OVERVIEW
Burglary is committed where a person enters a building or part of a building as a trespasser intending to steal, inflict grievous bodily harm, rape, unlawfully damage the building or anything in it, or commit the specified computer-related offence. It is also committed where, having entered as a trespasser, the person steals or attempts to steal, or inflicts or attempts to inflict grievous bodily harm.
The legislation was expanded in 1993 to include trespassory entry with intent to carry out specified unlawful interference with computers, programs or data in the building. A person can trespass in only part of a building—for example, by entering an employees-only room despite permission to enter the public area. The prosecution must prove that the defendant knew, or was reckless as to whether, the entry was without or beyond permission.
Burglary carries a maximum sentence of 14 years' imprisonment. For sentencing purposes, the courts distinguish between domestic and commercial premises. Aggravating features include targeting vulnerable people—such as elderly, infirm or disabled occupants—the degree of planning, whether premises were occupied, and the loss, damage or distress caused. Relevant sentencing decisions include HKSAR v Tabora Raul F Jr, HKSAR v Gurung Vinod Kumar and HKSAR v Wu Paul Javi Calma.
STATUTORY PROVISIONS
section 11 of the Theft Ordinance (Cap. 210)
The relevant part of the current statutory provision states:
Section 11(1)(a) — Entry with ulterior intent
A person commits burglary if—(a) he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2).
Section 11(1)(b) — Offence after entry
A person commits burglary if—(b) having entered any building or part of a building as a trespasser he steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm.
Section 12 — Aggravated burglary
A person commits aggravated burglary if he commits any burglary and at the time has with him any firearm or imitation firearm, any weapon of offence, or any explosive. An imitation firearm is sufficient for the purposes of section 12.
Application
What the provision means in practice.
The prosecution must establish one of two statutory routes. Under section 11(1)(a), the defendant entered a building or part of it as a trespasser intending to steal, inflict grievous bodily harm, rape, unlawfully damage property or commit the specified computer-related offence. Under section 11(1)(b), the defendant entered as a trespasser and then stole or attempted to steal, or inflicted or attempted to inflict grievous bodily harm.
A building includes part of a building and an inhabited vehicle or vessel used as a dwelling. Entry is trespassory where it occurs without consent or exceeds the area or purpose for which permission was given. For criminal liability, the defendant must know, or be reckless as to whether, the entry is trespassory, together with the intent required by the particular statutory route charged.
ELEMENTS OF THE OFFENCE
Entry into a building or part
The defendant entered a building, or an identifiable part of one. An inhabited vehicle or vessel is treated as a building under section 11(3).
Entry as a trespasser
The entry exceeded any permission given, and the defendant knew or was reckless as to that absence or limit of consent.
The charged statutory route
For section 11(1)(a), the listed ulterior intent existed at entry. For section 11(1)(b), the defendant committed or attempted the specified offence after entering.
Required intent
The prosecution must prove the intention attached to stealing, grievous bodily harm, rape, unlawful damage or the specified computer-related offence, as applicable.
SECTION 12
Aggravated Burglary
A person commits aggravated burglary if they commit burglary and, at the time, have with them a firearm or imitation firearm, a weapon of offence or an explosive. An imitation firearm is sufficient; it does not have to be capable of firing.
For burglary based on entry with intent, the intended offence need not ultimately be completed.
Penalty
Maximum Penalties
- Burglary under section 11: a maximum of 14 years' imprisonment on conviction upon indictment.
- Aggravated burglary under section 12: a maximum of life imprisonment on conviction upon indictment.
HOW MCS CAN ASSIST
Advice and representation
MCS can assess the charge, the statutory elements and the prosecution evidence; advise on interview, plea, trial and sentence; and identify any defence or evidential issue available on the facts.