HKSAR v. Yamin

HCCC 330/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 330 OF 2016

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

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COURT: This is the court’s sentence.

The Charge and the Facts

The accused was convicted of one count of wounding with intent after trial by the jury. The prosecution case is that the accused, together with two other Pakistani males, mounted a knife attack on Limbu, a Nepalese male. The accused was not the one who did the actual stabbing but based on what PW2, Gigi, described and whose evidence must have been accepted by the jury when they came to the guilty verdict, the accused, together with Jimmy, were pinning Limbu down at that time, not allowing him to move when the stabbing by the unknown male took place. The three Pakistani males then fled together.

There was no dispute at trial that Limbu suffered really serious bodily harm. According to Limbu, he was slashed with the knife in his right arm which damaged the main nerve. He was then stabbed in his abdomen area and finally, the knife moved upward to his armpit area. Limbu testified that, to this day, his right hand movement is still restricted.

Limbu’s injuries were particularised in the medical reports which were produced at trial and I shall not repeat those particulars here. Suffice for me to say that Limbu was admitted to the hospital in a critical condition. He was later transferred to the Intensive Care Unit and then to the Trauma Ward. On 3 December 1997, Limbu was transferred to the Orthopaedic Ward for further management of his injuries. Eventually, he was discharged on 7 December 1997, without patient physiotherapy and occupational therapy.

The medical findings were that there was a 5 centimetres-long right lower chest stab wound, a 6 centimetres-long lung laceration at the right lower loop of lung, a 5 centimetres rupture of the right hemi-diaphragm and a penetrating injury to his liver with an entry wound over the right loop and an exit wound over the left loop measuring 2 centimetres long each. In respect of his arm, there was a 3 centimetres-long right arm laceration with a 100 per cent cut of the superficial radial nerve and a 60 per cent cut of the nerve beneath.

Mitigation

The accused is now aged 40. He was aged 21 at the time of the offence. He is married with three teenage children. He came to Hong Kong to join his parents at the age of 17 in 1993 and he has got three brothers still living in Hong Kong while his father is now deceased and his mother has returned to Pakistan. The accused was educated up to primary 5 in Pakistan. Prior to his arrest, the accused has carried out some manual labour work.

In mitigation, it was said that the accused has, in the past two decades, rehabilitated himself and it was an act - that is the assault, the wounding - it was an act which was out of the accused’s character. Mr Beel therefore urged this court to put emphasis on the rehabilitation of the accused rather than on the element of deterrence.

Sentencing Considerations

There is no tariff set for the offence of wounding with intent, for the facts in each case may vary greatly. In mitigation, Mr Beel for the accused, invited my attention to the case of HKSAR v Wong Luk Sau [2013] 2 HKLRD 201. Needless to say, the facts in that case were very different from those here. In fact, I do not think there can be two cases with an identical factual matrix. Each case has to be decided on its own.

In the present case, it was a brutal attack on the lone complainant Limbu by a group of three. Limbu did not have any weapon with him and the attack took place in a public place. Moreover, according to Limbu and Gigi, the attack was unprovoked. The two of them were just having a walk at that time. It was the accused’s group of three who approached them.

Even if the accused only joined in the knife attack when the knife was actually produced, not knowing of its existence beforehand, on the evidence adduced, it was clearly the case that the accused’s group was seeking Limbu out on the day in question and all were prepared to assault him, even if the use of the knife was not known to the accused until it was produced.

Further, the stabbing took place when Limbu was on the ground and when he was pinned down. Limbu was not only stabbed once but, after the slash on the arm, then came the stab in the abdomen which resulted in the lung laceration and the penetrating wound to the liver.

I regard all those as aggravating factors in this case. No doubt whoever took part in such a cold-blooded and vicious joint enterprise should receive a heavy sentence to reflect the community’s abhorrence of the use of great violence.

Although the accused was not the one doing the actual stabbing, he was, nevertheless, a willing participant in this joint enterprise and he played his part in it, causing Limbu really serious bodily harm. In terms of culpability, I see the accused no different from the one who did the actual stabbing. After all, they were acting together and it was with their concerted efforts that they brought about this attack on Limbu.

The Sentence

I understand that the other two named accused on the indictment has each received a sentence of 5½ years upon pleading guilty. Having considered the facts of this case and the aggravating factors mentioned above, I too am going to adopt a starting point of 8 years and 3 months.

The accused was convicted after trial and he is therefore not entitled to have the reduction for a guilty plea. Further, I do not consider anything, including his clear record, that has been urged upon me on his behalf in mitigation should warrant a reduction in sentence in a serious offence of this nature. Neither do I accept that the court should put the rehabilitation of this accused over the element of deterrence in this case. After all, the accused was aged 21 at the time of the offence and he is now aged 40.

He is therefore to serve a term of 8 years and 3 months.