HKSAR v. Qazi Jamshed

DCCC 1127/2017

[2018] HKDC 1321

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1127 OF 2017

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REASONS FOR SENTENCE

1.On 3 August 2018 the defendant pleaded guilty to one charge of wounding with intent Liang Youdi, who he pushed onto the track of the MTR Light Rail at the Yuen Long Station, contrary to section 17(a) of the Offences against the Person Ordinance[1].

2.Sentence was adjourned to 21 September for the preparation of psychiatric, psychological and background reports to know more about the defendant and his family and for a victim impact statement together with update medical report and photographs of Madam Liang’s injuries.

3.Sentence was further adjourned to today to obtain the victim impact statement and to ascertain whether Madam Liang had fully recovered from her physical injuries. 

4.Full particulars of the offence are set out in the facts admitted by the defendant on 3 August 2018.  In summary on 21 October last year Madam Liang was carrying out cleaning work at the Yuen Long MTR Light Rail Station.   

5.At around 10:25 a.m. Madam Liang was on platform 5 when suddenly the defendant, without saying anything, walked past Madam Liang and pushed her down onto the railway track.  Fortunately, the next train was not due for six minutes and Madam Liang was rescued and taken to Pok Oi Hospital.  A report was made to the police. 

6.The incident was captured on CCTV.  I have had the opportunity of seeing the CCTV footage, which was played in court on 3 August 2018. 

7.The defendant, who fled after pushing Madam Liang, was arrested later the same day near to the train station.  In a video recorded interview conducted the next day the defendant claimed he accidentally pushed Madam Liang when the crowd pushed him forward.  The defendant also told the psychologist that he lost his balance[2]. 

8.The CCTV footage clearly shows that the platform was not crowded and that the defendant did not lose his balance.  As the defendant walked close to Madam Liang he is seen looking at Madam Liang and deliberately pushing Madam Liang onto the railway track.   

Mitigation

9.In passing sentence, I take into account everything said on behalf of the defendant by Mrs Panesar and Mr Kwan, together with the defendant’s mitigation letter submitted to court on 3 August 2018 in which he expresses his remorse and wishes Madam Liang full recovery[3].  I have also read the letters given to the probation officer by the defendant and his wife.

10.The defendant is 57, educated in Pakistan with a master degree in political science.  The defendant came to Hong Kong in 1997 and married in 2002.   There is one son from the marriage, now aged 11, who has Down syndrome. 

11.After coming to Hong Kong the defendant worked for over seven years as a law clerk with Jal N. Karbhari & Co, between 1997 and 2004.

12.Mrs Panesar explained that while training to be a cadet in the Pakistani army the defendant injured his back.  Over the years the injury deteriorated and became so painful that the defendant had to stop working for Mr Karbhari[4]. 

13.A brief medical report from the Tuen Mun Hospital dated 26 July 2015 confirming the defendant’s injury was submitted to court by Mrs Panesar[5].  The defendant says he is still waiting for surgery and that he has been treated while in custody.

14.The defendant no longer being able to work due to the pain and having problems sleeping, became depressed and resorted to alcohol.  Mr Kwan explains that the defendant’s dependence on alcohol was aggravated on hearing the news that his elder brother and sister had been murdered by poisoning and later his younger brother had been shot dead.   The murder of his younger brother was particularly devastating because the defendant had raised his younger brother as if he was his own son. 

15.The dependence on alcohol to cope with the death of his family members is also mentioned on page 2 of the wife’s letter and in paragraph 5 of the psychological report. 

16.In 2014 when the defendant was sentenced to a Hospital Order he was diagnosed with alcohol dependence syndrome and mood problems.  A short report from the Castle Peak Hospital dated 6 October 2014 was submitted to court by Mrs Panesar[6]. 

17.Since April 2016 Dr Tung has been the defendant’s case psychiatrist at the Tuen Mun Alcohol Problems Clinic.  A report from Dr Tung dated 7 March 2018 was submitted to courtby Mrs Panesar[7].   The report discloses that the defendant has been hospitalized in Castle Peak Hospital on seven occasions, mostly due to agitation and disorganized behaviour related to his alcohol use. 

18.Dr Tung details the defendant’s history of alcohol use which has caused major functioning impairment; poor marital relationship; interpersonal disputes in public and sometimes aggressive confrontation. 

19.Dr Tung is of the opinion the defendant fulfils diagnostic criteria of a dependence syndrome and that his depressive symptoms, for which he has been prescribed anti-depressants, are viewed as part of his alcohol use disorder.    

Criminal record

20.The defendant cannot be given credit for a clear record.  Since 2008 the defendant has appeared in court on twelve occasions for relatively less serious offences, including criminal damage, theft, assault and criminal intimidation.  The defendant has served short terms of imprisonment in 2013, 2014, 2015 and 2016 and in 2014 a Hospital Order was made. 

Offence

21.The defendant was last hospitalized at Castle Peak Hospital between 17 July and 6 September 2017.   Mrs Panesar explained that on discharge the defendant’s wife suspected the defendant had resumed drinking and therefore left home together with their son. 

22.The defendant had lost his keys and could not go home to change his clothes and take his medication.  The wife did not answer his calls and the defendant did not know the whereabouts of his wife.  

23.With the assistance of the police the defendant was able to locate his wife.  After talking to his wife she hung out his clothes and medication for him to collect and said she would have nothing else to do with the defendant. 

24.The defendant was very depressed at the thought of not being able to see or hold his son again, who he loved very much.  Nowhere to stay and no food to eat the defendant began sleeping on the street.  The defendant attempted suicide by overdosing on his medication in the hope of going into a deep sleep so he could forget about all his problems. 

25.At the time of the offence the defendant was in a distressed state.  The defendant had drunk some Chinese wine and went to visit his friend[8].  On the way the defendant became confused and lost sense of his whereabouts.  The defendant therefore alighted from the train. 

26.The defendant cannot explain why he pushed the lady onto the track.  Mrs Panesar submitted that the offence was not premeditated and that the defendant was so frustrated and traumatized by his wife leaving him and taking their son that he took out his frustration on a stranger. 

27.On page 2 of his letter (attached to the background report) the defendant says that he did not know what happened until he saw the CCTV in court.  Mr Kwan confirms that the defendant, albeit he had been drinking and was on medication, was aware of what he was doing.  Mr Kwan informs the court that when he first saw the defendant, the defendant confirmed that he knew what he was doing and has again today confirmed that he knew what he was doing. 

28.The defendant having never committed an offence of this magnitude before, Mrs Panesar submitted that the defendant is unlikely to repeat the offence and says that the defendant poses no risk or danger to other persons.

29.I am told that the defendant and his wife have now reconciled and the wife visits the defendant in prison and sometimes takes their son to see him.  The defendant’s wife has attended every hearing in court.  

Reports

30.The reports all set out in some detail the defendant’s alcohol dependence.  Sherry S.L. Im, Clinical Psychologist, details that the defendant unfortunately experienced multiple life stressors, including grief, chronic back pain and unemployment for which the defendant maladaptively relied on alcohol to cope with sadness and frustration[9].

31.The clinical psychologist is of the view that the defendant has apparently failed to learn from past experience and demonstrated inadequate insight into his problem and fluctuated in treatment compliance.  The defendant’s risk of violent re-offending is assessed at the high end of moderate risk with genuine concern for future domestic violence[10].

32.In addition to existing medication treatment, psychological intervention on alcohol abuse and maladaptive mood management skills is recommended to prevent re-offending.  The clinical psychologist however notes that the defendant refuses psychological services and prefers to rely on his own will power.

33.Dr Bonnie Siu, consultant psychiatrist, is of the opinion that the defendant is suffering from alcohol dependence syndrome and dysthymia with history of cannabis abuse; is observed to be mentally stable and that psychiatric inpatient treatment is not required.  Dr Siu recommends that the defendant continues to attend the alcohol problem clinic[11].

34.In passing sentence, I have disregarded the adverse comments made by the probation officer contained in the background report. 

Guidelines

35.There are no guidelines for offences of wounding.  In HKSAR v Hau Ping Chuen[12] 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.”

36.In HKSAR v Chan Chun Tat[13] 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.

37.In Secretary for Justice v Lam Kai Wah the Court of Appeal held that in order to provide the public with proper protection a starting point of at least fifteen years’ imprisonment was appropriate for pushing a person into the path of a moving train[14].

38.Fortunately, Madam Liang was not pushed in front of a moving train and was therefore not in imminent risk of her life.  The offence however remains very serious, one which sufficient regard must be had to the public interest and the need to deter potential offenders. 

Injuries

39.Madam Liang suffered a fracture of her left elbow and lacerations to her lip and chin, described as a through and through laceration which required six stitches, as particularised in the medical report dated 16 November 2017 from the Department of Accident & Emergency of Pok Oi Hospital submitted to court on 3 August[15].  Madam Liang was discharged from hospital the same day. 

40.Five photographs showing the injuries were also submitted to court on 3 August.  Having viewed the CCTV footage, it is again most fortunate that Madam Liang, who fell face down on the track, did not suffer more serious head injuries.

41.On 21 September 2018 the prosecution submitted updated medical reports from the Department of Dental Unit, Tuen Mun Hospital; the Department of Orthopaedics & Traumatology, Pok Oi Hospital; a physiotherapy report from the Pok Oi Hospital; and an occupational therapy report from the Pok Oi Hospital[16] together with five further photographs of the injuries taken on 28 August 2018.

42.In summary the reports detail the treatment received by Madam Liang and show a gradual improvement in the active ranges of motion (AROM) of her left elbow, wrist and left hand strength.  Madam Liang was discharged from occupational therapy on 19 April 2018 and physiotherapy on 31 May 2018 at which time range of movement of the wrist was between 50 and 80 degrees and the left elbow was full.  Subjectively Madam Liang claimed an overall 80% improvement but still had pain in the left wrist[17]. Madam Liang was last followed up in the Department of Orthopaedics & Traumatology when she complained of left wrist pain but no pain in the left elbow[18].

43.On 23 October 2017 Madam Liang was referred to Department of Dental Unit for consultation of facial injury.  Examination showed chin and lip laceration with suture and fluctuant chin swelling around 2 cm with pus discharge.  No dental injury was found.  The stitches were removed from the chin on 12 November 2017.   On 12 February 2018 scar tissue and mild gum inflammation were noticed[19].  The scar can be seen in photograph 3.

44.I accept the submission of Mr Kwan that the injuries sustained by Madam Liang are not the worst of its kind and are a lot less serious than those sustained by the victim in Lam Kai Wah.  

Victim impact statement

45.Little imagination is required to understand how terrified and frightened Madam Liang, aged 59 (now 60) a recent arrival from the mainland, must have been when she was pushed onto the track of the railway. 

46.Psychiatric reports prepared by Dr Joyce Heung dated 20 August 2018[20] and 2 October 2018[21]and a victim impact statement prepared by clinical psychologist Ms Lo Chor Wing dated 15 October 2018[22]have been submitted to court. 

47.In July 2018 Madam Liang was referred to the Castle Peak Hospital by the orthopaedic surgeon for insomnia, low mood and flashback of the incident[23]. 

48.Dr Heung notes that Madam Liang had initial insomnia and fragmented sleep soon after the injury because she dreamed about the incident; felt anxious with headache and muscle tension every day; and poor appetite and poor concentration.  Madam Liang would also avoid going to Yuen Long because she worried about being attacked again but had no problem travelling by the Light Rail Train in Tuen Mun[24].

49.Madam Liang was diagnosed with adjustment disorder for which she was given antidepressant to promote sleep and relieve anxiety[25].  On 14 August 2018 Madam Liang was not overtly depressed or anxious and her sleep had improved with reduced anxiety[26].

50.Dr Heung last saw Madam Liang on 28 August 2018.  Madam Liang was able to travel on the Light Rail and had no flashbacks in daytime.  Madam Liang had returned to the Mainland and refused further titration of medications.  Madam Liang was not overtly depressed or anxious; her speech was coherent and relevant; she was not psychotic, suicidal or aggressive[27].

51.The report from clinical psychologist Ms Lo notes that while Madam Liang’s injuries seemed to have healed steadily with medical treatment, residual impact on her appearance and daily functioning were obvious. 

52.The clinical psychologist saw that at times blood was still excreted from Madam Liang’s teeth and that Madam Liang had not regained sufficient strength in her arm to twist a towel (left wrist injury).  Though Madam Liang managed to do basic self-care, she was unable to cope with simple household chores that she was able to do in the past for example carry a teapot.  Madam Liang worried about her recovery and she was particularly sad for not being able to resume her pre-incident strength, which had markedly and adversely impacted on her daily life[28].

53.One year after the incident Madam Liang still experiences flashbacks, intrusive thoughts and nightmares related to the offender and the process during which she was extremely frightened and hurt, especially at night.  This has resulted in serious sleep disturbance with Madam Liang only sleeping 3-4 hours a day. Madam Liang also had poor appetite resulting in her losing about 20 lbs and a wide range of distress symptoms such as restlessness, hypervigilance, fatigue and headache[29].

54.After the incident Madam Liang felt insecure and scared when she came across persons who resembled the offender and took extra care to stay away from strangers leading to a hypervigilant state and physical exhaustion, which impaired her daily living[30].

55.Distressed over the uncertainty of her recovery and told by her employer to terminate the work contract Madam Liang felt that her hope for the future was completely shattered and her dream of living on her own savings without the need to be dependent on her children was broken[31].

56.Madam Liang now relied heavily on her elder sister for many aspects of her daily living which made her feel guilty of bringing trouble to her elder sister and regarding herself as useless.  As a result Madam Liang became sad and depressed[32]. 

57.Psychological tests suggested Madam Liang was at a severe level of post-traumatic stress and was severely depressed[33].

Sentence

58.Taking into account the circumstances of the offence; the injuries sustained by Madam Liang from which Madam Liang has made gradual improvement; the emotional trauma suffered by Madam Liang and the impact on her daily living; the offence was not premeditated; that the defendant was suffering from alcohol use disorder and was depressed after his wife left him taking with her their son, and the need to provide the public with proper protection, I am satisfied that the proper sentence after trial is 5 years’ imprisonment. 

59.Giving the defendant full credit for his plea of guilty reduces the sentence to 3 years and 4 months’ imprisonment.

60.While the court is sympathetic to anyone suffering from depression, what is clear from all the reports is that the defendant’s depression is related to his alcohol use disorder which has had a serious impact on his family.  While alcohol may begin to explain the defendant’s conduct, alcohol cannot excuse his conduct.  I am satisfied there are no grounds to further reduce the sentence. 

61.The defendant is convicted and sentenced to 3 years and 4 months’ imprisonment.