HKSAR v. Pang Hing Chung

DCCC 10/2023

[2023] HKDC 1372

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 10 OF 2023

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REASONS FOR SENTENCE

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1.Mr Pang pleaded guilty before me to two charges of Burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210.

2.Particulars of offence of Charge 1 are that he, on 1 September 2022, in Hong Kong, having entered as a trespasser part of a building known as Room L12A, 12^th Floor, Block L, United Christian Hospital, No 130 Hip Wo Street, Kwun Tong, Kowloon, stole therein two mobile phones.

3.Particulars of offence of Charge 2 are that he, on the same day, in Hong Kong, having entered as a trespasser part of a building known as 17^th Floor, Block L, United Christian Hospital, No 130 Hip Wo Street, Kwun Tong, Kowloon, attempted to steal one iPad therein.

Facts admitted by Mr Pang

4.The offences took place at Block L, United Christian Hospital (“UCH”). Block L was not open to the public.  Only hospital staff, security personnel and cleaners may access Block L with passcode or access card.

Charge 1

5.On 1 September 2022, at 7:34 pm, Mr Pang entered the lift lobby on Ground Floor of Block L.  At 7:40 pm, Mr Pang took the lift to 12/F and gained access to Room L12A by using an access card originally stuck on the wall.  He stuck the card back onto the wall afterwards.  About 30 minutes later, he left Room L12A and took the lift.

6.On 2 September 2022, at about 8:50 am, an employee PW2 of UCH returned to his office at Room L12A and discovered that 2 mobile phones (valued each at $2,000)  belonging to UCH and usually placed there had gone missing.  Police report was made.

Charge 2

7.On 1 September 2022, at 8:17 pm, Mr Pang entered Room L17B on 17/F of Block L.  He left Room L17B at 8:28 pm.  At around 7:15 am on the next day, PW1, a security supervisor of UCH, discovered that a wall-mount situated outside Room L17B was newly damaged but an iPad within it remained intact.  The cost of repair was $500.  Police report was made.

Arrest and caution

8.On 5 September 2022, at about 5:30 pm, a cleaner PW3 was working at Room B, 10/F, Block K of UCH.  She heard banging sound from the rear door and saw Mr Pang behind the rear door.  PW3 asked what Mr Pang was doing there.  Mr Pang replied it was none of her business.  PW3 asked him to leave or she would report to security.  When PW3 was taking out her mobile phone, Mr Pang pushed and shoved past her before he left.

9.PW3 reported the incident to PW4 another security supervisor.  PW4 reported to the police.  In addition, he informed all security officers of the appearance and clothing of Mr Pang.

10.At about 6:14 pm the same day, police constable PW5 arrived at UCH. When PW4 was relating to PW5 what had happened to PW3, he heard from the walkie-talkie that a male at G/F of Block P was wearing clothing similar to Mr Pang.  PW4 and 5 rushed to Block P and intercepted Mr Pang there.

11.Mr Pang was arrested for Burglary and Criminal Damage.  Under caution for Burglary, Mr Pang admitted he took 2 mobile phones for his own use.  Under caution for Criminal Damage, Mr Pang admitted he intended to take away the iPad inside the wall-mount but was unable to do so.

12.Under search, one of the missing mobile phones was recovered from the dark blue cross body bag carried by Mr Pang.  Under caution, Mr Pang admitted the phone was stolen by him from UCH.

13.Under house search of Mr Pang’s residence in Sau Mau Ping, one Samsung tablet was seized.  Under caution, Mr Pang admitted that the tablet was purchased using the proceeds of sale of the other mobile phone that was stolen by him.

14.During a cautioned VRI conducted on 6 September 2022, Mr Pang admitted: -

(a)  He entered Block L of UCH on 1 September 2022 when someone was leaving;

(b)  He went to 12/F and gained access to Room L12A using a demo card stuck on the wall next to the door; he stole the two mobile phones from inside the room;

(c)  He pulled apart the iPad wall-mount near Room L17B because he would like to take the iPad within it; and

(d)  He sold one of the two mobile phones to a shop at Sau Mau Ping Shopping Centre after 10 am on 2 September 2022 for $1,200; he then bought an electronic device from the shop with the money received and placed it at his residence.

Criminal record

15.Mr Pang has 4 previous convictions all recorded after the date of the present offences.

Antecedents

16.Mr Pang is almost 22 years old (almost 21 at the time of the offences), educated to F6 level, had brief employment before arrest.  Mr Pang resided with his father in public housing in Sau Mau Ping.

Mitigation

17.Mr Wong Cho Lik of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Pang.  The following is a summary of the mitigation submissions.

18.Mr Pang was diagnosed with bipolar affective disorder, autism, attention-deficit hyperactivity disorder (ADHD)  and mild grade mental retardation.  He has had psychiatric follow-up at an outpatient setting.

19.Mr Pang was financially dependent on his father who worked as a night-shift security guard.  Mr Pang was also receiving CSSA and disability allowance of around $2,000 every month.

20.Mr Pang had a clear record as of the time of the present offences.

21.Mr Pang was fully cooperative to the police and had made confession to the offences as soon as he was arrested.  He pleaded guilty at the earliest available opportunity.

22.Mr Pang regrets very much for having done such selfish acts out of greed.  He begs for leniency and he intends to take up gainful employment upon release.

23.Mr Pang is willing to make compensation to the victim (Hospital Authority)  for their loss in the sum of $2,500.

24.The starting point for sentence in a burglary of non-domestic premises is generally 2½ years’ imprisonment.  According to HKSAR v Sim Ka Wing, CACC 450/2000, a degree of premeditation and planning is already built into this conventional starting point; and that this starting point can be lowered in the case of the opportunistic burglar, akin perhaps to the sneak thief who walks into an open office to steal whatever he can find.

25.It was submitted that Mr Pang was not a professional burglar; he acted on his own; the present case did not involve extensive planning or sophistication in the commission of the offence.

26.It was submitted that Mr Pang did not use any tools or otherwise break in by force.

27.Regrettably, the burglary took place when Mr Pang was on bail (in fact he had jumped bail)  for another case.

28.The court is asked to apply the totality principle and impose wholly concurrent sentences given that both offences are similar in nature and were committed in close proximity to each other both in terms of time and place.

Sentence

29.Although Mr Pang is willing to make compensation (or reparation), I learn from prosecution that there is nothing to indicate the Hospital Authority wanted compensation.  In any event, the prosecution is not seeking a compensation order.  Under the circumstances, what Mr Pang has put forward remains a willingness only.  I do not regard a mere willingness in this regard a separate mitigating factor from that of general remorse.

30.Although Mr Pang technically had a clear record at the time of the commission of the present offences, the first two convictions in his criminal record actually related to offences committed before the present offences.  He was convicted late for those earlier offences simply because he had jumped bail.  Under such circumstances, I cannot treat him as a person of previous clear record.  In any event, a previous clear record will not avail him because the tariff sentence is expressly reserved for a first offender of full age: Attorney General v Lui Kam Chi [1993] 1 HKC 215.

31.Mr Pang was not a professional burglar obviously.  However, by committing two burglaries on different floors in a row, he cannot be described as a sneak thief either.  There was some premeditation in what he did.  The conventional starting point is clearly applicable.

32.Because Mr Pang committed the present offences whilst on and jumping bail, I shall add 3 months to the tariff sentence in respect of each charge.

33.As a result, I adopt a starting point of 2 years 9 months’ imprisonment for each charge.

34.Mr Pang pleaded guilty in good time for which he shall enjoy a 1/3 discount off the sentences.  There are no other mitigating factors of weight that I can see which will reduce the sentence further.

35.The two offences were committed in close proximity in time and space and may be regarded as one criminal endeavour.  For this reason, I shall make the sentences run almost wholly concurrently with each other.  I will also bear in mind the principle of totality when imposing the final sentence.

(Mr Pang, please stand)

36.For Charge 1, the sentence is 22 months’ imprisonment.

37.For Charge 2, the sentence is 22 months’ imprisonment.

38.I order that 2 months of the sentence on Charge 2 to run consecutively to the sentence on Charge 1, making an aggregate sentence of 24 months’ imprisonment.