HKSAR v. Dharminder Singh

CACC 196/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 196 OF 2015

(ON APPEAL FROM DCCC 166 OF 2015)

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REASONS FOR JUDGMENT

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Introduction

1.On 20 May 2015 the applicant appeared before Judge Dufton (“the judge”) in the District Court on a charge sheet containing three charges of wounding with intent to do grievous bodily harm, contrary to section 17(a) of the Offences Against the Person Ordinance, Cap 212.  The applicant pleaded guilty to all three charges and was sentenced on the following day to a total of 4 years’ imprisonment.

2.The applicant applied for leave to appeal against his sentence and at the hearing of the application I refused it and said I would give my reasons for doing so at a later date.  This I now do.

The background to the offence

3.The first two charges of section 17(a) wounding arose from the same incident that took place at around 11:20 pm on 26 December 2014.  At this time two persons, one a locally born Indian and the other a locally born Pakistani, were sitting on a bench on the 1/F podium of the Gold Coast Piazza at Tuen Mun.

4.A group of about seven to ten people who were Indian and Pakistani men and amongst whom was the applicant, approached the two victims from their right and left side.  They spoke in Punjabi language and told them not to leave.  The group then attacked these two victims and in the course of the attack, both victims were kicked and punched.  The assault lasted for 2 to 3 minutes before the attackers left.

5.One of the attackers struck both victims with a hammer and another attacker used an umbrella-shaped object to hit them.  In the course of the attack, the applicant punched one of the victims and another of the attackers struck the victim on his back and his hand with a black whip like object.

6.The victims were later taken to Tuen Mun Hospital for treatment.  The first victim suffered a total of 5 lacerations over his scalp, ranging from 1 cm to 2 cm in length, multiple abrasions over his face and back and redness over his left thigh region.  The scalp wounds were sutured with a total of 14 stitches. He was treated and discharged.

7.The second victim suffered lacerations over his left forehead and occipital scalp, abrasions over both his wrists, bruises over the left periorbital area and a superficial laceration over his left lower eyelid.  He also was treated and discharged.  The cause of his injuries was found to be compatible with blunt trauma.

8.At the scene, the police found a broken umbrella handle, a broken umbrella part and a handle linked with a metal wire.

9.The third charge arose from an incident occurring at 11:30 pm on 10 January 2015 outside the Yau Oi Sports Centre at 3 Hing On Lane, Tuen Mun.  At this time two persons were standing beside a car belonging to one of them.  A group of around 10 Indian and Pakistani men, amongst whom was the applicant, suddenly appeared and approached them.  Members of this group carried hammers, iron pipes, baseball bats and wooden sticks.

10.When one of the victims tried to block the men, they attacked him.  The applicant struck this person on his forehead with a hammer.  The other person who was with the victim managed to escape from the scene uninjured.  The assault lasted for about 1 to 2 minutes before the attackers left the scene in the direction of Hoi Chu Road.

11.A subsequent medical examination of the victim revealed that he suffered from a 2 cm laceration of his right forehead with mild surrounding swelling, right neck swelling, left shoulder erythema, multiple swellings and bruising on his right forearm.  The cause of injury could not be determined.  He was treated and discharged.

12.The applicant was arrested at his home on 12 January 2015 and in a subsequent identification parade conducted by the police the applicant was identified by all three victims involved in the two assaults.

The Judge’s Reasons for Sentence

13.After setting out the facts of these three offences the judge referred to the mitigation that had been advanced on behalf of the applicant.  The applicant was only 20 years of age and had one prior conviction for shoplifting in February 2014.  He was not a Hong Kong resident and he came to Hong Kong with his mother and brother and sister in 2010 and applied for asylum as a dependent of his mother.  That application was still pending.

14.In explanation of the incident the judge had been told that the victims and the assailant knew each other and had played cricket together.  However, in the middle of 2014 an argument had broken out during a cricket match leading to two groups fighting.  Since that time the two groups had not been on friendly terms.

15.Then, on Christmas day 2014 the applicant went with his friends to Lan Kwai Fong where he was assaulted by a group of people with bottles, amongst whom were the victims of the 1^st and 3^rd charges.  He received an injury to his head for which he later received treatment at Queen Mary Hospital.  The matter was reported to the police and at the time of sentencing the suspects in this assault had been placed on police bail with no charges having yet been preferred.

16.The next day was an opportunity for the applicant and his friends to exact revenge.  The judge described this attack, which was the subject of charges 1 and 2, in the following way:

“… The attack was a serious one involving between 7-10 persons intent on revenge, some of whom were armed. Both victims having been hit with a hammer it is most fortunate the injuries to the head were not more serious. Although you did not use a hammer you joined in an attack in which weapons were used. Having knowingly participated in a violent enterprise your culpability is the same as the other attackers”

17.In respect of the second attack counsel for the applicant informed the judge that what had taken place was more of a fight rather than an attack, resulting in both sides being injured.  Of this the judge said:

“… Whether properly described as an attack or a fight the fact remains that you and your group went armed with weapons including hammers, iron pipes, baseball bats and wooden sticks.”

18.In determining the appropriate sentence for the applicant the judge reminded himself that violence of this kind must be met with deterrent sentences.  He referred to the Court of Appeal’s decision of HKSAR v Hau Ping Chuen [2008] 4 HKLRD 673 where the Court of Appeal referred to the usual range of sentence for wounding with intent as being 3-12 years’ imprisonment.  However, the judge noted that the applicant was a young offender and that he must therefore exercise great care before committing a young offender to prison.

19.The judge considered non-custodial options such as Detention Centre, Rehabilitation Centre or a Training Centre but concluded that they would not adequately reflect the gravity of the offences and that those options would represent too lenient a punishment.  He, therefore, declined to call for any reports before passing sentence on the applicant.

20.The judge also referred to the decision of this court in HKSAR v Chan Chun Tat CACC 317/2012, unreported, 27 March 2013, where this court listed out a number of factors which it said were relevant to a determination of the gravity of the offence and the culpability of the offender.  These factors included the extent to which the assault was premeditated, the reasons or motivation underlying the assault upon the victim, the mental or emotional state of the assailant at the time of the assault, whether alcohol or drugs contributed to the actions of the assailant, whether the assault was committed by the assailant alone or as part of a group, the type of weapons employed, the level of force or aggression and the persistence with which the assault was pressed home, the injuries caused to the victim and the effect of the assault upon the victim and those close to him.

21.The judge then approached each offence with a view to assessing the seriousness of the offence and the culpability of the applicant.  In respect of the first assault he said that even though the applicant and his friends may have felt aggrieved in being attacked the previous day, they could not take the law into their own hands.  The judge said in his view this attack was more serious as it involved a group of 7 to 10 men, some armed with weapons, who were intent on exacting revenge resulting in both victims suffering more serious injuries.  The judge then said:

“Considering both attacks were by a group of people armed with weapons; the attacks were clearly premeditated; the first attack was a revenge attack; you took an active part in the attacks by punching one of the victims in the first attack and using a hammer to cause the most serious injury to the victim of charge 3; the injuries sustained by the victims were serious in particular the victims of charges 1 & 2 and that you are a young offender, I am satisfied that a starting point of 5 years imprisonment is appropriate for charges 1 & 2 and 3 years and 6 months imprisonment for charge 3.”

22.The judge then gave credit to the applicant for his pleas of guilty and reduced these starting points by one third, resulting in final sentences of 3 years and 4 months’ imprisonment for charges 1 and 2, and 2 years and 4 months’ imprisonment for charge 3.

23.The judge then went on to consider whether consecutive sentences should be imposed in respect of any of the charges.  He said as charges 1 and 2 both arose from the same attack he would order concurrent sentences for them.  However, as charge 3 was a separate attack a consecutive sentence was appropriate.  He then took into account the totality principle and he said that he was satisfied that a total sentence of 4 years’ imprisonment would properly reflect the applicant’s culpability for all these charges.  To achieve this end he ordered that 8 months of the sentence for charge 3 should be served consecutively to the sentences for charges 1 and 2.

The grounds of appeal

24.The applicant is legally unrepresented and has not filed any grounds of appeal.  In a letter attached to his Form XI he says:

“I want to request the judge to lessen my sentence. I repent for my wrongdoing and feel sorry for the victim, and I have not been put into jail before and I want to take care of my mother who is suffered from diabetes. Her conditions became worse after my imprisonment because she cares me very much.”

25.At the hearing of the application the applicant again confirmed that he knew that what he had done was wrong and expressed remorse for his actions.  He said he was very sorry for the victims and wished to apologise to them.  He was concerned that his and their families not become enemies.  He promised not to re-offend.

Discussion

26.I have carefully considered the judge’s Reasons for Sentence and can detect no error in them.  He has taken full account of the youth of the applicant and the mitigation advanced on his behalf.  Furthermore, he has referred in some detail to relevant sentencing authorities and has correctly directed himself in term of sentencing principle.  I do not find anything excessive in the sentences.  There is no merit in any of the complaints of the applicant.

27.I note that the applicant is a torture claimant whilst the victims of his crimes were Hong Kong I.D. card holders.  In these circumstances, I repeat what Macrae J, as he then was, said in HKSAR v Sandagdorj Altankhuyag & Anor [2014] 1 HKC 206 at 212 paragraphs 20-21 when dealing with the 2^nd appellant who was a torture claimant appealing his sentence for theft:

“20. … He was a torture claimant who, like many in his position, was not lawfully in Hong Kong but was nevertheless allowed to remain at liberty by virtue of a recognisance issued by the Director of Immigration whilst his claim was being processed. Yet, despite the hospitality extended to him by the authorities and people of Hong Kong, he chose to abuse that privilege …

21. Where someone in the position of the 2^nd appellant deliberately sets out to commit a crime which is aimed at the very community which has afforded him the privilege of remaining at liberty while his claim is being considered, and when that crime also has the effect of tarnishing this City’s reputation for order and security, of which he seeks to avail himself, then that is a factor which is capable of aggravating his sentence for the crime.”

Conclusion

28.For these reasons I refused the applicant’s application for leave to appeal against his sentence.  At the hearing of the application I informed the applicant of the power of the Court of Appeal under section 83W(1) of the Criminal Procedure Ordinance, Cap 221.

Ms Margaret Lau SPP, of the Department of Justice, for the respondent

The applicant appeared in person