HKSAR v. Ali Ahmad

DCCC 1000/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1000 OF 2015

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Reasons for Sentence

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1.The Defendant has been convicted after trial of Charge 2, assault occasioning actual bodily harm.

2.Charge 1, a wounding offence, was dismissed when the prosecution offered no evidence.  I will not and cannot sentence the defendant on the basis that the defendant had committed a crime just prior to committing Charge 2.

3.I will not repeat the facts of this case.  I gave full reasons in my verdict.

4.I found from the CCTV footage, physical evidence and oral evidence there was a chase down Nathan Road after midnight by somebody bleeding from a head wound and pointing at the defendant, shouting “Robbery and snatching.”  The defendant was running away from that male carrying a white rod of about 50-centimetres long.

5.PW1, the victim of Charge 2, went to help.  He was a brave person who decided not to stand to one side, but try and help a stranger who, on the face of it, looked like and sounded like a victim of a crime.  The defendant’s reaction enhanced that suspicion.

6.CCTV footage saw PW1 step out in front of the defendant, but the defendant raised the rod he was carrying above his head, as if to hit PW1, but skirts around him and continues to run.

7.Despite the defendant threatening PW1 with this weapon, it did not deter him.  He chased the defendant into the middle of Nathan Road.  He caught up to the defendant and obviously the defendant turned and hit him in the face with the rod.

8.The victim suffered an abrasion on his left cheek and bruising corner of his left eye.  As a result of that blow, he fell to the ground and, from his evidence and the CCTV footage, he remained on the ground for several seconds.  Later, we know that he felt dizzy, had vomited, but sustained no other injuries and has recovered from those injuries.  Whilst on the ground, we can see vehicles drive up to PW1, but luckily stop as he lay in the middle of Nathan Road.

9.It took others to stop the defendant eventually.

10.The defendant is a 28-year-old male from Pakistan.  He is single, came to Hong Kong in 2011, has sought asylum and, as a result of his application, is holding a Form 8, a recognizance form that allows him to remain at liberty in Hong Kong whilst his application is being considered.  He has an elder brother in Hong Kong, also a Form 8 recognizance holder.

11.The Defendant is not a man with a clear record. He has been allowed to remain at liberty in Hong Kong but has abused that hospitality by committing five offences over three court appearances.  Since December 2013, he has been convicted of unlawful possession of dutiable goods, possession of dangerous drugs, and taking employment when it is illegal for him to do so. For each conviction he has received terms of imprisonment. 

12.He was last released in May 2015 from his last conviction and sentence of 13 months and 15 days.

13.Three months later, he is arrested for this offence.  This is his sixth conviction in a short period of time.  Defendant is proving himself to be a nuisance and abusing the privilege extended to him.

14.Mr Beel has said all he can in mitigation. 

15.There is no tariff for this offence.  The maximum sentence the court can impose is one of 3 years.  Sentencing will depend the facts of each individual case.

16.Defendant, please stand up.

17.I take into account one factor being the victim did not suffer serious injury nor any permanent injury. 

18.There are other factors, such as the following: the defendant hit PW1 with a weapon; the defendant hit PW1 in the face area; the defendant hit PW1 in the middle of one of the busiest streets in Hong Kong and left him on the ground unconscious.  Those are factors I find aggravating.

19.Having considered those factors I have just referred to as well as the facts of the case as well as mitigation put forward, I take a starting point of 16 months’ imprisonment.

20.However, I find there to be one additional aggravating factor that will affect that starting point.

21.I have referred myself to the authority of HKSAR v Sandagdorj Altankhuyag and Anor [2014] 1 HKC 206.  In particular, paragraphs 20 and 21 and I repeat what McCrae J (as he then was) said when dealing with an appellant who was a torture claimant, and I quote:

“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”.

22.Paragraph 21:

“Where someone in the position of the 2nd 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.”

23.Not every crime will aggravate a Form 8 recognizance holder’s position, but here the defendant’s actions, in my view, does affect the reputation of Hong Kong.  Hong Kong is a truly international city.  It is not the Wild West and that scenario seen on CCTV on Nathan Road, watched by many present, is a shameful scenario to witness, even more tragic because PW1, the victim, acted on impulse and intended to help a stranger.  He should be commended for his bravery.

24.In addition, this is the defendant’s sixth conviction in the past two years. 

25.I will increase the starting point I have found appropriate for this reason by 4 months.

26.For Charge 2, the defendant is sentenced to 20 months’ imprisonment.