HKSAR v. Ashrif Mehmood

HCCC 100/2019

[2019] HKCFI 2554

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 100 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The charges and the evidence

The accused was convicted after trial by the jury of one count of robbery and one count of wounding with intent.

The prosecution case was that, on the night of 13 October 2018, the accused approached PW1, Mr Mostofa, and asked him for $5,000. When Mr Mostofa refused, four other Pakistani males came forward. They held Mr Mostofa’s hands and the accused used a beer bottle to hit Mr Mostofa’s head many times. The bottle shattered and the accused then picked up a stone to hit Mr Mostofa’s left jaw. As the events developed, Mr Mostofa was made to spread his hands on the railing and the males hit Mr Mostofa’s hands with stones. Mr Mostofa was also punched and kicked and he finally fell down.

In the meantime, the males pulled and tugged at the strap of the bag which Mr Mostofa was carrying across his body but without success. However, after Mr Mostofa had regained consciousness, his bag containing, inter alia, cash of $4,000 and his mobile phone was gone.

These were the matters forming the basis of the two charges and since the jury convicted the accused of both charges, they must have accepted that the essential events took place as described to them by Mr Mostofa.

At trial, there was no dispute that Mr Mostofa suffered really serious bodily harm in relation to the assault. The Admitted Facts showed that when Mr Mostofa was admitted to the hospital, he was found to have multiple lacerations over his scalp and his left face was swollen. In addition, there were lacerations over his left ring finger and right little finger. CT brain scan revealed left maxillary, that is, jawbone fracture and x-ray revealed a distal phalanx bone fracture over the left ring finger and right little finger.

I have now also got a report from Tuen Mun Hospital in which it was stated that Mr Mostofa was discharged from the hospital on 17 October 2018, three days after his admission on 14 October 2018. He was then given sick leave until 31 October 2018. On 2 November 2018, when Mr Mostofa went for re-assessment, he was described to have a full range of motion of his left ring finger and right little finger.

According to Mr Mostofa himself, he found the medicine prescribed by the hospital not effective and so he did not attend the hospital any further. When asked about his present condition, Mr Mostofa, in the victim impact statement, complained that he could not carry heavy objects with his hands and that his fingers could not be bent or stretched. He also said that he had headaches two to three times per week; he is forgetful and could not open his mouth fully.

While I appreciate that the above descriptions given to the police by Mr Mostofa must have been his subjective feeling of the condition he is in, in the absence of any up-to-date assessment of his medical condition, I am not going to take into account in this sentencing exercise that there is any long-term disability suffered by Mr Mostofa.

The accused’s background and mitigation

The accused is now aged 31, divorced. He came to Hong Kong in 1998 legally. Prior to his arrest, he was living alone in Yuen Long and he worked as a food delivery worker earning about $15,000 per month at that time. The accused has got two previous convictions, one of perverting the course of public justice and one of assault occasioning actual bodily harm for which he was respectively sentenced to 4 years and 2 months’ imprisonment in April 2012 and December 2013. At the time of the commission of a present offences, the accused was on bail in respect of a case of assaulting a police officer in respect of which he was eventually acquitted. However, it remains a fact that he committed the present offences whilst on bail. This is an aggravating factor which I would take into account in this sentencing exercise.

In mitigation, Ms Crebbin for the accused frankly acknowledged that there was not much that she could say as the accused was convicted after trial. However, Ms Crebbin emphasised the point that the glass bottle and the stones were picked up at the scene, thus indicating that the offences were not premeditated at all. Ms Crebbin also emphasised the degree of injury suffered by Mr Mostofa was not at the high end.

Sentencing in this case

There is no tariff for the offence of wounding with intent, for the facts in each case may vary greatly. However, for the robbery offence, as the accused used a beer bottle to hit Mr Mostofa’s head, that falls into the category of head-bashing robberies and Ms Crebbin did not seek to argue otherwise. For head-bashing robberies, the Court of Appeal stated in SJ v Ma Ping Wah [2000] 2 HKLRD 312, at 320 letters C to E, that:

“In our judgment, the usual sentence to be imposed for such robberies, following a contested trial, where it is established that a deliberate blow to the head with a weapon capable of causing injury to the brain has been struck...should not be less than 8 years’ imprisonment.”

In the present case, according to Mr Mostofa, the accused used a beer bottle to hit his head many times after he had refused to give money to the accused. The accused also hit Mr Mostofa’s left jaw with a stone, followed by the hitting of Mr Mostofa’s fingers as well as kicking and punching. Although I accept that the offences did not appear to be premeditated as submitted by Ms Crebbin, on the facts revealed and as the robbery was committed by more than one person, I consider that a starting point of 9 years is appropriate for the robbery count.

Moreover, there is the aggravating feature of the offence having been committed by the accused whilst he was on bail in relation to another matter. For this, I am going to further enhance the sentence by 3 months, making the starting point one of 9 years and 3 months for the robbery count.

In respect of the wounding offence, I consider a starting point of 5 years to be appropriate.

These two are separate offences but since the charges arose from the same set of facts, wholly consecutive sentences would not be appropriate. Nonetheless, while the head-bashing part of the wounding could be said to be part and parcel of the robbery, the striking of Mr Mostofa’s hands with stones does not come under that category. When asked, Ms Crebbin also accepted that for the hitting of the fingers, the group might have used a little more force over and above that required for the robbery. In my view, the hitting of the fingers was clearly violence used in addition to which was necessary for the robbery. When Mr Mostofa testified and when he was trying to recall that scene, his eyes were filled with tears. No doubt, such was a really painful and horrifying experience. I therefore consider that a partly consecutive sentence should be imposed and I order that 6 months of this 5-year-term should be served consecutively to the 9-year 3-month-term imposed for the robbery offence while the remaining term is to be served wholly concurrently. This results in a term of 9 years and 9 months.

Having considered the totality principle, I take the view that this overall term of 9 years and 9 months should sufficiently reflect the accused’s criminality and the fact that he committed these offences whilst on bail. Thus this is an appropriate sentence to be imposed in this case.

The accused was convicted after trial. He is not entitled to have the reduction for a guilty plea. I also do not consider there to be anything in mitigation which would warrant a reduction of the sentence in a serious matter like the present one. He is, therefore, to serve a term of 9 years and 9 months for both offences. Of course, I said 9 years and 9 months for both offences but individual starting point applies to different offences.