HKSAR v. ZHENG YUBING AND OTHERS

DCCC 248/2025

[2025] HKDC 2154

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 248 OF 2025

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REASONS FOR SENTENCE

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1.  D1 to D3 pleaded guilty to two joint charges on a Charge Sheet as follows.

2.  Charge 1 is Burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210.  Particulars are that they, on 1 May 2024, in Hong Kong, having entered as trespassers a building known as No 41, Yue Kok Tsuen, Ting Kok Road, Tai Po, New Territories, stole therein cash of $5,000 Hong Kong currency, cash of 4,500 Yuan Renminbi and one watch.

3.  Charge 2 is Going equipped for stealing, contrary to section 27(1)  of the Theft Ordinance, Cap 210.  Particulars are that they, on 2 May 2024, outside Wing Wo Building, Nos 22-34 Wan Tau Square, Tai Po, New Territories, in Hong Kong, not being at their place of abode, had with them articles, namely 3 crowbars, two iron pipes, four torches, 27 pieces of gloves, 10 masks and 8 pieces of plastic for use in the course of or in connection with theft.

Facts admitted by D1 to D3

4.  D1, D2, and D3 were holders of Hong Kong and Macao Travel Permits.

Charge 1

5.  The village house at No 41 Yue Kok Tsuen, Tai Po (“the Premises”), was a domestic premises.  The location was not a tourist spot.

6.  On 1 May 2024, at about 1650 hours, PW1, an occupant of the Premises, left the Premises with its interior intact.  Later, at about 2115 hours, PW1 returned and found the premises ransacked.  The window frame of a room had been prized open.  Cash of HK$5,000 and CNY4,500 and a watch with distinctive engraving at the back (with estimated value HK$1,382)  were missing.  Case was reported to the police.

7.  CCTV in the vicinity captured images of D1 to D3 lingering there between 1602 and 2001 hours the same day.

Charge 2

8.  On 2 May 2024, at about 1220 hours, D1 to D3 were lingering furtively near Wing Wo Building, Tai Po.  D2 entered two tenement buildings for about one minute each.  D1 to D3 kept staring at the scaffolding outside a building.

9.  At about 1300 hours, D3 was intercepted by the police.  Upon search, a pair of gloves, a mobile phone, cash of HK$100 and CNY1,500 was found on D3.

10.  At about 1310 hours, D2 was similarly intercepted.  Upon search, 8 pieces of plastic, 17 pieces of gloves and 10 masks and CNY160 were found in D2’s backpack; and a mobile phone, cash of CNY2,330 and HK$700 were found in his pants pocket.  In D2’s mobile phone, a text conversation between D2 and another person shows D2 shared a location at Yue Kok Tsuen on 1 May 2024 at about 1615 hours.

11.  At about 1312 hours, D1 was similarly intercepted.  Upon search, 3 crowbars, 2 metal pipes, 2 torches, 4 pairs of gloves, cash of CNY730 and some personal items were found in his backpack; and 2 other torches, a mobile phone and cash of HK$3,944.60 were found in his pants pocket.  In the meantime, D1 removed a watch (later confirmed to be the missing watch)  from his left wrist. Two photos of this watch were found in D1’s mobile phone.  A text conversation between D1 and another person shows D1 shared his location at Tai Po on 1 May 2024 at about 1648 hours.

12.  At about 1420 hours, D1 was arrested.  In subsequent VRIs, D1 stated:-

(a)  He entered Hong Kong on 1 May 2024 between about 1100 and 1200 hours;

(b)  He could stay in Hong Kong for 7 days at maximum for each visit;

(c)  He did not have in his possession the tools seized (ie 3 crowbars, 2 metal pipes, 2 torches, 4 pairs of gloves)  when he entered Hong Kong on 1 May 2024;

(d)  He picked up those tools in Sham Shui Po on 10 April 2024 when he first visited Hong Kong;

(e)  He intended to carry out temporary work with the tools;

(f)  The backpack seized on him did not belong to him; he picked it up somewhere;

(g)  The photos of the watch found in his mobile phone were sent from other persons;

(h)  The watch did not belong to him; and

(i)  He was around Yue Kok Tsuen with D2 and D3 at the time shown by the CCTV footage.

13.  At about 1421 hours, D2 was arrested.  In subsequent VRIs, D2 stated:-

(a)  He intended to carry out temporary work with the gloves seized on him; and

(b)  He was at Yue Kok Tsuen on 1 May 2024 at about 1615 hours.

14.  At about 1422 hours, D3 was arrested.  In subsequent VRIs, D3 stated:-

(a)  D1 introduced him to come to Hong Kong; he did not know D2;

(b)  The white gloves seized on him belonged to D2; and

(c)  The person whose image was captured by the CCTV at Yue Kok Tsuen in the afternoon of 1 May 2024 was D3.

15.  The location of arrests was not a tourist spot.

16.  D2’s DNA was found on the missing watch.

17.  TIC record shows that D1, D2 and D3 entered Hong Kong on 1 May 2024 at about 1300, 1259 and 1301 hours respectively via Heung Yuen Wai Boundary Control Point.

Criminal record

18.  D1 has a clear record in Hong Kong.

19.  D2 has a clear record in Hong Kong.

20.  D3 has a clear record in Hong Kong.

Antecedents

21.  D1 is aged 35 (33 at the time of the offences), born in Hunan, educated to primary school level, has been a porter and decoration worker with unstable income.  He was living with retired parents and an elder brother.

22.  D2 is aged 41 (39 at the time of the offences), born in Hunan, educated to primary school level, has been a painter and tailor with daily income of around RMB300.  He was living with his parents and elder brother.

23.  D3 is aged 51 (49 at the time of the offences), born in Hunan, educated to primary school level, has been a farmer with monthly income of around RMB6,000.  He was living with his wife and two sons in Shenzhen.

Mitigation

D1

24.  Mr Joshua Ngai of counsel assigned by the Director of Legal Aid mitigated on behalf of D1.  The following is a summary of the mitigation submissions.

25.  D1 grew up in Hunan.  He graduated from elementary school (Primary 4)  and arrived in Hong Kong on May 1, 2024, holding a two-way permit.  Before being detained, D1 lived in a village house in Hong Kong.  D1 is unmarried.

26.  D1 has been working as a farmer since 2006 in Hunan, earning approximately RMB3,000 per month.

27.  D1 now admits that the three crowbars, two metal pipes, four torches, and four pairs of gloves were intended for use in the commission of a burglary, theft or related activities.

28.  The starting point for sentencing an offender in burglary of domestic premises is generally 3 years’ imprisonment.

29.  Regarding possession of items intended for theft, there are no specific guidelines.  The Court of Appeal in HKSAR v Cheung Wai Tat [2023] HKCA 758 (Chinese Reasons for Judgment)  found the usual appropriate sentencing benchmark for most cases is imprisonment for 9 to 12 months (see para 27).

30.  D1 pleaded guilty to the charges, demonstrating his remorse.

31.  For the burglary offence, it was simple and not sophisticated; the victim’s watch has been recovered and the cash recovered can be returned to the victim.

32.  For the possession offence, D1 was arrested on the street and did not progress beyond the preparatory stage of the substantive crime.

33.  D1 did not have a prior criminal record.

34.  Mr Ngai asked the court to minimize the effect of the following aggravating factors:

(a)  Joint enterprise;

(b)  D1 came to Hong Kong to commit crimes; and

(c)  A window was damaged in the burglary.

35.  Mr Ngai asked the court to bear in mind that the amount involved in the burglary was not large and there is no evidence to suggest that D1 was a professional burglar.

36.  Mr Ngai asked that the enhancement of starting point for burglary charge due to aggravation should be below 3 months; that the majority of the sentence for the possession charge be served concurrently.

37.  Mr Ngai submitted on behalf of D1 a mitigation letter written in Chinese by D1 himself.  The contents generally are that D1 was the economic pillar of the family; he committed the offences for economic reason; that he promises not to reoffend and he hopes to be given a chance for reform and to be passed a lenient sentence so he may return home early.

38.  Upon enquiry by the court, Mr Ngai submitted that D1 was not the mastermind of the joint enterprise.

D2

39.  Mr Albert Luk of counsel assigned by the Director of Legal Aid mitigated on behalf of D2.  The following is a summary of the mitigation submissions.

40.  D2 has no previous convictions in Hong Kong.

41.  D2 was born in Hunan.  He arrived in Hong Kong on 1 May 2024.  He was educated to Primary 2 and is a divorced person.  His 12-year old son is being taken care of by his ex-wife.

42.  D2’s parents are both 63 years old.

43.  At the time of the offences, D2 was employed in Mainland as a painter, earning approximately RMB300 per day.

44.  D2 eventually buckled under significant economic pressure and gave in to a moment of greed which caused him to come to Hong Kong and commit the present offences.

45.  D2 is deeply remorseful and has reflected upon his mistake and is willing to accept the consequences.  D2 is willing to make amends and hopes to turn over a new leaf.  He promises not to re-offend.  D2 hopes for a lenient sentence so he may perform his obligations to his aged parents and young son earlier.

46.  In The Queen v Chan Yui Man CACC 36/1988, the Court of Appeal stated that the starting point for burglary of domestic premises should be 3 years’ imprisonment.

47.  However, in the case of HKSAR v Cheng Wai Kai CACC 339/2007, the Court of Appeal clarified that the starting point in burglary offences could be adjusted upwards if the following aggravating circumstances were established:-

(a)  The offence is carefully planned and skillfully executed involving the use of heavy instrument or equipment;

(b)  The offence is committed by two or more people;

(c)  The offence targets at substantial premises and involves substantial properties;

(d)  The offender is a professional burglar and not just an opportunist;

(e)  The offender has previous convictions, particularly previous conviction of similar nature; and

(f)  The offender commits multiple offences.

48.  The loss is relatively small and the items and money stolen have been seized and will be returned to the owner(s).  As such, the seriousness of the offence is relatively mild.

49.  In HKSAR v Li Ho Yin CACC 240/2012, the Court of Appeal stated that there are no guidelines for the sentencing of defendants for the offence of going equipped for stealing.  However, as with all offences, the courts seek to attain facts of each case, including the circumstances in which the defendant was apprehended, the nature of the equipment carried, the nature of the defendant, his record (if any), the commission of the other offences at the same time as the subject offence, and the principle of totality.

50.  Mr Luk urged the court to exercise discretion to allow the sentences for both offences to be served concurrently.

51.  Mr Luk submitted a mitigation letter written in Chinese by D2 himself. The contents generally are that D2 apologizes to the victim and Hong Kong society; he is remorseful for what he did out of greed; he deeply regrets what he did after reflection; he asks for a lenient sentence so he may correct his ways and start afresh.

52.  Upon enquiry by the court, Mr Luk submitted that D2 came to Hong Kong to make quick money eg find illegal employment but changed his mind to commit a burglary.  Mr Luk also submitted that D2 was not the mastermind of the joint enterprise.

D3

53.  Mr Sher Hon Piu of counsel assigned by the Director of Legal Aid mitigated on behalf of D3.  The following is a summary of the mitigation submissions.

54.  D3 is married and was living in Hunan.  He was a farmer with monthly earning of around RMB4,000.

55.  D3 has a clear record.

56.  D3 received education up to Primary 5.  D3 was living with his retired parents (over 70)  and his two sons (27 and 22).  His wife (51)  is a kitchen assistant working in Guangzhou.

57.  D3 came to Hong Kong on strength of a two-way permit as visitor.

58.  D3 went along with D1 and D2 and arrived at the crime scene of Charge 1 and there committed a burglary offence.

59.  The following day, D3 went along with D1 and D2 and arrived at the Charge 2 crime scene.  D3 now admits that the pair of gloves in his possession were intended to be used during the burglary.

60.  D3 deeply regrets what he had done and promises not to re-offend in Hong Kong.

61.  The starting point for domestic burglary shall be one of 3 years’ imprisonment.

62.  In HKSAR v Lau Kwok Wo CACC 181/2008, at para 18, the Court of Appeal reiterated that, for the offence of burglary of a residential property, the three-year benchmark applies to an adult for first offender (see also The Queen v Chan Yui Man CACC 36/1988, at para 7).

63.  For the offence of “going equipped for stealing”, there is no fixed sentencing guideline.  However, it is common for courts to adopt a starting point of 9 to 12 months’ imprisonment.

64.  In HKSAR v Cheung Wai Tat CACC 222/2022 (Chinese Reasons for Judgment), at paras 26 and 28 (sic)[1], the Court of Appeal discussed the relevant sentencing starting point.  The appellant and respondent agreed that the starting point was generally 9 to 12 months’ imprisonment.  Paragraph 26 (translation supplied by Mr Sher)  in particular says this:

“26. After reviewing a series of related cases, the Court of Appeal, in HKSAR v Li Ho Yin [CACC 240/2012], pointed out that when sentencing for “Going equipped for stealing”, the following factors [can] be considered:

(i)  The circumstances of the arrest, including whether the offender had already finished the stage of searching for a target and preparing to commit the crime;

(ii)  The nature of the items involved;

(iii)  The offender’s background and conviction record;

(iv)  Whether the offender is a professional burglar; [and]

(v)  Whether the offender was simultaneously committing other offences at the time of arrest.”

65.  Mr Sher also cited a District Court sentencing case namely, HKSAR v Ho Chi Leung DCCC 620/2024, for reference.

66.  D3 pleaded guilty and would get the benefit of 1/3 sentencing discount. Mr Sher asked the court to consider the nature of the case, which involved the same series of criminal venture, and asked that part of the sentences for the two charges be made to run concurrently.

67.  Mr Sher suggested a starting point of 3 years’ imprisonment for Charge 1 and a starting point of 9 months’ imprisonment for Charge 2.

68.  D3 hopes to be released as soon as possible and to return to his home town to resume work as a farmer.

69.  Mr Sher submitted a mitigation letter written in Chinese by D3 himself. The contents are generally that D3 regrets what he has done and asks for a chance for reform and a lenient sentence so he may return to re-unite with his family earlier.

70.  Upon enquiry by the court, Mr Sher said D3 was unwilling to tell why he came to Hong Kong.  Mr Sher asked the court to determine for itself who was the mastermind of the joint enterprise.

Sentence

71.  For Charge 1, acceding to counsel’s submissions that the correct starting point for burglary of domestic premises would be 3 years’ imprisonment without aggravation, I adopt exactly that as the initial starting point for all 3 defendants.

72.  Dealing with the dual aggravating factors of joint enterprise and coming to Hong Kong with the purpose of committing an offence or offences[2], I increase that starting point by 5 months.  This is applicable to all three defendants.

73.  The recovered watch and the seized cash will be returned to the victims as part of the disposal of exhibits order so the loss suffered will be minimal.  For this reason, I will reduce the starting point by one month.

74.  From the evidence, it is unclear who among the trio was the mastermind in the joint enterprise of burglary.  Hence, I shall treat them equally in terms of sentence.

75.  The possession of a myriad of housebreaking tools on the next day following the burglary is capable of suggesting the defendants were professional burglars.  However, in order not to overload the starting point of Charge 1, I would prefer to deal with the possession aspect separately under Charge 2.

76.  Dealing with Charge 2, the total number of articles for use in the course of or in connection with theft was substantial.  Bearing in mind the authorities referred to by counsel, I shall adopt an initial starting point of 12 months’ imprisonment.

77.  The same dual aggravating factors apply to all three defendants, though for the same reason, I cannot be sure who among the trio was the mastermind in the joint enterprise of the possession offence.  I shall treat them equally by enhancing that starting point by 3 months only, in light of the lower initial starting point as compared to that of Charge 1.

78.  D1 to D3 pleaded guilty in good time earning for themselves the full 1/3 sentencing discount.  For Charge 1 only, because of their previous good character, I will grant each of them 20 more days’ sentencing discount after the 1/3.  There are no other mitigating factors of weight to warrant another sentence reduction.

79.  The two offences were separate and distinct and were committed on different dates and at different places.  In principle, they ought to attract consecutive sentences upon conviction.  However, when determining the final aggregate sentence, I shall not lose sight of the totality principle as it applies to each of the three defendants.  Neither shall I lose sight of the danger of double-counting the aggravating factor of coming to Hong Kong with the purpose of committing an offence or offences.

(D1 to D3, please stand)

80.  For Charge 1, the sentence for each of D1 to D3 is 26 months’ imprisonment.

81.  For Charge 2, the sentence for each of D1 to D3 is 10 months’ imprisonment.

82.  I order that 5 months of the sentence on Charge 2 do run consecutively to the sentence on Charge 1, making an aggregate sentence for each of D1 to D3 of 31 months’ imprisonment.