HKSAR v. WONG HIU FEI

DCCC 1322/2025

[2026] HKDC 1023

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1322 OF 2025

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REASONS FOR SENTENCE

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1.  The Defendant (“D”) pleaded guilty to one count of Theft (Charge 1) and one count of Burglary (Charge 2).

Facts

Charge 1

2.  On 20 April 2025 around 9:15 am, Mr LAM Wing Man parked his car HH2866 (“the car”) outside No 111, Tai Nam Street, Sham Shui Po. He then went to a nearby premises to retrieve some personal belongings, leaving the boot of his car open. Inside the boot was a Gucci handbag (valued at about HK$10,000) containing HK$2,000 cash. When he returned to the car several minutes later, he found the Gucci handbag missing.

3.  CCTV of a shop nearby captured D hanging around near the car before he suddenly approached the boot of the car, took the Gucci handbag from it and fled the scene.

Charge 2

4.  A renovation company was operating its business at Shop B on the Ground Floor of Rich Building at Nos 163-165 Lai Chi Kok Road (“the Shop”). The Shop was open for business daily from 9 am to 7 pm and had a storage room for storing raw materials.

5.  D was hired by this renovation company as a part-time worker on 18 April 2025; however, he stopped reporting to work on 21 April 2025.

6.  Around 9 am on 23 April 2025, a trolley, which had originally been placed in the open storage area near the rear gate of the Shop, was found missing along with 54 rolls of copper tubes (valued at about HK$17,000) which had originally been stored inside the storage room. No prizing mark was found at the Shop.

7.  CCTV footage captured D entering the storage area at 00:10 am on 23 April 2025, moving the copper tubes out of the storage room between 00:11 and 00:28 am, and leaving the Shop at 00:29 am pushing a trolley containing the copper tubes.

D’s arrest and admissions

8.  D was arrested on 24 April 2025 for the above incidents. Under caution, he admitted in relation to Charge 1 that he had stolen the bag from the open boot of the car out of greed; he had spent all the cash and discarded the bag. In relation to Charge 2, he stated that as his employer had treated and paid him poorly, he had stopped working for him and had then stolen from him; he had sold the stolen trolley in Sham Shui Po.

9.  During the VRI held under caution on the following, D admitted in relation to Charge 1 that he was the culprit in the CCTV footage. He was on his way to Sham Shui Po when he noticed the car’s opened boot and committed the offence. He had thrown away the handbag. In relation to Charge 2, he admitted that he was the culprit in the CCTV footage. He had sneaked into the Shop without prizing open the doors and had used the trolley to carry the stolen copper tubes. He had sold the trolley and the tubes to a street vendor in Sham Shui Po for $1,500 and had spent all the proceeds.

D’s Background

10.  He is 45 years old. He was born and educated in mainland China up to the equivalent of Form 3 level. He is married with a son, but all of his family members reside in the mainland. He was a welder before his arrest, earning $1,400 a day.

11.  He has 7 previous convictions. He had been convicted 4 times for Theft, once for Robbery and once for Attempted Robbery.

Mitigation

12.  Defence counsel Mr Alan So said D pleaded guilty to the charges at the first available opportunity and is entitled to one-third discount on sentence.

13.  With regard to Charge 1, D was an opportunistic thief. He stole the handbag from the car’s boot which was left widely open. The case of HKSAR v Yu Chun (喩俊) HCMA 48/2005 (Judgment in Chinese) was referred to in support of the submission that a starting point of 6 months’ imprisonment would seem appropriate for this charge.

14.  As for Charge 2, the Shop in question is non-domestic premises. According to HKSAR v Sim Ka Wing CACC 450/2000, the starting point for burglary of non-domestic premises is 2 ½ years’ imprisonment with no aggravating or mitigating factors. D did not bring any tools to break into the Shop, and he acted alone.

Sentencing considerations

15.  Charge 1 involves D stealing from the open boot of a car. As Mr So pointed out, there is no sentencing tariff for such an offence. The absence of tariff is understandable as there can be so much variations in the factual circumstances of the offence and the personal circumstances of the offender.

16.  Regarding the case of 喩俊 cited by Mr So, I agree that the type of theft committed by D should not be dealt with as if it were a case of pickpocketing.

17.  Given the circumstances in which this offence was committed, it can certainly be described as an opportunistic offence, which usually mitigates the seriousness of the offence and/or the culpability of the offender. However, the extent of mitigation is fact specific.

18.  In this regard, the following judgment of McWalters JA in HKSAR v Tsang Chun Yin (曾俊言) CACC 170/2017 dated 22 December 2017 provides helpful guidance. There the learned judge said,

“49. Returning to the questions I posed, what is meant by an opportunistic offence and what is it about such an offence that lessens the culpability of the offender? If it means no more than that the offence was not premeditated then the extent to which that will lessen the culpability of the offender may very much depend on whether it is only an isolated lapse. Where, as here, it is not an isolated lapse what does it tell us about the offender? It may simply suggest that although the offender is not a professional criminal he is willing to resort to crime whenever the opportunity presents itself. Such an opportunistic offender is hardly likely to excite the sympathy of the court; indeed, for such an offender the court may well incline to regarding the offender as being in need of a deterrent sentence.

50. Clearly, the most value that an ‘opportunistic offence’ can have as mitigating the culpability of an offender is when the offender is involved in criminal conduct on only one occasion, the criminal conduct is unpremeditated and the criminal conduct took place in circumstances where the ease with (which) it could be committed tempted the offender into an out-of-character lapse in judgment. The commonly cited examples are where there is an open window or door which ‘invites’ entry and which reveals tempting property in plain view. The less the conduct can be portrayed in this way the less, it seems to me, it reduces the culpability of the offender.”

19.  D is a recidivist and is certainly someone who shows little hesitation in resorting to crime whenever the opportunity arises. His succumbing to the temptation of a wide-open car boot to steal therefrom can hardly be described as an act out of his character. While this is an opportunistic offence, D does not deserve as much sympathy from the court as say, a first-time offender does. I would adopt 9 months’ imprisonment as the starting point for Charge 1.

20.  In respect of Charge 2, this is a clear case of non-domestic burglary, to which the conventional starting point of 2 ½ years’ imprisonment applies.

21.  Although D has 6 previous convictions for offences of dishonesty, this is his first conviction for burglary. I do not propose to enhance his sentence on account of such previous breaches.

22.  D’s guilty plea is the only mitigating factor for both offences. After one-third discount for such a plea, the sentence in respect of Charge 1 is 6 months’ imprisonment, and the sentence in respect of Charge 2 is 20 months’ imprisonment.

Totality

23.  Given D’s overall culpability, an appropriate starting point for both offences would be 3 years’ imprisonment before plea, and 2 years after plea. I order that 4 months of the sentence for Charge 1 are to run consecutively to the sentence for Charge 2, resulting in a total sentence of 24 months’ imprisonment in respect of both charges.