HKSAR v. Magar Sagar and Another

HCCC 183/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 183 OF 2013

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: Each of you went to a location in Yuen Long knowing full well that you would be expected to take part in a revenge attack, and that attack was against another group of Nepalese men against which you seem to have had some grudge.

Your group consisted of between 30 to 40 members and it was well armed. You, Magar Sagar, had a hammer. You, Gurung Roshan, had a sword or a melon knife. Both of you were at the very front of your group which is why you were recognised by members of the other group.

It is true that the other group had heard that they may be attacked, which is why they also had weapons ready to take you on. Both of you, as a result, received relatively serious injuries in the course of the fight. At the scene afterwards the police were able to find about 20 different weapons, and perhaps it is no surprise that somebody in that fight received a fatal wound and died.

I accept, of course, that the weapon that was used to inflict that wound was neither of the weapons held by you. In this circumstances, you have been well advised and have very sensibly pleaded guilty to manslaughter.

I accept that you are now feel remorseful for what you did that night. Indeed, you have had over three years to reflect upon those events.

This was a vicious gang fight in which a young life was needlessly lost and for that reason this is a very serious offence.

As counsel have just said, there were no sentencing guidelines for such offences, but the courts have tried to maintain some consistency in the way that they are dealt with. Inevitably, the facts of each offence relating to gang warfare will differ.

Here, I am quite satisfied that it was the group you were in which took the fight to the other group. The way it started was by way of ambush and I am satisfied that each of you was armed with a weapon capable of causing very serious injury.

You are both in your 20s, unlike the younger successful appellants, D2 and D3, in HKSAR v Law Chung Hin [2012] 1 HKLRD. Both of those young appellants in that case had very strong mitigation and I refer in the report to D2 and D3. It is true that that case had some similarities to the present one, in that principally that was a pre-arranged revenge attack leading to the death of a young person. The Court of Appeal in that case upheld a sentence of 8 years’ imprisonment for the ringleader of the gang who had pleaded guilty to manslaughter.

But in this case it is apparent from the weapons you carried and from your position, at or near the front of your group you were leading, that each of you bears a heavy responsibility for what happened. You, Magar Sagar, were actually seen attacking someone with the long‑handled hammer that you were carrying and whether it was sword or melon knife that you were carrying, Gurung Roshan, it is obvious that it was a weapon capable of causing very serious injury.

Aside from your pleas of guilty, there is very little else in mitigation, and I am satisfied that a proper sentence for manslaughter in the present circumstances is one of 8 years’ imprisonment. If you had not pleaded guilty but had been found guilty after trial, the sentence you would have received would have been one of 12 years’ imprisonment.

Magar Sagar, would you stand up please? Just Magar Sagar. In your case, you will go to prison for 8 years. If there is, in the future, any further mitigation, then your remedy will be to go to Court of Appeal.

Gurung Roshan, your sentence is one of 8 years’ imprisonment also, and if there is further mitigation in due course, well then your course will be to go to the Court of Appeal.