HKSAR v. CHEUNG KING SAN

DCCC 797/2025

[2026] HKDC 809

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 797 OF 2025

--------------------------------

--------------------------------

------------------------------------------

REASONS FOR SENTENCE

------------------------------------------

1.  The Defendant pleaded guilty to one count of Burglary, contrary to sections 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

Summary of Facts

2.  The Amended Summary of Facts admitted by the Defendant is as follows:

(1) The offence location was a restaurant located at shop numbers 201-204, 2^ndfloor of the Central Market, No 80 Des Voeux Road Central, Central. There was no door at the restaurant, but there was a rope separating the public from entering after business hours. A security guard was also assigned to be stationed at the restaurant after business hours.

(2) A security guard was on duty at the restaurant since around 9 pm on 16 February 2025. The security guard later fell asleep beside a table inside the restaurant on which his bag (the Bag) was placed. The Bag which contained his wallet (with HK$3,500 cash inside), his ID documents and Octopus cards, his staff card and his home keys was left unattended.

(3) CCTV footage at Central Market captured the Defendant entering the restaurant at or about 5:24 amon 17 February 2025 while the security guard was sleeping. After entry, the Defendant rummaged through some cabinets inside the restaurant. At or about 5:28 am on the same day, the Defendant took away the Bag and left the restaurant. The Defendant fled in the direction of Hang Seng Bank Headquarters Building, being one of the entrances that was still open at the time. The security guard subsequently woke up and found the Bag missing.

(4) As the Defendant was identified in the CCTV footage, PC22083 arrested the Defendant on 23 February 2025 as the Defendant was suspected to be equipped with tools for stealing. Under caution, the Defendant admitted that he went into the restaurant and stole the Bag out of greed. The admission was post-recorded in the police notebook of PC22083 and was signed by the Defendant.

(5) The Defendant said the following in a video-recorded interview:

(i) He was the male captured in the CCTV footage;

(ii) He stole a black shoulder bag, which he left in the toilet after taking the cash out of it.

The Defendant’s Background

3.  The Defendant is 48 years old, educated up to primary level in the Mainland. He came to Hong Kong in 1996 when he was 18. In his antecedent statement, the Defendant stated that he has been unemployed since he left school and has no fixed abode. Counsel stated that the Defendant has been working as a casual worker earning about $2,000 to $3,000 per month and relied on CSSA. He has 43 criminal records, involving 57 offences, 41 of which related to dishonesty (12 burglaries, 1 robbery, 23 thefts, 4 attempted thefts and 1 handling stolen goods). His last conviction for burglary was on 12 January 2023. He was last released from prison (for theft) on 12 December 2024.

Principles

4.  Burglary is a serious offence with a maximum sentence is 14 years’ imprisonment. The Court of Appeal has laid down sentencing guidelines. For burglary of non-domestic premises, the appropriate starting point is 2½ years (30 months) imprisonment: R v Wong Man [1993] 1 HKC 80 and Secretary for Justice v Tsang Hon Yiu [2004] HKCU 1497 (CAAR  5/2004, 16 December 2004, unreported). That conventional starting point only applied to a case with no aggravating or mitigating features and normally only for a first offender: Attorney General v Lui Kam Chi [1993] 1 HKC 215; HKSAR v Sim Ka Wing [2001] HKCU 498 (CACC  450/2000, 30 May 2001, unreported) and HKSAR v Chan Kong Yiu[2011] 4 HKLRD 291. A higher starting point is justified where there are aggravating factors, such as previous similar convictions: HKSAR v Cheng Chi Shing[2001] 2 HKLRD 75 and HKSAR v Chan Kwong Chun [2009] HKCU 345 (CACC 299/2008, 4 March 2009). A lower starting point would be appropriate for an opportunistic burglar who is akin to a sneak thief who walks into open premises: HKSAR v Cheung To Ming [2006] 2 HKC 416.

Discussion

5.  Initially, Counsel stated that the Defendant walked past the restaurant after having a night snack in the Central Market and that the offence was purely opportunistic. This submission was subsequently withdrawn. The Defendant admitted that he entered the Central Market with an intention to steal.

6.  Counsel submitted that the Defendant committed offences persistently over decades because he was alone in Hong Kong and had financial difficulties. She stated that the Defendant might change his ways if the Social Welfare Department gave the Defendant more financial assistance. Firstly, this Court has no jurisdiction over the Social Welfare Department. Further, it was clear from the mitigation that the Defendant was already in receipt of CSSA prior to committing the offence. Thirdly, financial difficulty is not an excuse to commit crimes and does not amount to mitigation.

7.  The restaurant is non-domestic premises. The appropriate initial starting point is 30 months’ imprisonment. That starting point is only appropriate for first offender. There can be no dispute that he is a recidivist of offences related to dishonesty. He has 12 previous convictions for burglaries and committed the present offence almost as soon as he was released from prison. The starting point is increased to 39 months to reflect his appalling record.

8.  The Defendant pleaded guilty at the first opportunity and is entitled to a one-third discount. The sentence is reduced to 26 months. Apart from his timely plea, there are no other mitigating factors. The Defendant is sentenced to 26 months’ imprisonment.