HKSAR v. Gurpreet Singh

DCCC 1017 & 1020/2016

[2018] HKDC 1

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1017 & 1020 OF 2016

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REASONS FOR SENTENCE

1.D2 pleads guilty to two joint charges of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance[1].

2.Full particulars of the offences are set out in the facts admitted by D2 on 12 October 2017.  In summary on 15 and 16 June 2016 Malik Hameed Ahmed, the owner of a mobile phone shop on the ground floor of Chungking Mansions, Tsim Sha Tsui, was threatened that if he did not pay $800,000 he would not survive. 

3.  On the morning of 18 June 2016 Mr Malik and his friend Ali Muhammad were inside Mr Malik’s shop chatting when D2 and another South Asian male entered the shop and attacked Mr Malik with machetes[2]. When Ali Muhammad tried to stop the attack he was also chopped by D2. 

4.Mr Malik was seriously injured in the attack.  Ali Muhammad was also injured in the attack.  The medical reports[3] and photographs[4] of Mr Malik and Ali Muhammad’s injuries were submitted to court during the trial of D1[5].  

Mitigation

5.In passing sentence, I take into account everything said on behalf of D2 by Mr Bullett together with the mitigation letters from the defendant and the president of the Khalsa Diwan Sikh Temple.  I accept by pleading guilty D2 is remorseful as stated in his mitigation letter.  I take into account D2 has only one previous conviction which is not for violence.

6.Violence of this kind must be met with deterrent sentences.  In HKSAR v Hau Ping Chuen[6] the Court of Appeal referred to the usual range of sentence for wounding with intent being described as 3-12 years.  The Court of Appeal noting that there were a host of wounding with intent decisions which might be used in favour of a lenient view whereas others favour a stricter view said that:

“At the end of the day, a sentencing court obtains a ‘feel’ for the appropriate result by regard to the attitude of courts over a period of time to a great variety of circumstances.”

7.In HKSAR v Chan Chun Tat[7] the court listed a number of relevant factors to be considered in determining the gravity of the offence and the culpability of the offender, including 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 or her.

8.Mr Bullett refers the court to the sentence in HKSAR v Amandip Singh[8] involving an attack on the platform of the Jordan MTR station.  Three persons were injured, one was chopped on his head, forehead and arm; one was hit above the ear and required stitches and the third person sustained a long wound under his left armpit[9]. A starting point of 5 years and 6 months’ imprisonment was adopted.  Mr Bullett submits that case is more serious. 

9.I have also considered Secretary for Justice v Yu Yat Sang[10] where the Court of Appeal held that in the absence of medical reports dealing with the degree of permanence or otherwise of the injuries a starting point of 5 years and 6 months was warranted for injuries to the ear, neck, forearm and back.

10.Mr Malik suffered multiple chop wounds over four limbs which required emergency operations as particularised in the medical reports of Dr Yip[11]and Dr Lai[12].  Ali Muhammad sustained a deep laceration of about eleven inches long over the left arm which required emergency operation.

11.Mr Malik was transferred first to surgical trauma bed, then taken over by the intensive care unit before being transferred to orthopaedic general ward on 22 June 2016.  Closed reduction and internal fixation of the right femur was performed on 24 June 2016 and debridement and partial thickness skin graft of the left hand was performed on 8 July 2016.  Mr Malik underwent a total of thirteen operations for his injuries.  Mr Malik was discharged from hospital on 30 August 2016.   

12.Mr Malik gave evidence at the trial of D1 on 12 October 2017 almost sixteen months after the attack.  Mr Malik testified he was still in pain and that his daily life was very much affected.  Mr Malik had difficulty in walking and climbing up stairs; his hands were very painful at night; when he got up in the morning he felt very painful especially when the weather was cold; he had difficulty having a meal because he could no longer hold food with his left hand, which was the hand he used to eat with.  Mr Malik described his daily life being 80% affected by the injuries. 

13.Mr Malik clearly had difficulty in walking to the witness box and difficulty in using his hands.  Mr Malik could not fully open his fingers and just managed to hold a pen with his left hand to write some numbers.  I therefore directed the prosecution to obtain an update medical report on the injuries of Mr Malik with specific reference to permanent disability.     

14.The court has been furnished with a report from physiotherapist Ms Daisy M.T. Ng, detailing the physiotherapy treatment received by Mr Malik after his discharge from hospital.  Initial assessment revealed limited active range of motion of both sides of the wrists and fingers and weakness over the handgrip strength.  Ms Ng noted gradual improvement throughout the treatment.  Mr Malik reported that he could grossly manage the activities of his daily living independently. 

15.Dr Yip has also prepared an update report detailing Mr Malik’s follow up at the orthopaedic specialist clinic.  Dr Yip noted that Mr Malik walked without assistance but with limping; the range of motion of the four fingers of the left hand and the hand grip were satisfactory; and that pincer grasp activities and fine motor activities of both hands were limited.  Mr Malik could manage his daily activities however because of the loss of part of his right thumb and the complete loss of the left thumb Mr Malik had a moderate degree of disability. 

16.Apart from the disability arising from the loss of part of the right thumb and the complete loss of the left thumb the reports do not address whether Mr Malik will continue to improve or whether there will be a degree of permanent disability in the use of his hands and/or in walking. 

17.Although Mr Malik fortunately did not suffer any injury to his head his injuries in my view cannot be said to be less serious than in the cases referred to.  

18.Accepting D2 may not have known the reason for the attack the offence is nevertheless a very serious one in which D2 was the first of two attackers.  Having carefully considered all the circumstances, including that the attack was pre-meditated; lethal weapons were used to inflict very serious injuries, in particular on Mr Malik whose daily life has been affected, I am satisfied the proper starting point after trial on charge 1 is 5 years and 6 months’ imprisonment and on charge 2 is 3 years’ imprisonment.

Enhancement

19.D2 is a Form 8 holder. The commission of offences by refugees or torture claimants is also capable of aggravating sentence where the offence affects the community at large and has a significant impact on Hong Kong’s reputation[13].   I am satisfied that attacking a shop owner while he is operating his business is an offence which affects the community and reputation of Hong Kong.  In the circumstances I enhance the starting points by a further 4 months to 5 years and 10 months’ and 3 years and 4 months’ imprisonment respectively. 

Discount for pleading guilty

20.D2 first appeared in the District Court on 18 November 2016 and indicated his plea of not guilty on 16 February 2017.  The new sentencing guidelines in HKSAR v Ngo Van Nam therefore apply[14].

21.The trial was set down for 5 June 2017.  On 5 June the trial was adjourned to the next day for D1’s counsel to take instructions.  On 6 June a further adjournment was granted for the case papers to be explained to D1.  On 8 June D1 discharged his legal representatives and applied for an adjournment to seek private legal representation.  The trial was adjourned to 11 October 2017. 

22.By letter dated 13 September 2017 D2 wrote to the Department of Justice indicating he would plead guilty.  A similar letter was written to the court dated 27 September 2017.  Solicitors for D2 also wrote to the court on 6 October confirming D2 would plead guilty to both charges.  This was confirmed in court on 11 October.  The case was adjourned to the next day to prepare summary of facts. D2 pleaded guilty on 12 October 2017.  Mr Bullett submits the defendant should be given a discount of between 20-25% having indicated his plea of guilty prior to trial[15].

23.The main reason for adjourning the trial in June was because the witness statements were not in a language D1 could understand and therefore D1 would have been at a disadvantage had the trial proceeded with D1 unrepresented.  Mr Bullett submits that the translations were only served in September and therefore until that time D2 did not know the strength of the case against him. 

24.At the initial trial hearing in June Mr Bullett was ready for trial and wished to make an application for a stay of proceedings.  D2 had every opportunity to plead guilty in June.  I have no doubt Mr Bullett advised the defendant on the evidence. 

25.In HKSAR v Ngo Van Nam the court drew a distinction between what was the first reasonable opportunity for a defendant to indicate his guilt and the stage where a defendant exercised his undoubted right to avail himself of the opportunity for his lawyers to assess the strength of the case against him.  I am satisfied this is not a case where the defendant genuinely did not know whether he was guilty or not and needed advice or sight of the evidence in order to decide whether to plead guilty[16].

26.D2 having pleaded guilty before the trial started I am satisfied he is entitled to a discount of 20% which reduces the sentences to 4 years and 8 months’ and 2 years and 8 months’ imprisonment.

27.I am satisfied concurrent sentences are appropriate.  D2 is convicted and sentenced to concurrent sentences of 4 years and 8 months’ and 2 years and 8 months’ imprisonment.  The total sentence to be served by the defendant is 4 years and 8 months’ imprisonment.