HKSAR v. JIBRIIL SAMATAR DIIREYE

DCCC 913/2017

[2018] HKDC 798

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 913 OF 2017

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REASONS FOR SENTENCE

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1.  On the afternoon of 19 August 2017, the defendant, a 34-year-old African man, was seen brandishing a chopper in Temple Street, Yau Ma Tei and his behaviour had put anyone happened to be passing in the vicinity in fear of their lives.  Police were called.

2.  When responding officers arrived, the defendant was sitting on a chair with the chopper in his hand; as soon as the officers got closer to him, the defendant stood up waving the chopper, which prompted one of the officers to draw his revolver to point at the defendant.

3.  The defendant kept on yelling words to the effect that “Kill me” and “I cannot die”. Eventually, the police were able to put the situation under control without firing a shot and had the defendant taken into custody.

4.  Originally, the defendant was charged with three counts of offence, namely, common assault (charge 1), a section 33 possession of offensive weapon (charge 2) and wounding 17 (charge 3).    

5.  On the first day of trial[1], after the admission of the “Admitted Facts”, the case had to be adjourned to the following day because the two alleged victims of the assault charges were nowhere to be seen. When the proceedings resumed the next day, the prosecution informed the court that they had no choice but to drop the two assault charges (charges 1 & 3) by calling no further evidence because they were unable to secure the attendance of the two victims named in the assault charges. 

6.  Insofar as the possession charge was concerned, the prosecution saw fit to amend it to a lesser charge of section 17 possession of offensive weapon under the Summary Offences Ordinance; when the amended charge was put to the defendant, he immediately pleaded guilty to it.

7.  Given the apparent bizarre behaviour of the defendant, the matter was adjourned to enable two psychiatrist reports to be prepared on the defendant to ascertain his mental condition.

8.  As a matter of fact, when the case came before the Kowloon City Magistracy some 9 months ago in September 2017, such kind of reports were called and incidentally they were written by the same doctors.

9.  They both say the defendant is suffering from psychosis, but the only difference[2] now is that they no longer recommend inpatient treatment in view of the improvement he has made as a result of treatment received during detention.  

10.  It is clear from the reports that the reasons why the defendant behaved in such a violently aggressive way on the day in question are due to his mental illness; the doctors said he was in a state of relapse at the material times of the offence. Put in another way, had it not been for his mental problems, he would not have acted like that.

11.  According to the psychiatrists, the defendant is now considered safe to be allowed back into the community to mingle with members of the public, which would mean a hospital order is unnecessary.

12.  I have the opportunity to examine the chopper in question; it is indeed a sharp weapon – it could easily cause serious injuries if it were to put to illicit use.  It’s not hard to imagine how fearsome it would be when a madman wielding a chopper roams one of the busiest streets in the city like Temple Street in broad day light.

13.  Even taking into account of the fact that he was suffering from psychosis at the time, a custodial sentence is nevertheless inevitable in the circumstances of the instant case, I take 9 months as starting point[3].

14.  On the question of how much discount to be given for the defendant’s guilty plea, his counsel did not argue for a full one-third. Perhaps he took the view that the plea was only entered on the second day of trial which, in accordance with the Court of Appeal decision[4], only warranted a 20% discount.  

15.  Counsel for the prosecution, however, has submitted a couple of cases[5] on this question, but in my view, the matter in issue in those cases is not the question at issue in this case. For instance, in Lamin, the defendant faced two charges of drug trafficking, a plea bargain occurred at trial resulting in defendant pleading guilty to one of the charges with the other one being left on the court’s file.

16.  The question at issue in Lamin is whether the defendant should be given one-third discount for the late plea, the Appellate Judge upheld the decision of the trial judge who gave only a 20 % discount.

17.  I could understand the rationale behind it because the defendant in Lamin had been given a prior opportunity to plead to the charge, but he failed to avail himself of it at the first available opportunity.

18.  In our case, however, the Section 17 offence had never been made available to the defendant for his plea until the second day of trial when the prosecution decided to amend the original charge; as soon as the amended charge was put to the defendant, he pleaded guilty. A plea in this situation could not rightly be described as late plea.

19.  Not giving sufficient discount for late pleas is a way to encourage the defendant to make up their mind on plea day and come to a decision without delay, or they will be penalized in terms of sentence; and of course, by so deciding, it helps save the court’s time and resources.

20.  S.33 is much more serious an offence than that of S.17, it therefore could not be argued that the defendant could have pleaded guilty to Section 33 offence much earlier. Once amendment was made, the defendant pleaded guilty to it. There is no delay on the part of the defendant, and thus his situation would not be any different from those who would indicate guilty pleas on plea day; it would only be right to say that he’s also entitled to the usual one-third discount for a timely plea.

21.  Giving the appropriate discount, the starting point is reduced to 6 months. There being no reason for further reduction, he is therefore sentenced to 6 months’ imprisonment.

22.  I’d like to conclude the case with a few words on jurisdiction. As apparent from above, in the end the court has passed sentence on one single charge, a summary offence (S.17), which might give rise to the question whether I have the power to deal with it. Having heard submissions from both parties, I am satisfied that the sentence is a valid one in terms of jurisdiction.     

23.  The District Court has jurisdiction to try charges transferred by a magistrate in accordance with Sections 88-90 of the Magistrates Ordinance. In short, a magistrate cannot transfer a summary offence on its own to the District Court unless the indictment includes an indictable offence which the defendant also faces. 

24.  In our case, the initial indictment contained 3 counts of offence – they are all indictable offences – such being the case there shouldn’t be any issue on jurisdiction. Any subsequent amendment to summary offences will not, in my view, affect its validity so long as there remains at least an indictable offence in the indictment.

25.  The chronology of events is as follows:-

(1)	-	The defendant denied all 3 charges and trial proceeded with the admission of “Admitted Facts” as evidence, then it was adjourned to the next day;
(2)	-	On the second day of trial, the court was informed by the prosecution that they would call no further evidence as they still failed to locate the relevant witnesses with the indication that they would amend charge 2 to a lesser one, i.e. a S.17 summary offence;
(3)	-	Counsel for the prosecution prepared a fresh indictment containing 3 counts of offence – same charges 1 & 3 but with the second charge now being amended to S.17.
(4)	-	The defendant pleaded guilty to the amended charge, after convicting him of it the court then dismissed charges 1 & 3.

26.  As can be seen from above, it has never been the case that the indictment contained only one summary offence at any one time, so there is no jurisdictional question arising out of the instant case.