HKSAR v. Nesteruk Elmir
Read the full judgment text of DCCC 256/2018 on BabelCite. This District Court judgment was delivered on 3 August 2018.
1. The defendant, a Form 8 holder from Ukraine, pleads guilty to one charge of burglary of domestic premises, contrary to section 11 of the Theft Ordinance [1] .
Cites 2 cases
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DCCC 256/2018 [2018] HKDC 925 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 256 OF 2018 ____________
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REASONS FOR SENTENCE 1.The defendant, a Form 8 holder from Ukraine, pleads guilty to one charge of burglary of domestic premises, contrary to section 11 of the Theft Ordinance[1]. 2.The particulars of the offence are that between the 4th and 9th day of October last year the defendant entered No 33. Ham Tin San Tsuen in Pui O on Lantau Island, with intent to do unlawful damage to the premises. 3.No 33. Ham Tin San Tsuen is a village house with a porch at the rear of the house. The house was rented out by the owner. In late September 2017 the tenant moved out leaving the premises unoccupied and largely unfurnished. 4.Photographs of the house have been submitted to court by the prosecution. 5.On 9 October 2017 the domestic helper of the previous tenant went back to the house and discovered that the glass window of the folding door inside the porch was smashed as shown in photographs 9, 9.4, 9.10 and 9.11[2]. The house was last checked and secured by the helper on 4 October 2017[3]. 6.A report was made to the police on 11 October 2017. Two bricks and a wooden stick were found beside the folding door as shown in photographs 9.4 and 9.5[4]. A fingerprint of the defendant was lifted from the inside of the smashed glass window of the folding door. 7.The owner of the house confirmed nothing had been stolen and that the cost of repair was $8,000. 8.On 23 January this year the defendant was arrested on Pui O beach. Under caution and in a subsequent interview the defendant said that in the early hours of one morning, on a day he could not remember, he had nowhere to sleep and on seeing nobody inside the house he used the bricks to break the glass door and entered to find somewhere to live. The defendant said he stayed in the house until noon the next day. Mitigation 9.In passing sentence, I have carefully considered everything said on behalf of the defendant by Ms Chong including that the defendant cooperated with the police. Ms Chong explains that the defendant set out to camp that night but due to tiredness and impulsiveness he broke into the house to find somewhere more comfortable to sleep having first checked there was nobody in the house. Starting point 10.The correct starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years imprisonment. 11.Lower starting points have been taken where premises are vacant or under renovation[5]. Taking into account the house was not occupied at the time; repair cost was $8,000; nothing was stolen and that the defendant damaged the door to find somewhere to sleep, I am satisfied the appropriate starting point is 2 years’ imprisonment. Aggravating features Commission of offence on bail 12.On 24 January this year the defendant was sentenced to 12 days’ imprisonment suspended for 12 months in the Kowloon City Magistracy for an offence of shoplifting committed on 17 June 2017[6]. The defendant was granted bail but failed to answer police bail on 26 September 2017[7]. The burglary was committed while the defendant was on bail for the shoplifting offence. 13.The commission of offences while on bail is an aggravating feature of sentence. I enhance the starting point by 3 months to 2 years and 3 months’ imprisonment. Commission of offences by refugees or torture claimants 14.The commission of offences by refugees or torture claimants is capable of aggravating sentence where the offence affects the community at large and has a significant impact on Hong Kong’s reputation for order and security. I am satisfied breaking into domestic premises affects the community at large and has a significant impact on Hong Kong’s reputation for order and security. 15.By reason of the defendant’s Form 8 status I enhance the starting point by a further 3 months to 2 years and 6 months’ imprisonment. 16.Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 1 year and 8 months’ imprisonment.
[1] Cap 210. [2] Paragraph 4 of the summary of facts admitted by the defendant states that a glass window on the porch (the “Window”) and the folding door inside the porch (the “Folding Door”) were smashed. Mr Tse clarified that only one window was smashed, namely the glass window of the folding door. [3] The prosecution do not say how the defendant entered the grounds of the house or how he entered the porch. The entrance to the porch is shown in photographs 9.3 and 9.11. The smashed glass window of the folding door was inside the porch. I was satisfied by entering the porch the defendant was a trespasser and that at the time of entering the porch he intended to damage the folding door inside the porch to gain access to other parts of the house. [4] Mr Tse clarified in court that the police found the bricks and wooden stick. [5] See for example HKSAR v Yeung Kwok Sang CACC 4/2006 and HKSAR v Chau Man Ying CACC 439/2011. [6] KCCC 2206/2017. [7] See item 2, Part B of the Criminal Record Summary. |
Cases cited in this judgment