HKSAR v. Nawaz Sarfraz and Another

DCCC 189/2019

[2020] HKDC 703

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 189 OF 2019

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REASONS FOR SENTENCE

1.The defendants stand convicted after trial of one charge of conspiracy to wound with intent to do grievous bodily harm together with Leung Fung Yiu (D1), Pong Ching Lung (D2) and other persons unknown, contrary to section 17 (a) of the Offences against the Person Ordinance[1] and section 159A and 159C of the Crimes Ordinance[2].

2.D1 and D2 pleaded guilty to the charge on 9 October 2019 and were sentenced by Deputy District Judge Francis Cheng to 2 years’ imprisonment[3]. 

3.Full particulars of the offence are set out in my verdict handed down on 30 July 2020.  In summary on 26 October 2018 the police received a 999 call reporting suspicious persons on a private car bearing registration mark MG 451.  Shortly afterwards the police spotted MG 451 which they followed to Triangle Motors Limited on Tun Yu Road in Lok Ma Chau where MG 451 stopped.  D1 and D2 were sat in the front and D3 and D4 in the back.  D1, D2, D3 and D4 were intercepted by the police when they alighted from the car.

4.The car was a stolen car with the ignition prized.  The number plates MG 451 were false.  The real registration mark of the car was UM 2100. 

5.The police found on the car various items including two knives; three hammers; a can containing suspected petrol; a walkie-talkie; gloves; caps, balaclavas and facemasks.  The DNA of D2 was found on a cap.  The DNA of D3 was found on a facemask and on the same cap D2’s DNA was found.  DNA of D4 was found on a facemask.  

6.D2’s mobile phone was seized.  The police found on the mobile phone two photographsof a male (photograph 67 and close up photographs 71 & 72) and a photograph of a residence (photograph 68, close up photograph 73) with the words hand written in Chinese (certified translation exhibit P51):

“Target ground

Black Grey Volks(wagen) JEEF JJ 3382”

7.WDPC 4171 interviewed the registered owner of JJ 3382, who she found to be the same male in the two photographs on D2’s mobile phone.  I was satisfied that the male in the two photographs was the target of the conspiracy. 

8.Telephone records showed a close connection between D1, D2, D4 and telephone numbers 6488 7378 and 5680 9314 between 24 October and 26 October 2018 including calls made shortly before and after the police intercepted the car. 

9.I was satisfied so I was sure that the only inference to draw was that D1 and D2 conspired together and with persons unknown to unlawfully and maliciously wound X, the male in the photographs found on D2’s mobile phone with intent to do him grievous bodily harm and that D3 and D4 were both party to the conspiracy.

Mitigation

10.In passing sentence, I have carefully considered the oral and written submissions of Mr Pannu on behalf of D3, who is 24, lives with his parents and is a part time construction worker[4].

11.I take into account that D3 has only one conviction for possession of dangerous drugs in 2015 when he was fined $1000. 

12.I have carefully considered the oral and written submissions of Mr Sherry on behalf of D4, who is 26 and works in construction and cargo handling at the airport[5].  

13.I take into account that D4 has a clear criminal record.  

Guidelines

14.There are no guidelines for offences of wounding.  In HKSAR v Hau Ping Chuen[6] 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.”

15.In HKSAR v Chan Chun Tat[7] 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.

16.Each case is to be decided on its own facts and circumstances.

17.Both Mr Sherry and Mr Pannu submit that the roles of D1, who was the driver and D2, who appeared to be the mastermind, were different to the roles of D3 and D4 and therefore D3 and D4 should receive a lesser sentence than D1 and D2[8].   

18.I have read the reasons for sentence of D1 and D2.  The judge does not say he sentenced D2 as the mastermind and did not in passing sentence differentiate between the roles of D1 and D2. 

19.Whilst D2 may have been more involved in the planning and D1 was the driver, I am satisfied no distinction should be drawn between the defendants.  They were all found together in the car inside which were weapons which could cause very serious injury. 

20.Taking into account no attack took place and no suggestion of triad involvement, I am satisfied a sentence of 3 years’ imprisonment is appropriate. 

21.I would add that, in my view, if a distinction should be drawn between the roles of D1 and D2 and the roles of D3 and D4, the sentence imposed on D1 and D2 is lenient.

22.D3 and D4 are both sentenced to 3 years’ imprisonment.