HKSAR v. IVANCHENKO DMYTRO

DCCC 784/2022

[2023] HKDC 844

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 784 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant Dmytro IVANCHENKO (D)  pleaded guilty before me to 3 Charges of Burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap.210 (Charges 1-3)  and another Charge of Handling stolen goods, contrary to section 24 of the same Ordinance, Cap.210 (Charge 4).

2.  Particulars of Offence of these charges stated that:

(i)  Charge 1 occurred on 15 March 2022 at Lai Chack Middle School in Canton Road, Tsim Sha Tsui, involving 4 iPads, 2 iPads with Apple Pencils, 1 tablet computer and cash of about HK$3,720;

(ii)  Charge 2 occurred on 22 March, 2022 at True Light Girls’ College in Waterloo Road, Yau Ma Ti, involving 1 laptop computer, 1 cash box containing cash of about HK$120, 1 envelope containing cash HK$700 and 1 desktop computer;

(iii)  Charge 3 occurred on 31 March 2022 at Sir Ellis Kadoorie Secondary School (West Kowloon)  in Hoi Fan Road, Tai Kok Tsui, involving 10 laptop computers, cash HK$4,550 and 2 credit cards；and

(iv)  Charge 4 occurred on 6 April 2022 involving the handling of 2 desktop computers stolen from a construction company.

Facts of case

3.  The Summary of Facts admitted by D can be summarized as follows:

Charge 1

4.  At around 03:11 hours on 15 March 2022, D climbed over the fence at the rear entrance of Lai Chak Middle School at No.180 Canton Road, Tsim Sha Shui. He was carrying a backpack at the time. He then entered Rooms 109 & 110, which were staff rooms of the school, and stole therein items listed in the Charge, total value at HK$26,720. He left the school via the same route.

Charge 2

5.  At around 03:04 hours on 22 March 2022, D, who was wearing facemask and carrying a backpack, entered True Light Girls School at No. 54A Waterloo Road, Yau Ma Tei. He climbed into Room 413, which was the library of the school, and stole therein the items listed in the Charge, total value HK$12,130.

Charge 3

6.  At around 03:11 hours on 31 March 2022, D, who was wearing facemask and carrying a backpack, climbed over the fence and entered Sir Ellis Kadoorie Secondary School (West Kowloon)  at No.22 Hoi Fan Road, Tai Kok Tsui. He smashed the glass on the door of Room 702, which was a staff room of the school, and stole therein the items listed in the Charge, total value HK$74,653. He left the school via the same route. His right ring fingerprint and right palm-print were found on a paper box and the door of Room 702 respectively.

Charge 4

7.  Yen Chow Street Modular Social Housing Project was a construction site situated at 1A, Yen Chow Street, Sham Shui Po. It was run by Yau Lee Construction Company Limited (“Yau Lee”). At around 08:00 hours on 6 April 2022 a staff member of Yau Lee discovered that the padlock used to lock up the container office in the said construction site had gone missing and 2 HP desktop computers belonging to Yau Lee, total value HK$14,000, had been stolen therein.

8.  At around 16:40 hours the same day, D took the 2 HP desktop computers stolen from the construction site to a computer shop at Un Chau Street, Sham Shui Po, and sold them to the shop at HK$700.

Arrest and subsequent investigation

9.  D was arrested by the police at about 17:40 hours on 6 April 2022. He was carrying a backpack at the time. Clothing items similar to what he was wearing when committing the above offences were recovered by the police in the backpack or during a subsequent house search. Movement record of the Immigration Department confirmed that D was in Hong Kong between 29 November 2021 and 6 April 2022.

Defendant’s Backgrounds and Mitigation

10.  D is 24 years old, born in Ukraine on 12 April 1999. He came to Hong Kong to join his mother, who worked here as a tour guide for Russian visitors, in 2007 while his father still lives in Ukraine. He has a sister who works in South Korea. He received education in Hong Kong up to Form 3 and another 2 years in Vocational Training. He had worked as a Bar Tender before, earning about HK$12,000 per month but was unemployed at the time of his arrest.

11.  D has 2 previous convictions, one for Burglary in November 2018 for which he was sentenced to 27 months imprisonment, and another for Possession of DD in December the same year for which he was given a fine. He was last discharged from prison on 8 May 2020.

12.  Mr. Tracy representing D accepted that the starting point for Burglary of non-domestic premises, without aggravating or mitigating features, is 2 years and 6 months imprisonment. He submitted that while the Burglary offences and the underlying offence leading to Charge 4 were committed in small hours, no damage was done within any of the 4 premises except in Charge 3 where a piece of glass in an internal locked door was broken. He said D is willing to compensate reasonable cost of repair for this item. He submitted that D was not acting in concert with others, and was akin to a sneak thief who walks into an unattended office. Bearing in mind there are 52 witnesses listed by the prosecution, most of them being civilians, his early guilty plea has saved a substantial amount of the Court’s time.

13.  Mr. Tracy also submitted that where there are multiple offences, totality is important. He referred to AG v Lui Kam Chi[1] and HKSAR v Fan Kit Hung[2] in the course of his submissions. He further submitted that there is no tariff on Charge 4, but in the circumstances of the present case, it might be treated similarly to Charges 2 & 3 for sentencing purposes.

Sentence

14.  It is well established that the starting point for Burglary involving non-domestic premises is 2 years and 6 months imprisonment[3].

15.  D was well prepared when he committed the 3 Burglary offences. The victim premises were schools which were well protected by fences and properly locked in the middle of the night. D, wearing facemask and carrying with him a backpack, gained entry, in at least 2 of them by climbing over the fences, and ransacked therein. I do not agree that any of these offences could be said to be akin to an opportunistic sneak thief as described by the CA in, for example, HKSAR v Sim Ka Wing[4], rather, I am satisfied that D was a professional burglar targeting schools in the commission of these offences.

16.  In HKSAR v Cheng Wai Kai[5], the CA stated:

“15. The starting point can be adjusted upwards if there are aggravating circumstances such as; (1)  the offence is carefully planned and skilfully 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.

16. If the offences were committed in different premises against different victims on different dates, consecutive sentences should be imposed….”

17.  At least 3 of the above 6 factors, viz., (4)  to (6), were engaged in the present case warranting an upward adjustment to the starting point.

18.  There is no tariff for Charge 4, each case depends on its own facts. In the context of the present case, given the proximity of time between the underlying offence leading to the loss of the stolen property involved and when D handled them by selling them to a nearby computer shop in the same day, I agree with the submission by Mr. Tracy that it should be treated similarly to Charges 2 & 3 for sentencing purposes.

19.  I adopt 3 years as the starting point for each offence. For the timely guilty plea, I will reduce the sentence by 1/3 to 2 years. There is no other mitigating factor warranting further reduction in sentence. Having taken totality principle into account, I order that 6 months of the sentence for each of Charges 2-4 be run consecutively to Charge 1.

20.  For the 4 offences D is facing, he is sentenced as follows:

(i)  Charge 1: 2 years;

(ii)  Charge 2 : 2 years, 6 months consecutive to Charge 1;

(iii)  Charge 3 : 2 years, 6 months consecutive to Charges 1 & 2;

(iv)  Charge 4 : 2 years, 6 months consecutive to Charges 1, 2 & 3;

(v)  Total sentence: 3 years and 6 months.