HKSAR v. HUI PING KEI

DCCC 729/2025

[2026] HKDC 768

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 729 OF 2025

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one charge of Burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210.

Facts

2.  The building at Nos 221-225 Cheung Sha Wan Road is a residential building (the Building). Flat 9B (the Flat)  of the Building was the residence of Madam Lin’s late grandfather.

3.  Around 5:13 am on the morning of 2 October 2024, a neighbour saw two males standing in the corridor of the 9^th floor of the Building. CCTV captured three men walking down the staircase and leaving the Building around 5:13 am that day. CCTV also captured the defendant riding a bicycle in the vicinity of the Building around 5:17 am the same day.

4.  On 9 October 2024, upon being told that the Flat had been burgled, Madam Lin went to the Flat and found that its wooden door had been pried open and a wooden erhu box that had been lying on the bed when she had last visited the Flat in June or July 2022 was missing.

5.  Around 11 pm on 3 October 2024, the defendant was arrested for Burglary. Under caution, he admitted that two other persons had committed burglary in the Building, and that he had not personally taken any items but had only assisted in moving property taken from the burgled flat.

6.  In the subsequent cautioned video-recorded interview, apart from identifying himself on the CCTV footage, the defendant said that:

(a)  At the material time, Ho Yik Chiu had asked him to help move items taken from the 9^th floor of the Building;

(b)  The Flat’s iron gate was unlocked; Cheung Lee Sing had opened the Flat’s wooden door from inside;

(c)  He had helped Cheung Lee Sing to carry a recycling bag and an erhu box down the staircase; he then took these items to his home.

Defendant’s Background

7.  The defendant is 52 years old. He was born in the mainland and received his primary education there. He is married. His wife resides in the mainland. He was a freelance decoration worker at the time of his arrest.

8.  He has 10 previous convictions, one of which was for burglary. He has two other convictions for offences of dishonesty.

Mitigation

9.  Referring to HKSAR v Lau Pang [2004] 3 HKLRD 565, defence counsel Katy Chung pointed out that the starting point for burglary of domestic premises is 3 years’ imprisonment. She then quoted paragraph 15 of the judgment of the Court of Appeal in HKSAR v Cheng Wai Kai CACC 338/2007 where the court set out instances of aggravating circumstances which would justify an upward adjustment of the starting point. The case of R v Brewster [1998] 1 Cr App R (S)  181 at 186 was also referred to for the aggravating factors identified in that case.

10.  Of the four District Court cases[1] cited for the court’s reference, of special relevance is the case of Tong Chiu Chuen, which involved burglary of an unoccupied domestic premises under renovation for which offence the judge adopted a starting point of 30 months’ imprisonment on the basis that there was low risk of confrontation with the occupants.

11.  Counsel set out the aggravating factors in this case as: (1)  the offence was committed at night; (2)  the offence was committed by 3 people; and (3)  the defendant has previous convictions for similar offences.

12.  In mitigation, counsel pointed out that although the offence occurred at night, the risk of confrontation with the occupants was low as the Flat was vacant. The defendant was not the mastermind but was just a helping hand. The loss involved just one box. No damage was done to the Flat.

13.  The defendant’s early plea and his cooperation with the police warrant a one-third discount in sentence.

Sentencing considerations

14.  As defence counsel correctly pointed out, the usual starting point for burglary of domestic premises is 3 years’ imprisonment.

15.  In HKSAR v Ng Wai Hing [2003] 2 HKLRD 338, Yeung JA said:

“28. Burglary is a serious offence and burglary of a domestic premises is even more serious as there is always the possibility of confrontation with the occupant who will be subject to extreme fright when a total stranger invades his privacy. The gravamen in burglary of domestic premises is the fear felt by victims that a thief should have invaded their own house. That is why it may be regarded as an aggravating factor in burglary of premises which are expected to be occupied.”

16.  The one special feature of this case is that the burglary took place in an unoccupied flat of a residential building. It appears from the facts that this flat had been unoccupied at least since June or July 2022 when Madam Lin had last visited it before she was made aware of the present burglary.

17.  As the Flat, which had been Madam Lin’s late grandfather’s residence and had apparently been left unoccupied for at least 2 years before the burglary took place, the risk of the defendant and his accomplices confronting its occupant was minimal.

18.  In HKSAR v Yeung Kwok Sang CACC 4/2006, the Court of Appeal adopted a starting point of 2½ years’ imprisonment for burglary of a domestic promises which were unoccupied and under renovation, on the basis that chances of confrontation between the burglar and the occupants were minimal.

19.  Given the circumstances of our case, a starting point of 2½ years’ imprisonment would be appropriate.

20.  That the offence was committed by 3 people no doubt constitutes an aggravating factor.

21.  The defendant has a rather poor record. His previous conviction for Burglary was in 2020. Two years later, he was convicted of Handling Stolen Goods. Two years after that, he committed the present offence. His recent and repeated breaches of the law by dishonest means indicate a need for deterrence and/or the need to protect the society from criminals like him.

22.  For these aggravating features, I would enhance the notional starting point of 2½ years by 6 months, elevating it to 3 years’ imprisonment.

23.  The defendant’s early guilty plea is the only effective mitigating factor, for which he will be given a one-third discount in sentence. After such a discount, the final sentence is 2 years’ imprisonment.