HKSAR v. Lepcha Kalzang-chewang

HCCC 399/2017

[2018] HKCFI 2355

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 399 OF 2017

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

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COURT:

On 31 October 2017, in the Eastern Magistrates Court, a Magistrate committed Lepcha Kalzang-chewang for sentence to the High Court on a charge of Wounding with Intent, contrary to section 17(a) of the Offences Against the Person Ordinance.

On that day, Mr Lepcha pleaded guilty to the charge. He also admitted a set of facts, for the purpose of sentence in this case. Both the plea and the facts admitted have been confirmed in this court.

The victim was a young man aged 27 and working in a trading company in Tsuen Wan. At about 7.40 pm on 26 May 2016, he and some colleagues left their office at the same time and proceeded to a car park to retrieve their vehicles, prior to leaving the building.

The victim had parked his vehicle in car park space 506. As he approached his car park space, the victim noticed a Mercedes Benz parked about 10 metres away from his own vehicle. He noticed that the left front and left rear passenger doors were slightly open. When the victim got close to his vehicle, he opened the trunk compartment of that vehicle to place his belongings in there.

Other of his colleagues walked to the left side of his vehicle to board that vehicle. When he closed the trunk compartment and walked towards the driver’s door, he turned around in the direction of the Mercedes Benz, which he had noticed earlier before. He saw three persons rushing towards him.

Each of those rushing towards him was holding a long knife. They were wearing facial masks. Ultimately, one of those attackers was identified as the accused. The three persons armed with knives viciously attacked the victim. He tried to hide himself but they continued to wound him.

The attack was brief. It was estimated by the victim to have lasted for about 10 seconds. As soon as the attack had concluded, the attackers returned to the Mercedes Benz vehicle, and drove off. There was a further person waiting in the motor vehicle. They got away. No weapons were recovered at the scene.

The victim’s colleagues notified the police. The victim was taken to hospital. He underwent extensive and emergency surgery for the multiple chop wounds on his scalp, right forearm, right wrist and on his legs.

Perhaps the worst part of the injuries was that some of the wounds exposed the joints and tendons as completely cut, in parts of the victim’s right forearm and right lower limb. It will come as no surprise that he was hospitalised at the Princess Margaret Hospital between the date of the assault and 7 June 2016. From that point, he was further hospitalised and underwent what must have been extensive rehabilitation.

The victim has recovered to some extent. He still has limited mobility and requires a splint on his right knee and right upper limbs. He has difficulty walking and needs continued rehabilitation. I will return to that topic in a moment.

The police investigation revealed that the registration of the Mercedes Benz, which had carried out the assault, and in which they made a getaway was a fake one. The accused in this case was identified by a palm print found at the back of the victim’s car. Further fingerprints and palm prints were found on the car.

One of the places from which fingerprints and palm prints were lifted by the police was the exact spot where one of the three attackers, whose images had been captured by CCTV, had placed his hand on the rear of the victim’s car. The police examination of the circumstances revealed that this print must have been placed there in the course of the attack.

By his plea of guilty, Mr Lepcha admits that he was one of the assailants. He was born in Nepal in 1997, which makes him 20 years of age. He was educated to Form 6 in Hong Kong and has no previous convictions. He lives with his mother and father.

At the time of the events, the subject of this charge, he was undertaking education in business studies in a vocational training college in Hong Kong. He had completed about 18 months of that course and had about 12 months to go.

The maximum penalty for wounding with intent, under section 17 of the Offences Against the Person Ordinance, is life imprisonment. The maximum penalty is obviously reflective of the range of circumstances which need to be considered for an offence such as this, and to reflect the serious view that the community takes of unlawful and malicious wounding with intent to cause grievous bodily harm.

The wounding in this case must be regarded as a very serious one. Indeed, that is accepted on behalf of the accused by his counsel, Mr McNamara.

Indeed, the description of the injury visited upon the victim suggests to me that it is only a matter of what is perhaps the barest stroke of luck that this is not a murder charge. The knife wounds could so easily have severed a blood vessel and the victim could so easily have bled to death. Indeed, it is frightening to contemplate what might have happened, had the victim not been with his colleagues at the time of the assault.

As I have said already, the injuries visited upon the victim were extremely serious. Those injuries must have been extremely painful and the assault extremely frightening. The victim has had to go through surgery and rehabilitation and it has left him with a significant disability which will, in all probability, be permanent.

I would think it is not unreasonable to say that in addition to his permanent physical disability, the victim will carry psychological scars from this terrible attack, for the rest of his life.

In the course of proceedings today I have read a further statement dated 7 October 2017 which details the difficulties that the victim still has. Those injuries that he received still affect him and his ability to work has been substantially reduced. He has permanent disabilities to his hands and his right knee. He still has headaches. He is unable to play basketball, which was his sport of choice before the accident. These are, on any view, serious losses.

I accept that the defendant was not the ring leader, and had he been so, the sentence I would have passed would have been substantially greater than it will be.

I accept that he was cajoled by a person who was in the same vocational class and he was cajoled to participate in this terrible attack. While it could not be said that his agreement to participate was a spur of the moment, the accused agreed to undertake this attack a couple of hours before it actually did.

There is no tariff for unlawfully and maliciously wounding a person with intent to cause grievous bodily harm. In HKSAR v Wong Luk Sau in 2013, the Court of Appeal restated the sentencing principles, relevant to cases such as the present one. The Court of Appeal observed, following Secretary for Justice v Hung Kar Chun in 2011, that:

“The range of sentences is generally between three and 12 years. Almost inevitably a deterrent sentence is called for, although there may conceivably be cases where that is not appropriate.”

It most manifestly is in this case. Deterrence is clearly called for.

An examination of the authorities would suggest that a multitude of factors contribute to the determination of an appropriate sentence. These include:

(1) Whether the assailant was the sole assailant or the assault was in company.

(2) Whether the assault was premeditated, and if premeditated, to the extent that there was pre‑planning.

(3) Whether there had been provocation on the part of the victim or perhaps those close to the victim.

(4) The nature of the assault and whether weapons were used.

(5) If weapons were used, the nature of the weapons and their potential for causing injury.

(6) The injuries suffered by the victim or victims and the nature and extent of those injuries, including where relevant, the physical and possibly psychological impact of those injures and whether the victim or victims was left with a permanent disability flowing from such injuries.

(7) Whether the assault was in a public place, and if in a public place, the degree of anxiety to bystanders caused by the assailant.

(8) Whether the victim was defenceless at the outset of the attack or was rendered defenceless in the course of the attack. And if rendered defenceless, whether the assailant persisted with the attack in those circumstances.

(9) Whether the victim is in a category which the courts usually considers calls for special protection, such as children and the vulnerable, on duty police officers, transport workers and health workers.

Doubtless there may be many other relevant circumstances, including possibly where there was a domestic component to the violence. However, perhaps it is better simply to revert to Fuad J, Vice President of the Court of Appeal in Attorney General v Lam Yat Sing, in 1992, where he said in this context that everything will depend so heavily on the particular facts of each case.

In this case, the accused has pleaded guilty at the earliest possible time and it is the policy of these courts to recognise that by discounting an otherwise appropriate sentence by one-third. That will apply in this case.

The accused is a person of previous good character and has no previous convictions. As I have mentioned already, he has completed Form 6 at High School. It is apparent to me, and I accept what Mr McNamara says in this case, that the accused was a person of ambitious and had undertaken vocational training in business studies, but he still had about 12 months to go.

I think it is probably fair to say, but for this moment of utter madness, he would have gone on, graduated and have every chance of success in this community. He was a classmate of the Nepalese ring leader. He was cajoled into participation. He went along. That was the start of the moment of madness. His agreement was a few hours before. There was no pre-planning in his part, but there was obvious pre‑planning which he joined.

I accept the submissions of counsel for the accused that this conduct was out of character. I accept that the accused is from a close and loving family and a respectable one. This man clearly had a bright future. This moment of madness will be a burden for him for the rest of his life, even after he leaves prison.

The consequences of the assault will be with the victim, I think it is fairly safe to say, for the rest of his life. I am told by counsel for the accused, and I accept, that the accused is clearly insightful into his conduct and the consequences of it, for him and for the victim. I accept what he did was out of character and it is something for which he is deeply remorseful.

To an extent, his remorse might be measured by some assistance that he has given to the police. He gave a statement. Those who represent him, asked for a statement to be taken in about September 2017. Not until very late December 2017, which is well over 12 months from the time of the offence, was a statement taken.

One arrest was made. That arrestee was placed on an identification parade. The defendant attended that parade and after very briefly viewing it, said that the person on the parade was not one of the assailants. There is a dispute between the prosecution and the defence as to whether that was an honest and genuine statement on the part of the accused.

I cannot resolve that fact and there are issues either way. Mr McNamara says, and I accept, that the defendant is anxious to know his fate and for that reason, I agreed with the proposition that what is sometimes commonly characterised as a Newton hearing, should not be undertaken to resolve that factual dispute. What that issue goes to is the degree of assistance that I can give the accused credit for.

The approach of the courts to the provision of information is encapsulated in the decision of the Court of Final Appeal in Z v HKSAR in 2007. The Chief Justice, Li CJ said:

“It is the policy of the courts to take into account, in mitigation of sentence, useful information that the defendant has given to the authorities, and usually to give an appropriate reduction for the sentence for which the defendant would otherwise have received. The assistance is most often given by the defendant, after his arrest, for the offence for which he has been sentenced, post-arrest assistance. There may be occasions where the assistance is given by the defendant before his arrest; that is pre‑arrest assistance.”

Li CJ said that the rationale for this policy is as follows:

“The policy of the courts to recognise useful assistance to the authorities in mitigation of sentence is based on the public interest. It is in the public interest that appropriate punishment should be imposed on defendants convicted of criminal offences. At the same time, the prevention, detection and prosecution of crime is also in the public interest. The use of the informer is a powerful weapon in the hands of the law enforcement agencies in society’s fight against crime. Criminals should be encouraged to inform on other criminals. Honour amongst thieves should be discouraged. Indeed, dishonour and betrayal amongst thieves should be encouraged. The courts have therefore adopted the policy of accepting useful assistance to the authorities as a mitigating factor. A discount to the sentence, which would otherwise have been imposed, is usually given for such assistance. This is a common approach in many jurisdictions. Its object is to provide an incentive for offenders to cooperate with the authorities. It encourages them to assist by giving information about the criminal activities of others by giving evidence in prosecutions brought and the like. It must be recognised that the offender would be receiving punishment which is less than that which his crime would otherwise deserve. That this is considered justified in the overall public interest. The court’s approach in this regard is a pragmatic one.”

Li CJ held that in order to obtain a recognition by way of reduction of sentence, the assistance should be useful assistance. In this regard, Li CJ suggested the courts could look at a number of factors including, and I quote:

“The nature and extent of the assistance in relation to this, matters which are relevant include the degree to which the defendant gave full and frank disclosure, the truth and reliability of the information, the range and seriousness of the criminal activities disclosed. The significance and usefulness of the information and the extent to which it could potentially assist, or had potentially assisted the authorities. Whether the authorities were already in the possession of the information and whether the defendant believed this to be the case. The extent of the defendant’s assistance and, in particular, whether he is prepared to give evidence.”

In this case, I have been told through counsel that the accused is prepared to give evidence. The most I could add to the one-third discount would be a down payment on the reduction that the accused might receive, should others be arrested and should he contribute materially to their prosecution.

At the moment, it is not appropriate for me to do anything other than to give a down payment. To be perfectly frank, the down payment that I propose to give, is not a large one. In assessing that, I have assessed the degree of assistance so far and other matters, and I take the view that such assistance to the police, which may affect the sentence of the accused, is very much for the future, and I strongly invite him to consider that in his future conduct in relation to any further investigation into this matter.

In my judgment, taking account of the factors outlined as to what may aggravate or mitigate this sentence for this cold‑blooded and unpremeditated, at least on the part of the accused, but clearly premeditated by his confederates, this vicious attack, in company, with large knives capable of inflicting serious injury in which the victim was deliberately and persistently assaulted and was assaulted even where he had retreated and is likely to have either been defenceless, or as close to defenceless as can be.

The injuries caused by the assault was serious and they required surgery and rehabilitation. The victim has been left with permanent disability arising from this assault.

I do not know whether the injuries were actually life threatening, but it is plain common sense that even if they were not actually life threatening, that was due more to luck, than good management.

Against that, I have to weigh in the balance the preparedness of the accused to plead guilty to this offence, and therefore take responsibility for his part in his crime. That is a clear and tangible expression of remorse.

I accept fully that he is remorseful and by reason of the antecedents advanced by counsel on his behalf, I accept that he appears to have been on a very good path, prior to the offence, and but for this moment of madness, would have been on that path right at this moment.

Please stand up. Doing the best I can to temper justice with mercy, I am of the view that had you not pleaded guilty and undertaken the other matters to which I have made reference, you would have received a sentence of 11 years.

In view of the mitigation put forward in this case, the discount that I propose to give is about 35 per cent. And doing the best I can, that comes to 7 years.

It is the order of this court that you be sentenced to 7 year’s imprisonment.

Can I just add this? I thank both counsel and I can tell you, your counsel made a difference to the sentence that I was thinking about when I walked into court this morning.