HKSAR v. FUNG KEI KWAN AND OTHERS

HCCC 160/2025

[2026] HKCFI 349

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 160 OF 2025

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REASONS FOR SENTENCE

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1.  The defendants each pleaded guilty to one count of Aggravated Burglary[1], admitted to the Summary of Facts, and were committed by Magistrate Ms. Minnie Wat on 28 April 2025 to the Court of First Instance for sentence.

2.  D1 also pleaded guilty to one additional count of Taking Conveyance Without Authority[2] and was committed on the same occasion to be sentenced.

3.  Before me, the defendants confirmed their pleas and admissions and their convictions were duly recorded.

PARTICULARS

Count 1

4.  The defendants, on 3l October, 2022, together with other persons unknown, having entered as trespassers part of a building known as Flat 18, 13^th Floor, Man Wah Building, Nos. 10-16 Man Wui Street, Yau Ma Tel, Kowloon, stole therein 12 mobile phones, 2 cameras, 3 gaming consoles, 3 gaming controllers, 5 laptops, 9 watches, 4 watch holders, 13 bags, one rucksack, one safe, one wallet, one ATM card, one Octopus card, one HKSAR passport, 3 toy figure boxes, one hoodie, one iPad, one bottle of whisky, one charger, one pair of “Airpods” earphones, one coin box with $105.6 Hong Kong currency, $350,500 Hong Kong currency, $200 Renminbi, $900 Thai Baht and $68,000 South Korean Won, and at the time of the said entry had with them weapons of offence, namely, machetes, cable ties and duct tape.

Count 2: against D1 only

5.  D1, on 31 October, 2022, at Tsuen King Circuit near Tsuen Wan Centre, Tsuen Wan, New Territories, without the consent of the owner or other lawful authority, took a conveyance, namely a taxi bearing registration mark PS 5540 for his own use.

FACTS

The burglary

6.  At about 6:30pm on the charge date, D5 pretended to be a courier making a delivery to Flat 18 (count 1 address)  and successfully got one of the occupants (PW1)  to open the gate, whereupon D2 to D6 immediately rushed in.  According to PW1, each of them were in deep coloured outfits, wearing a face mask, and carrying a 50 cm long machete.

7.  Once inside, they threatened the 3 occupants (PW1, 2 and 3)  with the machetes and told them to squat down in the living room.  

8.  One of the defendants said the following: “I am ‘14K’ and my boss is @Hang Kui.  One of your ‘brothers’ stole 2 million odd dollars from the ‘company’.  Isn't it fucking fun?”.

9.  Another defendant, who was wearing glasses, said, “I am ‘14K’ and I am following @Hang Kui.  One of your ‘brothers’ stole two million odd dollars from our ‘company’.  I am not fucking afraid of going to jail.  If you play tricks, we will come back”.

10.  One of the defendants took the safe from one of the rooms and asked how it could be opened and whose room it was.  When PW2 said it was his, that defendant put his machete near his neck to force PW2 to open all the drawers and hand up all valuables.

11.  PW2 did open a locked drawer in the cabinet which had cash of about HK$300,000 and a Rolex watch that was worth about $200,000.  The defendant took the money, watch and other valuable items and ordered PW2 go squat back down next to PW1 and 3.  

12.  3 of the defendants searched the other rooms while 2 of them brandished their machetes at PW1 and 3, telling them not to look around and to just look at the floor.  When PW1 looked up after about 5 minutes, the defendant in front of him immediately used the machete handle to strike the back of his neck for a few times and told him not to look around.  That also happened to PW3 when he raised his head.

13.  One of the defendants then asked PW1, 2 and 3 to use their phones to transfer $25,000 to his account, but PW2 and 3 were unable to do so.  PW3 ended up giving the defendants his ATM card and passcode as demanded.  

14.  Meanwhile, one of the defendants said to PW2, “Chop you to death”, “Take out all the valuables for me”, and “I am not afraid of going to jail, you can call the police if you dare”.  PW2 also heard one of the defendants talked on the phone, saying “coming down”.

15.  After they had finished ransacking the flat, one of the defendants tied up the thumbs of the 3 witnesses with cable ties and duct taped their eyes and mouths shut.  They told them not to call the police and then left.  The 3 occupants eventually got free and called for help from the balcony of the flat.  

Police operation

16.  During a police surveillance operation in the vicinity on the charge date, D1 to D6 were seen on board a taxi going towards Man Shing Street at about 6:16pm.  

17.  D5 was seen picking up a carton box outside a supermarket near Man Wah Building about 10 minutes later.  Then at 6:34pm, still with the box, he entered the lobby of Man Wah Building after entering in the passcode.

18.  D3 and D6 entered the lobby about 1 minute later, also after keying in the passcode.

19.  Another minute later, at about 6:36 p.m., D2 and D4 got out of the said taxi on Man Wui Street and entered the lobby of Man Wah Building with the passcode.  D4 was carrying a brown bag.

20.  Meanwhile, D1 stayed in the driver’s seat of the taxi.  He got out to buy some takeaway nearby at 6:38pm, returning 5 minutes later.  

21.  At about 7:03 pm, D2 to D6 took the lift from the 13^th floor to the ground Floor of Man Wah Building, whereupon the police surveillance operation turned overt.

The Arrests

22.  The taxi was intercepted at about 7:05pm and D1 was told to get out.  He was uncooperative and attempted to start the car despite repeated warnings, causing officers to have to break the car window to open the door in order to subdue and arrest him for robbery.  

23.  D2 to D6 were intercepted and subdued at the ground floor lift lobby of Man Wah Building at around the same time.

24.  The following items were found, among others, in the possession of D2, 3, 4 and 6:

D2: HK$3,097 and one delivery waybill of YT Express (with D5’s phone number written on the back). One page of a copy of this waybill, which was attached to the carton box that D5 used when pretending to be making a delivery to the flat, was also found inside the flat, also with D5’s phone number written on the back.

D3: One pair of labour gloves and HK$1,620; HK$350,500, $200 Renminbi, $68,000 South Korean Won and $900 Thai Baht; 8 watches, 11 phones, 2 cameras, 2 HKSAR passports belonging to two occupants of the burgled flat (PW4 and 5).

D4: HK$4,004 and one labour glove.

D6: HK$420, one earphone case and one silver watch; one paper bag containing 3 laptops, one game console with controllers, one blue plastic box containing many coins, 4 labour gloves, a bottle of whiskey, one brown wallet containing some personal documents of PW2 and PW3.

25.  D2 to D6 were arrested for Robbery.

26.  The stolen items, as particularized in count 1, were all recovered at scene.  

Admissions under caution

27.  D1 to D6 each made the following admissions under caution that is relevant to their role in the burglary.

28.  D1: “@Ah Yin called me yesterday.  He asked me to help drive and would give me a few thousand dollars.  He told me not to ask about the purpose of driving”.

29.  D2: “Ah Sir, I only know that I was going up to collect money for @Ah Yin and the remuneration has not been discussed”.

30.  D3: “@Ah Song (D2’s nickname)  asked me to go to Yaumatei today.  They would go up a unit in Jordan for a robbery.  I am responsible for taking a bag to bring away the items they robbed.  I will receive HK$2,000 reward afterwards”.

31.  D4: “@Chicken (D1’s nickname), the person who drove the taxi, asked me to go up and collect a debt. It changed to a robbery when we went up.  I was responsible for watching over the people.  The bag was given to me by @Chicken.  I don't know there were machetes therein”;

32.  D5: “The person who drove the car is named @Chicken (D1’s nickname).  He was the one who ‘organized’ this incident and asked me to go to that unit to rob”.

33.  D6: “I, together with my ‘brothers’, went up to rob those 3 persons.  The machetes were brought up by @Ah Sai (D4’s nickname)”.

The taxi

34.  Investigations revealed that the number on the plates of the taxi, RJ 5278, did not belong to it, but to another taxi which had nothing to do with the burglary and was operating normally elsewhere.  Meanwhile, the taxi that D1 was driving was stolen from its owner on the day, and false plates were put on before it was used for the burglary.  

Seized items

35.  14 cable ties and 3 pieces of duct tape were seized in the Flat.  One bag of cable ties (which were of the similar size and colour to those seized in the Flat)  was found in the Taxi.

36.  3 machetes, a torch and a crowbar were seized in the lift at the Ground Floor of Man Wah Building.

THE VIDEO RECORDED INTERVIEWS

D1

37.  D1 claimed to have met Ah Yin a few months ago and had since met with him a couple of times.  Ah Yin WhatsApp called him on the evening of 30^th October 2022 to ask him to drive some people for a few thousand dollars.  At 11am the following day, Ah Yin called and said a taxi had been arranged at Tsuen Wan Centre and that D1 could leave as soon as he had dropped off the people at the destination. D1 went to Tsuen Wan and found the taxi, which was unlocked and its key inside. D1 got in, called Ah Yin, who told him to wait.  D1 parked it in Tsim Sha Tsui and went home with the car key.

38.  Ah Yin called D1 at about 5pm telling him that the people he was going to pick up were collecting something.  D1 went back to Tsim Sha Tsui to get the taxi.  He got a call from a ‘contact person’ saying that the first person to be picked up will be late.  

39.  D1 ended up picking up D2 to D6 at 3 different locations.  D3 from Mongkok, two of the defendants from Jordon, and two others at Ning Po Street.  D3 sat in front, D2, 4, 5 and 6 in the back.  D1 overheard the others talking about going up together to get some money back.

40.  D1 drove the taxi to Man Ying Street, arriving at about 7pm.  D5 and D6 got off near a store.  They returned about 15 minutes later and the 3 remaining defendants also got out of the taxi and they all walked towards Man Wah Building while D1 waited in the vehicle.  

41.  D1 claimed he did not know the occupants in the flat, did not know why D2 to D6 had to go there to collect money, and he was only responsible for driving the taxi.  D1 had not received any money for his role yet.

D2

42.  D2 confirmed his nickname as Ah Song.  He claimed that he did not know what money he was to collect, and that Ah Yin was a boss.

43.  D2 said D4 (nickname Ah Sai)  called him at around noon on 31^st March 2022 and asked if he wanted to make some money.  D2 said yes and they met up at a game centre on Woosung Street at about 2pm.  They were there until 6pm when D4 said the car had arrived and they went downstairs and got into a taxi.  

44.  There were 6 people in total.  Apart from D4 (Ah Sai)  and D5 (nickname Yeung Yeung), D2 did not know anyone else there.  D2 got to know D5 about a year ago at a game centre.

45.  When the taxi got to Mah Wah Building, D5 got out, saying that he will check out the location first.  After a while, D5 called D1 (the driver of the taxi)  and said that the others can go up.  While in the taxi, D1 gave D4 a bag with 2 or 3 machetes inside, which D4 brought to the flat.  

46.  The 5 of them went up to the 13^th floor.  D5 pretended to be a courier while the rest waited in the rear staircase.  When the door of the flat was opened by the occupants, D3 told everyone to go in.  

47.  When the 5 of them were inside the flat, D2 brandished a machete at the 3 occupants there, told them not to move and to take out all their money.  D3 and D4 were also each holding a machete.

48.  The occupants were shocked.  They squatted down but did not take out any money.  One of them followed one of the defendants into his own room to get money.  One of the defendants took some watches and put them in a bag that D3 carried.  

49.  The other defendants used cable ties to bind the thumbs of the occupants.  One of them used duct tape to cover their eyes.  

50.  The 5 of them then left, but were intercepted by the police at the ground floor lift lobby.

51.  D2 claimed to have heard D1 saying that they were there to collect some money for a boss, but D1 did not say what exactly D2 had to do.  He said the cash of $3,097 were his own money.  The delivery waybill found on him was given to him by D5.  He had no idea why D5 did that.  

52.  D2 said it was D1 who told him while in the taxi that Ah Yin was the boss.  D2 did not know what type of boss Ah Yin was, nor what money it was that they were going to collect.

53.  D2 claimed that the issue of reward had not been discussed with the others, and that he only intended to help his friend, D4, to collect some money.

54.  While in the taxi, D2 heard that it was D1 who found D5 to help with the collection.

D3

55.  D3 claimed that someone called Ah Kei had called him on 29^th October asking if he was interested in taking part in a robbery, which D3 had refused at first since he considered it too risky.

56.  D3 and this Ah Kei met up the following day at a basketball court in Lam Tin, when Ah Kei gave more details of the planned robbery, saying that D3 did not have to do the actual robbing, that he just had to provide a bag that D3 will take away after the robbery.  D3 eventually agreed and Ah Kei gave an iPhone to D3 for use on the day of the robbery.  D3 was only told that the robbery would take place at around 5pm on 31^st October without further details such as the location or who else will be involved.  

57.  Ah Kei called D3 at about 4:30pm no 31^st October 2022 and told him to go to Mongkok to wait for the driver’s call.  D3 received the call at about 5pm, and was told to wait outside Golden Era Plaza.  D3 went as told and got into the taxi and sat in the front passenger seat.

58.  The taxi went on to pick up 4 other males, being D2, D4, D5 and D6, who were each wearing a cap, black sunglasses and a face mask.

59.  While in the taxi, D3 heard D1 made a phone call asking for the address of the flat to be robbed, and the passcode for entering the building.

60.  D5 talked about disguising himself as a courier, and D2, D4 and D6 will rush into the flat once the occupant had signed on the invoice, and D3 was to sit outside of the flat.  D6 gave him a pair of gloves, which he had put in his pocket.

61.  When the taxi arrived at Man Wah Building, D5 attached a delivery waybill on to a paper box and went up the building.  D3 accompanied D5 to the building, entered the passcode for D5 and then got back into the taxi.  

62.  He and D6 went up to the rear staircase of the building about 3 to 4 minutes later, while D2 and D4 went up last about 1 to 2 minutes later.  

63.  When they were all on the 13^th floor, D4 and D6 each took out a machete.  D5 pressed the doorbell and did his act.  When the door was opened, D2, 4, 5 and 6 rushed in holding the machetes and told the occupants to squat down.  D2 and D6 brandished their machetes at the occupants and told them not to say anything.  D3 heard D5 saying something about someone had taken their money and that he was there to get it back.  

64.  D5 then ransacked the flat.  He took the bag from D3 for holding the stolen properties.  

65.  D3 claimed that he did enter the flat but got back out after about 10 odd seconds as he was scared and went to wait in the rear staircase.  The robbery lasted about 30 minutes.  He remembered there were 3 machetes and D2, D4 and D6 were the ones holding them.  

66.  After the robbery, the bag with the stolen properties was handed over to D3.  He and the others took the lift together down to the lift lobby, when they were then immediately intercepted by police officers.  

67.  D3 claimed that all the other defendants were involved in planning the robbery, that Ah Kei was not so involved and he just asked him to join.  Ah Kei did not show up on the day of the robbery.

68.  D2 called D3 at about 5pm on 31^st October 2022, D2 asked D3 to give him a bag to be used in the burglary to put stolen property in.  D2 told D3 that he will be paid $2,000 for taking the bag afterwards.

69.  D3 claimed in his video recorded interviews that D2’s nickname is Ah Song and that they had met in a bar about 2 to 3 months ago.

D4

70.  D4 claimed in his video recorded interviews that his nickname is Ah Sai.  He did not know D1 (whom he knew as Chicken)  personally, but he heard from his friend, D3 (whom D4 referred to as Ah Ho)  that D1 was looking for people to help collect a debt for rewards, so he and some people went to Woosung Street to look for D1, who told them about what they were going to do.  D4 claimed that he first met D1 on 31^st October 2022.

71.  D4 said that on the day of the burglary, before they went up to the flat, D1 had given him a bag but he did not know what was inside.  

72.  When they went up to the flat, D1 asked him for the bag and then took out a machete.  Once inside, D1 brandished the machete at the flat owner and asked if he was ready to repay the debt.  The owner said he will, and D1 handed the machete to D4 for him to put back into the bag.  

73.  The owner followed D1 into a room and took out some money and watches, and then they left.

74.  What D4 said is in obvious contradiction to what the police had observed in relation to the defendants’ movement, and in particular that D1 had stayed in the taxi while the rest of the defendants got out and went up to the flat.  

75.  Nevertheless, D4 continued to claim in the interview that 5 of them (D2 to D6)  got into the taxi driven by D1 at around 6 or 7pm on 31^st October 2022.  D3 sat in front, the rest in the back.  D1 parked the taxi nearby and told D4 to get out and follow him.  D1 handed a bag to D4 for him to carry.  Later on, D1 took him and the other 4 men into the building and it was D1 who keyed in the passcode at the entrance.  

76.  When they arrived outside the flat, it was D1 who pressed the doorbell.  When the door was opened, they all entered.  D1 took out a machete from the bag that D4 was carrying.  D1 was the only person holding a machete.  D4 also joined in to tell the flat owner to quickly repay his debt.  D4 claimed that although D1 might have intended to use the machete to threaten the flat owner to repay the debt, the owner had voluntarily handed over the money and watches.

D5

77.  D5 claimed to have the nickname of Yeung Yeung.  He had known Chicken (D1’s nickname)  for about 2 weeks after meeting in a bar.  They had met up for about 5 times since then.

78.  D1 called D5 at around 10am on 31^st October and said that a Yin Tsai had a money making task.  

79.  Yin Tsai called D5 later on and asked him to help collect a debt of about $700,000 to $800,000.

80.  D1 later on the same day contacted D5 and gave more details, telling D5 that the people in the flat had money, that all the valuables there will be taken, and that D5 should get more people to help.  D1 said he will pick up Yin Tsai’s younger brother, and that they should buy some gloves, crowbars, caps and jackets.  

81.  D5 then asked his friends Ah Sai (D4), Ah Song (D2)  and Ka Wing (D6)  to join in, and the 4 of them met up at about 1:30pm on 31^st October in Jordan.  D6 bought 6 or 7 pairs of gloves while D5 bought 4 caps and 3 jackets.

82.  D1 drove a taxi with D3 on board to pick them up.  That was the first time D5 had met D3.  During the ride, D3 talked about going up to a unit in Jordan to collect a debt.  D1 suggested to bring along the bag placed behind the driver’s seat that had machetes inside.  

83.  The taxi stopped outside Man Wah Building.  D4 took the bag with the machetes.  D1 gave D5 a paper box and told him to pretend to be a courier.  The arrangement was for D2, 3, 4 and 6 to hide in the rear staircase while D5 gained entry to the flat, and then they will all rush in when the door was opened.  

84.  D5 did press the doorbell and the door was opened.  D5 asked the occupant to sign for the pretend parcel.  When the occupant opened the gate, D2, 3, 4 and 6 rushed out of the staircase and into the flat, with D5 following.  

85.  When inside, D3 asked the 3 occupants there to repay the debt.  They were told to squat down and their hands were tied with cable ties behind their back.  D3 ransacked the flat and had brandished a machete at them while doing so.  D5 himself was walking around the flat, and D2, 4 and 6 watched over the occupants.  

86.  D5 claimed that, the burglary lasted about 15 minutes, during which time D3 had used a machete to hit the arms and back of the occupants once and asked them where the safe was, and what the passcode was.  

87.  Eventually, some cash, 4 to 5 Rolex watches, laptops and game consoles were taken.  After the rucksack that D3 was using to put the stolen things in was full, D5 found some paper bags in the flat and gave them to D3, and D3 told D2 and D6 to put the stolen properties in them.  They then left the flat together, with D3 telling the occupants not to call the police or look around.  They were then intercepted by police officers at the ground floor lift lobby.

88.  D5 said that the mobile phone found on his person was given to him by D2 and was for communication with Yin Tsai.

89.  D5 claimed that he was supposed to be paid 10% of the value of the stolen property, while D2, 4 and 6 would be paid a combined 40%.  

D6

90.  D6 claimed that his nickname was Ah Wing, that he did not know D1, but he knew D2 to D5 when they met at various game centres.  

91.  At about 2 to 4pm on 31^st October 2022, while in a game centre on Woosung Street, D3 asked him to help collect a debt, to act as a lookout and to help move things.  At that time, D4 and D5 were also in the game Centre.  

92.  At about 4pm, D3, D5 and D6 left together and walked around on Temple Street, during which time he bought a jacket for himself.  He then returned to the game centre, and later on to Woosung Street and got into the taxi.  He was the last one to get on.  They were then driven to outside Man Wah Building.  

93.  D6 claimed that no one distributed caps or machetes in the taxi.  

94.  D3, D5 and he got off first and they went to buy cigarettes.  D3 and d5 then made a paper box.  D5 went into the building first with the box, with he and D3 following.  They went up to the 13^th floor.  D3 gave him a pair of gloves in the lift.  D2 and D4 also went up and the 4 of them stayed in the rear staircase.

95.  D5 pressed the doorbell.  When the door was opened, D2 and D4 went in first, with he and D3 following.  D6 said he stayed near the doorway to keep a lookout while D2, 3, 4 and 5 went further inside.  D6 did not know what exactly happened in the flat, although he did hear someone say ‘repay money’.  He did not know if D2, 4 and 5 were involved in the robbery.  He said he did not witness anyone taking out a machete.  Eventually D3 handed a paper bag of stuff to him.

96.  D3 was the first person to leave the flat, carrying his rucksack.  The rest of them followed and they all took the same lift together, and were intercepted by police officers as soon as they got to the ground floor lift lobby.

CCTV CAMERA FOOTAGES

97.  Subsequent viewing of various closed circuit television footages revealed the following sequence of events on 31^st October.  

98.  The taxi was parked at Minden Avenue in Tsim Sha Tsui at 1:06pm.  D3 got into the taxi outside Golden Era Plaza in Mongkok at 5:38pm.  D4 and D5 got in outside a mahjong parlour on Woosung Street 21 minutes later at 5:59pm.  

99.  D2 and D6 were walking along Ning Po Street towards Woosung Street at 6:03pm, and the taxi drove past the junction of the two streets shortly after that.  

100.  At 6:32pm, footages showed D3 and D5, who was holding the carton box, arrived outside Man Wah Building.  After D3 keyed in the passcode, D5 entered the building alone and took a lift.

101.  2 minutes later at 6:34pm, D6 keyed in the passcode and entered the building, followed shortly by D3, who was carrying a rucksack.  D3 and D6 took the same lift and went up.

102.  1 minute later at 6:35pm, D2 and D4, who was carrying a brown coloured bag, arrived at the building.  D2 keyed in the passcode and they entered and took the lift up together.  

103.  Another minute later at 6:36pm, D3, D5 and D6 arrived at 13^th floor.  D3 and D6 went to the rear staircase.  D5 stood outside the flat.  He pressed the doorbell 3 minutes later.

104.  At 6:41pm, the door to the flat was opened and D2 to D6 rushed inside in the following order: D5, D2, D4, D6 and then D3.  

105.  At 7:02pm, D3 was the first to come out of the flat while carrying his rucksack in front of his body, followed by D5 who was carrying a big grey paper bag containing a lot of items, D4 who was carrying the same brown bag from before, D2 who was carrying a black rucksack, and D6 who was holding a bottle of alcohol and a brown paper bag.  They took the lift down together.  

CALL RECORDS AND MESSAGES

106.  Examinations of the defendants’ phones revealed the following messages relevant to the case.  

107.  D3 received photos in his WhatsApp showing the entrance of Man Wah Building and the flat, as well as the passcode of the building from a prepaid SIM card between 5:38 and 6:36pm on the day.

108.  At 5:58pm, D5 received a WhatsApp message from that same prepaid SIM card number, saying that the people cheated a lot of money and had sex with many girls, and that they should be punished.  

109.  At 6:01pm, D1 received a SMS message from Ah Yin (6432 4376), telling D1 to call him after going up (“上咗去打打俾我”).

110.  At 8:18pm, D1 received another SMS from Ah Yin’s number, saying “Never mind, all the family members buried together” (“唔緊要全部屋企人陪葬”).

ENQUIRY WITH YT EXPRESS

111.  Investigations revealed that the type of the 2 delivery waybills seized from the flat and D2 had not been used by YT Express since about 5 years ago.

112.  By their pleas and admissions to the Summary of Facts, each of the defendants had accepted and admitted that they had, together with other persons unknown, having entered the flat as trespassers, stole the items as particularized in the count, and that at the time of their entry had with them machetes, cable ties and duct tape as weapons for use in the commission of the offence.

113.  In relation to D1, he had accepted and admitted that he had took conveyance of the taxi for his own use without the consent of the owner or other lawful authority.  

PREVIOUS CONVICTIONS

114.  D1 has 7 previous convictions.  He was first convicted of dangerous driving in 2021 when he was fined $10,000 and disqualified for 6 months.  His next conviction was in April 2022 for assault occasioning actual bodily harm, when he was given a 4-week sentence which was suspended for 15 months, alongside a $5,000 fine and a $1,500 compensation order.  His last conviction was on 13^th February 2023 for possession of dangerous drugs.  Since he was in breach of the suspended sentence, the sentence was partially activated, resulting in a total sentence of 8 weeks.  

115.  D1 committed the present offences whilst on police bail for the possession of dangerous drugs case, as well as when he was about 6 months into the 15-month suspension period of the sentence imposed for the assault occasioning actual bodily harm case.  

116.  D2 has 29 convictions from 18 court appearances.  His first conviction was for criminal damage in November 1994 when he was 15 years old and he was put on 12 months’ probation.  He was then convicted of 2 charges of robbery in 1995 and received another Probation Order, this time for 18 months.  This order was then discharged in August 1996 when he was sent to the Detention Centre for two charges of common assault.  He was fined $1,500 for possession of dangerous drugs on two separate occasions in April 1999.  About 2 years later, in March 2001, he was ordered to be detained at the DATC upon his conviction for 2 charges of theft and one of robbery.  He was convicted of possession of dangerous drugs, it would appear not long after his discharge from DATC, in January 2002 and fined $2,000.  His first appearance in the Court of First Instance was in May 2006 when he was sentenced to a total of 6 years’ imprisonment for 4 counts of robbery.  

117.  His next set of convictions was in April 2011, when he was sentenced to 6 months’ imprisonment for assault occasioning actual bodily harm and obtaining services by deception.

118.  In January 2013, he was sentenced in the District Court to a total of 26 months’ imprisonment for burglary, theft and resisting a police officer in the execution of duty.  Not too long after his release, he was convicted of possession of Part I poison and was sentenced to 2 months’ imprisonment, ordered to be suspended for 3 years.  

119.  Upon his next set of convictions in March 2016 for possession of dangerous drugs, possession of offensive weapon, and failing to surrender to custody without reasonable cause as appointed, the suspended sentence was partially activated, resulting in a total sentence of 13 months.  

120.  In October 2018, he was convicted of possession of Part I Poison and a 1 month sentence suspended for 12 months was imposed.  He was next convicted on two different occasions for gambling and fined in 2019 and 2020.  His next set of convictions were in January 2021 for two charges of obtaining property by deception, when he was sentenced to 11 months’ imprisonment and ordered to compensate $10,000.  

121.  D2’s last conviction is dated 27^th September 2021 for taking part in an unlawful assembly, for which he was ordered to be imprisoned for 9 months.  D2 was last discharged on 25^th November 2021.  

122.  D3 has 4 convictions from one court appearance on 8^th August 2023.  He was convicted of two charges of assault occasioning actual bodily harm, and two for wounding under section 19 of the Offences Against the Person Ordinance, Cap.212, and was ordered to be detained at the Rehabilitation Centre for all the offences.

123.  D3 committed the present offence whilst on police bail for the set of offences he was later convicted of and sentenced on.

124.  D4 was first convicted of wounding (under section 19 of the Offences Against the Person Ordinance Cap.212), and blackmail in 2006 when he was 16 years old.  An 18-month Probation Order was imposed for the two offences.  He was in breach of the orders about 8 months in and was ordered to be detained at the Detention Centre as a result.  About 5 years later, he was convicted of possession of offensive weapon and fined $5,000.  About 1 month later, he was convicted of 6 charges of using a false instrument and was sentenced to a concurrent sentence of 12 months.  About 8 years later in 2020, he was fined $500 for gambling.  In February 2021 he was convicted of possession of dangerous drugs and gambling and fined $3,000 and $800, respectively.  His last set of convictions are dated 21^st September 2021, when he was sentenced to a total of 18 months and 2 weeks’ imprisonment for two charges of possession of offensive weapon in a public place and one for taking part in an unlawful assembly.  D4 was last discharged in June 2022, and committed the present offence about 4 months later.

125.  D5 has 10 convictions from 7 court appearances.  His first was in 2008 when he was fined $2,000 for possession of dangerous drugs.  He was next sentenced to 12 months’ probation for 3 charges of theft in 2010.  He was in breach of the probation order and was ordered to be detained at the DATC 3 months later.  His next set of convictions were in July 2013 when he was again put on probation for 12 months for assault occasioning actual bodily harm and blackmail.  His next convictions came about 5 years later in 2018 when he was fined on two different occasions for gambling.  His last set of convictions were in April 2019, when he was ordered to be detained at the DATC for possession of dangerous drugs and fined $500 for failing to produce proof of identity on demand.  

126.  D6 has 5 convictions, being for money laundering when he was sentenced to 26 months’ imprisonment in 2011; fined $600 for gambling in 2016; imprisoned for 18 weeks for criminal damage in 2019; fined $800 for gambling in 2021, and imprisoned for 6 weeks in August 2025 for smoking or injecting dangerous drugs.  D6 had committed the present offence whilst on bail for the last case.

BACKGROUND AND MITIGATION

D1

127.  D1 was born in July 1992 and is 33.  He is married and is father to a 6 year old daughter, who had just started primary school.  The defendant was employed as a manager by a cleaning service contractor at the time of the offence.  His father had suffered a serious stroke in April 2023.  As the only son, D1 is extremely worried.  

128.  Through his counsel, Mr. Newman Wong, D1 maintains that his role that day was merely to drive D2 to D6 to Man Wah Building for a few thousand dollars.  He was not told by “Ah Yin” what those people were going to do when there.  He believed that they were there to collect a debt by a show of force.

129.  D1 “categorically denies” that he had given a bag of machetes to D4, or that he was the one looking for people to help collect a debt.  The Summary of Facts states clearly that he had remained in the taxi after the other defendants had got out, and so he could not have been the one who had pressed the doorbell of the flat on the day (according to D4).

130.  Having discussed the matter with Mr. Wong, and having sought the view of Mr. Tang for the prosecution, I found that D1 is not to be sentenced on the factual basis of him having handed a bag of machetes to D4, having considered that D4 was clearly unreliable in his stating that it was D1 who pressed the doorbell.  

131.  Mr. Wong informs the court that D1 had given a non-prejudicial statement to the police, and that he had positively identified “Ah Yin” (whom D1 had said under caution as the person he had met a few months ago and a couple of times, who had asked D1 to drive some people for a few thousand dollars, and who had told D1 to find and use a taxi that was unlocked and with the key inside, to park and wait in Tsim Sha Tsui, and then pick up some people to collect money)  in an identification parade.

132.  Mr. Wong, however, told the court that, despite this “Ah Yin” having been charged and brought to court, the prosecution had subsequently decided to withdraw the case against him.  Nevertheless, Mr. Wong submits that D1 had done what he could in the circumstances, and that some “small credit” should still be given for the assistance rendered. 

D2

133.  The defendant was born in Hong Kong in August 1979 and is 46 years old.  He was educated up to Form 2 level.  He is single and was working as a porter at a fruit market between 2015 and 2018 earning $18,000 per month.  He was unemployed at the time of his arrest and had been relying on financial support from his friends for some time.

134.  D2 was living alone.  His parents are retired.  He has 3 siblings who are in their 50s and gainfully employed.  

135.  Mr. Boyton, counsel for D2, submits that, with reference to previous sentencing cases, 10 years’ imprisonment is an appropriate starting point for D2, and that the aggravating feature of the defendant being a habitual offender with similar previous convictions should be subsumed into this starting point.

136.  Mr. Boyton pointed out that D2 had not personally used any violence on the occupants, although accepting that he is being charged as an accomplice in a joint enterprise.

137.  Mr. Boyton mentioned that D2 had given a non-prejudicial statement to the police identifying the mastermind, which appeared to have at the very least been useful for “investigation and intelligence purpose”, relying on the case of HKSAR v Yeung Hoi Ting [2019] HKCA 31 to seek a reduction in sentence.

D3

138.  D3 was born in Hong Kong in September 2004 and is 21 years old.  He was 18 at the time of the offence.  

139.  D3 was educated up to Form 5 level and had been working as a casual worker in a metal recycle shop earning about $15,000 per month.  

140.  The defendant was an outstanding rope skipper and had represented his school as well as Hong Kong in various competitions and won many awards.  He continued to share his experiences with younger team members after he ceased representing Hong Kong.  The defendant had wanted to become a coach in this field, but understand that it has become much more difficult with the present conviction.  

141.  Ms. Sabrina See, counsel for D3, informs the court that D3 had mixed with some bad characters who had led him into committing the offence, pointing out that he only agreed to take part after being told that all he had to do was to provide a bag to hold the stolen properties, and that he had just ‘tagged along’ with the others, not fully realizing the seriousness of what he had gotten himself into. At 18 years old, D3 was more easily influenced by others.

142.  Ms. See submits that D3 had not carried a machete, nor did he personally threaten anyone with a machete.  D3 was only given the rucksack with the stolen properties inside just before they went downstairs in the lift.  He played no part in the organizing of the burglary.  D3 is remorseful and sorry for his parents’ pain, promising not to do anything to disappoint or hurt them again.  

143.  During the present remand, D3 had been learning to become a hair stylist, hoping to find a job to support himself in future.

144.  D3’s elder brother, and his skipping coach, Mr. Yeung wrote to express their belief and confidence in the defendant being able to reform and rejoin and contribute to society.

145.  D3 had made a non-prejudicial statement to the police, but the information therein were found to be or no practical use.  Nevertheless, Ms. See submits that D3 had tried his best to assist.

146.  Ms. See refers to the case of Ko Lai Man (see below), pointing out that no one had been injured in the burglary, that all the stolen properties had been recovered, and urges the court to adopt an 8-year starting point.

D4

147.  D4 was born in Hong Kong in March 1990 and is 35.  He was educated up to Form 1 level and had been working under his father’s supervision on and off in masonry work, which he did not really like.  Coupled with the downturn in construction business when the COVID pandemic hit, the defendant had been jobless for some time prior to this case.  

148.  Without an income, the defendant resorted to borrowing from friends since June in 2022.  On the day before the burglary, a friend told him that someone was looking for debt collectors for a gambling debt, and that D4 should get in touch with a ‘Chicken’ for details.  D4 was eager to make some quick money to help repay his friends, and so he contacted ‘Chicken’.  He would eventually find out that ‘Chicken’ was D1.  D4 agreed to participate in the debt collection, and was promised $2,000.  

149.  D4 showed up at the assembly point in Mongkok and saw D5 there.  He and D5 had met in a game centre and were casual acquaintances.  D4 ‘then came to know’ that D5 was also recruited by D1.  

150.  D1 arrived driving a taxi with D3 on board, who is a friend of D4.  He, however, only found out that D3 was also involved when he saw D3 in the taxi.  

151.  D4 and D5 both got into the taxi driven by D1.  As soon as D4 had got in, D1 gave him a bag with some heavy objects inside.  He was told by D1 to carry the bag upstairs.

152.  D1 then drove the taxi to a nearby street corner and picked up another two men, D2 and D6.  When they were all in the taxi, D4 heard that they were going to Jordan.  He also heard that D5 will be posing as a courier to ring the doorbell, and the rest of them will go into the flat as soon as the door was opened.  D4 was given to understand that he was there to keep an eye on the occupants and to stand guard over them after their entry.  

153.  When D2 to D6 were at the rear staircase on the 13^th floor, D4 was told to open the bag, whereupon he saw that there were 3 machetes inside.  D4 realized then that it was more than a simple debt collection exercise.  He heard that they were supposed to take away cash as well as valuables.  He believed that he was being asked to commit robbery.  Despite this knowledge, D4 decided to go ahead with the operation.  D4 claims that he was not ‘entirely clear’ about the background of the others in this group of burglars, and that he did not dare to say no to them.

154.  D4 admitted that he was one of the burglars who had stood guard over the occupants while holding a knife, and that he had joined the other defendants to demand repayment from them while they were in the living room.  

155.  Ms. Cannise Chan, Counsel for D4, tells the court that the defendant is remorseful and understands that it was a frightening and traumatic event for the victims.  She points out that despite D4’s checkered criminal history, this would be his first conviction for burglary, although he had been convicted of wounding, blackmail, and possession of offensive weapon before.  

156.  Ms. Chan, fairly, accepts that D4 had used a machete to facilitate the burglary, and that he is being jointly charged with the other defendants, and would have to bear collective responsibility for the acts of the others.  Ms. Chan, however, submits that there is no evidence of D4 being the person who used the machete to hit the two occupants in their head or neck after they were told not to look up.  It is also her submission that D4 was not the mastermind of the operation, “but a mere recruit to execute a plot designed by others”.  D4 also did not know the value of the stolen properties, just that there was some cash and watches.

157.  Ms. Chan refers to the case of Ko Lai Man (see below), pointing out that, unlike in that case, there had been no injuries to the occupants, and all the stolen properties were recovered in D4’s case.

158.  Ms. Chan does, however, recognize that the defendants had lied their way into the flat; that one of the occupants fell when D5 pressed the fake delivery box against his chest; that machetes were used as weapons in the burglary; that the occupants had been restrained; that two occupants had been hit in the head or neck with the handle of a machete; that one of the defendants had claimed to be member of a triad society; and that there were 5 burglars involved.  These are matters that might amount to aggravating features of the burglary, leading to the need to adjust the Mo Kwong Sang basic starting point of 7 years upwards.

D5

159.  D5 is 35, educated up to Form 5 level and single.  He has a 10 year old daughter from a previous relationship whom he used to support but had lost contact with since his remand.  The defendant’s parents are in 55 and 59 years old and he used to contribute to their living expenses when he worked in logistics as a transport worker.

160.  During his present remand, D5 had attended and completed some Construction Workers Basic courses.  He wrote in his letter about his remorse towards causing his parents to suffer and promises to keep improving himself while incarcerated, hoping to contribute to society once he had served his sentence.  

161.  D5’s mother, Ms. Chan, wrote about her anger and incomprehension towards her son’s conduct.  She and D5’s father divorced when he was in secondary school.  D5 had been living with his father and was given a lot of freedom, which led to his acquaintance with a group of undesired youngsters, causing his school grades to drop.  Ms. Chan blames herself for not spending more time with him.  Nevertheless, D5 has always been a filial son, a loving and caring person towards children, respectful to the elderlies, and spent most of his time when he was home looking after his daughter, who was very dependent on him and would not sleep until she had seen her father.  D5 used to have frequent arguments with his ex-wife over money, to the extent that she had refused him access to their daughter because of insufficient payments.  Ms. Chan believes that D5 committed the offence to try to provide for others, and that he is truly remorseful.  She apologizes on behalf of her son for being impulsive and immature, and promises to communicate with him more.  D5 had told her he will take part in more voluntary works, to warn other young people not to follow in his path, and she seeks leniency.

162.  Mr. Carl Yuen, counsel for D5, submits that D5 was the first to enter the building, but he only held the cardboard box and did not wield a weapon.  He submits that D5 was merely following orders, and had not known that machetes will be involved in the commission of the offence.

163.  He also points out that D5 did not tie up any of the victims, nor threaten them.  D5’s role was only to ring the doorbell to gain entry, and then was told to look for more bags to put the stolen items in.  D5 was not holding any of those items when stopped by the police and they were all recovered from the other defendants.  Mr. Yuen submits that D5 played a minor role.  Mr. Yuen does, however, accept that D5 has pleaded guilty to a criminal joint enterprise.

D6

164.  D6 was born in August 1982 and is 43.  He was educated up to Form 1 level and was working as a delivery worker earing around $20,000 per month.  He and his girlfriend are parents to a 9 year old daughter and a 3 year old son.  Now that the defendant can no longer work to provide for his family, they have been forced to depend on public assistance under the CSSA Scheme.  Although the family was finally assigned a public housing unit in November 2025 during his remand, the defendant worries about his children’s wellbeing and future.

165.  The defendant’s parents wrote and inform the court that the father had had a stroke, and the mother had suffered a fall requiring minor surgery.  The accumulative pressure of all these events caused the mother to suffer from mental health issues that require medications and regular follow-up treatment.  Yet, they have not given up on their son and feel that he had become a better person since his remand, asking to see the children and his girlfriend’s photos, asking about the parents’ health whenever they visited him.

166.  D6’s girlfriend, Ms. Wong, tells the court how the stress of dealing with the defendant’s remand and looking after their children alone for the past 3 years had caused her to suffer from psychological distress requiring long term medication.  The defendant had promised her that he will never re-offend, be a good father and share the burden of looking after the children.  

167.  Mr. Charles Chan, counsel for D6, tells the court how the defendant had undergone a period of profound reflection during his remand, and has actively sought help in his rehabilitation in joining and participating in religious activities.

168.  Mr. Chan also tells the court that D6 no longer maintains what he said under caution about how he was merely acting as a lookout as the truth, and accepts that he had used the machete to take control of at least two of the occupants in the flat.

169.  D6 committed the offence thinking to make some money by acting as a lookout at first.  He realized soon after how serious the operation was going to be, but foolishly decided to go through with it.

170.  Mr. Chan submits that D6 was not the person who had prepared and provided the machetes to the group.  Although the victims experienced significant fear, no one sustained any physical injuries.  The valuables were all recovered at scene.

171.  Mr. Chan accepts that the defendant had committed the present offence whilst on bail, but points out that the offence that he was on bail for was of a relatively minor nature, and urges the court to be lenient with any enhancement on this basis.

SENTENCING

Count 1: Aggravated Burglary

172.  The maximum sentence for aggravated burglary on conviction upon indictment is that of life imprisonment.

173.  It is not disputed that the sentencing guidelines in Mo Kwong-sang v The Queen (02/09/1981, CACC359/1981)  laid down for the offence of robbery are applicable in aggravated burglary cases when the facts are “very akin to those of a robbery” [3].

174.  The facts in Mo Kwong-sang are these.  The applicant broke into private domestic premises with another man.  They threatened the occupant with knives and tied her up, and then ransacked the flat and stole cash and various valuable articles.

175.  The Court of Appeal laid down the following guidelines for District Court judges for armed robberies, which has since been applied in Court of First Instance cases as well:

“We suggest that, in future, the appropriate sentence in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon which he displayed to his victim, should normally be five years.

If such a robbery also involves an invasion of private premises (which includes domestic and business premises and the common parts of premises such as lifts and staircases), we suggest that a sentence of six years would be appropriate.

If any physical violence, which includes tying them up, is used on any of the victims, we suggest that a sentence of seven years should be considered.

These suggested sentences should be increased if there are other aggravating factors. Among these, though the list is not exhaustive, are invasion of domestic premises during the night; the presence of more than one person in the group of robbers; threats made to victims; ill-treatment of elderly persons and children; and a multiplicity of similar offences.”

176.  The Court found that, had the above guidelines been applied to the applicant there, his sentence would have been something like 7 to 8 years.

177.  In the case of R v Ko Lai-man and others (30/10/1992, CACC362/1991)  the 3 applicants forced their entry into a domestic premises at about 12:15 in the afternoon.  One held the domestic helper’s neck, pointing a bread knife at her telling her not to scream.  Two kicked open the door of a room and tied up the two occupants inside.  One of the occupants was ‘menaced’ by two of the applicants who were holding a chopper and a bread knife.  One of the two men got angry when that occupant intervened to protect the elderly grandmother and thrusted the knife towards the occupant, cutting her hand when she tried to ward it off.  

178.  The applicants were each charged with aggravated burglary, wounding with intent and 2 counts of false imprisonment.  The jury found the applicants guilty on all counts, and they were each sentenced to 8 years’ imprisonment on the aggravated burglary, 4 years for the wounding, and 4 years on each of the false imprisonment charge, ordered to be served concurrently.  Their applications for leave to appeal against sentence were dismissed.

179.  In HKSAR v Yang Ming (楊明) (09/03/2005, CACC384/2004), the applicant pleaded not guilty to one count of robbery but guilty to the alternative count of aggravated burglary.  There the applicant, an unauthorized entrant, broke into residential premises with another man at 5:30am on a day in August 2001.  When they were confronted, one of them took out a 6-inch long blade and attacked the householder with it.  The two escaped through a broken window, having stolen a discman, a mobile phone and an electronic dictionary.  The householder was cut and injured on his head and face and was treated in hospital.

180.  Upon his apprehension through tracing the DNA on some blood found on the premises, it was found that the applicant had committed another robbery after this aggravated burglary.  In the other robbery case, the applicant had robbed a businessman together with 5 or 6 others of some watches that he was carrying.  They fled after snatching the watches.  Passersby gave chase and the applicant was arrested soon after.  He pleaded guilty and was sentenced to 32 months’ imprisonment.  He also pleaded guilty to an unlawful remaining offence, for which he was sentenced to a consecutive term of 20 months’ imprisonment.  

181.  The trial judge expressed the view that had the two cases been heard together, the appropriate aggregate starting point would have been 12 years’ imprisonment.

182.  Having explained why the two cases were, properly, not consolidated, the Court found that the 7 year starting point for the aggravated burglary adopted by the trial judge was appropriate, given that the two men had broken into private residential premises carrying a weapon of offence with them and stole, and when discovered, they used the weapon to deliberately injure the householder.  They found that, from the householder’s view, whether the criminal acts of the applicants led to a robbery or aggravated burglary charge would have made very little, if any, distinction.  

183.  It is noted that this starting point had apparently taken into consideration the applicant’s criminal record for burglary and robbery.  

184.  In the case of HKSAR v Chan Li Fat (陳利發) (02/07/2010, CACC308/2009)  [2010] 4 HKLRD 109, relied on by Mr.  Boyton for D2, the applicant was convicted of 2 counts of aggravated burglary and 2 counts of rape.  He was sentenced to life imprisonment with a minimum term of 12 years on the former set of burglaries, and life imprisonment with a minimum term of 18 years on the rape counts.  

185.  In gist, the applicant had on two separate occasions in 3 months broken into two homes, either waited for the occupant to return, or where they were sleeping woke them up and threatened them with a knife, tied the victims up and assaulted them, ransacked the flat, forced them to disclose their ATM PINs, indecently assaulted and then raped the victims.  In the second case, the mother-in-law had to endure listening helplessly to her daughter-in-law being raped.  Both the rape victims and the mother-in-law were traumatized and suffered lasting effects on their lives.

186.  The applicant was a man with a long history of violent attacks on women, including sexual violence in the victim’s homes, which started when he was 17.  In total, he had been convicted of 16 offences of robbery, 2 of aggravated burglary, 2 of burglary and 3 offences of rape, 3 of indecent assault, 1 of false imprisonment, and 1 of assault occasioning actual bodily harm.  Most, if not all, of those offences were committed at knife point.

187.  The applicant was diagnosed to be a person with Dissocial Personality Disorder, and a definite risk to the society, and that it was impossible to predict at the stage of the diagnosis when it would be safe to discharge him back into the community.  He did not have any active mental problem that warranted regular psychiatric or follow-up treatment.  

188.  In considering whether the minimum term of 18 years’ imprisonment for the rapes was appropriate, the Court first recognized that a minimum term of 18 years is not the same as a term of imprisonment of 18 years, for which there would have been a probability of a one-third discount, and then found that in the circumstances of that case, a minimum term of 18 years would have been equivalent to a fixed term starting point of 27 years, but nevertheless found the minimum term fully justified. 

189.  The Court was, however, of the view that the nature of the aggravated burglaries did not warrant a life imprisonment, despite the result of his appeal being rendered academic upon their confirmation of the life sentences for the rapes.  They found that, “given all the circumstances, a sentence of 10 years is adequate”, resulting in a sentence of 6 years 8 months after plea for each of the two burglaries. The Court believed that the appropriate total sentence for the two counts after plea should be 9 years, which was achieved by making 2 years 4 months of one sentence to run consecutively to that of the other.  They then ordered the sentences for the 2 aggravated burglaries to run concurrently with the minimum term of 18 years on the rape counts.

190.  I find it unrealistic to say that one can isolate the aggravated burglary from the rapes and associated acts of the applicant to consider whether it was more or less serious than the present case, given the horrific acts of the applicant that are peculiar to that case, and as such I have not been able to rely too much on Chan Li-fat to assist me in arriving at the appropriate sentence for the 6 defendants in our case.

191.  Mr. Boyton also referred to the case of HKSAR v Chan Chun Man (16/05/2019, CACC216/2017)  [2019] HKCA 522.  There the applicant was convicted after trial of one count of aggravated burglary and one count of rape.  The ulterior intent named in the aggravated burglary count was to inflict the female victim X with grievous bodily harm.

192.  In gist, the applicant entered the home of the victim when she was not home.  Upon her return, from the early hours the following day to the morning, she was raped, indecently assaulted and raped again.  The rape conviction was in relation to the last event. 

193.  Again, the nature and factual circumstances surrounding this case is very different to the present case.  The applicant and the victim had been in a romantic relationship, but when the victim sought to break up, the applicant refused.  There followed a period of entanglement for 2 months, which the victim, again, sought to end on 14^th October 2015, engaging the help of her cousin to try to persuade the applicant to stop finding her anymore.

194.  The persuasion failed.  The applicant, using duplicated keys, entered and hid inside a wardrobe in the victim’s home and waited for her return on the night of 15^th October.  The applicant had brought along a 16cm long cutter with him.  The victim did return at around 11pm.  The applicant waited until after she had taken a bath and was tidying up when he sprang out from the wardrobe and covered her mouth, with the events for the night following.

195.  In sentencing, the learned trial judge found that the aggravated burglary was premeditated, noting that the applicant must have known when the victim would return home and hid in a wardrobe so as not to be seen when she opened the door.  He found that the applicant had intentionally carried the cutter with him with the purpose of causing serious injury to the victim.

196.  The judge stressed the need to protect one party of a failed relationship from the obsessive other and considered a 6 year sentence after trial appropriate for the aggravated burglary.  

197.  The learned judge made clear that this 6 year imprisonment was in relation to the burglary only, and that he had not taken into consideration the facts relating to the rape in count 5 at all.  

198.  In relation to the rape, the judge found that it was a “particularly bad case of rape”, pointing out the lasting psychological impact the incident had on the victim, the lack of remorse on the part of the applicant and absence of mitigating factor, and adopted a starting point of 8 years’ imprisonment after trial.

199.  Upon the application of the totality principle, noting that the commission of the burglary and the rape “had no direct relationship”, with both being independent charges, 3 years of the burglary was ordered to run consecutively to the rape sentence, resulting in a composite term of 11 years’ imprisonment.

200.  The sentence on count 1 was upheld on appeal, with the Court remarking that the judge was entitled to sentence on the basis of the applicant’s admission that he was going to kill the victim and himself with the cutter should he failed to win her back, and that was why he had brought the cutter to the flat.

201.  Mr. Boyton submitted that the previous convictions of D2 should be subsumed into the 10-year starting point that the court should adopt, by reason of the observations of the Court in Chan Chun Man of the sentence in Chan Li Fat.

202.  As to Chan Li Fat, which had been considered by the trial judge in Chan Chun Man, the Court of Appeal remarked that “it is both debatable, and irrelevant, whether that constituted a more serious case of aggravated burglary”.  The Court in Chan Chun Man took from the upholding of the 10 years starting point in Chan Li Fat as clearly indicating “the gravity with which this offence must be regarded”.  They surmised that the “staggering past criminal record” might have been a contributing factor to the “loftiness” of that starting point, but noted that the judgment in Chan Li Fat was unspecific on this point.  The Court in Chan Chun Man made no direct comment on the appropriateness of the earlier sentence, nor on whether a proper sentence for someone with a less serious record should be lower than the 10 years starting point upheld in Chan Li Fat.

203.  My view remains that the facts in those two cases have far more similarities between them than they have with the present case, and that their sentences are not entirely helpful in deciding on the correct sentence here.

204.  Although the Court in Chan Chun Man approved of the individual sentences, they did find the total sentence of 11 years manifestly excessive.  They noted that there was substantial overlap between the two offences, at least in terms of what the applicant had wanted to do in letting himself into the flat, that is to say, either to win back the victim, or take her physically and then kill her and himself.  A new composite sentence of 9 years 6 months was imposed.

THE PRESENT CASE

205.  I find that the facts in the present case are more serious than either Mo Kwong-sang or Ko Lai Man, and far more serious than the individual aggravated burglary in Chan Li Fat and Chan Chun Man.

206.  Here, 5 burglars entered the flat as trespassers, having tricked the occupants into opening the door for them.

207.  The defendants came equipped with torchlight and a crowbar.  It was about 21 minutes from the time the door of the flat was opened to when they came back out of the flat.  The crime was clearly premeditated and organized.

208.  31^st October 2022 was a Monday.  The defendants had picked a time in the evening when it was likely that the occupants would be home, or on their way home, from work.  Even if the occupants of the burgled flat were not home, the neighbors might be, and the chance of the defendants being noticed was considerable.  Yet, they thought nothing of it and proceeded with the burglary and ransacked the place[4].  

209.  Each of the defendants wore a face mask and carried a machete (according to the Summary of Facts), which they used to threaten the 3 occupant victims.  The occupants’ thumbs were tied together behind their back with cable ties, their eyes and mouths covered with duct tapes, and they were ordered to squat in the living room.

210.  The prosecution had confirmed that only 3 machetes were seized.  Be that as it may, given that the defendants had admitted to having taken part in this joint enterprise, where each knew that machetes were being used in the course of the burglary, their culpability regarding the use of all the weapons as stated in the charge is also shared.

211.  At least one of the defendants had claimed to be a member of a triad society.

212.  One of the defendants positioned his machete near the neck of an occupant to get him to hand up all valuables.  While 3 of the defendants were searching the flat, 2 of them brandished their machetes at the occupants, warning them not to look around.  When 2 of them did look, one was hit in the back of their neck or head by one of the defendants with the handle of the machete he was holding.

213.  One defendant tried to get the occupants to transfer money via their phone banking app on the phone.  When they were not able to do so, the defendant demanded the ATM passcode from one of them, no doubt intending to make a withdrawal later on.

214.  One of the defendants uttered to an occupant that he will chop him to death, telling him to take out all valuables, and dared him to call the police since he was not afraid to go to jail, saying that he will “come back”.

215.  The terror suffered by the occupants must have been immense.  

216.  Cash of HK$350,500 and a watch worth about $200,000 were stolen together with the other items particularized in the charge.  The facts are silent as to their total value, but it is safe to say that it is a substantial sum, although they were all recovered upon police intervention.

THE STARTING POINT

217.  Bearing in mind the guidelines in Mo Kwong Sang, and taking into consideration the cases referred to above, I find that a common starting point of 9 years’ imprisonment for each of the defendants is necessary to reflect the seriousness of the circumstances around their joint enterprise.

AGGRAVATING FACTORS

218.  In relation to D1, I find his commission of the present offence whilst on police bail for the possession of dangerous drugs offence, and at the same time being only 6 months into his 15-month suspension period aggravating factors, indicating a level of disregard of the law that calls for stronger deterrence.

219.  I find also that his uncooperative attitude upon being confronted by police officers, including his attempt to start the car despite repeated warnings, which caused the officers to have to break the window of the vehicle in order to subdue and arrest him, an aggravating factor.  

220.  For the above factors, I will enhance his sentence by 9 months in total, taking it up to 9 years 9 months.  

221.  In relation to D2, I find his 29 previous convictions, and the fact that he had committed the present offence about 12 months after his last discharge from jail aggravating factors.  His conduct suggests that the previous sentences had failed to deter him from re-offending.  I will enhance his sentence by 3 months, taking it up to 9 years 3 months.  

222.  In relation to D3, he had committed the present offence whilst on bail, for this, I will enhance his sentence by 3 months, taking it up to 9 years 3 months.

223.  In relation to D4, he committed the present offence only 6 months after his last discharge from prison.  For this aggravating factor, I will enhance his sentence by 3 months, taking it up to 9 years 3 months.  

224.  In relation to D5, although he has multiple previous convictions, his last were for possession of dangerous drugs and use of false identity card in 2018.  I find that there is no need to enhance his sentence given the different and relatively minor nature of his latest previous convictions.  His sentence remains at 9 years.

225.  In relation to D6, he had committed the present offence whilst on bail and for that his sentence is enhanced by 3 months, taking it to 9 years 3 months.

MITIGATING FACTORS

D3

226.  D3 was 18 when he committed the offence.  He was the youngest in the group, with the others being aged 35 to 45.  I accept Ms. Sarbina See’s submissions that he was influenced by the others in the commission of the burglary.  I am mindful of the fact that aggravated burglary is an excepted offence under the Criminal Procedure Ordinance, Cap.221, as well as the fact that in cases as serious as this, only extreme youth might have some relevance in setting the sentence.

227.  Be that as it may, I will exercise my discretion and reduce D3’s sentence by 6 months, taking it down to 8 years 9 months based on his age, his previous accomplishments in rope skipping, and the fact that he had been detained at the Rehabilitation Centre since 8^th August 2023, and the time of detention there would not be counted as time served in the present sentence.  I stress that this is not a proportional reduction, merely a reduction I find appropriate in the circumstances.

D1 and D5

228.  In relation to D1 and D5, based on information placed before the court, I find that their efforts to assist the relevant authorities should be recognized and as such, they will each be granted a discount of, or about, 40%, being inclusive of the usual 1/3 discount for their guilty pleas.

229.  Based on the information in relation to the rest of the defendants that is before the court, I find that there is no basis for any reduction in their sentences on a similar basis.  

Count 2: against D1 only

230.  The maximum sentence on conviction upon indictment for the offence of taking conveyance without authority is that of 7 years’ imprisonment.  

231.  In the case of R v Tam Simon (25/07/1996, HCMA489/1996), Mr. Justice Patrick Chan (as he then was)  referred to two earlier cases of the Court of Appeal that dealt with sentences for the offence of taking conveyance and found that there could be a wide range in the sentence ranging from the case of a person taking a car for a joy-ride at one end, to a person taking a car in connection with the participation of a serious crime at the other.  It is not disputed by Mr. Newman Wong that this statement is still correct.

232.  In the present case, the connecting crime is very serious.  D1 was told about the vehicle’s location and he took a taxi from home to go find it.  He took the vehicle after finding it, drove it from Tsuen Wan to Tsim Sha Tsui and parked it there.  He then went home to await further instructions on its usage, keeping the key to the car with him in the meantime.  He then used the vehicle to pick up 5 burglars at various places and drove them to the crime scene.  He then waited while the burglary was going on upstairs, even getting a snack during the waiting.  But for the subsequent police intervention, the only reasonable inference must be that D1 would have used the same vehicle as the getaway car for the burglars.

233.  Bearing in mind the maximum penalty for the offence and the purpose of the taking, I find that a starting point of 3 years’ imprisonment is appropriate.

AGGRAVATING FACTORS

234.  Just as for count 1, the same aggravating factors there apply to D1’s commission of count 2, for which I will enhance his sentence by 3 months, taking it up to 3 years 3 months.

TOTALITY IN RELATION TO D1

235.  Taking a step back, I find that the burglary sentence alone would be insufficient to embrace the overall criminality of D1’s involvement given his active duties of finding the taxi, driving it away, parking it somewhere else and waiting for instructions, picking up the other burglars from different locations, driving them to the crime scene, and waiting to drive them away after the burglary.

236.  To properly reflect his culpability, and at the same time mindful not to doubly punish D1 for his part in the burglary that overlaps with the taking of conveyance, I will order 3 months of the sentence in count 2 to be served consecutively to the sentence in count 1, the balance concurrently.  

237.  D1’s combined sentence for the two counts before applying a discount for any mitigating factors is, therefore, 10 years.

OVERALL TOTALITY

238.  Taking a step back, I find each of the individual sentences fair, just and balanced in the circumstances.  

FINAL SENTENCES

239.  The final sentence for D1 for the two counts is, therefore, 6 years, after applying a 40% discount from 10 years.  

240.  For D2, 6 years 2 months after a 1/3 discount.  

241.  For D3, 70 months, or 5 years 10 months, after a 1/3 discount.

242.  For D4, 6 years 2 months after a 1/3 discount.  

243.  For D5, 5 years 5 months, after applying an approximately 40% discount from 9 years.

244.  And for D6, 6 years 2 months, after a 1/3 discount.