HKSAR v. Arif Aqib and Another

HCCC 56/2019

[2020] HKCFI 3116

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 56 OF 2019

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

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COURT: The 1st defendant, Mr Arif Aqib, and the 2nd defendant, Mr Mohammad Shahzeb, jointly face one count of murder, contrary to common law and punishable under section 2 of the Offences Against the Person Ordinance, Chapter 212; and 2 counts of wounding with intent, contrary to section 17(a) of the Offences Against the Person Ordinance, Cap 212.

In the 1st count, the offence is murder and the allegations are that the two defendants, on the 13th day of November 2017, in Hong Kong, together with other persons unknown murdered Waqar Hamed.

In both the 2nd and 3rd counts, the offences are wounding with intent and the victims are Singh Jaskarn Brar in the former and Mohammad Yasin in the latter.

The allegations are that the two defendants, on the 13th day of November 2017, at Ngau Tau Kok Road, Kowloon Bay, Kowloon, in Hong Kong, together with other persons unknown, unlawfully and maliciously wounded Singh Jaskarn Brar in the 2nd count and Mohammad Yasin in the 3rd count with intent to do them grievous bodily harm.

They plead not guilty to all the charges but are convicted of all of them after trial by the jury.

Evidence in the Trial

On 13 November 2017, at around 11 pm, at Ngau Tau Kok Road Playground, a gang of South Asian males armed with knives and metal pipes attacked the victim group which was a group of Pakistani males drinking and chatting at the pavilion there. As a result of the attack, Mr Waqar Hamed, the victim named in the 1st count, was killed, and Singh Jaskarn Brar and Mr Mohammad Yasin, the victims named respectively in Count 2 and Count 3, were seriously injured.

The evidence of the prosecution is that the defendants were part of the gang which attacked the victim group for the reason that one member of the group, Mr Khawaja Hassan Faraz, nicknamed Tyson, had disputes with Sing Fai and KK. Shortly before the attack, Tyson and Jaskarn saw the 1st defendant driving a car past the Ngau Tau Kok Road Playground at low speed, looking in their direction.

The prosecution also relies on the third and fourth video-recorded interview of the two defendants. Its case is that the two defendants, though not taking part in the actual attack of the victim group, the 1st defendant was responsible for driving some of the people responsible for the attack to the scene to carry out the attack, and the 2nd defendant was responsible for guiding the attackers to the victim group in the Ngau Tau Kok Road Playground, and both of them were aware that the attackers were armed with knives and metal pipes and would use them in the attack. Each defendant was acting in joint enterprise with those people who actually attacked the victim group and are jointly responsible for killing Waqar and injuring Jaskarn and Yasin with intent.

Waqar was chopped, inter alia, at the left neck, causing a deep laceration wound, and the cause of his death was cut wounds to the neck and back. Jaskarn and Yasin suffered multiple deep cut wounds and one of the wounds of Jaskarn was so deep that the lung tissue protruded from the wound site. They stayed in hospital for, respectively, about two months and about a week and were granted sick leave for, respectively, about four months and two months.

The defence cases are all different. Both the 1st and the 2nd defendants say that what they said in their first and second video-recorded interview and in court are true and what they said in their third and fourth video-recorded interview were a result of improper treatment of the police in that the police threatened, assaulted and induced them and coached them what to say.

The 1st defendant says in court and in the first and second video-recorded interview that he attended the wedding banquet of his friend together with the 2nd defendant and their friend Nomi in the Pakistani Club on the night in question. He had not driven his car to the vicinity of the Ngau Tau Kok Road Playground on that night and he had lent his car to Sing Fai and KK during the wedding banquet. He later got back the car somewhere in Ngau Tau Kok area. He gave a lift to the 2nd defendant and Nomi. He dropped Nomi in Jordan area and as he had an appointment with a friend to check the music system of his car, he dropped the 2nd defendant off in Ngau Tau Kok area instead of at his home in Kwun Tong. The victims, including the deceased, were his friends. He denies taking any part in the attack.

The 2nd defendant says in court and the first and second video-recorded interview that after attending the wedding banquet together with the 1st defendant and Nomi in the Pakistani Club, the 1st defendant gave him a lift home but dropped him off in Ngau Tau Kok area, saying that he had urgent things to do. While walking home, he heard screaming and shouting noises. He became scared and entered a shop. He saw people running past outside the shop. He encountered some of the victims at the scene. The victims, including the deceased, were his friends. He denies taking any part in the attack.

Criminal Records

The 1st defendant has eight previous convictions of which 2 were of violence but not similar to the charges he stands convicted. He was last convicted on 23 October 2015 of 4 offences relating to the use of vehicles and one offence of using an identity card belonging to another for which he was sentenced to a total of 12 months imprisonment.

The 2nd defendant has a clear criminal record.

Mitigation

The 1st defendant is aged 25. He was born in Pakistan in 1995 and came to Hong Kong when he was aged 3. He received Form 2 education.

Counsel for the 1st defendant, Mr Khosa, points out that the sentence for the murder charge is mandatory life imprisonment. Thus, the sentencing for the 2 wounding with intent charges has become an academic exercise. He cites the case of HKSAR v Singh Manjit, CACC 455/1999, in which the defendant attacked the victim with 3 other people with choppers, causing serious injuries to the victim. His sentence of 7 years imprisonment for the offence of wounding with intent was upheld on appeal.

Mr Khosa also refers to the case of HKSAR v Cheung Kwok Kay, CACC 377/2000, in which the defendant together with about 20 people attacked a group of young men in a pub with beef knives and poles, killing one of the young men. He was sentenced to 8 years imprisonment for the offence of manslaughter.

Mr Khosa emphasises that the 1st defendant was not the mastermind of the attack and was not a party to the grudge between Tyson and Sing Fai and KK. He did not take an active role in the attack while the defendants in the two authorities did. The evidence against him has come from his own admissions. Mr Khosa submits that the sentence for the wounding with intent charges in the present case should be in the range of 7 to 8 years imprisonment.

The 2nd defendant was aged 17 at the time of the offences and was a Form 3 student. He was born in Hong Kong in October 2000.

Counsel for the 2nd defendant, Mr Mughal, adopts the mitigation of the 1st defendant as far as they are applicable to the case of the 2nd defendant. He further says that the 2nd defendant was not the mastermind of the attack and has a clear criminal record. There is no suggestion that the 2nd defendant took part in the pre-planning of the attack. The 2nd defendant was also not the actual attacker and was not armed. His only role was to signal to the attackers the position of the pavilion, and such a scene was in fact not shown in the CCTV clips covering that area.

Mr Mughal points out that the court may impose a shorter sentence than life imprisonment on the 2nd defendant in respect of Charge 1 under section 2 of the Offences Against the Person Ordinance, Cap 212, as the 2nd defendant was under the age of 18 at the time of the offence.

Mr Mughal submits to court a mitigation letter written by a teacher of Kwun Tong Madrasa describing the 2nd defendant as a very obedient, honest and wholehearted young man who always assisted in carrying out the activities of the madrasa. The teacher asks for a lenient sentence for the 2nd defendant.

Sentence

As rightly pointed out by Mr Khosa, the sentence for murder is mandatory life imprisonment. This is, of course, subject to section 2 of the Offences Against the Person Ordinance, Cap 212, which, as pointed out by Mr Mughal, provides that the court has a discretion to sentence an offender to a shorter term of imprisonment if the offender was aged under 18 at the time of the offence.

For the 1st defendant, the only available sentence to the court in respect of Charge 1 is life imprisonment, and the court so sentences the defendant for this charge.

The 2nd defendant was 17 years and 1 month old at the time of the offence of murder. Taking into account the relatively minor role he played in the attack and his young age at the time of the offence, the court is of the view that a sentence of 18 years imprisonment is sufficient to reflect his criminality in the charge. The court therefore sentences him to 18 years imprisonment in respect of Charge 1.

Wounding with intent to cause grievous bodily harm is a very serious offence carrying a maximum sentence of life imprisonment. As rightly pointed out by Mr Khosa, there are no tariffs in the sentence of this offence. This is understandable because the offence can be committed in differing circumstances and the degree of gravity may vary substantially from case to case, so do the sentences.

There are ample authorities such as HKSAR v Tse Hok Lam, CACC 85/2005, saying that the range of sentence for this type of offence is 3 to 12 years imprisonment depending on the facts of individual cases. In the case of Singh Manjit cited by Mr Khosa, the injuries suffered by the victim were less serious than those suffered by Jaskarn and Yasin in the present case. The case of course serves as a reference for the court in the sentencing in this case.

In the present case, the attack took place in a playground by a gang of 7 to 8 attackers armed with knives and metal pipes. The place is a public place. There was a real danger that innocent people visiting or passing through the place might be inadvertently harmed. It indeed seems that the deceased, Mr Waqar, just happened to walk past the place and encountered and greeted by the victim group, some of whom he happened to know. He, unfortunately, fell victim of the attack and died.

Although it is pointed out, and quite rightly, by the two defence counsel that the two defendants did not take part in the actual attack, the court must not lose sight that they took part in the attack on the victim group as a joint enterprise. The attack on Jaskarn and Yasin could no doubt be fatal. It is fortunate that they are still alive. But as pointed out by Jaskarn, he still feels pain and is unable to lift things. The court is of the view that the two defendants are of equal culpability.

Having considered the circumstances of the case, the court adopts a starting point of 8 years imprisonment for each one of them in respect of each of Charges 2 and 3. The court is of the view that they do not have any valid ground for mitigation. Although the 1st defendant has previous convictions of violence, they took place quite a long time ago and the court does not consider that the sentence should be enhanced on such ground. The court therefore sentences each of the two defendants to 8 years imprisonment for each of Charges 2 and 3.

For the 1st defendant, the court orders that the sentences of all of Charges 1, 2 and 3 are to run concurrently.

For the 2nd defendant, the court is of the view that a total sentence of 20 years imprisonment for the 3 charges sufficiently reflects his culpability. The court orders that the sentences of Charges 2 and 3 are to run concurrently and 2 years of the resultant sentence are to run consecutively to the sentence of 18 years imprisonment in Charge 1, making a total 20 years imprisonment.