HKSAR v. SZE LOK-HANG

DCCC 102/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 102 OF 2013

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Reasons for Sentence

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1.  After trial, the defendant is convicted of Charge 6. It is a charge of theft.

2.  The defendant is found to have stolen four barcode labels and one medical report from the Prince of Wales Hospital where he had worked between August 2010 until he was arrested.

3.  The circumstances of the offence relating to this charge (i.e., Charge 6) is fully stated in paragraphs 127 to 161 of my judgment which I have just read out.  I am not going to repeat them.

4.  The defendant is now aged 26.  He graduated from the Hong Kong Polytechnic University in the summer of 2010.  He then immediately worked as a registered nurse in the Accident & Emergency department of the Prince of Wales Hospital.

5.  Over a period of time (i.e., sometime between June 2011 and February 2012), the defendant engaged himself in a personal scheme to collect documents that contain personal particulars or documents that would enable him to obtain personal particulars of some young female patients, all in their 20s.  Such information would include the patient’s date of birth, address and telephone number.

6.  Defence counsel submits that Charge 6 is not a serious offence because the documents taken by the defendant had no value.  He says the defendant certainly did not take them or intend to use them for any monetary gain.

7.  Counsel says at most the defendant would use the documents to gain information of those patients to make friends with them just to enlarge his own social circle.  Counsel says the defendant is a very social man.

8.  Counsel says the court should be lenient with the defendant because he has a clear record.  Counsel submits that imprisonment is not necessary for this kind of offence and, if the court should consider any imprisonment, the term should be suspended, again because the defendant is a first offender.  And counsel says the offence is not serious enough to justify any immediate imprisonment.

9.  Counsel says the defendant had resigned from his nurse job in the Prince of Wales Hospital soon after his arrest in February 2012.  And since August 2012, he had been working in an institution that cared only for aged males.  Counsel says it seems there is no risk that the defendant would repeat his misdeed.  In any event, the defendant would be subject to disciplinary hearings held by the nurse authority.

10.  I disagree with defence counsel that the convicted offence is not a serious one.  It is serious.  It is serious as a breach of trust offence.  It is serious because it was committed by a professional nurse and it was not a one-time offence but an offence committed over a period of time.

11.  As I said, the defendant engaged himself over a period of time in a schematic collection of documents relating to young female patients, though he might just, as counsel said, want to make friends with those patients if he could.

12.  In committing such offence, the defendant had abused his position and the trust given to him by his employer.  As a registered nurse working in the Accident & Emergency department of the hospital, he had a lot of opportunity to come across or even to generate documents relating to all kinds of patients.  Yet he abused his position and he, in this offence, got hold of some documents relating to four different female patients in their 20s.  I am sure the defendant would try to reach these patients if he could. Whether he would succeed would be another matter.

13.  In a case where a professional breached his status and trust of his employer and he stole from his employer, imprisonment is inevitable and it should be an immediate term.

14.  I would say any suspended sentence would be wrong in principle though the defendant is a first offender.  I certainly take the fact that he has no other previous conviction as a consideration in deciding the right starting point for the term that I will impose in respect of Charge 6.

15.  As I said, immediate imprisonment is the only sentencing option.  Other kinds of sentences like fines, probation orders or even community service orders would be out of question.  They would not be appropriate in this case.

16.  Having considered the facts surrounding Charge 6 and counsel’s mitigation, I adopt 9 months’ imprisonment as a starting point.

17.  The defendant pleads not guilty to Charge 6. There is no remorse shown.  I see no reason why I should give him any discount; he is convicted after full trial.  Thus for his conviction on Charge 6, I send him to prison for 9 months.  It cannot be suspended.