HKSAR v. YEUNG KIT

DCCC 1459/2024

[2025] HKDC 972

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1459 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to one charge of burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap. 210. He also admits the summary of facts prepared by the prosecution.

Facts

2.  The offence took place on 16 June 2024 inside a restaurant (“the Restaurant”)  in the Sau Mau Ping Shopping Centre, Sau Mau Ping Estate.  The Restaurant opened daily with its business hours between 7 a.m. and 10 p.m.  Its manager was Madam Peng.

3.  In the morning on 16 June 2024 when Madam Peng returned to the Restaurant, she noticed that the reception area of the Restaurant had been ransacked, and that the drawer for placing a safety box had been pulled open, though the safety box itself remained intact.  She also found that the padlock at the rear door of the Restaurant had been prized open.  The value of the padlock was HK$20.

4.  CCTV video footage showed that the defendant entered the shopping centre at about 12:15 a.m. on 16 June 2024.  About two minutes later, he entered the Restaurant.  He started searching the reception area at about 12:22 a.m.  He left the Restaurant at about 12:30 a.m.

5.  The defendant was arrested by the police on 26 June 2024.  Under caution, he admitted that he broke into the Restaurant but failed to steal anything.  He said that he committed the offence alone.

6.  In a video-recorded interview conducted on 27 June 2024, the defendant admitted under caution inter alia that he had used a screwdriver to prize open the padlock at the rear door of the Restaurant, and that he was looking for money to steal, but since he failed to find any, he left without taking anything from the Restaurant.   He also admitted that he wore gloves when he entered the Restaurant, and that he had disposed of his gloves and clothing after the burglary.

7.  Madam Peng confirmed that the Restaurant had lost nothing.

Criminal record

8.  Between June 1985 and July 2024, the defendant had been sentenced by the court on 22 occasions for a total of 26 offences.  He was sentenced to serve an effective total term of 23 years’ imprisonment on 22 March 1994 for possession of arms and ammunition without a licence, using arms and ammunition to resist lawful arrest, possession of arms with intent to endanger life, use of ammunition to resist lawful arrest, and false imprisonment.  He was also sentenced for one count of robbery in May 1986, two counts of burglary in June 2011 and June 2019, one count of attempted burglary in June 2016, and 9 counts of theft (shoplifting)  between May 2021 and February 2024.  He had also committed other offences including gambling, common assault, and possession of drugs. He was last released from prison on 23 March 2024 for a theft offence.

Personal and family background

9.  The defendant was born on 12 June 1965.  He will turn 60 years old in a week’s time.  He was born in Sichuan.  He received education up to primary 5 in the Mainland.  He moved to Hong Kong with his parents in 1981 when he was 16 years old. 

10.  The defendant has two marriages.  A daughter was born out of his first marriage.  His first wife divorced him in 1997 while he was in prison.  Since then, the defendant has lost contact with his first wife and daughter.  He remarried in 2013 with his second wife who came from Panyu.  Due to his frequent incarceration, his second wife left him in 2018 and returned to the Mainland.  He has lost contact with her since.

11.  Prior to his arrest, the defendant was unemployed, and did not have a fixed place of abode.

Mitigation

12.  Mr. Simon Young, Counsel for the defendant, points out that the conventional starting point for burglary of non-domestic premises is 30 months’ imprisonment. He accepts that there is no ground for lowering the starting point, but argues that there was no aggravating feature in the commission of the offence.  He stresses that the defendant had not stolen anything and had damaged only one padlock. 

13.  Mr. Young also accepts that the defendant was a repeated offender who had received enhanced sentence on this ground before. Mr. Young however argues that the Court should not enhance the sentence on this occasion on the following grounds. First, Mr. Young submits that enhancing the sentence does not address the underlying causes of the defendant’s reoffending, since it was economic hardship due to his lack of skills and earning potential that caused him to commit property crimes repeatedly.  Second, Mr. Young submits that the defendant will soon be 60 years old and reach a milestone or turning point in his life.  During his remand, the defendant has made his first sincere self-reflection.  He feels regretful and shameful of his offences, and is determined to say goodbye to his criminal past once-and-for-all.  He vows not to return to prison.  Furthermore, the defendant has a plan to return to the Mainland and live there for the rest of his life. Not only he has no family member in Hong Kong after his mother has passed away, his elder sister in Chengdu also welcomes him to live with her there after his elder sister’s daughter has got married and moved away, leaving behind space in his elder sister’s home for him. Third, the defendant also feels disgusted and terrified of prison life.  Mr. Young says that the defendant has already lost all his upper teeth, and after losing two of his lower teeth in the week of 12 May 2025, he has only 5 lower teeth now, and that makes it extremely difficult for him to eat prison food.  Mr. Young submits that this factor alone may be good enough to keep the defendant on the straight and narrow.

14.  Mr. Young produces two mitigation letters written by the defendant and Mr. Wong Yun Fat respectively. Mr. Young has already in his mitigation put forward much of what the defendant has said in his letter.  Mr. Wong who has been the defendant’s good friend for many years says that he notices that the defendant has a change in his thoughts and feelings during his current remand, and that the defendant is now remorseful and weary of prison life.  He accepts that the defendant has no ground for leniency, but hopes that the Court will still show compassion and grant the defendant mercy.  He pleads the Court to consider a lighter sentence for the defendant.

Reasons for sentence

15.  Burglary is a very serious offence.  It has been held by the Court of Appeal that save for the most exceptional cases, a custodial sentence is the appropriate sentence for an adult burglar even though he pleads guilty and has a clear record: HKSAR v Wan Ka Kit[1]; HKSAR v Cheung Wing Sum [2].

16.  As far as the quantum of the sentence is concerned, the sentencing authorities are clear. For burglary of non-domestic premises with no aggravating or mitigating features, the usual starting point is 2½ years’ imprisonment: The Queen v Wong Man[3]; HKSAR v Sim Ka Wing[4].

17.  In the present case, there is simply no reason to depart from the normal sentencing tariff. I hold that imprisonment is the only proper sentencing option, and that 30 months’ imprisonment is the appropriate starting point of the sentence to be imposed on him.

18.  In HKSAR v Cheng Wai Kai [5], the Court of Appeal pointed out that the starting point could be adjusted upward if there were aggravating circumstances. 

19.  I accept the submissions of Mr. Young that there was no aggravating features in this offence committed by the defendant, other than the fact that he is a repeated offender.  The defendant has previously been sentenced for two counts of burglary in June 2011 and June 2019, one count of attempted burglary in June 2016, and 9 counts of theft in the nature of shoplifting between May 2021 and February 2024.  He committed the present offence just about 3 months after he was last discharged from prison for his last theft offence.

20.  Mr. Young seeks to argue that the defendant’s sentence should not be enhanced on this occasion for the reasons that he has put forward. With due respect, I do not accept the submissions.

21.  First, economic hardship due to the fact that the defendant did not have the capacity to make a living was not a justification for him to steal or attempt to steal the property of others.  Besides, even if enhancing his sentence due to his repeated transgression of the law fails to achieve the purpose of specific deterrence against him, it still serves the purpose of general deterrence against would-be offenders, warning them that if they keep on offending, they will be given sentences heavier than normal.  In any event, it does not make sense that when the defendant committed a burglary offence in July 2018 for which he was given an enhanced sentence in June 2019 because of his then criminal record: HKSAR v Yeung Kit & Another[6], his criminal record now which is worse than that before will not be treated as an aggravating feature to enhance his sentence.  His criminal record is worse than that in June 2019 because he had since then committed another 5 offences of theft (shoplifting)  and another offence of burglary, i.e. the present case.

22.  As to the second and third reasons put forward by Mr. Young, they amount to no more than the defendant’s verbal promise that he will not commit any further offence in Hong Kong.  Of course, it will be the best and most desirable for the defendant and the society if he can keep his promise.  It is also good news to learn that he may live a pleasant life with his elder sister in the Mainland for the rest of his life.  However, whether or not he is able to keep his promise not to offend again, nobody knows, and this Court cannot rely upon the defendant’s abstract promise to reduce an otherwise appropriate sentence.

23.  In my judgment, the fact that the defendant is a repeated offender constitutes an aggravating feature in the commission of the offence, and that the starting point of his prison term should be adjusted upward by 3 months.  There is no other factor that may enhance the sentence further.  In other words, if the defendant were convicted after trial, he should have been sentenced to imprisonment for 33 months.

24.  Of course, since the defendant has pleaded guilty, he is entitled to have one-third discount of his sentence.

25.  It is submitted that the defendant finds the prison life terrible, especially at this point of time when he has only 5 lower teeth left which makes it difficult for him to eat prison food.  I consider this matter to have little mitigating effect.  Although he has lost most of his teeth, he can still eat, even if he may have to consume his food at a slower pace.

26.  I hold that other than the defendant’s guilty plea, there is no other effective mitigating factor.  There is also no justification for suspending the operation of the prison sentence.

27.  For these reasons, the defendant is sentenced to serve a term of imprisonment for 22 months.