HKSAR v. YU XIULIN AND ANOTHER

DCCC 1278/2023

[2025] HKDC 31

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1278 OF 2023

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REASONS FOR SENTENCE

D1 and D2 are jointly charged with 4 offences of "Burglary" (Charges 1, 3, 5, and 6). D1 alone faces 2 charges of "Burglary" (Charges 2 and 4)  and one charge of "Going equipped for stealing" (Charge 7). D2 alone faces one charge of "Going equipped for stealing" (Charge 8). They both pleaded guilty to their respective charges.

Summary of Facts

2.  Both defendants are mainland residents.  In June and July 2023, they came to Hong Kong legally twice.  During their 2 visits, they committed a total of 4 burglaries jointly; whereas D1 committed 2 burglaries by himself.  A total of 6 residential flats were burgled.

Charge 1 (Un Lok House, 17 June 2023)

3.  Both defendants broke into the flat as particularized in Charge 1 ("Flat 1")  by breaking the locks of its metal gate and wooden door.  They ransacked the place, but the resident of Flat 1 found nothing missing.

4.  CCTV footage showed that about 5:35 p.m. on 17 June 2023, D1 and D2 entered Un Lok House and took the elevator to the 28^th Floor.  About 6:17 in the same afternoon, they took the elevator from the 24^th Floor to the 26^th Floor.

5.  Fingerprints were lifted from the metal gate and wooden door of Flat 1.  The one on the metal gate belonged to D1's right palm; whereas the one on the wooden door, D2's left palm.

Charge 2 (Easey Building, 17 June 2023)

6.  D1 broke into the flat as particularized in Charge 2 ("Flat 2").  The resident of Flat 2 found that cash in the sum of about HK$80,000 and cash of foreign currencies equivalent to about HK$5,000 were missing.

7.  CCTV footage showed that about 6:40 p.m. on 17 June 2023, D1 entered Easey Building and took the elevator from the Ground Floor.  He took the elevator again at 6:43.  He took the elevator to the Ground Floor at 7:12 and left the building at 7:13 in the same evening.

Charge 3 (No.121 Sai Yee Street, 18 June 2023)

8.  Both defendants broke into the flat as particularized in Charge 3 ("Flat 3")  by prizing open its metal gate and breaking the lock of its wooden door.  The resident of Flat 3 found that 3 mobile phones (valued at HK$5,000, HK$3,500 and RMB4,000 respectively)  and 6 packs of cigarettes (valued at HK$350 in total)  were missing.

9.  CCTV footage showed that about 7:27 p.m. on 18 June 2023, D1 and D2 entered the building situated at No.121 Sai Yee Street and took the elevator to the 10^th and 11^th Floors respectively.  About 7:57 in the same evening, they took the elevator from the 9^th Floor to the Ground Floor and left the building.

10.  Fingerprints which belonged to D2's left thumb and left middle finger were found on the metal gate of Flat 3.

Charge 4 (On Ning Building, 19 June 2023)

11.  D1 broke into the flat as particularized in Charge 4 ("Flat 4).  The resident of Flat 4 found the following items missing:  (i)  20 lai see packets (valued at $5,000 in total); (ii)  a pair of earrings (valued at $30,000); (iii)  a necklace with pendant (valued at $15,000); (iv)  a bracelet (valued at $10,000); and (v)  a mobile phone (valued at $1,100).

12.  CCTV footage showed that between 4:39 p.m. and 5:19 p.m. on 19 June 2023, D1 entered On Ning Building; took the lift; checked the lock of the rear door twice; and left the building.  He entered the building again from the rear door at 6:59 p.m. and left at 8:04 in the same evening.

Charge 5 (Peace Mansion, 17 July 2023)

13.  Both defendants broke into the flat as particularized in Charge 5 ("Flat 5")  by prizing open its metal gate and wooden door.  The residents of Flat 5 found that cash in the sum of $204,500; a watch (valued at $3,500); and a backpack missing.  The backpack was later recovered from the garbage placed at the back staircase of Peace Mansion.

14.  CCTV footage showed that about 5:34 p.m. on 17 July 2023, D1 and D2 entered Peace Mansion and took the elevator.  About 7:05 in the same evening, they left Peace Mansion.

Charge 6 (Peace Mansion, 17 July 2023)

15.  Both defendants broke into the flat as particularized in Charge 6 ("Flat 6")  by prizing open its metal gate and wooden door.  They ransacked the place, but the resident of Flat 6 found nothing missing.

16.  CCTV footage showed that about 5:34 p.m. on 17 July 2023, D1 and D2 entered Peace Mansion and took the elevator.  About 7:05 in the same evening, they left Peace Mansion.

17.  Fingerprints which belonged to D1's left thumb and D2's left palm were found on the wooden door of Flat 6.

Arrest and admissions

18.  Respectively on 20 June and 18 July 2023, PC 17606 (PW16)  viewed the CCTV footage of On Ning Building and Peace Mansion.

19.  On 18 July 2023, PC 9465 (PW15)  viewed the CCTV footage of Peace Mansion as well.

20.  On 18 July 2023, whilst on patrol near Exit C of Mong Kok East Station, PWs 15 and 16 saw D1, D2 and a male ("the Male")  entering the station.  PWs 15 and 16 arrested D1 and D2 respectively for "Burglary".

21.  Upon search, PW15 found the following items in the black backpack carried by D1: (i)  1 crowbar; (ii)  1 screwdriver; (iii)  2 skeleton keys; (iv)  1 box of skeleton key components; and (v)  1 electronic door lock decoder.  PW15 then arrested D1 for "Going equipped for stealing".  Under caution, D1 admitted that he wanted to use the tools to steal together with D2 and the Male.

22.  Upon search, PW16 found the following items on D2:  (i)  1 cap; and (ii)  1 L-shaped screwdriver.  PW16 then arrested D2 for "Going equipped for stealing".

23.  In his video recorded interviews, D1 admitted having committed the burglaries in Charges 1, 2, 3, 5 and 6 together with D2.  He identified himself in the relevant CCTV footage.  Regarding Charge 4, D1 agreed that the backpack seized from him was similar to the one carried by a male depicted in the CCTV footage of On Ning Building.  Regarding Charge 7, D1 claimed that he and D2 came to Hong Kong for travelling and they later decided to steal money.  He brought the tools contained in the backpack from the mainland intending to use them to steal money. 

24.  In his video recorded interview, D2 claimed that he picked up the cap and the L-shaped screwdriver from the staircase of a building and a toilet respectively.

Immigration records

25.  D1 entered Hong Kong at 6:56 a.m. on 17 June 2023 and departed at 10:45 a.m. on 20 June 2023.  He entered Hong Kong again at 11:09 a.m. on 17 July 2023.

26.  D2 entered Hong Kong at 8:58 a.m. on 17 June 2023 and departed at 10:45 a.m. on 20 June 2023.  He entered Hong Kong again at 11:09 a.m. on 17 July 2023.

Mitigation

D1

27.  He is 48 and has a clear record.  His counsel Mr. But informed me that D1 is divorced and has a son (aged 24).  During the pandemic, he had no job and no income.  In March 2023, D1 met D2 at a construction site.  After working for a few days, D2 proposed a sightseeing trip to Hong Kong.  In mitigation, Mr. But submitted that D1 and D2 decided to steal money only after they arrived at Hong Kong.  Furthermore, D1 has been cooperative with the Police throughout.  He made full and frank admissions.  Also, all 6 burglaries took place when no one was present at the respective flats.  No residents were harmed or put in fear.

D2

28.  He is almost 46 and has a clear record.  His counsel Mr. Chan informed me D2 has a daughter (aged 14). He was a construction worker earning RMB7,000 per month.  In mitigation, Mr. Chan submitted that D2 decided to plead guilty at the earliest available opportunity.

Sentence

29.  Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious)  is no mitigating factor for committing a crime. Although D1 and D2 came to Hong Kong through legal means, it is clear to me that they came to Hong Kong intending to commit crimes, at least during their 2^nd trip in July 2023.  I have reminded myself that whatever D1 had said about others cannot be used against those persons (including D2).

30.  The normal starting point for domestic burglary is 3 years' imprisonment.  D1 and D2 took 2 trips to Hong Kong respectively in June and July 2023.  During the 1^st trip (which lasted for 3 days), they committed 2 burglaries together (i.e. Charges 1 and 3); whereas D1 committed 2 more burglaries alone (i.e. Charges 2 and 4).  During the 2^nd trip, they committed 2 burglaries together (i.e. Charges 5 and 6)  on the day of their arrival.  By pure luck or sharp identification made by the police officers, they were stopped and searched on the following day.  Mr. But, with his usual fairness and willingness to assist, has prepared a chart listing the properties stolen in each charge.  The total monetary value of property loss in all 6 burglaries amounted to almost $370,000.  Bearing all these factors in mind[1], I would increase the starting point of each burglary charge to 39 months.

D1

31.  For Charges 1 to 6, I adopt 39 months' imprisonment each as the starting point.  With the timely guilty plea, the sentence for each charge is reduced to 26 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence D1 to 26 months' imprisonment for each charge.

32.  For Charge 7, there is no sentencing tariff for the offence of "Going equipped for stealing".  D1 had physical possession of a total of 6 items, all of which are tools typically used by burglars (professional or otherwise).  Had he not been arrested by the Police on the 2^nd day of his 2^nd trip to Hong Kong, I have no doubt that he would commit more burglaries using those tools.  D2's counsel Mr. Chan has placed before me the Court of

Appeal's decision in HKSAR v Li Ho Yin [2013] 3 HKC 505. I adopt a starting point of 15 months' imprisonment for this charge. With the timely guilty plea, the sentence is reduced to 10 months. I sentence D1 to 10 months' imprisonment for this charge.

33.  Bearing in mind the totality principle, I agree with Mr. But that a global a starting point of 6 years' imprisonment is appropriate for Charges 1 to 7 for D1.  With the timely guilty pleas, the overall sentence becomes 4 years.  Hence, I order the sentences to run in the following manner :-

(i)  Charges 1 to 4 concurrent;

(ii)  Charges 5 and 6 concurrent, but 16 months consecutive to Charges 1 to 4; and

(iii)  6 months in Charge 7 consecutive to Charges 1 to 6.

D2

34.  For Charges 1, 3, 5 and 6, I adopt 39 months' imprisonment each as the starting point.  With the timely guilty plea, the sentence for each charge is reduced to 26 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence D2 to 26 months' imprisonment for each charge.

35. For Charge 8, only one L-shaped screwdriver was involved. I adopt a starting point of 9 months' imprisonment for this charge. With the timely guilty plea, the sentence is reduced to 6 months. I sentence D2 to 6 months' imprisonment for this charge.

36. Bearing in mind the totality principle, I consider a global starting point of 4.5 years appropriate for Charges 1, 3, 5, 6 and 8 for D2. With the timely guilty pleas, the overall sentence becomes 3 years. Hence, I order the sentences to run in the following manner :-

(i)  Charges 1 and 3 concurrent;

(ii)  Charges 5 and 6 concurrent, but 8 months consecutive to Charges 1 and 3; and

(iii)  2 months in Charge 8 consecutive to Charges 1, 3, 5 and 6.