HKSAR v. Peschanskii Sergei

DCCC 23/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 23 OF 2017

-----------------------------------

----------------------------

Reasons for Sentence

----------------------------

Charges

1.The Defendant pleads guilty to 8 charges of burglary (Charges 1 – 6, 9 and 10) and a charge of breach of condition of stay (Charge 13).  

Facts of Charges 1 – 6, 9 and 10

2.Between 19/6/2016 and 10/8/2016, the Defendant broke into 8 sets of premises.   Here are the particulars of the burglaries:

Charge	Date	Premises	Property stolen	Facts
1	19/6/2016	Flat C, 2nd Floor, Block H6B, Riva, No. 1 Ying Ho Road, Yuen Long, N.T.	1 Chanel handbag valued at HK$20,000, 1 LV wallet valued at HK$10,000, 1 Cartier wrist watch valued at HK$30,000, 1 Apple laptop valued at HK$7,600, 1 car key, 1 bundle of keys, 1 HKID card, 1 home visit permit, 1 driving licence, 3 bank cards, 2 Octopus Cards, cash RMB 8,000,  cash HK$10,000	Occupier woke up to find main door ajar and the kitchen window opened, items were missing from the reading room; Defendant’s fingerprints and palm print were found on the wall in the living room; CCTV cameras captured image of Defendant in the vicinity earlier on.
2	26/7/2016	Flat C, 2nd Floor, Block G5, Riva, No. 1 Ying Ho Road, Yuen Long, N.T.	nil	Police investigating Charge 1 alerted occupier, who found kitchen window opened and shoe prints left inside the kitchen, no property lost; forensic evidence confirmed the shoeprints matched with the sneakers seized on Defendant when arrested.
3	26/7/2016	Flat C, 1st  Floor, Block G5, Riva, No. 1 Ying Ho Road, Yuen Long, N.T.	nil	Police investigating Charge 1 alerted occupier, who found kitchen window opened and shoe prints left inside the kitchen, no property lost; forensic evidence confirmed the shoeprints matched with the sneakers seized on Defendant when arrested; CCTV cameras captured image of Defendant in the vicinity earlier on.
4	26/6/2016	Flat D, 45th Floor, Block 9, Metro Harbour View, No. 8 Fuk Lee Street, Tai Kok Tsui, Kowloon	nil	At late night time, occupier on top floor, ie 48th Floor saw a suspicious male ie Defendant at his balcony climbing up to the air-conditioner outside premises, he made a report to the police; occupier of 47th Floor saw a suspicious male ie Defendant at his balcony climbing down the building; the police arrived to enquire; occupier of subject-premises alerted, found air-conditioner inside premises switched on, fingerprints on outer surfaces of the glass door of balcony, which was not locked; no property lost.
5	A day unknown between 11/7/2016 and 18/7/2016	Flat A, 7th Floor, Chee Sun Building, No. 163 Reclamation Street, Yau Ma Tei, Kowloon	1 pocket watch valued at HK$1,500, 1 Longchamp wallet valued at HK$1,000 (recovered from Defendant when arrested), 1 wrist watch valued at HK$1,000, 1 pair of cuff links valued at HK$1,000, 1 ornament, cash RMB600	Occupier absent from premises between 11/7 and 18/7/2016; returned to find items missing from wardrobe drawer amid signs of ransacking, ventilation window of toilet being fully opened; fingerprint of Defendant found on the inside surface of wardrobe door in bedroom, palm print on the washing machine in kitchen
6	13/7/2016	Flat H, 33rd Floor, Bailey Garden Tower 1, No. 23 Bailey Street, Hung Hom, Kowloon	12 diamond and gold rings valued at $58,000, 1 Chanel card holder valued at $20,000 (recovered from Defendant when arrested), 1 Cartier wrist watch valued at $15,000,  1 Chanel handbag valued at $20,000, 1 Givenchy handbag valued at 5,000, 2 wallets (one of which recovered from Defendant when arrested), 1 Fujitsu notebook computer valued at $8,000, 1 iPad valued at $4,000, 1 wrist chain with 1 pendant (recovered from Defendant when arrested), cash HK$23,000	Occupier of next door found the door of these premises ajar, informed the security office, police were informed;  police alerted occupier, who found upon return the property missing; CCTV camera captured image of Defendant entering the building and at the rooftop
9	10/8/2016	“Kei Yam Alliance Church” at 12th Floor, 99 Plaza, No. 99 Tai Ho Road, Tsuen Wan, N.T.	1 ASUS notebook computer, 2 computer cables, 1 power cord, 1 charger, 1 mouse control, 1 computer pouch, 2 card readers, cash RMB400, cash HK$12,267	Occupier on another floor found prizing mark on her door, complained to security office; security staff on alert saw Defendant search a drawer inside the subject-premises, Defendant left via rear exit; there were signs of ransacking and property lost.
10	10/8/2016	“Your Kids Education Centre” at Room 605, 6th Floor, 99 Plaza, No. 99 Tai Ho Road, Tsuen Wan, N.T.	1 SD card	Same day as Charge 9, occupier of subject-premises found ransacking signs, property missing; Defendant’s palm print on the wall near a toilet window

Arrest

3.On 11/8/2016, having ascertained the descriptions of the Defendant’s appearance, the police on patrol arrested the Defendant in Tsuen Wan.  The Defendant’s hotel room was searched with a few stolen items seized.  Under cautioned, he admitted most of the burglaries. 

Facts of Charge 13

4.The Defendant arrived in Hong Kong on 23/5/2016 and was allowed to stay until 6/6/2016.  He overstayed until 11/8/2016 when arrested for the burglary offences. 

Mitigation

5.He is 32 years of age, a Russian citizen.  His counsel Mr. Beel informs me that the Defendant’s family, comprising his parents and a younger brother, is in Russia.  He had done tertiary education on radio electrical engineering in Russia before going to study Putonghua for 3 years in Hainan province with a view to trading goods from China to Russia.  He then came to know his classmate, who became his girlfriend.  He returned to Russia and ran a gainful business.  The gangster demanded a hefty share in it.  He could not sustain business and so went to Hong Kong to explore job opportunities by virtue of his proficiency in Putonghua.  But his girlfriend got pregnant.  He needed money desperately.  She had later returned to Russia.  The date of expected delivery was past.  He has no new of her.  He had had 2 years of military training in Russia, so he was able to climb outside the high-rise building in the burglaries. 

6.Mr. Beel submits that there was no forceful break-in and the burglaries were committed within a short period of time.  He asks for a total sentence of not more than 4 years. 

Sentencing guidelines

7.A first-time burglar of residential premises can expect 3 years’ imprisonment without aggravating factors (Attorney General v Lui Kam-chi [1993] 1 HKC 215). 

8.In R v Wong Man [1993] 1 HKC 80, the Court of Appeal has stated that the proper starting point for non-residential premises would be 2 years 6 months’ imprisonment for a first offender of full age.

Sentencing this Defendant

9.Each of the burglaries is unsophisticated.  They are not opportunistic.  Charge 6 resulted in a property and cash loss of HK$148,000 net ie recovered items already deducted.  I take a starting point of 3 years 3 months.  Charges 1 and 5 saw some property loss.  I take a starting point of 3 years each.  Charges 2 – 4 saw no property loss.  I take a starting point of 2 years 9 months each.  These are the residential burglary charges. 

10.Charges 9 and 10 saw some property loss in non-residential premises.  I take a starting point of 2 years 6 months each. 

11.Charge 13 featured an overstay of over 2 months.  I take a starting point of 3 weeks’ imprisonment. 

12.I give a one-third discount for the pleas of guilty.  The sentences for all charges are reduced accordingly.  That is to say, 2 years each for Charges 1 and 5, 22 months each for Charges 2 – 4, 2 years 2 months for Charge 6, 20 months each for Charges 9 and 10, 2 weeks for Charge 13.

13.I make adjustments for the total sentence.  That is to say, Charge 6’s 2 years 2 months shall be served in full, Charges 1 – 5 each shall have 3 months to be consecutive to other charges.  Charges 9 and 10 each shall have 2 months to be consecutive to other charges.  Charge 13’s 2 weeks shall be concurrent with other charges.  The total sentence is 45 months.