HKSAR v. Karnail Singh

DCCC 878/2017

[2018] HKDC 1084

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 878 OF 2017

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one count of “Attempted wounding with intent”, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212 and section 159G of the Crimes Ordinance, Cap. 200 (charge 1), one count of “Wounding with intent”, contrary to section 17(a) of Cap. 212 (charge 2) but not guilty to one count of “Theft”, contrary to section 9 of the Theft Ordinance, Cap. 210 (charge 3). Upon the prosecution’s application, charge 3 was left on court file and not to be proceeded with without the court’s leave.

Facts

2.At about 9:20 p.m. on 12 May 2017, Mr Lo, the victim of charge 1, arrived at China United Centre at No. 28 Marble Road, North Point in a vehicle bearing registration mark “NATURAL9” (“the vehicle”).  The vehicle was driven by Mr Tang, the victim of charge 2.

3.Mr Lo had a meal in a noodle shop nearby and then went to 11/F of China United Centre for massage. 

4.Mr Tang drove the vehicle away for other duties and returned to Marble Road at about 10:45 p.m.  He parked the vehicle in the vicinity of the China United Centre and soon spotted suspicious persons including the defendant lingering around the vehicle and walking to and fro along Marble Road.

5.At about midnight on 13 May 2017, Mr Lo informed Mr Tangthat he was leaving.  Mr Tang thus drove the vehicle forward and stopped it right outside the entrance of China United Centre intending to pick up Mr Lo.  When Mr Lo walked out from China United Centre to board the vehicle, the defendant and an unknown person each holding a knife of about 20 cm in length ran quickly towards Mr Lo.  Mr Lo immediately boarded the vehicle but the defendant ran to the nearside of the vehicle and slashed his knife inside the compartment of the vehicle to attack Mr Lo. Mr Tang attempted to block the knife of the defendant with his left hand and was chopped at the left hand.  Mr Lo kicked the defendant away and Mr Tang drove off the vehicle immediately.  The defendant and the unknown person fled thereafter.

6.Mr Lo sustained no injuries in the incident but Mr Tang sustained a deep laceration at the left index finger with bone exposed and was bleeding profusely.  Mr Tang was sent to hospital for medical treatment, where the case was reported.

7.Upon examination, Mr Tang was found to suffer from an 8 cm oblique cut wound extending from left hand dorsum to radial side of distal phalanx of index finger.  Extensor to left index finger was cut with open fracture of proximal phalanx.  Mr Tang was treated and discharged later on the same day.     

8.Mr Tang attended regular outpatient follow-up treatments for his injuries as well as physiotherapy and occupational therapy for the extensor tendon cut injury.  When he was last followed up on 12 October 2017, examination showed weakened left index finger extensor with 20-degree lag at proximal interphalangeal joint extension.

9.Mr Tang was given sick leave from 13 May 2017 to 23 November 2017 for the injuries sustained in the said incident.

10.CCTV cameras in the vicinity of Marble Road captured the defendant and the unknown person lingering outside No. 36 Marble Road at the material time, that Mr Lo was chased by the defendant and unknown person after he left China Union Centre, that the defendant held a knife in his right hand and slashed it towards Mr Lo for about 6 times inside the compartment of the vehicle. 

11.On examination, the left palm print of the defendant was found on the nearside B pillar of the vehicle. 

12.Police investigation revealed that the defendant is a Form 8 recognizance holder. 

13.On 14 June 2017, the defendant was arrested.  Clothing worn by the defendant at the time of the offence as captured by the CCTV footages was seized from his residence.

Mitigation

14.The defendant is aged 23 and was born in India.  He received Primary education in India.  He is single.  He came to Hong Kong in 2014 as a visitor.  He overstayed for 6 weeks, then surrendered himself to the Immigration Department and sought asylum.  He is a Form 8 recognizance holder.  He has a clear record.

15.In mitigation, it was submitted that the defendant was not the ringleader nor the person organizing the attack.  He did not know the identity of the victim nor the reason for the attack.  He received no reward for the attack.  He was invited for a drink by the unknown person.  After consumption of alcohol, he was persuaded to take part in the attack.  Nevertheless, it was agreed that the defendant was a willing participant in the attack.  Defence counsel referred to HKSAR v Chan Chun Tat [2013] 6 HKC 225 and conceded that the attack involved certain degree of premeditation, that the defendant was fortified by the provision of alcohol, that more than one assailant was involved, each using a 20 cm knife and the attack involved a number of slashes.  Counsel also conceded that the defendant being a Form 8 holder is an aggravating factor. Counsel submitted that the injuries sustained by Mr Tang were not very serious and there was no evidence of any permanent disability caused.  He further submitted the main mitigating factor was the defendant’s guilty plea.  In considering the sentence, the court was urged to take into consideration the fact that the defendant is now having kidney problem and there was concern as to whether the defendant would be able to receive proper treatment for the problem.

Sentence

16.Wounding with intent is a very serious offence.  There is no sentencing guideline in respect of this offence.  The range of sentence for this offence is wide, usually from 3 to 12 years’ imprisonment.

17.In HKSAR v Chan Chun Tat [2013] 6 HKC 255, the Court of Appeal reiterated that “wounding with intent” is a serious offence warranting a deterrent sentence and set out the major sentencing considerations:

(1) the extent to which the assault was premeditated;

(2) the motivation underlying the assault;

(3) the mental or emotional state of the assailant;

(4) whether the assailant was acting under the influence of alcohol or drugs;

(5) whether the assault was committed by the assailant alone or as part of a group;

(6) the type of weapons employed;

(7) the level of force used;

(8) the injuries caused to the victim;

(9) the effect of the assault upon the victim (and those close to him or her).

18.In this case, the injuries caused to Mr Tang were serious, as a result of which he had to attend regular follow-up and treatments over a period of 5 months and was granted sick leave for slightly over 6 months.  Nevertheless, there is no evidence of any permanent disability caused.  As to the circumstances of the offences, I note that the defendant acted jointly with the wanted person.   The attack was premediated with the use of knife by both of them.  The assault was a violent one in that the defendant and the wanted person chased after Mr Lo and after Mr Lo boarded the vehicle, the defendant went to the nearside of the vehicle and slashed the knife towards Mr Lo for 6 times inside the compartment.  The attack was carried out in a public place. 

19.In view of all the circumstances, I find the seriousness of the present case not at the lower end but near the lower end of the spectrum.  I consider the appropriate starting point to be 3 years and 6 months’ imprisonment for both charges. 

20.There is a line of authority to the effect that if non-refoulement claimant, who is permitted to remain in Hong Kong and be at liberty whilst his claim is being determined by the authorities, engages in a serious crime aimed at the very community which has granted him that privilege, and if such crime has the effect of tarnishing Hong Kong’s reputation for order and security, then that is a factor capable of aggravating the seriousness of his offence.  I consider the offence of wounding with intent is a serious crime and the fact that the defendant, being a Form 8 recognizance holder, committed such serious offence is an aggravating factor.  The sentence for each charge is therefore enhanced by 3 months.

21.Given the defendant’s guilty plea, the sentence for each charge is reduced to 30 months’ imprisonment.  As to the kidney problem suffered by the defendant, I am sure the Correctional Services Department will try their best to provide the defendant with proper treatment while he is serving the sentence.  Apart from the defendant’s plea, there is no other mitigating factor justifying further reduction of sentence.  Given the 2 offences arose from the same incident, the sentences for both charges are to run concurrently.  The defendant is therefore sentenced to a total sentence of 30 months’ imprisonment.