factors can generally be found in the case of HKSAR v Cheng Wai Kai, CACC 338/2007, where the appellate court set out a number of matters that a sentencing court should consider as to whether there should be any increase in the starting point for sentence.

12.  The two factors that are extant in this case which would require some increase in the starting point for sentence I have identified have been, firstly, the defendant’s previous convictions of similar offences; and secondly, the nature of the items taken.  The first burglary can be seen to be what I think would be described as a substantial burglary where over $183,000 of items were taken.  So I have identified in respect of that case two factors which would increase the starting point for sentence beyond the 30 months’ imprisonment.  Any one of those factors will exist in the attempted burglary.

13.  Applying those starting points for sentence, that will mean that in respect of the 1st charge, the starting point for sentence should be one of 36 months’ imprisonment.  And on the 2nd charge, the starting point will be one of 33 months’ imprisonment.

14.  The mitigating factor in respect of these offences is, firstly, the defendant’s plea of guilty which will entitle him to a one-third discount.  There is the existence of another mitigating factor which is the defendant’s health condition.  I will in fact determine that issue after I have established the sentencing point after deduction from the defendant’s pleas of guilty.

15.  In respect to the 1st charge, that will be that the overall sentence after deduction of plea of guilty will be 24 months’ imprisonment; and on the 2nd charge, the overall sentence after deduction of plea of guilty, one of 22 months’ imprisonment.  The sentences themselves: the offences were committed on separate occasions, so it can be served, at least part can be served consecutively.  To serve the sentences consecutively would lead to an overall excessive sentence.  What I shall do is indicate that 6 months in the 2nd charge will be served consecutively with the 1st charge. This gives now a sentence of 30 months’ imprisonment. 

16.  I have at this point not considered the health condition of the defendant in my sentencing exercise.  I have determined to deal with it at this point rather than to deal with it as an additional mitigating factor which would increase the calculation of discount beyond 30 per cent.  I shall deal with it as a separate sum at this point.

17.  Looking at the defendant’s health condition, clearly, it is a matter that I will have a discretion to consider.  This is not what I would describe as a crime of gravity, and the defendant is suffering in this case from a serious medical condition.  Stage four cancer of any kind is a serious medical condition and I think on a humanitarian basis, it should be taken into account in reducing the overall sentence that the defendant would be required to serve. 

18.  I also note the defendant has been in custody for quite a considerable period of time.  What I shall do in respect of the defendant’s health condition, I shall reduce the existing sentence of 30 months to one of 26 months.  I shall reduce it by 4 months’ imprisonment.  The overall sentence for these two offences for the defendant will be one of 26 months’ imprisonment.