DCCC264/2023 HKSAR v. IBRAHIM ZAINUDEEN (also known as MOHAMMED ZAINUDEEN IBRAHIM AND TOURAY MUHAMMED LAMIN) - LawHero
DCCC264/2023
區域法院（刑事）HH Judge E Yip15/7/2025[2025] HKDC 1217
DCCC264/2023
A A
B B
DCCC 264/2023
C [2025] HKDC 1217 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 264 OF 2023
F F
G ----------------------------------------- G
HKSAR
H H
v
I IBRAHIM Zainudeen I
(also known as MOHAMMED Zainudeen Ibrahim
J J
and TOURAY Muhammed Lamin)
K ----------------------------------------- K
L L
Before: HH Judge E Yip
M Date: 16 July 2025 M
Present: Ms. Herbert, Elizabeth Anne, Counsel on Fiat, for HKSAR
N N
Mr. Ross, Phillip, instructed by B. Manek & Co., assigned by
O the Director of Legal Aid for the Defendant O
Offence: [1] Theft (盜竊罪)
P P
[2] Driving without a valid driving licence (駕駛時無有效駕
Q Q
駛執照)
R [3] Using a motor vehicle without third party insurance (沒有 R
第三者保險而使用汽車)
S S
[4] – [5] Failing to surrender to custody without reasonable
T T
cause (無合理因由而沒有按照法庭的指定歸押)
U U
V V
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A A
B B
C ----------------------------------------- C
REASONS FOR SENTENCE
D D
-----------------------------------------
E E
Charges
F F
G 1. The Defendant pleads guilty to the following 5 charges: G
H H
(1) Theft of a motorcycle (Charge 1);
I I
(2) Driving without a valid driving licence (Charge 2);
J J
K (3) Using a motor vehicle without third party insurance K
(Charge 3);
L L
M (4) Failing to surrender to custody without reasonable M
cause (Charge 4);
N N
O (5) Failing to surrender to custody without reasonable O
cause (Charge 5).
P P
Q Facts for Charge 1 Q
R R
2. At about 9:53pm on 3 July 2022, PW1 parked his motorcycle,
S which bears the registration number XB8184 and cost him about S
HK$33,000 (the “Motorcycle”) outside the ground floor of Pik Shan House,
T T
Shek Pai Wan Estate, 68 Yue Kwong Road, Aberdeen (“Location 1”),
U U
V V
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A A
B B
locked the wheels and left. When PW1 returned to Location 1 the next day
C at about 8:00 am, he found that the Motorcycle was missing. PW1 then C
reported the case to the police.
D D
E 3. At about 9:53pm on 5 July 2022, the Motorcycle was found E
by the police outside 14 Wa Fung Street, Hung Hom (“Location 2”). As a
F F
result, an ambush operation was mounted by the police nearby.
G G
4. At about 3:39pm on the same day, the Defendant was holding
H H
a motorcycle helmet in his hand (the “Helmet”) when he approached the
I Motorcycle. The Defendant put the Helmet down on the Motorcycle and I
inserted a certain key (the “Key”) into the ignition switch of the
J J
Motorcycle. The engine was then started, and the headlights were on.
K When the Defendant picked up the Helmet, the police came out to intercept K
the Defendant for enquiry. Seeing so, the Defendant threw the Helmet
L L
towards the Motorcycle and fled the scene. The police followed the
M Defendant, who ran past Baker Street, Lo Lung Hang Street, Wuhu Street, M
and Walker Street before eventually stopped at Gillies Avenue. The police
N N
arrested the Defendant for “Taking conveyance without authority” and
O “Theft”. O
P P
5. Later on, PW1 went to Location 2 and inspected the
Q Motorcycle. He discovered that: Q
R R
(1) An electric wire was found to have been cut at the front
S of the Motorcycle; S
T T
U U
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A A
B B
(2) The cover of the ignition lock cylinder of the
C Motorcycle was found to be broken, and PW1 could C
not insert his key into it;
D D
E (3) The rim of the front of the wheel of the Motorcycle was E
deformed.
F F
G 6. PW1 took the Motorcycle for repair of both the front wheel G
and the ignition lock cylinder. The repairs cost him HK$7,600.
H H
I Facts for Charges 2 and 3 I
J J
7. CCTV footage on 5 July 2022 of the crime scene was
K obtained (“the CCTV Footage”). The CCTV Footage revealed that: K
L L
(1) The Defendant drove the Motorcycle from Chatham
M Road North to Wa Fung Street at about 3:29am that day; M
N N
(2) He then parked the Motorcycle at the dead end of Wa
O Fung Street and alighted from it; O
P P
(3) At about 3:30am, the Defendant was walking along
Q Winslow Street, which was just next to Wa Fung Street. Q
R R
8. Police check revealed that the Defendant was not the holder
S of any valid driving licence and there was not in force in relation to him S
such a policy of insurance or such security in respect of third party risks as
T T
U U
V V
-5-
A A
B B
complied with the requirements of the Motor Vehicles Insurance (Third
C Party Risks) Ordinance (Cap 272). C
D D
Video–recorded Interviews relating to Charges 1, 2 and 3
E E
9. On 6 July 2022, the police had conducted two video-recorded
F F
interviews with the Defendant. Under caution, the Defendant stated, inter
G alia, the following: G
H H
(1) He was a Form 8 recognisance holder who arrived in
I Hong Kong in 2014; I
J J
(2) He identified himself to be the one captured in the
K CCTV footage driving and parking the Motorcycle on K
5 July 2022.
L L
M (3) He did not possess a valid driving licence in Hong M
Kong, nor had he purchased any third-party risk
N N
insurance for the Motorcycle;
O O
(4) He knew that it was illegal for him to drive the
P P
Motorcycle without a valid licence.
Q Q
Facts for Charge 4
R R
S 10. On 13 April 2022, the District Court ordered that the S
Defendant’s case be adjourned to 1 June 2023 for mention. The
T T
Defendant’s bail was extended.
U U
V V
-6-
A A
B B
C 11. On 1 June 2023, the Defendant failed to appear at the hearing C
as appointed by the court.
D D
E 12. On 21 October 2023, in execution of a warrant of arrest, the E
police arrested the Defendant at a flat on Nathan Road.
F F
G 13. On 2 November 2023, the police conducted a cautioned G
interview with the Defendant. Under caution, the Defendant claimed that
H H
he had forgotten everything.
I I
14. The Defendant’s act causes a delay of 4 ½ months in the legal
J J
proceedings.
K K
Facts for Charge 5
L L
M 15. On 30 November 2023, the District Court ordered that the M
Defendant’s case be adjourned to 16 January 2024 for mention. The
N N
Defendant was granted bail.
O O
16. On 16 January 2024, the Defendant failed to appear at the
P P
hearing as appointed by the court.
Q Q
17. On 15 July 2024, in execution of a warrant of arrest, the police
R R
arrested the Defendant at the report room of Tsim Sha Tsui Police Station.
S S
18. The Defendant’s act causes a delay of 7 ½ months in the legal
T T
proceedings.
U U
V V
-7-
A A
B B
C Summary of Charges 1 – 5 C
D D
19. On or about 4 July 2022, in Hong Kong, the Defendant stole
E the Motorcycle, which belonged to PW1 (Charge 1). E
F F
20. On 5 July 2022, the Defendant drove the Motorcycle on a road
G when he was not the holder of a valid driving licence in respect of a vehicle G
of the class of vehicle which he was driving (Charge 2).
H H
I 21. On 5 July 2022, the Defendant used the Motorcycle on a road I
when there was not in force in relation to the Defendant thereof by him
J J
such a policy of insurance or such a security in respect of third party risks
K as complied with the requirements of the Motor Vehicles Insurance (Third K
Party Risks) Ordinance (Cap 272) (Charge 3).
L L
M 22. On 1 June 2023, the Defendant, being a person admitted to M
bail, without reasonable cause, failed to surrender to custody as appointed
N N
by a court (Charge 4).
O O
23. On 16 January 2024, the Defendant, being a person admitted
P P
to bail, without reasonable cause, failed to surrender to custody as
Q appointed by a court (Charge 5). Q
R R
Mitigation
S S
24. The Defendant is aged 35, a Form 8 recognisance holder. He
T T
is unemployed. He is a national of Ghana. His wife was a domestic helper
U U
V V
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A A
B B
in Hong Kong but during his remand she had returned to Indonesia with
C their 2 young children for the lower cost of living there. C
D D
25. The Defendant has a record for trafficking in dangerous drugs,
E for which he was jailed for 12 months and breach of condition of stay, for E
which he was jailed for 4 weeks. He had a record for theft, for which he
F F
was sentenced to 8 months in August 2024. This record was for an offence
G in 2024, which happened after the present case. G
H H
26. Mr. Ross submits that the theft of motorcycle warrants a
I sentence of 2 years to 2 years 6 months as exemplified by various cases I
(HKSAR v Fung Chun Ho DCCC 328 & 617/2022; HKSAR v Ngai Ming
J J
Yin DCCC 226/2021; HKSAR v Yuen Ka Kui & Another DCCC 415/2020;
K HKSAR v Ng Lok Fung, Jerry DCCC 958/2017). Relevant facts for K
sentence are the inconvenience caused to the owner, the value of the
L L
motorcycle and whether the Defendant had taken measures to conceal the
M identity of the motorcycle. M
N N
27. In the present case, the loss and found spanned over 26 hours
O only. The Defendant did not try to conceal the identity of the Motorcycle O
in any manner.
P P
Q 28. On 26 May 2025, the first date of trial before me, the Q
Defendant applied for an adjournment for further evidence to be provided
R R
by the prosecution and the defence. I adjourned the case for mention to 9
S September 2025 for the parties to address this Court on the progress of S
evidence preparation. The defence wrote in to indicate a change of plea,
T T
to one of guilty plea, on 30 May 2025. I adjourned the plea and sentence
U U
V V
-9-
A A
B B
to 16 July 2025 (which is today). Mr. Ross now submits that whilst the
C Defendant may not get the extent of discount customarily given for a guilty C
plea on the first date of trial (which I understand to be a 1/5 discount), this
D D
Court can give a discount very close to that.
E E
29. I understand from HKSAR v Lo Kam Fai 盧錦輝 CACC
F F
374/2014, as per MaCrae JA the following considerations for giving
G discount for a plea of guilty to the original charge: G
H H
“86. This reasoning as to the practical consequences of
absconding for the courts on otherwise “timely pleas” finds
I resonance in a number of the other authorities to which I have I
referred. In [HKSAR v Ko Chun Hung CACC 71/2007], for
J example, the Court said: J
“24. We accept that having been sentenced to 4 months’
K imprisonment for absconding and then not being granted K
the full one-third discount for pleading guilty again
because of absconding, the applicant appeared to have
L L
been punished twice for the same facts. However, there
was a logical foundation for it.
M M
25. By absconding, the applicant had committed a fresh
offence and had to be punished separately. By
N absconding, the applicant also rendered the N
administration of justice more costly and more time-
O consuming, and the judge was entitled to exercise his O
discretion by reducing the percentage of discount that he
would otherwise have obtained.””
P P
30. MaCrae JA also points out that:
Q Q
R “81. It is clear from many of the authorities cited, both in Hong R
Kong and the United Kingdom, that where a separate charge of
S absconding is brought, the sentence should generally be made S
consecutive to the sentence for the substantive offence(s). The
English authority cited in support of this proposition is R v
T White and McKinnon [2003] 2 Cr App R (S) 133 . However, I T
note than in White and McKinnon, the Court went on to say, at
135:
U U
V V
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A A
B B
“However, in any individual case, and of course if a very
C long sentence is imposed for a substantial offence C
calculated in terms of years, the court may consider that
in the particular circumstances a sentence for failing to
D surrender to bail should be ordered to be served D
concurrently. That in the end must be a matter for the
E
individual trial judge.” E
The Court did not explain what it meant by a “substantial
F offence calculated in terms of years”, but I would have thought F
that White’s sentence of 6 years’ imprisonment for conspiracy
to supply class A drugs was such a sentence, while McKinnon’s
G G
sentence of 5½ months’ imprisonment for taking a motor vehicle
without consent was not. The appellants received consecutive
H sentences of 6 months and 3 months’ imprisonment for their H
respective absconding.”
I I
31. Driving a motor vehicle without a valid driving licence
J (Charge 3) carries a maximum of $5,000 fine and 3 months’ imprisonment. J
Driving a motor vehicle without third party insurance carries a maximum
K K
of $10,000 fine and 12 months’ imprisonment as well as disqualification
L L
from holding a driving licence for 1 to 3 years.
M M
32. I understand that where the Defendant is a Form 8
N N
recognisance holder and his crime affected the well-being of the Hong
O Kong community, which allowed him to live freely in Hong Kong as they O
await resolution of their non-refoulement claims (HKSAR v Ali Saif [2018]
P P
HKCA 358; HKSAR v Gursevak), this becomes an aggravating factor in
Q his sentence. Q
R R
33. The maximum sentence for failing to surrender to lawful
S custody is 12 months. In total for Charges 4 and 5, the Defendant had S
caused a delay of 12 months in the legal proceedings.
T T
U U
V V
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A A
B B
Sentencing this Defendant
C C
34. I take 24 months’ imprisonment as the starting point on the
D D
facts supporting the charge of Theft of Motorcycle (Charge 1). I increase
E that by 2 months on account of the Defendant being a Form 8 recognisance E
holder committing a crime against the interest of the Hong Kong
F F
community. The starting point is 26 months.
G G
35. If the Defendant had indicated a plea of guilty on the first date
H H
of trial, he would have 20% discount. He actually elected to indicate his
I plea of guilty 4 days after the trial was adjourned at the instance of the I
defence, at the beginning of the first day of trial, to 4 months later for
J J
mention to address this court on the progress of evidence preparation. Up
K to this juncture, I would have given him a discount of 5 months (19.2%). K
However, owing to his absconding twice, which caused a delay of 12
L L
months in total in the legal proceedings, I have to reduce the discount for
M his plea of guilty by only 4 months. The sentence is 22 months for Charge M
1.
N N
O 36. I take 6 weeks’ imprisonment as the starting point for Charges O
2 and 3 alike. He had indicated a plea of guilty at the outset. I give him a
P P
one-third discount for this. His sentence is 4 weeks on Charges 1 and 2
Q alike. Charge 3 carries a disqualification from holding a driving licence Q
for 1 year in addition to the imprisonment.
R R
S 37. I take 3 months’ imprisonment as the starting point for Charge S
3 for the 4 ½ months delay in the legal proceedings caused by the
T T
U U
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A A
B B
Defendant’s absconding. I give him a one-third discount for this. The
C sentence is 2 months for Charge 4. C
D D
38. I also take 3 months’ imprisonment as the starting point for
E the 7 ½ months delay in the legal proceedings caused by the Defendant’s E
absconding. I give him a one-third discount for this. The sentence is 2
F F
months for Charge 5.
G G
39. Taking into account totality, I make the following adjustment
H H
to the terms of imprisonment:
I I
(1) Charge 1 is of 22 months;
J J
K (2) Charges 2 and 3, each of 4 weeks, to be served K
concurrently with each other and other charges;
L L
M (3) Charge 4 is of 2 months, to be served consecutively to M
other charges;
N N
O (4) Charge 5 is of 2 months, to be served consecutively to O
other charges;
P P
Q (5) The total sentence is 26 months. Q
R R
S S
( E Yip )
T T
District Judge
U U
V V
HKSAR v. IBRAHIM ZAINUDEEN (also known as MOHAMMED ZAINUDEEN IBRAHIM AND TOURAY MUHAMMED LAMIN)
A A
B B
DCCC 264/2023
C [2025] HKDC 1217 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 264 OF 2023
F F
G ----------------------------------------- G
HKSAR
H H
v
I IBRAHIM Zainudeen I
(also known as MOHAMMED Zainudeen Ibrahim
J J
and TOURAY Muhammed Lamin)
K ----------------------------------------- K
L L
Before: HH Judge E Yip
M Date: 16 July 2025 M
Present: Ms. Herbert, Elizabeth Anne, Counsel on Fiat, for HKSAR
N N
Mr. Ross, Phillip, instructed by B. Manek & Co., assigned by
O the Director of Legal Aid for the Defendant O
Offence: [1] Theft (盜竊罪)
P P
[2] Driving without a valid driving licence (駕駛時無有效駕
Q Q
駛執照)
R [3] Using a motor vehicle without third party insurance (沒有 R
第三者保險而使用汽車)
S S
[4] – [5] Failing to surrender to custody without reasonable
T T
cause (無合理因由而沒有按照法庭的指定歸押)
U U
V V
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A A
B B
C ----------------------------------------- C
REASONS FOR SENTENCE
D D
-----------------------------------------
E E
Charges
F F
G 1. The Defendant pleads guilty to the following 5 charges: G
H H
(1) Theft of a motorcycle (Charge 1);
I I
(2) Driving without a valid driving licence (Charge 2);
J J
K (3) Using a motor vehicle without third party insurance K
(Charge 3);
L L
M (4) Failing to surrender to custody without reasonable M
cause (Charge 4);
N N
O (5) Failing to surrender to custody without reasonable O
cause (Charge 5).
P P
Q Facts for Charge 1 Q
R R
2. At about 9:53pm on 3 July 2022, PW1 parked his motorcycle,
S which bears the registration number XB8184 and cost him about S
HK$33,000 (the “Motorcycle”) outside the ground floor of Pik Shan House,
T T
Shek Pai Wan Estate, 68 Yue Kwong Road, Aberdeen (“Location 1”),
U U
V V
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A A
B B
locked the wheels and left. When PW1 returned to Location 1 the next day
C at about 8:00 am, he found that the Motorcycle was missing. PW1 then C
reported the case to the police.
D D
E 3. At about 9:53pm on 5 July 2022, the Motorcycle was found E
by the police outside 14 Wa Fung Street, Hung Hom (“Location 2”). As a
F F
result, an ambush operation was mounted by the police nearby.
G G
4. At about 3:39pm on the same day, the Defendant was holding
H H
a motorcycle helmet in his hand (the “Helmet”) when he approached the
I Motorcycle. The Defendant put the Helmet down on the Motorcycle and I
inserted a certain key (the “Key”) into the ignition switch of the
J J
Motorcycle. The engine was then started, and the headlights were on.
K When the Defendant picked up the Helmet, the police came out to intercept K
the Defendant for enquiry. Seeing so, the Defendant threw the Helmet
L L
towards the Motorcycle and fled the scene. The police followed the
M Defendant, who ran past Baker Street, Lo Lung Hang Street, Wuhu Street, M
and Walker Street before eventually stopped at Gillies Avenue. The police
N N
arrested the Defendant for “Taking conveyance without authority” and
O “Theft”. O
P P
5. Later on, PW1 went to Location 2 and inspected the
Q Motorcycle. He discovered that: Q
R R
(1) An electric wire was found to have been cut at the front
S of the Motorcycle; S
T T
U U
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A A
B B
(2) The cover of the ignition lock cylinder of the
C Motorcycle was found to be broken, and PW1 could C
not insert his key into it;
D D
E (3) The rim of the front of the wheel of the Motorcycle was E
deformed.
F F
G 6. PW1 took the Motorcycle for repair of both the front wheel G
and the ignition lock cylinder. The repairs cost him HK$7,600.
H H
I Facts for Charges 2 and 3 I
J J
7. CCTV footage on 5 July 2022 of the crime scene was
K obtained (“the CCTV Footage”). The CCTV Footage revealed that: K
L L
(1) The Defendant drove the Motorcycle from Chatham
M Road North to Wa Fung Street at about 3:29am that day; M
N N
(2) He then parked the Motorcycle at the dead end of Wa
O Fung Street and alighted from it; O
P P
(3) At about 3:30am, the Defendant was walking along
Q Winslow Street, which was just next to Wa Fung Street. Q
R R
8. Police check revealed that the Defendant was not the holder
S of any valid driving licence and there was not in force in relation to him S
such a policy of insurance or such security in respect of third party risks as
T T
U U
V V
-5-
A A
B B
complied with the requirements of the Motor Vehicles Insurance (Third
C Party Risks) Ordinance (Cap 272). C
D D
Video–recorded Interviews relating to Charges 1, 2 and 3
E E
9. On 6 July 2022, the police had conducted two video-recorded
F F
interviews with the Defendant. Under caution, the Defendant stated, inter
G alia, the following: G
H H
(1) He was a Form 8 recognisance holder who arrived in
I Hong Kong in 2014; I
J J
(2) He identified himself to be the one captured in the
K CCTV footage driving and parking the Motorcycle on K
5 July 2022.
L L
M (3) He did not possess a valid driving licence in Hong M
Kong, nor had he purchased any third-party risk
N N
insurance for the Motorcycle;
O O
(4) He knew that it was illegal for him to drive the
P P
Motorcycle without a valid licence.
Q Q
Facts for Charge 4
R R
S 10. On 13 April 2022, the District Court ordered that the S
Defendant’s case be adjourned to 1 June 2023 for mention. The
T T
Defendant’s bail was extended.
U U
V V
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A A
B B
C 11. On 1 June 2023, the Defendant failed to appear at the hearing C
as appointed by the court.
D D
E 12. On 21 October 2023, in execution of a warrant of arrest, the E
police arrested the Defendant at a flat on Nathan Road.
F F
G 13. On 2 November 2023, the police conducted a cautioned G
interview with the Defendant. Under caution, the Defendant claimed that
H H
he had forgotten everything.
I I
14. The Defendant’s act causes a delay of 4 ½ months in the legal
J J
proceedings.
K K
Facts for Charge 5
L L
M 15. On 30 November 2023, the District Court ordered that the M
Defendant’s case be adjourned to 16 January 2024 for mention. The
N N
Defendant was granted bail.
O O
16. On 16 January 2024, the Defendant failed to appear at the
P P
hearing as appointed by the court.
Q Q
17. On 15 July 2024, in execution of a warrant of arrest, the police
R R
arrested the Defendant at the report room of Tsim Sha Tsui Police Station.
S S
18. The Defendant’s act causes a delay of 7 ½ months in the legal
T T
proceedings.
U U
V V
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A A
B B
C Summary of Charges 1 – 5 C
D D
19. On or about 4 July 2022, in Hong Kong, the Defendant stole
E the Motorcycle, which belonged to PW1 (Charge 1). E
F F
20. On 5 July 2022, the Defendant drove the Motorcycle on a road
G when he was not the holder of a valid driving licence in respect of a vehicle G
of the class of vehicle which he was driving (Charge 2).
H H
I 21. On 5 July 2022, the Defendant used the Motorcycle on a road I
when there was not in force in relation to the Defendant thereof by him
J J
such a policy of insurance or such a security in respect of third party risks
K as complied with the requirements of the Motor Vehicles Insurance (Third K
Party Risks) Ordinance (Cap 272) (Charge 3).
L L
M 22. On 1 June 2023, the Defendant, being a person admitted to M
bail, without reasonable cause, failed to surrender to custody as appointed
N N
by a court (Charge 4).
O O
23. On 16 January 2024, the Defendant, being a person admitted
P P
to bail, without reasonable cause, failed to surrender to custody as
Q appointed by a court (Charge 5). Q
R R
Mitigation
S S
24. The Defendant is aged 35, a Form 8 recognisance holder. He
T T
is unemployed. He is a national of Ghana. His wife was a domestic helper
U U
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A A
B B
in Hong Kong but during his remand she had returned to Indonesia with
C their 2 young children for the lower cost of living there. C
D D
25. The Defendant has a record for trafficking in dangerous drugs,
E for which he was jailed for 12 months and breach of condition of stay, for E
which he was jailed for 4 weeks. He had a record for theft, for which he
F F
was sentenced to 8 months in August 2024. This record was for an offence
G in 2024, which happened after the present case. G
H H
26. Mr. Ross submits that the theft of motorcycle warrants a
I sentence of 2 years to 2 years 6 months as exemplified by various cases I
(HKSAR v Fung Chun Ho DCCC 328 & 617/2022; HKSAR v Ngai Ming
J J
Yin DCCC 226/2021; HKSAR v Yuen Ka Kui & Another DCCC 415/2020;
K HKSAR v Ng Lok Fung, Jerry DCCC 958/2017). Relevant facts for K
sentence are the inconvenience caused to the owner, the value of the
L L
motorcycle and whether the Defendant had taken measures to conceal the
M identity of the motorcycle. M
N N
27. In the present case, the loss and found spanned over 26 hours
O only. The Defendant did not try to conceal the identity of the Motorcycle O
in any manner.
P P
Q 28. On 26 May 2025, the first date of trial before me, the Q
Defendant applied for an adjournment for further evidence to be provided
R R
by the prosecution and the defence. I adjourned the case for mention to 9
S September 2025 for the parties to address this Court on the progress of S
evidence preparation. The defence wrote in to indicate a change of plea,
T T
to one of guilty plea, on 30 May 2025. I adjourned the plea and sentence
U U
V V
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A A
B B
to 16 July 2025 (which is today). Mr. Ross now submits that whilst the
C Defendant may not get the extent of discount customarily given for a guilty C
plea on the first date of trial (which I understand to be a 1/5 discount), this
D D
Court can give a discount very close to that.
E E
29. I understand from HKSAR v Lo Kam Fai 盧錦輝 CACC
F F
374/2014, as per MaCrae JA the following considerations for giving
G discount for a plea of guilty to the original charge: G
H H
“86. This reasoning as to the practical consequences of
absconding for the courts on otherwise “timely pleas” finds
I resonance in a number of the other authorities to which I have I
referred. In [HKSAR v Ko Chun Hung CACC 71/2007], for
J example, the Court said: J
“24. We accept that having been sentenced to 4 months’
K imprisonment for absconding and then not being granted K
the full one-third discount for pleading guilty again
because of absconding, the applicant appeared to have
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been punished twice for the same facts. However, there
was a logical foundation for it.
M M
25. By absconding, the applicant had committed a fresh
offence and had to be punished separately. By
N absconding, the applicant also rendered the N
administration of justice more costly and more time-
O consuming, and the judge was entitled to exercise his O
discretion by reducing the percentage of discount that he
would otherwise have obtained.””
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30. MaCrae JA also points out that:
Q Q
R “81. It is clear from many of the authorities cited, both in Hong R
Kong and the United Kingdom, that where a separate charge of
S absconding is brought, the sentence should generally be made S
consecutive to the sentence for the substantive offence(s). The
English authority cited in support of this proposition is R v
T White and McKinnon [2003] 2 Cr App R (S) 133 . However, I T
note than in White and McKinnon, the Court went on to say, at
135:
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“However, in any individual case, and of course if a very
C long sentence is imposed for a substantial offence C
calculated in terms of years, the court may consider that
in the particular circumstances a sentence for failing to
D surrender to bail should be ordered to be served D
concurrently. That in the end must be a matter for the
E
individual trial judge.” E
The Court did not explain what it meant by a “substantial
F offence calculated in terms of years”, but I would have thought F
that White’s sentence of 6 years’ imprisonment for conspiracy
to supply class A drugs was such a sentence, while McKinnon’s
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sentence of 5½ months’ imprisonment for taking a motor vehicle
without consent was not. The appellants received consecutive
H sentences of 6 months and 3 months’ imprisonment for their H
respective absconding.”
I I
31. Driving a motor vehicle without a valid driving licence
J (Charge 3) carries a maximum of $5,000 fine and 3 months’ imprisonment. J
Driving a motor vehicle without third party insurance carries a maximum
K K
of $10,000 fine and 12 months’ imprisonment as well as disqualification
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from holding a driving licence for 1 to 3 years.
M M
32. I understand that where the Defendant is a Form 8
N N
recognisance holder and his crime affected the well-being of the Hong
O Kong community, which allowed him to live freely in Hong Kong as they O
await resolution of their non-refoulement claims (HKSAR v Ali Saif [2018]
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HKCA 358; HKSAR v Gursevak), this becomes an aggravating factor in
Q his sentence. Q
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33. The maximum sentence for failing to surrender to lawful
S custody is 12 months. In total for Charges 4 and 5, the Defendant had S
caused a delay of 12 months in the legal proceedings.
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A A
B B
Sentencing this Defendant
C C
34. I take 24 months’ imprisonment as the starting point on the
D D
facts supporting the charge of Theft of Motorcycle (Charge 1). I increase
E that by 2 months on account of the Defendant being a Form 8 recognisance E
holder committing a crime against the interest of the Hong Kong
F F
community. The starting point is 26 months.
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35. If the Defendant had indicated a plea of guilty on the first date
H H
of trial, he would have 20% discount. He actually elected to indicate his
I plea of guilty 4 days after the trial was adjourned at the instance of the I
defence, at the beginning of the first day of trial, to 4 months later for
J J
mention to address this court on the progress of evidence preparation. Up
K to this juncture, I would have given him a discount of 5 months (19.2%). K
However, owing to his absconding twice, which caused a delay of 12
L L
months in total in the legal proceedings, I have to reduce the discount for
M his plea of guilty by only 4 months. The sentence is 22 months for Charge M
1.
N N
O 36. I take 6 weeks’ imprisonment as the starting point for Charges O
2 and 3 alike. He had indicated a plea of guilty at the outset. I give him a
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one-third discount for this. His sentence is 4 weeks on Charges 1 and 2
Q alike. Charge 3 carries a disqualification from holding a driving licence Q
for 1 year in addition to the imprisonment.
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S 37. I take 3 months’ imprisonment as the starting point for Charge S
3 for the 4 ½ months delay in the legal proceedings caused by the
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B B
Defendant’s absconding. I give him a one-third discount for this. The
C sentence is 2 months for Charge 4. C
D D
38. I also take 3 months’ imprisonment as the starting point for
E the 7 ½ months delay in the legal proceedings caused by the Defendant’s E
absconding. I give him a one-third discount for this. The sentence is 2
F F
months for Charge 5.
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39. Taking into account totality, I make the following adjustment
H H
to the terms of imprisonment:
I I
(1) Charge 1 is of 22 months;
J J
K (2) Charges 2 and 3, each of 4 weeks, to be served K
concurrently with each other and other charges;
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M (3) Charge 4 is of 2 months, to be served consecutively to M
other charges;
N N
O (4) Charge 5 is of 2 months, to be served consecutively to O
other charges;
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Q (5) The total sentence is 26 months. Q
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S S
( E Yip )
T T
District Judge
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