HKSAR v. Rai Dambarsing

DCCC 831/2018

[2019] HKDC 397

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 831 OF 2018

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Reasons for Sentence

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1.The defendant has pleaded guilty to two offences today, one is assault occasioning actual bodily harm and the second is wounding with intent and that is contrary to section 17(a) of Cap 212.

2.The parties involved in this incident are PW1 and PW2 who were a couple and the defendant.  PW1 and PW2 are, as I understand it, a Chinese man in his 60s and a Filipino lady in her 40s and they had a relationship and had children.  By 2017, that relationship had come to an end and then the defendant met PW2 and they had a relationship but that ended by March of 2018.  PW1 and PW2 then resumed their cohabitation in order to look after the children of their relationship.

3.As I understand it, the defendant had some dispute with PW1, particularly about money and, perhaps, also with PW2 and her relationship with PW1.  On 25 April 2018, the defendant went round to where they were living and eventually gained entry and then had an argument with PW1 and PW2.  There appears to have been a dispute between PW2 and the defendant. PW1 then intervened into their argument and the defendant then punched him in the eye and there seems to have been some tussle as well.  The result of that led to some redness and swelling on PW1's forehead and abrasion, apparently, on the big toe.

4.The defendant was arrested later and then released on police bail and was due to appear in court on 14 June.  However, on 5 June, the second offence was committed and the defendant had arranged to meet with PW2.  Both PW1 and PW2 went to an arcade, the arcade centre which we can see in the charge.  There was a discussion.  The defendant had asked to borrow money apparently.  This had been refused.  Then the defendant had also threatened that he would chop PW1.  He then left the arcade centre, gone and obtained a chopper from somewhere and approached PW1.  There was a fight.  The chopper was broken.  With the damaged chopper, the defendant was able to assault PW1 to the face.

5.The facts set out the injuries that were caused to PW1.  There were facial injuries, linear abrasions over the right forehead, a one-centimetre wound lateral to the right eye and a 3.5-centimetre wound lateral to the right angle of the mouth that required suturing.  There were also what were described as superficial lacerations and abrasions on the right forearm and left hand.  

6.The defendant was later arrested.  In fact, a day after, on 6 June and has admitted these facts in the court today.

7.As far as the defendant's antecedents are concerned, he is now aged 43.  He is of Nepali ethnic descent and is a Nepali national but, as I understand it, he was born in Hong Kong.  He received education in Nepal and became a construction worker in Hong Kong and is said, in the antecedents, to be a drug addict.

8.He has a number of previous convictions, 11 appearances in court, mainly concerned with drugs and drug-related offences with which he has been sent to a drug addiction treatment centre.  The only relevant conviction is in 2014 which was a suspended sentence for assault on police, a suspended sentence of 3 months' imprisonment for assault on police.

9.As far as mitigation is concerned, the defendant is remorseful.  He has written to the court apologising.  It is said that this is an offence that arises out of an ongoing dispute between the parties who knew each other and the defendant had apparently helped out the parties and their family in the past.  So it is the case that where parties are known to each there can be an added emotional layer in the offences.

10.The defendant says that the offence was a spontaneous acting out of anger.  He had obtained the chopper from somewhere else outside the arcade and claims the offence is not pre-meditated.  I am told there is no further contact between the defendant and PW1 and her children, so the likelihood of repetition of the offence is small.

11.Finally, the injuries themselves are injuries to the flesh and constitute lacerations which in one case required to be sutured. The injuries appear serious on their face but the recent photographs show there is some cosmetic consequences to the face but it would appear there are no other ongoing injuries.

12.Turning to the question of sentencing.  I have to deal with two offences here but they do, in a way, constitute one ongoing course of conduct, one ongoing dispute.  But what aggravates the second offence is, of course, that it was committed whilst on bail for the first offence.  So, there is that one aggravating factor.

13.As far as the starting point for sentence on the first offence, that is at large.  The offence consists of a single blow and the injuries are not serious.  The second offence is the more serious offence consisting of an assault with a bladed weapon.  For offences involving section 17(a) of Cap 212, the starting point for sentence can range between 3 to 12 years' imprisonment and assaults with bladed or edged weapons can be seen to be more serious, but I must determine the correct overall starting point for both offences.

14.On the first offence, I consider the starting point, that is the assault occasioning actual bodily harm, I take a starting point of 3 months' imprisonment and reduce that to 2 months' imprisonment for the defendant's plea of guilty.

15.On the second offence, given that there appear to be no ongoing injury or deficit save for the cosmetic problem of the face where lines can be seen where the blows were struck, and given the quasi-domestic nature of the dispute, I consider the appropriate starting point should be towards the lower end of the range.  What I shall do is take a starting point at 42 months' imprisonment with an addition of 3 months' imprisonment to represent the fact that the offence was committed whilst on bail for the first offence.

16.After deduction for a plea of guilty that leads to a sentence of 30 months' imprisonment on the 2nd charge. 

17.Having regard to the overall totality and the collective nature of these offences, I will order that those sentences be served concurrently to a total of 30 months' imprisonment.