HKSAR v. Lo Kin Man

DCCC 1718/2025 & DCCC 142/2026

(Heard Together)

[2026] HKDC 1623

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1718 OF 2025

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 142 OF 2026

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REASONS FOR SENTENCE

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1.There are 4 defendants in Case No. DCCC142/2026. They are referred to herein as D1 to D4 respectively. There are two charges in the Charge Sheet. The alleged offences took place on 6 May 2025. Charge 1 is a joint charge against all 4 defendants. It is for the offence of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210. Charge 2 is against D3 only. It is for the offence of fraud, contrary to section 16A of the Theft Ordinance. D1 to D4 plead guilty to Charge 1, and D3 pleads guilty to Charge 2 as well. They admit the relevant facts. D1 to D4 are accordingly convicted of Charge 1, and D3 is also convicted of Charge 2.

2.There is only one defendant in Case No. DCCC1718/2025.  He is the D3 in DCCC142/2026.  There is only one charge of burglary contrary to section 11(1)(b) and (4) of the Theft Ordinance in the Charge Sheet.  The alleged offence took place on 4 June 2025. D3 pleads guilty and admits the relevant facts.  He is convicted accordingly.

The Admitted Facts

DCCC142/2026

3.At all the material times, Madam Leung Wing-yee (“Madam Leung”) and her mother Madam Wong Shuk-kam (“Madam Wong”) were residing at Room 2012 (“Room 2012”), Sheung Shun House, Sheung Tak Estate, Tseung Kwan O.

4.At 10 am on 6 May 2025, Madam Leung and Madam Wong left Room 2012 with the door of Madam Leung’s bedroom, as well as the wooden door and the metal gate at the entrance of Room 2012 locked. 

5.At 2:10 pm on the same day, a HSBC staff informed Madam Leung that her HSBC Signature credit card (“the HSBC credit card”) had been used in two transactions for the total amount of HK$6,036 in a 7-11 Convenience Store.  Madam Leung had put her HSBC credit card inside a cabinet in her bedroom before she left home. Madam Leung then suspended the HSBC credit card immediately.  She also related the matter to her mother Madam Wong.

6.At 4 p.m. on the same day, Madam Wong returned home and found sign of damage on the door of Madam Leung’s bedroom, though the wooden door and the metal gate at the entrance of Room 2012 were locked.  A report was made to the police.

7.There was ransacking inside Madam Leung’s bedroom.  One of the drawers of a cabinet was abnormally opened. 

8.Madam Leung reported that her two Apple MacBook Air, one Apple iPhone, one Apple watch, one camera, 4 toy figures, 4 pairs of shoes, 5 bags, 5 credit cards (including the HSBC credit card), some letters, cash of ￥500 RMB, cash of ￥60,000 Japanese Yen, cash of some other foreign currencies (including WON, SGD, TWD, THB), a wallet, two passports, an international driving licence, a folder, 2 vacuum flasks and 5 mugs were stolen.  The total value of these stolen items was HK$31,071.  Madam Leung suffered a total loss of HK$37,107 when the unauthorized use of the HSBC credit card was also taken into account. 

9.Madam Wong reported that a pair of shoes, a handbag and some coins (worth HK$150) were missing.  The total value of the stolen items was HK$850.

10.D3 used the HSBC credit card to purchase two Mastercard prepaid cards in two separate transactions in the total sum of HK$6,036 in the 7-11 convenience store at Choi Wan Commercial Complex, 45 Clear Water Bay Road, Ngau Chi Wan, Kowloon between 12:38 pm and 12:39 pm on 6 May 2025.  D3 then tried to purchase two more prepaid cards but failed because the credit limit of the HSBC credit card had already been exceeded.  D3 then left.

CCTV evidence

11.CCTV tracing revealed that between 4:34 am and 7:07 am on 6 May 2025, D3, D4 and D2 entered Kam Lam House, Choi Wan Estate, where D1 resided, and that at 9:17 am, D1 to D4 left Kam Lam House together, with D3 carrying a board trolley.  Between 10:15 and 10:18 am., D1 to D4 walked along Tong Ming Street, Tseung Kwan O, towards Sheung Shun House where Madam Leung and Madam Wong resided. 

12.The CCTV footages further showed that between 10:20 and 10:21 am, D1, D2 and D3 entered Sheung Shun House and took the lift.  D2 and D3 were each wearing a mask.  D3 was also wearing a pair of gloves and was still carrying a board trolley.  D1 exited the lift first.  D2 and D3 also exited the lift at 10:22 am.

13.On the other hand, CCTV footages showed at 10:21 am, D4 took the lift inside TKO Spot which was the shopping mall at Sheung Tak Estate.  At 10:26 am, D4 was loitering outside Sheung Shun House.  D4 was wearing a mask at that time.

14.Between 10:31 and 10:32 am, D2 left Sheung Shun House.  D2 was wearing a pair of gloves.  He was carrying a board trolley and a “red-white-blue plastic bag”.

15.Between 10:36 and 10:37 am, D1 and D3 left Sheung Shun House.  D3 with a pair of gloves on his hands was carrying a “red-white-blue plastic bag”.

16.Between 10:40 and 10:44 am, D1 to D4 regrouped at TKO Spot.  At that time, D1 was also wearing a mask.  D4 once stood in the middle of the vehicular road.  D4 was also holding a board trolley.  All of them then took a taxi and left.

17.Between 11:07 and 11:08 am, D1 to D4 entered Kam Lam House where D1 resided.  They were in the same respective attires as earlier that day.  D2 was carrying a “red-white-blue plastic bag” and a board trolley, while D3 was carrying a “red-white-blue plastic bag”.

18.At 12:14 pm, D2 left Kam Lam House and carried with him some plastic bags.  At that time, he was no longer wearing a mask.  About 12:18 pm, D2 entered Yau Lung House (in Choi Wan Estate) where D2 resided.  He took the lift.  He no longer carried any plastic bag.

19.At 12:25 pm, D3 left Kam Lam House and was carrying one large black bag.  At that time, he was no longer wearing a mask, and he was wearing a short-sleeve shirt instead of the sleeveless shirt that he had worn earlier.

D1’s statementsunder caution during video recorded interview (“VRI”)

20.D1 was arrested by the police on 10 May 2025.

21.D1 stated under caution during his VRI that a few days before 6 May 2025, D3 asked him to go to a flat (i.e. Room 2012) to help, and that D1 would get a television as a reward.  D1 then invited his friend D2 to join.  D1 to D4 took a bus together to go to Sheung Tak Estate, and they took with them a trolley belonging to D1 from D1’s home.  D1, D2 and D3 entered Room 2012.  Whilst inside Room 2012, D3 wore gloves and forcibly kicked open the door of a bedroom.  D2 was also wearing gloves.  Later, all of them (i.e. D1 to D4) returned to D1’s home in Kam Lam House, Choi Wan Estate by taxi.  D3 then inspected the items stolen and put them into two plastic bags. 

D2’s statementsunder caution during VRI

22.D2 was arrested by the police on 10 May 2025.

23.D2 stated under caution during his VRI that on 6 May 2025, D1 asked him to go to D1’s home. Upon arrival, D3 and D4 were there.  Later, all of them (i.e. D1 to D4) took a bus to Tseung Kwan O.  They brought along a board trolley and two “red-white-blue bags” which were taken from D1’s home.  Upon arrival, D2 and D3 followed D1 to enter Sheung Shun House while D4 stayed on the ground floor.  They arrived at Room 2012.  D3 pressed the doorbell.  No one answered.  D3 then took out keys from his pockets and used the keys to unlock the wooden door and metal gate to enter Room 2012.  D3 then forcibly kicked open a bedroom door inside Room 2012.  D2 took some dolls, bowls and plates from Room 2012, and put them inside a “red-white-blue bag”.  D1 then told D2 to leave first and wait on the ground floor.  The group later rejoined on the ground floor and went back to D1’s home by taxi.  Whilst at D1’s home, D3 took out the items from the two “red-white-blue bags”, which included bank credit cards, passports, laptop computers, and cash in different currencies.  D2 returned home afterwards.

D3’s statementsunder caution during VRI

24.D3 was arrested by the police on 12 June 2025 for the offence that formed the subject matter of Case No. DCCC1718/2025.  He was arrested for this case on 13 June 2025.

25.In respect of this offence, D3 stated under caution during his VRI that he got acquainted with D1 through D4.  About a week before the day of the offence, D1 asked D3 and D4 to assist in the burglary, and each one of them would receive a reward of HK$500.  At around 4 am on 6 May 2025, D3 and D4 went to D1’s home at Choi Wan Estate, and all of them sat there before setting off.  Later, all of them (i.e. D1 to D4) took a bus together to go to Tseung Kwan O. D2 to D4 followed D1.  They brought with them a board trolley, gloves and some cleaning tools.  Only D1, D2 and D3 entered Sheung Shun House.   D3 used keys to open the doors to enter Room 2012.  They were all wearing gloves.  D2 took some mugs in the living room.  D1 attempted to kick open the bedroom door claiming that the lock was broken, and D3 assisted by pushing the door.  D1 entered the bedroom and took away some items there. Later, D1 put the items taken (including some shoes) into 3 or 4 “red-white-blue bags”.  D1 to D3 stayed in Room 2012 for about 10 minutes and left together.  D3 locked the entrance doors of Room 2012 before leaving.  They joined D4 on the ground floor and returned to Choi Wan Estate by taxi.

26.D3 also admitted under caution that he used a credit card not belonging to him to purchase two prepaid cash cards at HK$3,018 each at the 7-11 Shop on 6 May 2025.  After that round of purchase, D3 attempted to make another round of purchase but failed because the credit limit was insufficient.

D4’s statementsunder caution during VRI

27.D4 was arrested by the police on 26 September 2025.

28.D4 stated under caution during his VRI that he knew D1 and D3, but did not know D2.  He only knew that D2 was D1’s friend.  On 6 May 2025, he and D3 went to D1’s home at about 4 am to help later.  At about 9 am, all 4 of them (i.e. D1 to D4) took a bus together.  They were also carrying a trolley taken from D1’s home.  D1 created a WhatsApp group for the 4 of them.  D4 admitted that he (D4) said in the WhatsApp group that D3 should not be a “big mouth”.  The group was later deleted.  For a period of time, D1, D2 and D3 went somewhere and D4 did not join them.  Later, D4 reunited with D1 to D3.  D2 and D3 were each carrying a bag.  D1 to D4 then left the scene by taxi.  They eventually went to D1’s home.  D4 paid the taxi fares.  After realizing that the police were looking for D4, D4 was too scared and no longer wore the clothing he had worn on 6 May 2025 at the time of the offence.

Digital forensic examination

29.D1’s mobile phone and that of D2 were examined and revealed that: -

(a) In D1’s smart phone, the contacts of D2, D3 and D4 were found.

(b)In D2’s smart phone, the contacts of D1, D3 and D4 were found. The call history showed that D2 called D1 and D4 respectively on the offence date. The messages in the WhatsApp group and those sent between D1 and D2 were retrieved.

30.The police retrieved from the smart phone of D2 two sets of WhatsApp text and voice messages.  The first set was the WhatsApp text and voice messages for the WhatsApp group between D1 to D4 which was created by D1 (“the WhatsApp Group messages”).  The second set was the WhatsApp text and voice messages between D1 and D2 only (the “D1 and D2 WhatsApp messages”). 

31.A transcript of the WhatsApp Group messages was produced without objection during the plea and sentence hearing.  Counsel for all the defendants confirmed that their respective client was a member of this WhatsApp group, and that in this group, “阿雄” was D1, “阿文” was D2, “金毛囝” was D3, and “細彈” was D4.

32.A transcript of the D1 and D2 WhatsApp messages was produced without objection during the plea and sentence hearing.  It was likewise admitted that “阿雄” was D1, and “阿文” was D2.

DCCC1718/2025

33.At all material times, Madam Chen Xiaohong resided at Room E (“Room E”), Flat K, 1/F, Lee Hing Building (“the Building”), 107 Fa Yuen Steet, Mongkok, Kowloon, Hong Kong. Room E was the home of Madam Chen.

34.At about 8:30 pm on 3 June 2025, Madam Chen returned to Room E.  She did not lock its door.  She placed her LV handbag (valued at HK$18,000) on the table next to her bed. Inside the handbag, there were one Gucci wallet (valued at HK$2,500), cash of HK$1,200, cash of RMB￥200, one Hong Kong identity card, one home visit permit, two ATM cards, one Octopus card (valued at HK$50 with HK$100 stored value), one security personnel permit, and one key (valued at HK$70).

35.At about 10 p.m. on 3 June 2025, Madam Chen slept on her bed inside Room E.  She woke up at around 3 a.m. on 4 June 2025 and discovered that her LV handbag together with its contents missing.

36.CCTV footage at the Building showed that D3 tried to enter the Building through its backdoor at about 11:58 pm but was unable to do so.  He then followed other persons and entered the Building at 11:59 pm.  About 18 minutes later at 00:17 am on 4 June 2025, D3 left the Building with the handbag of Madam Chen.  Footage of another CCTV camera outside the Building showed that D3 was running away from the Building at 00:20 am on 4 June 2025.

37.On 12 June 2025, D3 was arrested and admitted under caution that he had stolen a LV handbag and spent all the money inside, and that he had thrown away the handbag and the other items within it.

38.During a video-recorded interview on 13 June 2025, D3 admitted the following under caution:

(a) Around mid-night of 4 June 2025, he went to a building near Mongkok New Town Mall. As the backdoor of the building was locked, he went to its front door and followed others to enter the building after someone had unlocked the door with a password.

(b)He took the lift upstairs. After a few minutes, he went to a unit where he opened the door. The door was not locked.

(c) He entered a room in that unit. He saw someone sleeping and a handbag was next to this person. He stood for a while and concluded that the person was asleep. He took away the handbag and left via the back door of the building.

(d)He entered the room with the intention to steal. He wanted to take the money inside the handbag.

(e) He left by taxi. He found a wallet inside the handbag, a key, cash of more than a thousand Hong Kong dollars and several hundred RMB. He took all the money and threw away the handbag and its other contents through the window of the taxi.

Criminal record of the defendants

39.D1 has 7 previous convictions, and none of them was for the offence of burglary.  He was convicted of theft in 2005 and was put on probation for 18 months.  He was last sentenced on 24 November 2015 when he was sentenced to 6 years’ imprisonment for the offence of trafficking in dangerous drugs.

40.D2 has 3 previous convictions, and none of them was for the offence of burglary.  He was last sentenced on 29 June 2011 for a money laundering offence and he was put on probation for 18 months.

41.D3 has 7 previous convictions, and none of them was for the offence of burglary.  His last two sentences involved offences of dishonesty.  On 24 January 2025, he was sentenced to 4 months’ imprisonment for theft, and fined HK$500 for failing to produce his identity card for inspection.  On 10 February 2025, he was sentenced to 2 months’ imprisonment for theft (with one month of the sentence to run consecutively to the sentence imposed on 24 January 2025), and to 6 days’ imprisonment for common assault (sentence to run concurrently with the sentence for theft).

42.D4 has 10 previous convictions, and none of them was for the offence of burglary.  His first conviction was for the offence of theft and was fined HK$500.  He has no other conviction for offences of dishonesty.  He was last sentenced on 23 October 2025 for gambling in a gambling establishment to a fine of HK$2,600.

D1’s personal and family background

43.D1 is now 35 years old, he was born on 23 October 1990 in Hong Kong.  He is single.  He received education up to Form 3.  He then completed a vocational programme in air-conditioning and electrical services at the Institute of Vocational Training. 

44.D1’s parents passed away one after the other due to illnesses.  His father passed away in 2021, while his mother passed away in November 2024.  After D1 had been discharged from prison in November 2021, he lived with his parents, and maintained a stable job as a transport worker for Wellcome Supermarket until 2023, when he resigned to take care of his mother who was then diagnosed with cancer.  D1 has since then remained unemployed and relied on Comprehensive Social Security Assistance (“CSSA”).

45.D1 has an elder sister and a younger brother.  D1 does not live with them.  D1 has a girlfriend currently, and they have been in a relationship for more than 2 years.

D2’s personal and family background

46.D2 is now 40 years old.  He was born on 2 January 1986 in Hong Kong.  He is single.  He received education up to Form 3.

47.D2 lives with his father aged 70 and mother aged 65.  His father is a flower farmer, his mother is a housewife.  D2 has 3 elder sisters, all of them are housewives and live apart.

48.D2 had previously worked as a construction worker, earning about HK$20,000 a month.  He contributed HK$5,000 to HK$6,000 to his parents as living expenses. 

D3’s personal and family background

49.D3 is now 29 years old.  He was born on 22 May 1997 in Guangdong.  He came to Hong Kong in 2005 when he was about 8 years old.  He studied in Hong Kong up to Form Two.   

50.D3 lives with his father aged 68 and mother aged 59.  He has 4 elder sisters and one younger brother.  His siblings are living apart from him.  The 4 elder sisters were all gainfully employed, and his younger brother was a university student.

51.D3 used to work as a hawker in a wet market, earning about HK$20,000 a month., and contributing HK$6,000 to his parents.  When D3’s mother was diagnosed with breast cancer several years ago, D3 paid for her medical expenses.  D3 has a 6 years’ old daughter with his girlfriend, and he used to contribute HK$6,000 for her expenses.  D3 has however become unemployed since 2024.

D4’s personal and family background

52.D4 is now 35 years old.  He was born on 10 August 1990 in the Mainland.  He came to Hong Kong in 1997.  He received education up to Form One in Hong Kong.  He worked as a warehouse worker and earned about HK$26,000 a month.  He had worked for the same warehouse since 2020.

53.D4 divorced his wife in 2014.  He has a son aged 12 now and living with his ex-wife.  D4 himself lives with his parents and two elder brothers.  Both parents have already retired.  D4 contributed HK$4,000 a month to his wife and HK$3,000 to his parents.

D1’s Mitigation

54.Miss Jolie Chao, learned counsel for D1, informed this Court that before D1 was arrested for this offence in May 2025, he was unemployed and relying on CSSA, but he faced significant financial difficulties stemming from his prolonged unemployment after quitting his job to take care of his sick mother, compounded by his mother’s medical expenses.  Miss Chao pointed out that D1 had not committed any offence in the past 10 years, and that it was due to the frustrating and unresolved financial situation in 2025 that made D1 re-offend. 

55.Miss Chao also said that owing to his recent incarceration, the lease of D1’s public housing unit was terminated in January 2026, and he would have no place to live after he had served his sentence.  Miss Chao submitted that this by itself was already a punishment on D1.

56.Miss Chao submitted that although more than two persons were involved in the commission of the offence, the mode of operation was not complicated.  Miss Chao argued that the offence was not carefully planned, nor was it skillfully executed. She pointed out that no heavy instrument or equipment was used and the items stolen were not of substantial value.

57.Miss Chao stressed that D1 was fully co-operative when he was investigated by the police and made full and frank admission.  She argued that D1’s guilty plea showed that D1 was genuinely remorseful and that his guilty plea also saved public expenses.  Miss Chao asked the Court to be lenient on D1 whose only dishonest offence was committed by him more than 20 years ago.

D2’s mitigation

58.Mr. Karl Keung, learned counsel for D2, pointed out that although D2 had a criminal record, he had not been convicted of theft or burglary before.  He stressed that D2 made a full confession to the police and pleaded guilty in the first available opportunity.  He submitted that nobody was alarmed and no heavy equipment was used in the course of the burglary, and that D2 was not the main culprit.  Mr. Keung asked the Court to consider the role played by D2 and sentence D2 leniently.

59.Mr. Keung submitted D2’s letter in mitigation to this Court.  In the letter, D2 said that he had received little education and did not have any special skills.  Hence, he could only work as a labourer moving heavy articles in construction site. But due to import labours, he had been unemployed for more than a year, and he had used up his savings.  He had been the sole breadwinner of the family, and both of his 76 years old father and 71 years old mother had illnesses and could not work.  He committed the offence because of financial difficulties. He wished to take care of his parents as soon as possible.  He pleaded for leniency.

D3’s mitigation

60.Mr. Jonathan Ah-Weng, learned counsel for D3, submitted that because of his unemployment since 2024, D3 had lived on savings and borrowings from family members.  Out of desperation, foolishness and greed, he committed the offences. 

61.Mr. Ah-Weng submitted a letter in mitigation written by D3’s mother who said that D3 committed these offences because of financial difficulties caused by his unemployment for some length of time.  She said that D3 understood that he had acted illegally, and was willing to bear responsibility.  She said that D3 regretted for affecting the family and the society adversely.   She also mentioned her cancer problem which contributed to the enormous financial pressure on D3 which caused him to commit the offences.  She pleaded for leniency on behalf of D3.

62.For the burglary offence that D3 had committed with the other defendants, Mr. Ah-Weng argued that D3 was just a participant in the offence, and that the mastermind was D1. He submitted that D3 was just following orders of the others, and that D3 did not know the occupier of Room 2012.  Mr. Ah-Weng referred to the statements made by D3 under caution during his VRI that D3 was given the keys to Room 2012 by D1 to open its entrance door and gate, and that he was instructed by D1 to use the stolen HSBC credit card to purchase the two Mastercard prepaid cards which he had passed to D1 after purchase.  Mr. Ip Wai-kee, learned Solicitor-on-fiat for the prosecution, confirmed that D3 did say so in his VRI. 

63.Mr. Ah-Weng argued that the burglary was committed without force and without confrontation with any of the victims who were out of the flat.  He also pointed out that D3 did not use any other device such as using another person’s identity card when he committed the fraud offence.  He argued that these two offences were causally connected.  He stressed that D3 had shown his remorse by his guilty plea.

64.As to the burglary offence in DCCC1718/2025, Mr. Ah-Weng asked the Court to bear in mind the totality principle.

D4’s Mitigation

65.Miss Sabrina See, learned counsel for D4, submitted that D4 was not the mastermind of the burglary.  He played no part in the planning or making arrangement for the burglary.  He also did not recruit anyone to participate in the offence.  The tools and equipment for conveying stolen property were not provided by D4.

66.Miss See also pointed out that no heavy instrument or equipment had been used in the burglary, and access to Room 2012 was gained through the use of a key, but there was no evidence that D4 had prior knowledge that a key would be used to gain entry.

67.Miss See stressed that D4 had no prior conviction of burglary, and that he was not a professional burglar.  She asked the Court to be as lenient as possible in addition to the one-third sentence discount that D4 was entitled to due to his early guilty plea.

Reasons for Sentence

68.Each of these two cases involves one charge of burglary.  Both burglaries took place in domestic premises.  There is clear and long-established sentencing tariff for this offence.  It is that unless there are exceptional circumstances in the commission of the offence itself, or there are very powerful mitigating factors that exist only infrequently, a sentence of imprisonment must be imposed on the offender, and the appropriate starting point of the prison sentence is 36 months’ imprisonment: see The Queen v Wong Man[1], The Attorney General v Lui Kam Chi[2].

69.This starting point is liable to be adjusted upwards if there are aggravating circumstances in the offence committed.  In HKSAR v Cheng Wai Kai, the Court of Appeal listed out some of the aggravating circumstances, such as (1) the offence is carefully planned and skillfully 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.

70.I shall deal with the proper starting point or the notional sentence after trial for the burglary charge in DCCC142/2026 first. 

71.It is noted that in the cautioned statement made by D1, he alleged that he was asked by D3 to go to a flat to help, and that he would get a television as a reward.  It was clear what he meant when he made this statement under caution was that he said he was asked by D3 to go to Room 2012 to help in the burglary.  On the other hand, D3 said in his cautioned statement that D1 asked him and D4 to assist in the burglary, and that D1 would pay each of them HK$500 as reward.  D3 further said that D1 gave him the keys to open the entrance wooden door and metal gate of Room 2012, and that D1 asked him to use the stolen HSBC credit card to purchase two Mastercard prepaid cards, which he did and he had passed the two prepaid cards so purchased to D1.  There is clearly a conflict in the allegations given by D1 and D3, and I must bear in mind the principle that what a defendant has said under caution is only evidence admissible against him but not admissible against his co-defendant.  However, this Court is entitled to look at other evidence that are admitted or found proven to ascertain where the truth lies.  This Court notes that none of the defendants has elected to testify or adduce evidence to show his role and culpability in the offence or offences committed by him.  It is of course the right of each defendant and no adverse inference will be drawn against him for remaining silent, though it will also mean that he has provided no evidence to explain or contradict the other evidence that are admissible against him.

72.In the present case, other than the cautioned statements made by each of the defendants, the other evidence that have been admitted by each of the defendants include the CCTV footages, and the two sets of WhatsApp messages retrieved from D2’s smart phone, in particular, “the WhatsApp Group messages”, which as admitted by each of the 4 defendants herein, that they were members of this WhatsApp group, and it is also admitted that in this group, “阿雄” was D1, “阿文” was D2, “金毛囝” was D3, and “細彈” was D4.

73.The transcripts of “the WhatsApp Group messages” are produced by the prosecution.  None of the defendants takes issue with its accuracy, other than saying that some of the messages had been deleted, so that these messages might not reveal the whole picture of what had been said.  In my view, according to the transcripts, all the messages that had been deleted took place before 7:32 a.m. on the day in question, i.e. 6 May 2025, and according to the facts admitted by the defendants as well as the CCTV footages, D1 to D4 left Kam Lam House, i.e. the building where D1’s home was situated, at 9:17 a.m., and the burglary must have been completed by 10:37 am when D1, D2 and D3 left Sheung Shun House (where Room 2012 was situated) and they joined D4 at 10:44 am the latest).  Hence, all the messages that appeared in the transcripts between these two points of time did not include any of deleted messages, and the messages in the transcripts now clearly spelt out the facts as put forward by the relevant member of the group who sent out any particular message, and the message so sent out was understood and accepted by all other members of this WhatsApp group who either answered to the message or did not raise any objection or seek clarification of it.

74.From the CCTV footages, and the WhatsApp Group messages, I have come to the only reasonable and irresistible inference that D1 was the mastermind of this burglary, and that he was the commander-in-chief of this burglary operation.  I take into account the following facts.

75.First, before the 4 defendants commenced their burglary operation, all of them assembled in D1’s home.  It is noted that D1’s home was in Choi Wan Estate and the victim’s home was in Tseung Kwan O, and it took D1 to D4 about one hour to travel by bus from Choi Wan Estate to Tseng Kwan O (as evidenced by the fact that they left Kam Lam House at 9:17 am and walked along Tong Ming Street, Tseung Kwan O at 10:15 am).   There is also no doubt that they assembled in D1’s home before setting off for the burglary because they brought along the tools and equipment for conveying stolen property such as the board trolley and plastic bags.  It was admitted by D1 that the board trolley was his property and that D3 brought the board trolley when the group left for Tseung Kwan O at 9:17 am.

76.Second, D1 created the WhatsApp Group which was clearly for communication purpose for execution of the burglary in question.  The WhatsApp Group was called “搬屋”.  It was clear from the transcript that D2 was added into the group by D1 at 7:29 am on 6 May 2025 (as evidenced by the words “新增群組說明: 由阿雄於6/5/2025早上7:29建立”, and D2, D3 and D4 were described as “past members” (過往的成員).  It was therefore clear that D1 created and managed this WhatsApp group before and during the time when the burglary offence took place.  It was clear that some of these messages must have been sent to or exchanged among the 4 defendants when they were travelling to Tseung Kwan O by bus between 9:17 am and 10:15 am. 

77.Apart from creating and managing the WhatsApp group, it was clear from some of the messages that D1 was giving command.  At 9:50 am, D1 sent out the message “電視不令” and D3 replied “收到” (“received”). Mr Ah-Weng informed me that the word “令” should be “拎” and the whole phrase meant “not to take the television”.  I am sure that Mr Ah-Weng was correct in his interpretation not only because Mr. Ah-Weng was acting for D3 and D3 could inform counsel what D3 understood at the time of the message by what D1 had meant to say, but also because D1 had alleged in his cautioned statement during VRI that D3 asked him to help in the burglary and his reward was a television set.  It is noted that D1 was the only person in the whole WhatsApp group mentioning anything about television set in their respective cautioned statements.  It was also a fact that the victims did not report loss of any television set from their home.  The importance of this message clearly lies in the fact that D1 was giving instructions to his accomplices as to what to take and what not to take in the burglary that was about to take place.  It must also be said that when D1 was making his cautioned statement, it must be the case that was trying to minimize his culpability in the offence by alleging that he would only be given a television set as reward when D3 asked him to help in the burglary.  If a television set was his intended reward, there would be absolutely no reason for him to tell others in the WhatsApp message not to take television set.

78.Third, at 9:51 am, D1 sent another message in the WhatsApp group, addressing directly to D3, “金毛仔, 你入返嗰日間房睇櫃下面” (“You go back to the room that day and look at the lower part of the cabinet”), and D3 replied, at 9:52 am, “師傅即是我負責過嗰櫃, Ok” (“Master, is it that I am responsible for that cabinet”, or “is it the cabinet that I had been responsible before”).  This message was very important.  First, it showed that D1 was giving instructions to D3, and D3 accepted the instructions.  Second, from this particular sentence, it appeared that D1 was telling D3 that D3 had gone to that premises before, and that D3 should go to that room again, and look at “櫃下面” which might mean the space underneath the cabinet, or the lower part of the cabinet.  It is noted that the victim Madam Leung’s HSBC credit card was placed inside the cabinet when it was stolen and taken away.  This sentence therefore conveyed the fact that D3 had actually been to that particular premises before (and I do not suggest D3 to be there for any unlawful purpose), and D1 knew that D3 had actually been to that particular premises before, and that D1 had some knowledge of where the valuables of the victims were placed inside Room 2012.  And this inference must be correct because D1 then immediately replied to D3 at 9:52 am that “屋主話有暗位” (“the house owner said there were hidden place”), and this sentence suggested that D1 had had or overheard conversation with the owner or the occupant of Room 2012.

79.Fourth, at 9:53 am., D1 instructed D2 to take care of the sitting room: “文, 個廳給你”, and this was a clear instruction that while D3 was to take property away from the cabinet, D2 was to take away property from the sitting room of Room 2012.

80.Fifth, D1 was leading D2 and D3 when they left the lift and on the way to Room 2012.  D4 was at that time performing the role of lookout downstairs the building.

81.Sixth, after the burglary, all 4 defendants returned to D1’s home, and apparently, at least some if not all of the stolen property were left behind in D1’s home, as D2 and D3 did not carry with them any “red-white-blue plastic bag when they left the building where D1 resided.

82.Seventh, D2 reported to D1 that police officers were investigating the purchase of prepaid cards by D3.  If D3 had been giving instructions to D1, and D1 had nothing to do with the purchase of the prepaid cards with the stolen HSBC credit card, D2 would not have reported to D1.

83.From the facts mentioned above, I drew the only reasonable and irresistible inference that D1 was the mastermind of the burglary, and that he recruited D2, D3 and D4 to join in the burglary,  I am also sure that D1 had knowledge of the burgled premises and some if not all of the occupants therein so that he could give instructions on the division of labour among D3 and D2 while they were inside Room 2012 to steal, and which part of the premises they should pay attention to.  From these facts, it was only reasonable and irresistible to infer that D1 rather than D3 was able to obtain keys to open the entrance wooden door and metal gate of Room 2012.

84.It must also be said at once that all 4 defendants were well aware that keys would be used to open the entrance wooden door and  metal gate of Room 2012.  First, they had gathered in D1’s home for a long period of time (i.e. from at least 7:07 am to 9:17 am) before they set off for the burglary, and there was simply no reason they would not have discussed amongst themselves how to gain entry into the premises.  Second, they had not taken along with them tools for breaking-in, but only tools and equipment for conveying stolen property.

85.In my judgment, the burglary in question was a carefully planned burglary which involved D1 had some knowledge about the target premises, and obtained or prepared the keys for opening the entrance wooden door and metal gate.  This was of course an aggravating factor.  While D1 was the mastermind, all other defendants had the knowledge that keys had been obtained or prepared in advance for entering the burgled premises, and they agreed to and executed this plan for burglary.

86.The fact that the defendants went to Room 2012 at 10:21 am after the victims had left Room 2012 at 10 am means that there was no confrontation between the defendants and the victims.  But the fact that all defendants agreed to participate in a carefully planned burglary would off-set the mitigating effect arising from this lack of confrontation.

87.From the analysis above, in respect of each defendant, I am clearly of the view that the traditional starting point of 36 months’ imprisonment is applicable to each defendant.

88.There is no dispute that the burglary was committed by the 4 defendants together, each one of them playing different roles for the same burglary mission.  This constituted an aggravating factor.  I adjust the starting point upwards by 3 months to reflect this factor.

89.In so far as D1 is concerned, I am of the view that his culpability in the offence was greater than that of the other three defendants because he had planned and prepared for the burglary, he was the mastermind and he had recruited the other defendants. For such additional culpability, I further enhance the starting point for another 1.5 months, bearing in mind that I have already adjusted the starting point upward by 3 months for the offence being committed by more than 2 persons.

90.I agree that there is no other aggravating factor.

91.In summary, in respect of Charge1 in DCCC142/2026, I adopt 40.5 months’ imprisonment against D1, and 39 months’ imprisonment against each of D2, D3 and D4 as the notional sentence after trial.

92.As to mitigation, since each defendant entered a timely guilty plea, all of them are entitled to one-third discount of the sentence.

93.I have considered the mitigation entered by all defendants.  But financial pressure and family obligations are not effective mitigating factors when they have already been given one-third discount of the sentence due to their guilty plea.

94.As to D3, of course, he was also convicted of Charge 2, and I accepted that he was instructed by D1 to use the stolen HSBC credit card to make purchases worth a little bit more than HK$6,000.  D3 is to be sentenced for this offence, but I cannot and will not sentence D1 for this offence, or increase his sentence for Charge 1 because D1 had not been so charged.

95.D3 used one of the credit cards stolen from Room 2012 to purchase two Mastercard prepaid cards.  This is an offence of credit card fraud.  The sentencing authorities are clear.  When the circumstances of the offence indicated that the operation was small and uncomplicated, and that the offender used one or less than 4 forged credit cards or credit cards belonging to another person, to purchase goods worth not more than HK$15,000, the appropriate starting point for sentencing is 3 years’ imprisonment, or less than 3 years’ imprisonment: HKSAR v Tu I Lang (杜壹朗)[3], HKSAR v Hoong Pang Chong (康鵬倉)[4], HKSAR v Lam See Chung Stephen[5], and HKSAR v Loh Joo Hooi(羅祖輝)案[6]. 

96.Learned counsel for D3 relied upon the case of HKSAR v Li Chi Yat(李智溢)[7] and submitted that 2 years’ imprisonment would be the appropriate starting point for Charge 2.  I accept the submission.

97.As said before, other than D3’s guilty plea, there is no other effective mitigating factors.

98.For these reasons, I sentence D1 to D4 in Case No. DCCC142/2016 as follows:

Charge 1 D1 27 months’ imprisonment

D2 26 months’ imprisonment

D3 26 months’ imprisonment

D4 27 months’ imprisonment

Charge 2 D3 16 months’ imprisonment

99.I am of the view that the burglary and fraud offences committed by D3 were causally connected but the fraud offence included criminalities in addition to those in the burglary offence.  Hence, the two sentences should not run wholly concurrently, but in light of the principle of totality, I order that 6 months of the sentence for Charge 2 shall run consecutively to the sentence for Charge 1.  It means that D3 is sentenced to a total of 32 months’ imprisonment for DCCC142/2026.

100.As to DCCC1718/2025, D3 committed a burglary into domestic premises.  There was no factor that made the conventional starting point not applicable.  There is likewise no aggravating factor. I find that the appropriate notional sentence after trial to be 36 months’ imprisonment.

101.Since D3 has pleaded guilty timely, his sentence is reduced by one-third to 24 months’ imprisonment.  There is no other ground for reducing the sentence further.

102.D3 is therefore sentenced to 24 months’ imprisonment in DCCC1718/2025.  This is the sentence for a burglary completely different from the one in DCCC142/2026, but in light of the principle of totality, I order that 6 months of this sentence should run consecutively to the sentence for DCCC142/2026.  It means that, for these two cases, D3 has to serve a total of 38 months’ imprisonment.