DCCC913/2017 HKSAR v. JIBRIIL SAMATAR DIIREYE - LawHero
DCCC913/2017
區域法院（刑事）HH Judge Sham5/7/2018[2018] HKDC 798
DCCC913/2017
A A
B B
DCCC 913/2017
C [2018] HKDC 798 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 913 OF 2017
F F
G ------------------------------ G
HKSAR
H H
v
I JIBRIIL Samatar Diireye I
------------------------------
J J
K Before: HH Judge Sham K
Date: 6 July 2018
L L
Present: Mr Maurice Peter Tracy, Counsel on fiat, for HKSAR
M Mr Frederick Fong instructed by Messrs Tse Yuen Ting M
Wong assigned by the Director of Legal Aid for the
N N
defendant.
O Offence: [1] Common Assault (普通襲擊) O
P
[2] Possession of an offensive weapon (管有攻擊性武器) P
[3] Wounding with intent (有意圖而傷人)
Q Q
R --------------------------------------- R
REASONS FOR SENTENCE
S S
---------------------------------------
T T
U U
V V
-2-
A A
B B
1. On the afternoon of 19 August 2017, the defendant, a 34-year-
C old African man, was seen brandishing a chopper in Temple Street, Yau C
Ma Tei and his behaviour had put anyone happened to be passing in the
D D
vicinity in fear of their lives. Police were called.
E E
2. When responding officers arrived, the defendant was sitting
F F
on a chair with the chopper in his hand; as soon as the officers got closer
G to him, the defendant stood up waving the chopper, which prompted one G
of the officers to draw his revolver to point at the defendant.
H H
3. The defendant kept on yelling words to the effect that “Kill
I I
me” and “I cannot die”. Eventually, the police were able to put the situation
J under control without firing a shot and had the defendant taken into J
custody.
K K
L 4. Originally, the defendant was charged with three counts of L
offence, namely, common assault (charge 1), a section 33 possession of
M M
offensive weapon (charge 2) and wounding 17 (charge 3).
N N
5. On the first day of trial1, after the admission of the “Admitted
O Facts”, the case had to be adjourned to the following day because the two O
alleged victims of the assault charges were nowhere to be seen. When the
P P
proceedings resumed the next day, the prosecution informed the court that
Q they had no choice but to drop the two assault charges (charges 1 & 3) by Q
calling no further evidence because they were unable to secure the
R R
attendance of the two victims named in the assault charges.
S S
T T
1
11th June 2018
U U
V V
-3-
A A
B B
6. Insofar as the possession charge was concerned, the
C prosecution saw fit to amend it to a lesser charge of section 17 possession C
of offensive weapon under the Summary Offences Ordinance; when the
D D
amended charge was put to the defendant, he immediately pleaded guilty
E to it. E
F 7. Given the apparent bizarre behaviour of the defendant, the F
matter was adjourned to enable two psychiatrist reports to be prepared on
G G
the defendant to ascertain his mental condition.
H H
8. As a matter of fact, when the case came before the Kowloon
I I
City Magistracy some 9 months ago in September 2017, such kind of
J reports were called and incidentally they were written by the same doctors. J
K 9. They both say the defendant is suffering from psychosis, but K
the only difference 2 now is that they no longer recommend inpatient
L L
treatment in view of the improvement he has made as a result of treatment
M received during detention. M
N N
10. It is clear from the reports that the reasons why the
O
defendant behaved in such a violently aggressive way on the day in O
question are due to his mental illness; the doctors said he was in a state of
P P
relapse at the material times of the offence. Put in another way, had it not
Q been for his mental problems, he would not have acted like that. Q
R 11. According to the psychiatrists, the defendant is now R
considered safe to be allowed back into the community to mingle with
S S
members of the public, which would mean a hospital order is unnecessary.
T T
2
In their earlier reports, both doctors recommended a 4-6 month hospital order
U U
V V
-4-
A A
B B
12. I have the opportunity to examine the chopper in question; it
C is indeed a sharp weapon – it could easily cause serious injuries if it were C
to put to illicit use. It’s not hard to imagine how fearsome it would be when
D D
a madman wielding a chopper roams one of the busiest streets in the city
E like Temple Street in broad day light. E
F 13. Even taking into account of the fact that he was suffering from F
psychosis at the time, a custodial sentence is nevertheless inevitable in the
G G
3
circumstances of the instant case, I take 9 months as starting point .
H H
14. On the question of how much discount to be given for the
I I
defendant’s guilty plea, his counsel did not argue for a full one-third.
J Perhaps he took the view that the plea was only entered on the second day J
of trial which, in accordance with the Court of Appeal decision 4 , only
K K
warranted a 20% discount.
L L
15. Counsel for the prosecution, however, has submitted a couple
M of cases5 on this question, but in my view, the matter in issue in those cases M
is not the question at issue in this case. For instance, in Lamin, the
N N
defendant faced two charges of drug trafficking, a plea bargain occurred at
O trial resulting in defendant pleading guilty to one of the charges with the O
other one being left on the court’s file.
P P
Q 16. The question at issue in Lamin is whether the defendant Q
should be given one-third discount for the late plea, the Appellate Judge
R R
upheld the decision of the trial judge who gave only a 20 % discount.
S S
T T
3
Section 17 of possession of weapon carries a maximum of 2 years’ imprisonment
4
Ngo Van Nam CACC 418/2014
5
Barrow Lamin CACC 219/2017, Hincapie Alzate Gilberto and Another DCCC 929/2017
U U
V V
-5-
A A
B B
17. I could understand the rationale behind it because the
C defendant in Lamin had been given a prior opportunity to plead to the C
charge, but he failed to avail himself of it at the first available opportunity.
D D
18. In our case, however, the Section 17 offence had never been
E E
made available to the defendant for his plea until the second day of trial
F when the prosecution decided to amend the original charge; as soon as the F
amended charge was put to the defendant, he pleaded guilty. A plea in this
G G
situation could not rightly be described as late plea.
H H
19. Not giving sufficient discount for late pleas is a way to
I I
encourage the defendant to make up their mind on plea day and come to a
J decision without delay, or they will be penalized in terms of sentence; and J
of course, by so deciding, it helps save the court’s time and resources.
K K
20. S.33 is much more serious an offence than that of S.17, it
L L
therefore could not be argued that the defendant could have pleaded guilty
M to Section 33 offence much earlier. Once amendment was made, the M
defendant pleaded guilty to it. There is no delay on the part of the
N N
defendant, and thus his situation would not be any different from those who
O would indicate guilty pleas on plea day; it would only be right to say that O
he’s also entitled to the usual one-third discount for a timely plea.
P P
Q 21. Giving the appropriate discount, the starting point is reduced Q
to 6 months. There being no reason for further reduction, he is therefore
R R
sentenced to 6 months’ imprisonment.
S S
22. I’d like to conclude the case with a few words on jurisdiction.
T As apparent from above, in the end the court has passed sentence on one T
single charge, a summary offence (S.17), which might give rise to the
U U
V V
-6-
A A
B B
question whether I have the power to deal with it. Having heard
C submissions from both parties, I am satisfied that the sentence is a valid C
one in terms of jurisdiction.
D D
23. The District Court has jurisdiction to try charges transferred
E E
by a magistrate in accordance with Sections 88-90 of the Magistrates
F Ordinance. In short, a magistrate cannot transfer a summary offence on its F
own to the District Court unless the indictment includes an indictable
G G
offence which the defendant also faces.
H H
24. In our case, the initial indictment contained 3 counts of
I I
offence – they are all indictable offences – such being the case there
J shouldn’t be any issue on jurisdiction. Any subsequent amendment to J
summary offences will not, in my view, affect its validity so long as there
K K
remains at least an indictable offence in the indictment.
L L
25. The chronology of events is as follows:-
M M
(1) - The defendant denied all 3 charges and trial proceeded
N
with the admission of “Admitted Facts” as evidence, then N
O
it was adjourned to the next day; O
(2) - On the second day of trial, the court was informed by the
P P
prosecution that they would call no further evidence as
Q they still failed to locate the relevant witnesses with the Q
indication that they would amend charge 2 to a lesser one,
R R
i.e. a S.17 summary offence;
S (3) - Counsel for the prosecution prepared a fresh indictment S
containing 3 counts of offence – same charges 1 & 3 but
T T
with the second charge now being amended to S.17.
U U
V V
-7-
A A
B B
(4) - The defendant pleaded guilty to the amended charge, after
C convicting him of it the court then dismissed charges 1 & C
3.
D D
26. As can be seen from above, it has never been the case that the
E E
indictment contained only one summary offence at any one time, so there
F is no jurisdictional question arising out of the instant case. F
G G
H H
I I
( Sham )
J District Judge J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 913/2017
C [2018] HKDC 798 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 913 OF 2017
F F
G ------------------------------ G
HKSAR
H H
v
I JIBRIIL Samatar Diireye I
------------------------------
J J
K Before: HH Judge Sham K
Date: 6 July 2018
L L
Present: Mr Maurice Peter Tracy, Counsel on fiat, for HKSAR
M Mr Frederick Fong instructed by Messrs Tse Yuen Ting M
Wong assigned by the Director of Legal Aid for the
N N
defendant.
O Offence: [1] Common Assault (普通襲擊) O
P
[2] Possession of an offensive weapon (管有攻擊性武器) P
[3] Wounding with intent (有意圖而傷人)
Q Q
R --------------------------------------- R
REASONS FOR SENTENCE
S S
---------------------------------------
T T
U U
V V
-2-
A A
B B
1. On the afternoon of 19 August 2017, the defendant, a 34-year-
C old African man, was seen brandishing a chopper in Temple Street, Yau C
Ma Tei and his behaviour had put anyone happened to be passing in the
D D
vicinity in fear of their lives. Police were called.
E E
2. When responding officers arrived, the defendant was sitting
F F
on a chair with the chopper in his hand; as soon as the officers got closer
G to him, the defendant stood up waving the chopper, which prompted one G
of the officers to draw his revolver to point at the defendant.
H H
3. The defendant kept on yelling words to the effect that “Kill
I I
me” and “I cannot die”. Eventually, the police were able to put the situation
J under control without firing a shot and had the defendant taken into J
custody.
K K
L 4. Originally, the defendant was charged with three counts of L
offence, namely, common assault (charge 1), a section 33 possession of
M M
offensive weapon (charge 2) and wounding 17 (charge 3).
N N
5. On the first day of trial1, after the admission of the “Admitted
O Facts”, the case had to be adjourned to the following day because the two O
alleged victims of the assault charges were nowhere to be seen. When the
P P
proceedings resumed the next day, the prosecution informed the court that
Q they had no choice but to drop the two assault charges (charges 1 & 3) by Q
calling no further evidence because they were unable to secure the
R R
attendance of the two victims named in the assault charges.
S S
T T
1
11th June 2018
U U
V V
-3-
A A
B B
6. Insofar as the possession charge was concerned, the
C prosecution saw fit to amend it to a lesser charge of section 17 possession C
of offensive weapon under the Summary Offences Ordinance; when the
D D
amended charge was put to the defendant, he immediately pleaded guilty
E to it. E
F 7. Given the apparent bizarre behaviour of the defendant, the F
matter was adjourned to enable two psychiatrist reports to be prepared on
G G
the defendant to ascertain his mental condition.
H H
8. As a matter of fact, when the case came before the Kowloon
I I
City Magistracy some 9 months ago in September 2017, such kind of
J reports were called and incidentally they were written by the same doctors. J
K 9. They both say the defendant is suffering from psychosis, but K
the only difference 2 now is that they no longer recommend inpatient
L L
treatment in view of the improvement he has made as a result of treatment
M received during detention. M
N N
10. It is clear from the reports that the reasons why the
O
defendant behaved in such a violently aggressive way on the day in O
question are due to his mental illness; the doctors said he was in a state of
P P
relapse at the material times of the offence. Put in another way, had it not
Q been for his mental problems, he would not have acted like that. Q
R 11. According to the psychiatrists, the defendant is now R
considered safe to be allowed back into the community to mingle with
S S
members of the public, which would mean a hospital order is unnecessary.
T T
2
In their earlier reports, both doctors recommended a 4-6 month hospital order
U U
V V
-4-
A A
B B
12. I have the opportunity to examine the chopper in question; it
C is indeed a sharp weapon – it could easily cause serious injuries if it were C
to put to illicit use. It’s not hard to imagine how fearsome it would be when
D D
a madman wielding a chopper roams one of the busiest streets in the city
E like Temple Street in broad day light. E
F 13. Even taking into account of the fact that he was suffering from F
psychosis at the time, a custodial sentence is nevertheless inevitable in the
G G
3
circumstances of the instant case, I take 9 months as starting point .
H H
14. On the question of how much discount to be given for the
I I
defendant’s guilty plea, his counsel did not argue for a full one-third.
J Perhaps he took the view that the plea was only entered on the second day J
of trial which, in accordance with the Court of Appeal decision 4 , only
K K
warranted a 20% discount.
L L
15. Counsel for the prosecution, however, has submitted a couple
M of cases5 on this question, but in my view, the matter in issue in those cases M
is not the question at issue in this case. For instance, in Lamin, the
N N
defendant faced two charges of drug trafficking, a plea bargain occurred at
O trial resulting in defendant pleading guilty to one of the charges with the O
other one being left on the court’s file.
P P
Q 16. The question at issue in Lamin is whether the defendant Q
should be given one-third discount for the late plea, the Appellate Judge
R R
upheld the decision of the trial judge who gave only a 20 % discount.
S S
T T
3
Section 17 of possession of weapon carries a maximum of 2 years’ imprisonment
4
Ngo Van Nam CACC 418/2014
5
Barrow Lamin CACC 219/2017, Hincapie Alzate Gilberto and Another DCCC 929/2017
U U
V V
-5-
A A
B B
17. I could understand the rationale behind it because the
C defendant in Lamin had been given a prior opportunity to plead to the C
charge, but he failed to avail himself of it at the first available opportunity.
D D
18. In our case, however, the Section 17 offence had never been
E E
made available to the defendant for his plea until the second day of trial
F when the prosecution decided to amend the original charge; as soon as the F
amended charge was put to the defendant, he pleaded guilty. A plea in this
G G
situation could not rightly be described as late plea.
H H
19. Not giving sufficient discount for late pleas is a way to
I I
encourage the defendant to make up their mind on plea day and come to a
J decision without delay, or they will be penalized in terms of sentence; and J
of course, by so deciding, it helps save the court’s time and resources.
K K
20. S.33 is much more serious an offence than that of S.17, it
L L
therefore could not be argued that the defendant could have pleaded guilty
M to Section 33 offence much earlier. Once amendment was made, the M
defendant pleaded guilty to it. There is no delay on the part of the
N N
defendant, and thus his situation would not be any different from those who
O would indicate guilty pleas on plea day; it would only be right to say that O
he’s also entitled to the usual one-third discount for a timely plea.
P P
Q 21. Giving the appropriate discount, the starting point is reduced Q
to 6 months. There being no reason for further reduction, he is therefore
R R
sentenced to 6 months’ imprisonment.
S S
22. I’d like to conclude the case with a few words on jurisdiction.
T As apparent from above, in the end the court has passed sentence on one T
single charge, a summary offence (S.17), which might give rise to the
U U
V V
-6-
A A
B B
question whether I have the power to deal with it. Having heard
C submissions from both parties, I am satisfied that the sentence is a valid C
one in terms of jurisdiction.
D D
23. The District Court has jurisdiction to try charges transferred
E E
by a magistrate in accordance with Sections 88-90 of the Magistrates
F Ordinance. In short, a magistrate cannot transfer a summary offence on its F
own to the District Court unless the indictment includes an indictable
G G
offence which the defendant also faces.
H H
24. In our case, the initial indictment contained 3 counts of
I I
offence – they are all indictable offences – such being the case there
J shouldn’t be any issue on jurisdiction. Any subsequent amendment to J
summary offences will not, in my view, affect its validity so long as there
K K
remains at least an indictable offence in the indictment.
L L
25. The chronology of events is as follows:-
M M
(1) - The defendant denied all 3 charges and trial proceeded
N
with the admission of “Admitted Facts” as evidence, then N
O
it was adjourned to the next day; O
(2) - On the second day of trial, the court was informed by the
P P
prosecution that they would call no further evidence as
Q they still failed to locate the relevant witnesses with the Q
indication that they would amend charge 2 to a lesser one,
R R
i.e. a S.17 summary offence;
S (3) - Counsel for the prosecution prepared a fresh indictment S
containing 3 counts of offence – same charges 1 & 3 but
T T
with the second charge now being amended to S.17.
U U
V V
-7-
A A
B B
(4) - The defendant pleaded guilty to the amended charge, after
C convicting him of it the court then dismissed charges 1 & C
3.
D D
26. As can be seen from above, it has never been the case that the
E E
indictment contained only one summary offence at any one time, so there
F is no jurisdictional question arising out of the instant case. F
G G
H H
I I
( Sham )
J District Judge J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V