HKSAR v. Thapa Manish and Another

DCCC 611/2019

[2021] HKDC 1288

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 611 OF 2019

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

Charges

1.D1 pleads not guilty to wounding with intent (Charge 1).  D2 pleads not guilty to common assault (Charge 2). 

Prosecution case as found by court

2.PW1 was a customer of a bar where D1 and D2 were bartenders.  He went there with his wife PW2 just before the time of the offence.  He put down his credit card to open a tab.  When he went to pay up, the bar could not find his credit card.  He was angry at D1 and D2 in particular for their unfriendly attitude.  This affected other customers inside.  The bouncer was called inside to control PW1.  The bouncer walked PW1 out of the Bar.  I adopt DW1’s version here.

3.PW1 said he wanted to go out to make phone calls to cancel his credit card and report to the police.  When he was outside the Bar, PW1 saw D2.  He held D2’s neck.  That became “tenderness over his neck” as stated in D2’s medical report.

4.He pulled D2 down and tore D2’s vest.  That became 2 parts of a torn vest, one part seized as exhibit on the road and the other part later in D2’s home[1].  PW1 got on to D2 on the floor.  That became “tenderness over his lower back” as stated in D2’s medical report.  When PW1 was on top of D2, D1 tried to save D2 by pulling PW1 from behind.  PW1 elbowed D1’s right eye area.  That became “mild tenderness and swelling with superficial abrasion over D1’s right periorbital area” as stated in D1’s medical report.  PW1 fell back and got D1 down as well. 

5.When both stood up, they grappled with each other by holding the front or collar of each other’s top garment.   PW4 passed by and saw what went on until the end.  D1’s necklace and nametag, then seized as exhibits on the road[2], were being dislodged from him as he was grappling with PW1.  At the same time D2 struck the back of PW1’s head from behind 3 – 4 times.  PW4 patted on D2’s shoulder and asked D2 to calm down.  D2 stopped. 

6.PW2 tried to pull D1 away by holding on to D1’s ponytail without success.  When the grapple between PW1 and D1 continued, D1 in a temper used a glass object a little further away to hit on PW1’s forehead and caused grievous bodily harm to PW1. 

7.PW1 was the aggressor.  He assaulted D2 first.  PW1 should have been guilty of common assault but he was not charged.  The prosecution have proved beyond reasonable doubt that D2 was guilty of common assault as charged here, and that D1 was guilty of wounding contrary to section 19 of the Offences against the Person Ordinance, Cap. 212.  

8.PW1 was examined by Dr. LEUNG, at A & E of QMH at 0045 hours on 21/10/2018, with a finding of left forehead laceration. A computer tomography showed left frontal scalp hematoma and few hyperdense linear densities up to 9mm at the left frontal scalp region, probably foreign bodies.  PW1 was admitted to the QMH Neurosurgery Unit on the same day with the following findings:

(a)  A 5cm long laceration, a 3 cm long laceration, and a 1cm long laceration over his left forehead with 2 pieces of glass retrieved;

(b)  His right fourth finger was found deformed and swollen with decreased movement;

(c)  X-ray of his right hand showed a proximal phalanx fracture.

9.He was admitted to the Hong Kong Sanatorium and Hospital on 22/10/2018. He was treated by Dr LAM, a specialist in plastic surgery, who made the following findings[3]:

(a)  X-ray of the skull on 22 October 2018 revealed some glass fragments in the forehead wound;

(b)  There were at least 12 wounds on the forehead and scalp. Various in size, shape and depth. The longest and deepest one was semi-circular in shape and about 10cm in length and full-thickness cut to skull bone, which was also impinged by the striking glassware. The rest ranged from superficial cuts to deep cuts and skin loss.

Mitigation

10.D1 was born in Nepal in 1997.  He came to Hong Kong in 2007.  He completed his secondary studies in Hong Kong and went to United Kingdom for a bachelor’s degree in mechanical engineering.  He had not completed first year when he returned to Hong Kong.  At the time of the offence he was aged 21, working as a bartender in the Bar.  At present he works as a construction worker on daily wages. 

11.He voluntarily surrendered to the police station to explain what happened.  He wanted to save his friend D2 when D2 was attacked by PW1, the aggressor.  His use of a glass object to injure PW1 was an impulsive act.   

12.His solicitor refers to cases where impulsive acts of wounding resulted in sentences of a few months to one year odd.  Each case depends on its own facts though the nature and extent of injury will be highly relevant. 

13.D1 had a previous record for assault occasioning actual bodily harm.  He was put on probation for 12 months in 2017.  It did not take him long to commit the present offence after probation. 

14.D2 was born in Nepal in 1993.  He was educated up to secondary school in Nepal.  He came to Hong Kong in 2009.  He was married in 2018 in Nepal.  He had a record for possession of dangerous drugs in 2014.  He is a construction worker with a salary of $22,000 per month.     

15.D2’s solicitor mentions substantial delay prejudicial to D2.  This case happened on 20/10/2018.  D1 and D2 surrendered to the police station on 23/10/2018.  They were charged on 4/7/2019.  The original trial took place in 2/2020.  It was adjourned to 7/2020 due to the pandemic.  In the course of trial, it was ordered de novo.  A new trial date was fixed for 1/2021. However, D1’s counsel was not available until 8/2021.  The trial of 8/2021 was held before this court.  D2 was convicted of common assault.

16.D1’s solicitor asks me to consider the delay in proceedings outlined by D2’s solicitor also applicable to D1.  

Sentencing D1 and D2

17.There is no sentence guideline for either wounding or common assault. 

18.D1 did not choose to start the fight as he was trying to save D2 from PW1.  However, D1 chose to end the fight by using the glass object, which he smashed on PW1’s forehead and pressed the sharp end on PW1’s forehead, causing the serious wound which took a lot of suturing to close.  On such facts I take a starting point of 12 months.  Because of his record for common assault not long before his present offence, more deterrence has to be built into his present sentence.  I increase his starting point by 2 months.  The delay in proceedings was due to no fault of him.  I take 2 months off.  His sentence is 12 months. 

19.D2 was being attacked by PW1.  He attacked PW1 in turn when PW1 was grappling with D1.  He stopped attacking PW1 at once after PW1 asked him to stop.  PW1 had no palpable injury on the back of his head.  I consider a short imprisonment or fine appropriate.  In view of the fact that the proceedings were delayed due to no matters relating to him, I impose a fine on him.  The fine is to be $6,000.