HKSAR v. LUI CHUN YIP

DCCC 1142/2024

[2026] HKDC 238

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1142 OF 2024

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

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

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

REASONS FOR SENTENCE

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

1.  The Defendant pleads guilty to 2 charges, Charge 1 - Burglary, contrary to Section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210. Charge 2 (Amended) - Attempted Theft, contrary to Section 9 of the Theft Ordinance, Cap. 210 and Sections 159G and 159J of the Crimes Ordinance, Cap.200.

Amended Summary of Facts

2.  Mr. CHAN Kam-ming (“CHAN”) was the sole occupant of Room C, 2^nd Floor, No. 69, Nam Chong Street, Shamshuipo, Kowloon, Hong Kong (“the Flat”) and was not acquainted with the Defendant. At around 6:00 a.m. on 6^th April 2024, CHAN left the Flat without completely closing the only window of the Flat.

3.  At around 6:00 p.m on the same day, CHAN returned to the Flat and found that the window was opened, the Flat was ransacked and a television, a DVD player and cash of HK$500 were missing. The total value of the stolen property was HK$2,200, the case was reported to Police.

4.  The CCTV footage retrieved from the store at No. 169A, Yee Kuk Street, Shamshuipo showed that at around 10:45 a.m. on 6^th April 2024, the Defendant carried a grey television while walking across Yee Kuk Street.

5.  Mr. CHEUNG Sui Yat (“CHEUNG”) was the facility manager of Tsung Tsin Primary School and Kindergarten situated at No. 58, Tai Po Road, Shek Kip Mei, Kowloon, Hong Kong (“the School”). The Defendant was not employed to work in the school nor was he a student there.

6.  At around 8:15 a.m. on 11^th April 2024, CHEUNG returned to the school and saw the Defendant wearing a yellow reflective long-sleeves T-shirt, was looking around and was cleaning up the floor at the slope near Playground B of the School, the slope was part of the school and was enclosed by a fence. When CHEUNG tried to ascertain the identity of the Defendant, the Defendant did not respond. CHEUNG found that a copper water pipe (“the Pipe”) that was around 3.5 metres long had been cut off and placed near the hillside. When CHEUNG asked the Defendant the reason of cutting off the Pipe, the Defendant offered to restore the Pipe and walked away, claiming that he would show CHEUNG his staff card upon return. CHEUNG waited there for around 5 minutes but the Defendant did not return.

7.  At around 9:00 a.m. on 11^th April 2024, a colleague of CHEUNG found the Defendant in the vicinity of the slope next to the Police Sports and Recreation Club, No. 430 Sai Yeung Choi Street North. CHEUNG immediately went there, he recognised the Defendant who had changed his yellow long-sleeves T-shirt into a green one, the case was reported to Police.

8.  PC 61389 went to the School for investigation, he found that there were 2 pieces of copper pipe fittings inside a drain which was around 1.5 metres away from the location where CHEUNG first saw the Defendant and a clamp was found next to the drain. A saw, a copper ring and a yellow reflective long-sleeves T-shirt were found on the slope, none of the items mentioned above was the property of the School, there was a hole around 60 cm x 40 cm on the chain-linked fence between the School and the slope.

9.  The CCTV footage retrieved from the School showed that the Defendant walked out from the fence next to the car park of the School at around 8:21 a.m., he walked pass the car park and left the School through its main entrance.

10.  At around 10:13 a.m. on 11^th April 2024, PC 61389 arrested the Defendant for the offence of “Attempted Burglary” near the School. Under caution, the Defendant said, inter alia, that he entered the School for picking up things.

11.  At around 10:15 a.m., PC 27872 found that the characteristics of the Defendant matched the culprit of Charge 1 captured by the CCTV footage of Yee Kuk Street, the Defendant was further arrested for the offence of Burglary. Under caution, the Defendant stated that he picked up the television from the staircase of No. 69, Nam Cheong Street.

12.  At around 10:24 pm on 11^th April 2024, a cautioned video-recorded interview was conducted with the Defendant by PC 21049, in which the Defendant said, inter alia, the followings:-

(a) In respect of Charge 1, on 6^th April 2024, he picked up a television in the staircase in No. 69 Nam Cheong Street out of greed and sold the television in Yee Kuk Street in return for several dozen dollars. He recognised himself in the screen capture of the relevant CCTV footage.

(b) In respect of Charge 2, Defendant said he earned a living by picking up trash. On 11^th April 2024, he entered the slope of the School when he was picking cans on the slope. He was confronted by a man and accused of damaging the Pipe of the School, he offered to repair the Pipe but he soon left the School because he did not have any instrument to repair. He admitted placing 2 pieces of copper pipe fittings inside the drain because they impeded him from cleaning up the soil; there were a copper ring and a saw at the place where he was arrested, he was the one who picked up the copper ring and the saw belonged to his friend.

13.  The Defendant now admits that on 6^th April 2024, having entered as a trespasser part of a building known as Room C, 2^nd Floor, No. 69 Nam Cheong Street, he stole therein one television, one DVD player and cash of HK$500. He further admits that on the 11^th day of April 2024, at the slope near Playground B of the School, he attempted to steal one water Pipe, property belonging to Tsung Tsin Primary School and Kindergarten.

Mitigation & Sentencing Considerations

14.  The Defendant is 44 years old, he is divorced and has 2 sons aged 24 and 14. He was educated up to Form 3. He has 12 previous convictions between 2003 and 2023, the first 5 convictions are all related to dangerous drugs and there are 4 convictions similar to Charge 2.

15.  On behalf of the Defendant, Counsel Mr. David Cheung informed the Court that prior to arrest, the Defendant was a street sleeper with no fixed place of abode, Defendant relied on scavenging, selling what he could find on the streets, he also received donations from charities and food banks. On arrangement and support he received from the charitable organization named “Side by Side”, Defendant has stayed in a shared accommodation in the building referred in Charge 1 for 2 months after he was last discharged from prison. Thereafter the Defendant became a street sleeper and returned to the building occasionally to assist the rubbish collectors there to earn some income. On 6^th April 2024, Defendant went to the building again and saw the door to the Flat opened, Defendant committed Charge 1 out of greed, he has sold the stolen appliances for money.

16.  For Charge 2, Defendant said he had been sleeping near the School prior to the offence, he went to the slope of the School on 11^th April 2024 to clear out rubbish, he saw the Pipe has been cut and was not attached to anything. He assumed it was part of the repair work, waiting to be fitted. He admitted that he took the Pipe and set it to one side, intending to take it with him to sell to the scrapers when he left.

17.  In HKSAR v. Lau Pang, Criminal Appeal No. 252 of 2004, the Court of Appeal reiterated that the appropriate starting point for burglary to domestic premises is 3 years imprisonment. I accept the submission made by Counsel on behalf of the Defendant that the burglary happened at daytime when the occupant of the Flat was not there, no one was frightened or subjected to violence in the course of commission of the offence, there are no aggravating features calling for enhancement of sentence on top of the 3 years starting point.

18.  In respect of Charge 2, Counsel for Defendant submitted 2 cases sentenced in the District Court, namely, HKSAR v. Chan Tak Cheung, DCCC 7 of 2016 and HKSAR v. Yau Chi Wai, DCCC 983 of 2016 for my reference and consideration. I find the factual circumstances of the present case close to that of HKSAR v. Chan Tak Cheung, in that case properties of the total value of HK$13,000, including 1 copper pipe 15 metres in length valued at HK$6,000 placed in open space fenced by wire mesh outside a village house were stolen.  The Court adopted a starting point of 12 months and reduced the sentence to 8 months on Defendant’s guilty plea.

19.  The amended summary of facts of the present case revealed that the 3.5 metres long Pipe referred in Charge 2 was cut off, Defendant admitted that he took the Pipe, set the Pipe by one side and intended to take it away for selling to scrapers. Though Defendant claimed that he did not cut off the Pipe, but he admitted under caution that a saw found in the vicinity belonged to his friend, he placed 2 pieces of copper pipe fittings inside a drain just 1.5 metres away from the location where he was first spotted and there was a clamp found next to the drain.

20.  Having considered the facts, Defendant’s admissions, the slope of the School and the exhibits found near the drain on the slope as shown in the photographs, I am satisfied that Defendant’s acts of setting aside the Pipe are more than preparatory to the offence of Theft though there is no direct evidence to prove that he cut off the Pipe, but for the fact that he was timely spotted and questioned by the staff of the School, Defendant would have completed the appropriation of the Pipe. It is now confirmed that the Pipe was recovered at the scene, but there must be some inconvenience caused and the School had spent HK$20,000 to repair it. I consider a starting point of 12 months imprisonment after trial is just and fair to reflect the culpability of Defendant in Charge 2.

21.  For Charge 1, I adopt a starting point of 3 years’ imprisonment, allowing 1/3 discount for his guilty plea, I sentence the Defendant to 2 years imprisonment. For Charge 2, I adopt a starting point of 12 months imprisonment and reduce the sentence to 8 months for his guilty plea.

22.  The 2 offences are distinct and separate although both are acts of dishonesty, the offences took place at different locations, different victims were affected and different properties are involved; the 2^nd offence was committed just 5 days after the first one, the Defendant cannot complain if the sentences for the 2 charges are to run consecutive to each other. However, taking into account the totality principle and the strong sense of remorse shown by Defendant in these proceedings, I shall order 4 out of the 8 months imprisonment imposed on Charge 2 to run consecutively to Charge 1, making a total term of 28 months imprisonment.