HKSAR v. XU WEIMIN

DCCC 59 & 205/2025 (Heard together)

[2025] HKDC 1747

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 59 OF 2025

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 205 OF 2025

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REASONS FOR SENTENCE

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1.  The defendant XU Weimin (D) appeared before me in relation to 2 separate cases (DCCC 59 of 2025 & DCCC 205 of 2025), each involving 3 Charges. All 6 Charges are “Burglary”, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210. The 3 Charges in DCCC 59/2025 occurred in Mong Kok area while those in DCCC 205/2025 occurred in Kwun Tong area. He pleaded guilty to all 6 Charges and admitted to the Summary of Facts relating to each Charge as presented by the Prosecution.

2.  On his application, Sentence of the 2 cases are to be dealt with together.

Facts

3.  The facts of each Charge as admitted by D are summarised in the following paragraphs. The offences in DCCC 205/2025 occurred before those in DCCC 59/2025, I will deal with them according to the time sequence.

DCCC 205/2025

1^st Charge

4.  The premises concerned was a snack shop situated at Shop No. 1A, Ground Floor, Block 3, Camel Paint Building, No. 60 Hoi Yuen Road, Kwun Tong. It was about 200 square feet in size. There was a roller gate fixed at the entrance, but it was never rolled down when the shop was briefly closed for business at around dawn every day. A red rubbish bin was place at the entrance to block the entrance to prevent others from entering during the period.

5.  At around 05:50 hours on 10 August 2024 when the shop was left unattended, D pushed the red rubbish bin aside and entered the shop. He took away cash of HKD (same below) $600 which was placed in a red bucket placed inside the shop and left.

2^nd Charge

6.  Earl’s Café was located at Shop No. A, Ground Floor, Sun Wing Building, No. 48 Tsun Yip Street, Kwun Tong. It operated between 07:00 and 22:00 hours every day.

7.  At around 05:30 hours on 10 August 2024, staff of the Café returned and left the gate at the entrance half opened. At around 06:00 hours D entered the Café, approached the cashier, prized open the drawer of the cashier with a pair of scissors and took away cash $8,000 therefrom and left.

3^rd Charge

8.  The premises concerned was a restaurant located at Shop C, Ground Floor, Montery Plaza, No. 15 Chong Yip Street, Kwun Tong. It operated between 07:30 and 03:30 hours every day.

9.  At around 03:00 hours on 14 August 2024, when the restaurant was unattended, D opened the gate, entered the restaurant, prized open the drawer of the cashier and took away $19,000 therefrom and left.

DCCC 59/2025

1^st Charge

10.  The premises concerned was a restaurant located at Shops A & B, Ground Floor, No. 393-395 Reclamation Street, Mong Kok. At around 01:35 hours on 27 August 2024, D pushed the unlocked button of the electric roller shutter at the entrance and the shutter was raised and became open. D then entered and approached the cashier machine with an open umbrella to block himself from the CCTV. He opened the cashier machine, took away cash $15,500 therefrom and left.

2^nd Charge

11.  The premises concerned was a snack shop located at Shop C, Ground Floor, On May Mansion, 597A-599A, Shanghai Street, Mong Kok. At around 06:12 hours on 29 August 2024, D entered the shop through its open gate and took away around $2,000 cash therein. He stayed for about 26 seconds and left.

3^rd Charge

12.  The premises concerned was a restaurant located at Shops B3, B4, D & E, Ground Floor, Far East Consortium Mong Kok Building, 240-244 Portland Street, Mong Kok.

13.  At around 04:51 hours on 31 August 2024, the door of the restaurant had been opened by staff who had earlier arrived to prepare for work but the restaurant was not yet open for business. D entered the restaurant through the open door, went to the cashier machine and attempted to open it and the drawer underneath it but was unable to do so. He left and returned about 5 minutes later. Armed with an object he prized open the drawer underneath the cashier machine and took away around $3,190 cash therefrom and left.

Arrest and cautioned statements of D

14.  The cases were reported to the police. A police officer conducted analysis of the CCTVs available at various locations at or near the premises concerned in DCCC 59/2025. At around 13:49 hours on 2 September 2024, when the officer was conducting investigation at Kwong Fu Building, 38 Kam Lam Street, Mong Kok, D happened to pass by. The officer noticed D’s appearance matched the culprit depicted in the CCTV footages and intercepted D.

15.  At the time of interception, D had with him a red recycle bag, which contained 2 transparent re­sealable plastic bags each containing 20 $5 coins (i.e. a total of $200). Cash of $708.2 was also found in his trousers pocket. The red recycle bag carried by D looked identical to the one carried by the culprit in some of the Charges, the jeans and slippers worn by D also looked the same as those worn by the culprit.

16.  D was arrested. In the subsequent VRIs conducted under caution, he readily admitted to having committed all the offences mentioned above. He stated that he had spent all the money stolen from these offences on food and cigarettes.

Defendant’s Backgrounds and Mitigation

17.  D is now 53 years old, born in Fujian, Mainland China on 22 July 1972. He came to settle in Hong Kong in 2013. He separated from his wife in 2022 and the 2 daughters, aged 22 and 11, followed the wife. Since then he had lost contact with them. He had been unemployed since 2019, relying on friends for his living. He claimed to have no fixed place of abode.

18.  D has 13 previous convictions on 6 Court appearances, 10 of which were similar to the present offences. His last conviction came on 29 April 2024 when he was sentenced to 6 months imprisonment for one count of “Burglary”, and was released from prison on 29 May 2024, after serving out his sentence.

19.  On behalf of D in relation to both cases, Mr Jonathan Ah-weng submitted in mitigation that D frankly admitted to the offences to the police after his arrest, and pleaded guilty in Court at the first available opportunity. The offences arose sadly out of D’s financial desperation, and not motivated by greed or drug addiction.

20.  As to assessment of sentence, Mr Ah-weng stated that all premises concerned were non-domestic premises. Citing HKSAR v Sim Ka Wing[1], he accepted that the normal starting point for burglary involving such premises is 2 1/2 years imprisonment. He also conceded that D had previous similar convictions and that he used tools to prize open the drawers in the cashiers in some of the Charges involved. However, relying on the comments by the CA in that case and HKSAR v Lee Chiu Yui（李釗銳又名李朝銳）[2], he submitted that the offences committed by D in the present cases were more akin to an “opportunistic burglar” or a “sneak thief ” scenario, so that the Court can adopt a lower starting point. Mr Ah-weng further submitted that in the present cases, D acted alone and did not use any tools to gain access, there is no evidence of any sophisticated planning and minimal property damage, if any, had been caused to the premises concerned. Mr Ah-weng urged the Court to take into account the totality principle and be as lenient as possible to D.

Sentence

21.  It is well established that the normal starting point for burglary involving non-domestic premises is 2 1/2 years imprisonment[3].

22.  In Sim Ka Wing[4] the CA stated :

“9. The conventional starting-point of 2 1/2 years' imprisonment for the burglary of non-domestic premises relates to burglaries with no aggravating or mitigating features. Such burglaries will involve a measure of planning, and thus a degree of premeditation and planning is already built into the conventional starting-point. The conventional 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. Likewise, the conventional starting-point can be increased in the case of professional criminals who plan their burglaries with meticulous care and steal goods and cash of considerable value.”

23.  In HKSAR v Cheung To Ming（張道明）[5] , applying the principle of “opportunistic burglar”, the CA adopted 18 months as the appropriate starting point for a similar offence.

24.  In the context of the present cases, I accept the submissions by Mr Ah-weng that the offences committed by D were more akin to an “opportunistic burglar” or a “sneak thief ” scenario. The premises concerned were all unattended and had their doors opened or unlocked when D entered; he acted alone; he did not engage any substantial equipment; no serious damage had been caused to the premises and the value of the property stolen was not high. I am prepared to adopt a lower starting point of 18 months for each offence.

25.  However, in HKSAR v Cheng Wai Kai（鄭偉佳）[6], the CA stated:

“15. The starting point can be adjusted upwards if there are aggravating circumstances such as; (1) the offence is carefully planned and skilfully executed involving the use of heavy instrument or equipment; (2) the offence is committed by two or more people; (3) the offence targets at substantial premises and involves substantial properties; (4) the offender is a professional burglar and not just an opportunist; (5) the offender has previous convictions, particularly previous conviction of similar nature, and (6) the offender commits multiple offences.

16. If the offences were committed in different premises against different victims on different dates, consecutive sentences should be imposed…”

26.  In HKSAR v Fan Kit Hung（范傑雄）[7]，the CA added causing substantial damage to the premises as another aggravating circumstance. Also, in that case the appellant committed 13 burglaries on shop premises within a period of 4 months, with stolen properties worth over $130,000, the CA considered 6 years to be the appropriate global starting point.

27.  In the present cases, at least 2 of the aggravating factors as mentioned by the CA in Cheng Wai Kai, viz., (5) & (6), are engaged. D had 13 previous convictions, 10 of which were similar to the present offences. He was only released from prison 3 months prior to the present offences after serving his sentence for a similar offence. He committed 6 offences within a period of 3 weeks. For each of these factors 3 months will be added to the starting point, adjusting it upwards to 24 months.

28.  D pleaded guilty to all Charges at the first available opportunity, and is entitled to the full 1/3 discount. There is no other mitigating factor warranting further reduction of the sentence for each Charge.

29.  Although the Charges were separated into 2 cases, they were all committed by D with similar modus operandi within a short period of time. These offences were committed in different premises against different victims on different dates, except the 1^st and 2^nd Charges in DCCC 205/2025 which were committed on the same date, consecutive sentences should be imposed. However, taking totality principle into account, I consider that a global starting point of 48 months is appropriate to reflect the overall criminality of D for these offences. With the 1/3 reduction for his timely guilty plea, the total sentence should be 32 months.

30.  For the 6 Charges D is facing in respect of the 2 cases, he is sentenced as follows:

DCCC 205/2025

Charge 1 : 16 months

Charge 2 : 16 months, concurrent with Charge 1

Charge 3 : 16 months, concurrent with Charge 1

Total : 16 months

DCCC 59/2025

Charge 1 : 16 months

Charge 2 : 16 months, concurrent with Charge 1

Charge 3 : 16 months, concurrent with Charge 1

Total : 16 months, to be served consecutively to the sentence in DCCC 205/2025

Total sentence for the 2 cases: 32 months