HKSAR v. CAO DUANXIONG AND OTHERS

DCCC 1292/2024

[2025] HKDC 804

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1292 OF 2024

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REASONS FOR SENTENCE

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1.  The 3 Defendants pleaded guilty to one charge of conspiracy to burgle.

Summary of facts

2.  On 4 March 2024, at around 10 am, the 3 Defendants entered Hong Kong on the strength of their 2 way entry permits.

3.  On the same day, according to the Octopus cards and the CCTV showed the following information:-

Entered Tsuen Wan MTR Station (D1 and D2)	3:55 pm
Exited Sham Shui Po Station (D1 and D2)	4:15 pm
CCTV captured the:-
(a)  3 defendants entered 258 Apliu Street Sham Shui Po	4:23 pm
(b)  The 3 defendants left the building	6 pm
Entered Sham Shui Po MTR station (D1 and D2)	6:08 pm
Exited TST station (D1 and D2)	6:21 pm

On 5 March 2024

4.  The police observed that the 3 Defendants left Mirador Mansion in TST at about 11:30 am.  After they had a meal together, they took the MTR to Chai Wai and loitered there from 12:42 pm to 12:48 pm.

5.  The 3 Defendants then proceeded to San Po Kong by taking the MTR.

D1

6.  He went to two walk up buildings in Hong Keung Street for a few minutes and then left.

D2 and D3

7.  They loitered around Hong Keung Street.

8.  Between 2 pm to 2:30 pm, the 3 Defendants entered Block B of Hong King Building one after the other.  D1 and D2 left the building together at 2:48 pm while D1 left at 2:50 pm.

9.  At this point, the police arrested them for an offence of going equipped for stealing. They were all wearing facemask and black colour cap.

10.  Four crowbars wrapped in a towel were found inside the rucksack of D3.

11.  CCTV showed the 3 defendants entered the building around 2 pm to 2 43 pm. D1 and D3 took the lift to different floors.  D2 was not captured in the CCTV as there were other lifts that were not covered by CCTV.

12.  There were numerous phone calls amongst themselves on 4 March 2024.

13.  There was no burglary incident reported in that building.

14.  All the 3 defendant said under caution that:-

(a)  They denied the knowledge of the 4 crowbars. D3 further said that it was D1 put them into his rucksack.

(b)  D1 and D2 said that they went up the buildings to look for a job.

(c)  They were acquaintances.

Criminal record

15.  All three defendants have clear record.

Backgrounds of the defendant

16.  D1 is 43 years old.  He is divorced with a 18 years old daughter.  His parents were both retired farmers.  He previously worked as a decoration worker earned about 5,000 RMB per month.

17.  D2 is 51 years with a 27 years son who is now in a 3 years course of apprenticeship for painting and making ceramic.  His wife starts to work as a factory worker after D2 was arrested to support the family as D2’s mother (83)  is bedridden.  D2 was previously an elevator technician earned about RMB 5000 per month.  D2 committed the present offence because of financial hardship to support his mother and his son to study in the University.

18.  D3 is 44 years old, he is now in the process of a divorce proceeding, they have a 12 years old daughter.  D3’s father (81)  is bed ridden and his mother (76)  relies on medication to manage her health condition.  They relied on D3 for financial support.  D3 committed the present offence due to financial hardship in the hope of earning quick money.  Although his former employer is very disappointed of him, he will re-employ him to do renovation work after his release from prison.

19.  In both D2 and D3’s letter, they tell me that they are regretful in committing the present offence and they ask for leniency.  They wish to be reunited with their families as soon as possible.

Sentence

20.  The fact showed that the 3 defendants came to Hong Kong with one single purpose that was to commit burglary.  They targeted at high-density residential premises without security guards and main gate in front of the building. 

21.  The defence accept that the proper starting point for domestic burglary is 3 years’ imprisonment.

22.  Having heard submission from the parties, I accept that:

(a)  there was no financial lost and there was no victim in the present case.

(b)  no threat and violence was used.

23.  However, there are aggravating factors in the present case as stated in the case of HKSAR v Cheng Wai Kai CACC 338/2007 that:-

(a)  There were 3 defendants acting in concert.

(b)  They were Mainland residents and came to Hong Kong to commit the present offence.

(c)  I disagree with the defence for D1 that there was no careful planning in the commission of the present offence. The three defendant covered their faces with masks and caps for the purpose to conceal their facial feature as to their identity. They were all prepared with HK sim cards and octopus cards for local calls and travelling. There were 4 crowbars which means each defendant has one crowbar to use for committing the burglary offence.

24.  In view of the above aggravating factors, I consider that the starting point should be enhance by 9 months to reflect the culpability of the defendants.

25.  The sentence arrives at 3 years 9 months (3 years starting point + 9 months), given the usual 1/3 discount, it comes down to 2 years 6 months.

26.  Finally, I must say that I understand the family circumstances of each defendant, but that cannot constitute a mitigating factor.  Otherwise, it sends a wrong message to the public that they can come to Hong Kong to commit offence and plead for leniency due to financial hardship.  The defendants should have aware that once they were caught, their families will inevitably suffer.

27.  To this end, the three defendants are ordered to serve a period of 2 years 6 months imprisonment.