HKSAR v. IBRAHIM ZAINUDEEN (also known as MOHAMMED ZAINUDEEN IBRAHIM AND TOURAY MUHAMMED LAMIN)

DCCC 264/2023

[2025] HKDC 1217

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 264 OF 2023

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REASONS FOR SENTENCE

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Charges

1.  The Defendant pleads guilty to the following 5 charges:

(1)  Theft of a motorcycle (Charge 1);

(2)  Driving without a valid driving licence (Charge 2);

(3)  Using a motor vehicle without third party insurance (Charge 3);

(4)  Failing to surrender to custody without reasonable cause (Charge 4);

(5)  Failing to surrender to custody without reasonable cause (Charge 5).

Facts for Charge 1

2.  At about 9:53pm on 3 July 2022, PW1 parked his motorcycle, which bears the registration number XB8184 and cost him about HK$33,000 (the “Motorcycle”)  outside the ground floor of Pik Shan House, Shek Pai Wan Estate, 68 Yue Kwong Road, Aberdeen (“Location 1”), locked the wheels and left.  When PW1 returned to Location 1 the next day at about 8:00 am, he found that the Motorcycle was missing.  PW1 then reported the case to the police.

3.  At about 9:53pm on 5 July 2022, the Motorcycle was found by the police outside 14 Wa Fung Street, Hung Hom (“Location 2”).  As a result, an ambush operation was mounted by the police nearby.

4.  At about 3:39pm on the same day, the Defendant was holding a motorcycle helmet in his hand (the “Helmet”)  when he approached the Motorcycle.  The Defendant put the Helmet down on the Motorcycle and inserted a certain key (the “Key”)  into the ignition switch of the Motorcycle.  The engine was then started, and the headlights were on.  When the Defendant picked up the Helmet, the police came out to intercept the Defendant for enquiry.  Seeing so, the Defendant threw the Helmet towards the Motorcycle and fled the scene.  The police followed the Defendant, who ran past Baker Street, Lo Lung Hang Street, Wuhu Street, and Walker Street before eventually stopped at Gillies Avenue. The police arrested the Defendant for “Taking conveyance without authority” and “Theft”.

5.  Later on, PW1 went to Location 2 and inspected the Motorcycle.  He discovered that:

(1)  An electric wire was found to have been cut at the front of the Motorcycle;

(2)  The cover of the ignition lock cylinder of the Motorcycle was found to be broken, and PW1 could not insert his key into it;

(3)  The rim of the front of the wheel of the Motorcycle was deformed.

6.  PW1 took the Motorcycle for repair of both the front wheel and the ignition lock cylinder.  The repairs cost him HK$7,600.

Facts for Charges 2 and 3

7.  CCTV footage on 5 July 2022 of the crime scene was obtained (“the CCTV Footage”).  The CCTV Footage revealed that:

(1)  The Defendant drove the Motorcycle from Chatham Road North to Wa Fung Street at about 3:29am that day;

(2)  He then parked the Motorcycle at the dead end of Wa Fung Street and alighted from it;

(3)  At about 3:30am, the Defendant was walking along Winslow Street, which was just next to Wa Fung Street.

8.  Police check revealed that the Defendant was not the holder of any valid driving licence and there was not in force in relation to him such a policy of insurance or such security in respect of third party risks as complied with the requirements of the Motor Vehicles Insurance (Third Party Risks)  Ordinance (Cap 272).

Video–recorded Interviews relating to Charges 1, 2 and 3

9.  On 6 July 2022, the police had conducted two video-recorded interviews with the Defendant.  Under caution, the Defendant stated, inter alia, the following:

(1)  He was a Form 8 recognisance holder who arrived in Hong Kong in 2014;

(2)  He identified himself to be the one captured in the CCTV footage driving and parking the Motorcycle on 5 July 2022.

(3)  He did not possess a valid driving licence in Hong Kong, nor had he purchased any third-party risk insurance for the Motorcycle;

(4)  He knew that it was illegal for him to drive the Motorcycle without a valid licence.

Facts for Charge 4

10.  On 13 April 2022, the District Court ordered that the Defendant’s case be adjourned to 1 June 2023 for mention.  The Defendant’s bail was extended.

11.  On 1 June 2023, the Defendant failed to appear at the hearing as appointed by the court.

12.  On 21 October 2023, in execution of a warrant of arrest, the police arrested the Defendant at a flat on Nathan Road.

13.  On 2 November 2023, the police conducted a cautioned interview with the Defendant.  Under caution, the Defendant claimed that he had forgotten everything.

14.  The Defendant’s act causes a delay of 4 ½ months in the legal proceedings. 

Facts for Charge 5

15.  On 30 November 2023, the District Court ordered that the Defendant’s case be adjourned to 16 January 2024 for mention.  The Defendant was granted bail.

16.  On 16 January 2024, the Defendant failed to appear at the hearing as appointed by the court.

17.  On 15 July 2024, in execution of a warrant of arrest, the police arrested the Defendant at the report room of Tsim Sha Tsui Police Station.

18.  The Defendant’s act causes a delay of 7 ½ months in the legal proceedings. 

Summary of Charges 1 – 5

19.  On or about 4 July 2022, in Hong Kong, the Defendant stole the Motorcycle, which belonged to PW1 (Charge 1).

20.  On 5 July 2022, the Defendant drove the Motorcycle on a road when he was not the holder of a valid driving licence in respect of a vehicle of the class of vehicle which he was driving (Charge 2).

21.  On 5 July 2022, the Defendant used the Motorcycle on a road when there was not in force in relation to the Defendant thereof by him such a policy of insurance or such a security in respect of third party risks as complied with the requirements of the Motor Vehicles Insurance (Third Party Risks)  Ordinance (Cap 272)  (Charge 3).

22.  On 1 June 2023, the Defendant, being a person admitted to bail, without reasonable cause, failed to surrender to custody as appointed by a court (Charge 4).

23.  On 16 January 2024, the Defendant, being a person admitted to bail, without reasonable cause, failed to surrender to custody as appointed by a court (Charge 5). 

Mitigation

24.  The Defendant is aged 35, a Form 8 recognisance holder.  He is unemployed.  He is a national of Ghana.  His wife was a domestic helper in Hong Kong but during his remand she had returned to Indonesia with their 2 young children for the lower cost of living there.

25.  The Defendant has a record for trafficking in dangerous drugs, for which he was jailed for 12 months  and breach of condition of stay, for which he was jailed for 4 weeks.  He had a record for theft, for which he was sentenced to 8 months in August 2024.  This record was for an offence in 2024, which happened after the present case. 

26.  Mr. Ross submits that the theft of motorcycle warrants a sentence of 2 years to 2 years 6 months as exemplified by various cases (HKSAR v Fung Chun Ho DCCC 328 & 617/2022; HKSAR v Ngai Ming Yin DCCC 226/2021; HKSAR v Yuen Ka Kui & Another DCCC 415/2020; HKSAR v Ng Lok Fung, Jerry DCCC 958/2017).  Relevant facts for sentence are the inconvenience caused to the owner, the value of the motorcycle and whether the Defendant had taken measures to conceal the identity of the motorcycle. 

27.  In the present case, the loss and found spanned over 26 hours only.  The Defendant did not try to conceal the identity of the Motorcycle in any manner.

28.  On 26 May 2025, the first date of trial before me, the Defendant applied for an adjournment for further evidence to be provided by the prosecution and the defence.  I adjourned the case for mention to 9 September 2025 for the parties to address this Court on the progress of evidence preparation.  The defence wrote in to indicate a change of plea, to one of guilty plea, on 30 May 2025.  I adjourned the plea and sentence to 16 July 2025 (which is today).  Mr. Ross now submits that whilst the Defendant may not get the extent of discount customarily given for a guilty plea on the first date of trial (which I understand to be a 1/5 discount), this Court can give a discount very close to that.  

29.  I understand from HKSAR v Lo Kam Fai 盧錦輝CACC 374/2014, as per MaCrae JA the following considerations for giving discount for a plea of guilty to the original charge:

“86. This reasoning as to the practical consequences of absconding for the courts on otherwise “timely pleas” finds resonance in a number of the other authorities to which I have referred. In [HKSAR v Ko Chun Hung CACC 71/2007], for example, the Court said:

“24. We accept that having been sentenced to 4 months’ imprisonment for absconding and then not being granted the full one-third discount for pleading guilty again because of absconding, the applicant appeared to have been punished twice for the same facts. However, there was a logical foundation for it.

25. By absconding, the applicant had committed a fresh offence and had to be punished separately. By absconding, the applicant also rendered the administration of justice more costly and more time-consuming, and the judge was entitled to exercise his discretion by reducing the percentage of discount that he would otherwise have obtained.””

30.  MaCrae JA also points out that:

“81. It is clear from many of the authorities cited, both in Hong Kong and the United Kingdom, that where a separate charge of absconding is brought, the sentence should generally be made consecutive to the sentence for the substantive offence(s). The English authority cited in support of this proposition is R v White and McKinnon [2003] 2 Cr App R (S)  133 . However, I note than in White and McKinnon, the Court went on to say, at 135:

“However, in any individual case, and of course if a very long sentence is imposed for a substantial offence calculated in terms of years, the court may consider that in the particular circumstances a sentence for failing to surrender to bail should be ordered to be served concurrently. That in the end must be a matter for the individual trial judge.”

The Court did not explain what it meant by a “substantial offence calculated in terms of years”, but I would have thought that White’s sentence of 6 years’ imprisonment for conspiracy to supply class A drugs was such a sentence, while McKinnon’s sentence of 5½ months’ imprisonment for taking a motor vehicle without consent was not. The appellants received consecutive sentences of 6 months and 3 months’ imprisonment for their respective absconding.”

31.  Driving a motor vehicle without a valid driving licence (Charge 3)  carries a maximum of $5,000 fine and 3 months’ imprisonment.  Driving a motor vehicle without third party insurance carries a maximum of $10,000 fine and 12 months’ imprisonment as well as disqualification from holding a driving licence for 1 to 3 years.  

32.  I understand that where the Defendant is a Form 8 recognisance holder and his crime affected the well-being of the Hong Kong community, which allowed him to live freely in Hong Kong as they await resolution of their non-refoulement claims (HKSAR v Ali Saif [2018] HKCA 358; HKSAR v Gursevak), this becomes an aggravating factor in his sentence.

33.  The maximum sentence for failing to surrender to lawful custody is 12 months.  In total for Charges 4 and 5, the Defendant had caused a delay of 12 months in the legal proceedings. 

Sentencing this Defendant

34.  I take 24 months’ imprisonment as the starting point on the facts supporting the charge of Theft of Motorcycle (Charge 1).  I increase that by 2 months on account of the Defendant being a Form 8 recognisance holder committing a crime against the interest of the Hong Kong community.  The starting point is 26 months. 

35.  If the Defendant had indicated a plea of guilty on the first date of trial, he would have 20% discount.  He actually elected to indicate his plea of guilty 4 days after the trial was adjourned at the instance of the defence, at the beginning of the first day of trial, to 4 months later for mention to address this court on the progress of evidence preparation.  Up to this juncture, I would have given him a discount of 5 months (19.2%).  However, owing to his absconding twice, which caused a delay of 12 months in total in the legal proceedings, I have to reduce the discount for his plea of guilty by only 4 months.  The sentence is 22 months for Charge 1. 

36.  I take 6 weeks’ imprisonment as the starting point for Charges 2 and 3 alike.  He had indicated a plea of guilty at the outset.  I give him a one-third discount for this.  His sentence is 4 weeks on Charges 1 and 2 alike.  Charge 3 carries a disqualification from holding a driving licence for 1 year in addition to the imprisonment. 

37.  I take 3 months’ imprisonment as the starting point for Charge 3 for the 4 ½ months delay in the legal proceedings caused by the Defendant’s absconding.  I give him a one-third discount for this.  The sentence is 2 months for Charge 4.

38.  I also take 3 months’ imprisonment as the starting point for the 7 ½ months delay in the legal proceedings caused by the Defendant’s absconding.  I give him a one-third discount for this.  The sentence is 2 months for Charge 5.

39.  Taking into account totality, I make the following adjustment to the terms of imprisonment:

(1)  Charge 1 is of 22 months;

(2)  Charges 2 and 3, each of 4 weeks, to be served concurrently with each other and other charges;

(3)  Charge 4 is of 2 months, to be served consecutively to other charges;

(4)  Charge 5 is of 2 months, to be served consecutively to other charges;

(5)  The total sentence is 26 months.