HKSAR v. Ivanchenko Dmytro

DCCC 655/2018

[2018] HKDC 1607

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 655 OF 2018

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REASONS FOR SENTENCE

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1.In this case the defendant, Ivanchenko Dmytro, is convicted of one count of burglary after trial.

2.According to the finding of this court, at about 5 am on 18 June 2018, as a trespasser the defendant entered into a construction site situated in Concorde Road, Kai Tak, where he entered into a container office situated inside the construction site.  He was seen rummaging through the contents of the drawers inside the container office.  When the guard made his presence known, the defendant pushed the guard aside and tried to escape.  He was eventually intercepted by a guard and the matter was reported to the police.

3.This is a case of burglary of a non-domestic premises.  Both the prosecution and defence accepted that the prevailing guideline for this kind of offence is a term of imprisonment for 2½ years.  In this case I see little justification to depart from the same.

4.The defendant was aged 19 and, although he has a number of matters pending, at the time of the offence he had a clear record.  He is Hong Kong resident but a Ukrainian by origin.  I had ordered reports from the probation officer and also from the Commissioner of Correctional Services.  Both reports set out the defendant’s background in detail, in particular how he came to Hong Kong and his family circumstances in Hong Kong.  The Correctional Service Report also pointed out that he is a drug dependent and not suitable for detention in a Detention Centre.

5.The defendant’s life story was unusual we do not normally have that many Ukrainians living in Hong Kong.  Although the defendant came to Hong Kong in 2009, he does not seem to assimilate well to the life in Hong Kong.  He had picked up the baneful habits of taking dangerous drugs, marijuana and drinking.  He had started working firstly as a bartender.  Before that he was working through jobs but none of them he managed to keep for long.  The probation officer pointed out that he had remained idling without any meaningful engagement throughout.

6.The defendant was aged 19 at the time of the commission of the offence and he had a clear record.  Normally, the court should adopt a sentencing principle that is beneficial for his rehabilitation.  However, it is clear from the existing sentencing guidelines in cases of burglary of a non-domestic premises the court should consider a term of imprisonment.  Having viewed the facts of the case and the circumstances of the defendant, I do not see any reason why I should depart from the existing guideline.

7.I noted that the defendant had entered into the container office and had tried to steal but he did not manage to get away with anything.  Nonetheless, whether he managed to steal anything is irrelevant to the nature of the charge. The principle for sentencing of this kind of offence is to protect individuals while he or she was in the safety of his or her own environment, so the fact that he did not find anything to steal was not a mitigating factor.  I also considered that the defendant in his bid to get away had pushed a guard.  I do not consider that a serious aggravating factor in that the guard did not seem to have suffered from any injury.

8.In the circumstances I would adopt 30 months as a starting point.  Although the defendant had been living in Hong Kong for a time, can be considered a foreigner in the sense that he did not speak the local language and it is generally accepted that foreigners serving a term of imprisonment in Hong Kong suffer more hardship than locals.  This is not exactly a mitigating factor, but that is a reason to exercise an act of mercy.  I will reduce the 30 months’ imprisonment to 27 months.

9.I have also considered all the background information and the mitigating factors put forward by the defence.  I do not find any other reasons which might justify an exercise of further leniency in his favour.  For this offence therefore he is sentenced to 27 months’ imprisonment.