HKSAR v. WAN SAI LEUNG

DCCC 409/2025

[2026] HKDC 322

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 409 OF 2025

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

Introduction

1.  The defendant pleaded guilty to one charge of burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210. I found him guilty as charged after he admitted the Summary of Facts.

The Facts

2.  Facts admitted by the defendant disclosed that Sheung Mun Factory Canteen (“the Canteen”)  was located at Shop H, G/F, Houston Industrial Building, Tsuen Wan. At about 1900 on 28 December 2024, the owner, Miss Zhu, closed the premises and properly secured both entrances.

3.  At around 0153 on 30 December 2024, the defendant was seen loitering in the rear lane outside the Canteen. During this period, he made several attempts to approach and gain access through the rear entrance. At about 0200, he returned again, lifted and bent the door brackets, and entered the Canteen.

4.  Once inside, the defendant took a screwdriver from the kitchen and used it to prise open a cashier drawer. He stole approximately HK$300 in coins, a wallet containing about HK$3,500, and two red packets containing HK$400 before leaving the scene.

5.  At about 0500, Miss Zhu returned to the Canteen and discovered the forced entry, the prised-open drawer, and the missing property. She reported the matter to the police.

6.  On 4 January 2025, the defendant was arrested. Under caution, he admitted committing the burglary and stated that he had stolen about HK$4,000, with HK$450 remaining, which was seized by police. Clothing matching that worn during the offence was later seized from his residence.

7.  In a video-recorded interview, the defendant again admitted the burglary and described the manner of entry, the use of the screwdriver, and the disposal of some items afterwards.

Background and Criminal Record

8.  The defendant is 48 years old. He was born in Hong Kong and received education up to Primary 6 level. He lived with his parents until about six years ago, when he was 42. He married in or around 2013 and divorced in or around 2017. He has three children, two sons aged 13 and 12, and a daughter aged 11, all of whom are students.

9.  The defendant’s parents are divorced and live separately. His mother recently underwent surgery for breast cancer in a public hospital, while his father remains in good health. The defendant himself has no significant health issues, is not drug-dependent, and has no debts owed to loan sharks.

10.  Before his arrest on 4 January 2025, the defendant earned approximately HK$15,000 per month working as an air-conditioning technician. He has also previously worked in air-conditioning transport, logistics, and various odd jobs. He used to contribute HK$2,000 to 3,000 per month to his mother and a further HK$2,000 to 3,000 per month towards the maintenance of his three children. These contributions ceased upon his imprisonment.

11.  The defendant has a long and serious criminal history. He has previously been brought before the courts on sixteen occasions, involving a total of forty-six offences. Of particular concern is that twenty-two of those offences were burglaries, identical in nature to the present charge. In addition, he has accumulated twenty-one other theft-related convictions, including offences of theft, robbery, and going equipped for stealing. His most recent conviction was in November 2019, when he was sentenced to a total of twenty-four months’ imprisonment for burglary and theft.

Mitigation

12.  Mr Liu, counsel for the defendant, has provided written submissions in mitigation. He submits that at the time of the offence, the defendant was under significant financial strain. He was unable to pay rent, purchase food and daily necessities for his family, or meet his children’s school-related expenses. He was, in effect, without means. The break-in was, he submits, entirely opportunistic, borne out of desperation, with no pre-planning and no use of tools. After entering and searching the premises, the defendant stole approximately HK$4,200 from the cashier area. Over the following days, he spent the money on food, transport, and rent.

13.  Upon his arrest on 4 January 2025, the defendant immediately admitted the burglary, expressed remorse, and fully cooperated with the police. He states that he is determined to reform, to resume work as an air-conditioning technician, and to be a responsible father to his three children. He seeks leniency, having pleaded guilty at the earliest opportunity on the plea day in the District Court, upon first being legally represented.

14.  Mr Liu has also placed before the court a mitigation letter written by the defendant, which I have taken into account. In the letter, the defendant expresses his sincere apologies to those affected by his conduct and states that he is willing to accept responsibility for his actions. He says he hopes to return to society as soon as possible, to work, and to demonstrate through his conduct that he has changed. He also expresses a wish to become a responsible father and son.

15.  Mr Liu also referred me to the cases of HKSAR v Sim Ka Wing (CACC 450/2000)  and HKSAR v Har Tsz Yui [2020] 1 HKLRD 307 for my consideration.

Sentencing Considerations

16.  Any person who commits burglary shall be guilty of an offence, shall be liable on conviction upon indictment to an imprisonment for 14 years.  

17.  The defendant has pleaded guilty to burglary of a commercial premises. According to the sentencing guidelines in AG v Lui Kam Chi [1993] 1 HKC 215 and R v Wong Man [1993] 1 HKC 80, the appropriate starting point for an adult first offender committing burglary of a commercial property is 30 months’ imprisonment. This starting point already presupposes a degree of planning, as noted in Sim Ka Wing at paragraph 9.

18.  The starting point can be adjusted upwards if there are aggravating circumstances such as; (1)  the offence is carefully planned and skilfully executed involving the use of heavy instrument or equipment; (2)  the offence is committed by two or more people; (3)  the offence targets at substantial premises and involves substantial properties; (4)  the offender is a professional burglar and not just an opportunist; (5)  the offender has previous convictions, particularly previous conviction of similar nature, and (6)  the offender commits multiple offences, see HKSAR v Cheng Wai Kai (鄭偉佳) CACC 338&339/2007 at paragraph 15。

19.  In this case, I take into account that there is no evidence the defendant was acting in collaboration with others; he committed the offence alone. The premises were not targeted for unusually valuable property.

20.  The defendant did make several attempts to enter the premises. However, this level of persistence is no more than what is ordinarily inherent in the commission of burglary and does not amount to the type of sophisticated planning that would justify an upward adjustment.

21.  The facts also show that the defendant used a screwdriver to prise open a cashier drawer. Even so, no serious damage was caused to the premises and no confrontation occurred. The value of the stolen property was modest, amounting to approximately HK$4,200 in total. However, the defendant has not made any compensation to the victim, who has therefore suffered a direct economic loss.

22.  Having considered the circumstances of the present offence, the mitigation advanced by Mr Liu and the relevant authorities, I see no basis for departing from the usual sentencing approach applicable to non-domestic burglary. In particular, there is no reason not to adopt the conventional starting point for burglary of commercial premises. Therefore, I adopt a starting point of 30 months’ imprisonment.

23.  The next matter to address is whether any aggravating factors arise on the facts of the case.

24.  In HKSAR v Chan Pui Chi [1999] 2 HKLRD 830, the Court of Appeal emphasized that although an offender must always be sentenced for the offence currently before the court, and not punished again for past crimes, a persistent record of similar offending can legitimately increase the gravity of the present offence for sentencing purposes. Where an offender repeatedly commits the same type of crime, the repetition itself becomes an aggravating feature: it demonstrates that previous sentences have failed to deter, and it highlights the need for the court to protect the public. As the Court of Appeal explained, the starting point appropriate for an offender of good character may need to be increased in the case of a habitual offender, both to reflect the aggravating features of persistence and to impose a deterrent sentence aimed at preventing further repetition. The more serious the underlying offence, the stronger the need for such deterrence in order to safeguard the public.

25.  There is no doubt that the defendant is a habitual offender. He has 22 previous convictions for offences related to burglary, all of a similar nature to the present case. I am of the view that the sentences imposed on him in the past have plainly failed to deter him from reoffending. It is evident that previous punishments have not had any sufficient deterrent effect. In order to deter the defendant and to protect the public, I find it necessary, applying the sentencing principles in Chan Pui Chi, to increase the starting point of 30 months by a further 9 months, resulting in a starting point of 39 months’ imprisonment.

26.  As the defendant pleaded guilty at the first reasonable opportunity, he is entitled to the full one-third discount. Applying that reduction to the adjusted starting point of 39 months results in a sentence of 26 months’ imprisonment. I therefore sentence the defendant to 26 months’ imprisonment.