HKSAR v. Gurung Khem Raj and Another

DCCC 187/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 187 OF 2016

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.Both defendants have pleaded guilty to two charges of wounding, contrary to section 17(a) of the Offences against the Person Ordinance.

2.With these two charges there are two victims. The facts are that on 12 April 2015 at about 4 am, the two victims were working as security staff for a club in Lan Kwai Fong in On Hing Terrace and were working in the lift lobby when a group of males entered the lobby.

3.The 2nd defendant pressed a knife to the first victim’s neck.  There was a cut and broken skin, rather than a deep wound.  The length of the cut was 4 centimetres.

4.The 2nd defendant then not long after that chopped the left arm of the second victim, Charge 2.  His injury was much more serious.  There was a 7 centimetre laceration that required stitches and subsequent physiotherapy.  I have seen photographs of both victims’ wounds as well as watched the CCTV footage of the whole incident.

5.There have been stills prepared from the CCTV with very clear markings of the victims and the 1st and 2nd defendants. In particular, the 1st defendant is seen on CCTV in the lobby waving at the group of men and is seen taking a knife from one of them, but in fact does not come into direct contact with either of the victims, meaning he does not approach the victims himself.

6.Actually, after the 2nd defendant puts a knife to the first victim’s throat, and as the first victim goes to leave, the 2nd defendant follows him.  The 1st defendant is then seen following on. It is at this point that he takes a knife from someone.  He also gestures to others to follow, but before he can go any further, the 2nd defendant returns, so the 1st defendant does not in fact follow the first victim.  Both then leave the lobby, but the 2nd defendant returns, and it is at this point that he confronts the second victim and wounds the second victim.  At this moment the 1st defendant is not near the 2nd defendant, but at the entrance close by, with other men.

7.Both defendants at the time of the offence had a clear record.

8.The 1st defendant was 28 years old and the 2nd defendant 18 years old at the time of the offence.

9.I have heard mitigation in full.  Because of the 2nd defendant’s age and clear record, I called for two reports, a training centre and a detention centre report.  I also called for a background report for the 1st defendant.

10.I heard in mitigation that both men were drunk at the time and affected by alcohol.  The 2nd defendant had been refused entry to the victims’ club earlier that evening and came back later to confront the victims.  The 1st defendant said that he had met a group of friends in Lan Kwai Fong who told him something was about to happen.  He had been drinking after work, and he followed this group.  He became involved in this joint enterprise even though he was not with the 2nd defendant when the 2nd defendant was earlier refused entry to the club.

11.I will not repeat the details of the reports, but the 1st defendant was educated in Nepal and then Hong Kong.  He started work in 2006.  He has worked in various hotels and restaurants, but switched to working in construction sites as the salary was higher.  However, he kept a Saturday night part‑time job at a bar in Lan Kwai Fong, earning $560 a night to supplement his income, and he had been working there on the evening of the 11th before this offence.  He has family, in particular a mother, who lives in Hong Kong.  He does not live with her, but rents a room at $3,000 a month.  However, his relationship with his family is very good, and they maintain constant contact.  The defendant claims that he has no connection to any gangs, as does his mother.  I have had a letter from the defendant explaining what happened that evening, explaining that his behaviour was out of character, and he is genuinely remorseful.  I have had a letter from the Arsenic Football Club, set up in 2003.  In fact, the defendant helped set up this club and is a talented footballer.  I have also had a letter from the Hong Kong Integrated Nepalese Society Limited which asks for leniency on the defendant’s behalf.  He volunteers with the society and is helpful.

12.The probation officer who wrote the background report believes the defendant’s remorse is genuine and notes that he has good employment prospects and has always been in employment, as well as full family support.  That probation officer was impressed enough to offer probation. However, as I have said on the last occasion, probation is not appropriate for an offence of this nature.  However, I will bear in mind that the 1st defendant’s role was not necessarily one of leadership, but perhaps more of a participant on the fringes.  Nonetheless, the offence is one of a joint enterprise of a wounding with intent.  A term of imprisonment is entirely appropriate.

13.The 2nd defendant, who is the one who actually physically wounded the first and second victims, is much younger than the 1st defendant.  He too is Nepalese, lives in Hong Kong with his family, and is the only son.  His parents divorced in 2005, and since then he has been left to his own devices.  In short, he has run wild since he was very young.  He was sent to boarding school, first in India, then Nepal, but then returned to Hong Kong when they did not work out.  He ultimately did not do well at school academically.  The reports say he was in fact troublesome at school and left in 2014.  The reports detect some remorse and regret.  The defendant told the officer that he wanted to start afresh.  The officer’s ultimate recommendation was that although the defendant was fit for both training centre and detention centre, detention centre was more suitable.

14.Sentencing principles must be considered for each defendant individually, even though both are charged as a joint enterprise.  From the mitigation and viewing the CCTV as a whole, I do take the view that the 1st defendant’s role is not as serious as the 2nd defendant’s, and in this case I do believe the 2nd defendant would benefit and rehabilitate in a detention centre setting, and as I have said, the 1st defendant, being 29 years old, a term of imprisonment is the only appropriate sentence.

15.There are no tariffs for wounding.  However, sentences of 3 years and above are deemed appropriate and necessary.

16.Defendants, please stand up.  I take into account the 1st defendant’s plea, previous clear record, and from background report, I am sure the defendant did act out of character.  I take into account that he has been fully employed since he started work in Hong Kong and has only tried to better himself and support his family.  I have found that I do distinguish the 1st defendant’s role to the 2nd defendant’s.  Moreover, there is compensation paid to PW1.  Both defendants have paid him $5,000 each to reflect their remorse.  The same amount has been offered to the second victim, but he has been unable to be located by the police.  I do not intend to make a compensation order where he is concerned.

17.Taking all those factors into account, for the 1st defendant, I will, for both charges, take a starting point of 2 years and 9 months.  The defendant has pleaded guilty.  He is entitled to a discount of one-third.  That is a discount of 11 months.

18.After that discount is applied, the sentence will be one of 1 year and 10 months.  However, I reduce that by a further 4 months for compensation paid today.  Therefore, for both charges, the 1st defendant is sentenced to 1 year and 6 months’ imprisonment.  Both sentences will be served concurrently.  That is a total sentence of 1 year and 6 months.  Do you understand that?

19.The 2nd defendant was only 18 years old at the time of this offence, but from CCTV footage and reports, he is a reckless, aggressive and directionless young man.  He does need, in my view, disciplinary training to give him a sense of direction and understand the need to act responsibility and within the confines of the law.

20.It is unusual to consider anything but a term of imprisonment appropriate for a wounding case, but in view of the 2nd defendant’s plea and clear record, I will take into account the recommendation of the report.

21.I will order that the 2nd defendant serve, for each charge, a detention centre order.  Both orders will be served concurrently.  Do you understand?