HKSAR v. HUI KWOK CHUNG (ALSO KNOWN AS XU GUOZHONG)

DCCC 1284/2024

[2025] HKDC 1101

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1284 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)(b) and (4) of the Theft Ordinance, Cap. 210. He also admits the summary of facts prepared by the prosecution. Upon his plea and the facts admitted by him, he is convicted as charged.

Facts

2.  The offence took place inside the electric switch room on the 7^th Floor of Tower 3 (“the Electric Switch Room”) of the construction site at No. 1 Chung Hau Street, Ho Man Tin, Kowloon (“the Site”).

3.  At the material times, Mr. Cheung Chun-kit who was an electrician of Junefair Engineering Company Limited was assigned to work in the Site.

4.  At about 5:30 p.m. on 31 May 2024, after Mr. Cheung had installed electric wires in the Electric Switch Room, he secured the room with an iron chain and a lock.  He then went to the electric switch room on the 8^th Floor which was directly above the Electric Switch Room.

5.  At about 6:10 p.m., while Mr. Cheung was working at the electric switch room on the 8^th Floor, he saw the defendant cutting electric wires inside the Electric Switch Room with a pair of yellow pliers through a hole to be used for connecting cables between the 7^th and 8^th Floor of the building.  Mr. Cheung immediately went to the Electric Switch Room to check it out.

6.  Upon arrival at the Electric Switch Room, Mr. Cheung saw the defendant using a pair of yellow pliers in his left hand to cut electric wires inside the room.  At that time, the defendant was wearing a mask and a glove on his left hand.  Mr. Cheung also saw four pieces of broken electric wires on the floor.  These four broken wires were previously installed by Mr. Cheung in the Electric Switch Room.  Each of the broken wires was about 1.6 metres in length.  Their total value was about HK$1,000.

7.  Mr. Cheung then confronted the defendant, but the defendant fled away immediately.  Mr. Cheung chased after him. When they arrived at Room AB on the 1^st Floor, the said pair of pliers fell out from the defendant’s trousers’ pocket. When they arrived on LG1 of Tower 2, Mr. Cheung intercepted the defendant who was without his mask and glove at that point of time. The defendant then ran to the water pump room and slammed shut the door, during which he hurt his left middle finger.  A report was then made to the police, and the defendant was arrested.

8.  The defendant was not a construction worker employed to work at the Site.

Criminal record

9.  Prior to this case, the defendant had been sentenced by the courts in Hong Kong on four occasions involving a total of four offences.  In April 2003 and October 2016, he was given a suspended sentence on each occasion for the offence of possession of dangerous drugs.  In June 2021, he was fined for the offence of gambling in a gambling establishment.  He was last sentenced on 16 May 2022 when he was fined HK$3,500 for the offence of theft (shoplifting). 

10.  Hence, the defendant has no previous conviction for the offence of burglary, and he has no actual experience of serving a sentence inside prison.

Personal and family background

11.  The defendant was born on 30 April 1970 in the mainland.  He is now 55 years old.  He received education in the mainland up to Form 3.  He settled in Hong Kong in 2014.  He had previously worked as a construction site worker, but he was unemployed prior to his arrest.

12.  The defendant is a divorcee.  He has no contact with his ex-wife and their daughter who is now 20 years old.  The defendant has a girlfriend. She has a son aged 4 out of another relationship.  The defendant was living with his girlfriend and her son before he was remanded in custody.

Mitigation

13.  Mr. Robert Chan, learned counsel for the defendant, stresses that while the offence was serious, the defendant had acted amateurishly.  The tools used by the defendant, namely, a facemask, a glove and a pair of pliers, were only basic tools for burglary.  In addition, the defendant had not succeeded in stealing anything, and he had not harmed anyone.  Mr. Chan points out that the defendant committed the offence simply out of greed.  He accepts that the offence was not opportunistic, but aggravating features such as those listed in the case of HKSAR v Cheng Wai Kai[1] were completely absent in the present case.

14.  Mr. Chan points out that the defendant regrets his action now and promises not to re-offend.  Relying on the cases of The Queen v Wong Man[2], Attorney General v Lui Kam Chi[3], and HKSAR v Sim Ka Wing[4], Mr. Chan submits that the conventional starting point of 2½ years’ imprisonment is applicable, and that the defendant is entitled to the usual one-third discount of the sentence due to his guilty plea.

Reasons for sentence

15.  Mr. Chan does not ask for a non-custodial sentence.  He is clearly right because burglary has always been regarded by the courts in Hong Kong to be a very serious offence.  The Court of Appeal has reiterated time and again that unless there are very special circumstances in the case or there are exceptionally strong mitigating factors, the proper sentencing option for this offence is imprisonment even if the defendant pleads guilty and has a clear record: HKSAR v Wong Yiu Kuen[5], HKSAR v Po Yan Chuen[6], and HKSAR v Wan Ka Kit[7].

16.  As to the length of the prison term, the Court of Appeal has laid down the tariff that, for a non-domestic burglary, the usual starting point is 2½ years’ imprisonment.  The defendant committed the offence inside the Electric Switch Room, which was clearly a non-domestic premises. Hence, I accept Mr. Chan’s submission that the conventional starting point of 2½ years’ imprisonment is applicable here.

17.  I also accept Mr. Chan’s submission that there was no aggravating feature in the offence committed by the defendant that requires an upward adjustment of the conventional starting point. 

18.  I also hold that the defendant’s sentence should not be increased by reason of his criminal record.  He is not a repeated offender for the offence of burglary.

19.  On the mitigation side, the defendant has pleaded guilty in good time.  He is clearly entitled to the usual one-third discount of the term of imprisonment.

20.  However, it is also clear that there is no other mitigating factor that may reduce the sentence any further.

21.  For these reasons, the defendant is sentenced to serve a term of imprisonment for 20 months.

[1] CACC338 & 339/2007

[2] CACC372/1992; [1993] 1 HKC 80

[3] CAAR1/1993; [1993] 1 HKC 215

[4] CACC450/2000

[5] [2002] 1 HKLRD 712

[6] CACC232/2001

[7] [2006] 3 HKLRD 9