HKSAR v. Ashraf Tahir

DCCC 621/2021

[2023] HKDC 377

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 621 OF 2021

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REASONS FOR SENTENCE

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1.Defendant was charged with one count of wounding with intent, contrary to section 17(a)  of the Offences against the Person Ordinance, Cap 212 to which he pleaded guilty and was convicted accordingly.

The Facts

2.At about 9.15 pm on 31 December 2020, a male named Zhuang Juntai, aged 17 and his friend, Weng, were resting at Hong Ning Road Recreation Ground in Sau Mau Ping, Kowloon. 

3.Suddenly, the defendant came in front of Zhuang and hit his head with a hard object.  Zhuang felt pain and began to bleed.  Defendant was found holding a broken glass bottle. 

4.Zhuang ran away, the defendant tried to hit Zhuang’s head with the glass bottle again but was blocked by Zhuang’s left hand.  The back of Zhuang’s left hand was slashed as a result.  Zhuang continued to flee.  The defendant chased after.  The defendant hit Zhuang with his hand for about 10 times.  Meanwhile, Zhuang’s friend called the police and called Zhuang’s elder brother. 

5.Zhuang fled to the nearby Hong Ning building, where he lived.  The defendant followed.  Zhuang’s brother came downstairs from the building. Zhuang pointed the defendant to his brother.  The brother called the police and took two photographs of the defendant whilst he escaped.  Zhuang and his friend and his brother were not acquainted with the defendant. 

6.The police soon arrived.  Zhuang was sent to the hospital.  Broken glass of a bottle was seized from the scene. 

7.At about 11.15 pm on the same day, the defendant went to Sau Mau Ping police station for cancellation of his previous report of loss of his Hong Kong ID card, during which police officers found that he resembled the male in the photographs taken by Zhuang’s brother.  The defendant was then arrested. 

8.In a cautioned video-recorded interview taken on 1 January 2021, the defendant denied involvement in this case. 

9.On an identification parade on 16 March 2021, the defendant became emotional.  Consequently, the Chief Inspector in charge conducted a confrontational ID.  Zhuang and his friend both positively identified the defendant as the assailant. 

10.Medical examination showed that Zhuang sustained fracture of left second metacarpal bone (of his left hand), laceration with extensor tender cut over left index finger metacarpophalangeal joint, laceration over left face and right eyebrow, and superficial laceration over left side of neck.  He was discharged from hospital on 5 January 2021. 

11.The defendant’s outfit, which resembled those in the photographs taken by Zhuang’s brother, was seized.  There were blood stains on the cuff of his jacket sleeves and socks. 

Defendant’s Background

12.The defendant is a Pakistani male.  He was born in 1999, now aged 23, with a Hong Kong identity card.  He has one previous record of possession of dangerous drug for which he was fined $2,000 in 2021 (that was after this case). 

Mitigation

13.Mr Pannu submitted a written mitigation on behalf of the defendant.  On the defendant’s background, the defence submitted that the defendant came to Hong Kong when he was 11 years old to join his family.  He was educated up to Form 5 in Hong Kong and he did odd jobs but was unemployed at the time of the offence. 

14.He got married in November 2019 but the marriage did not last and his wife sought a divorce within three months of their marriage.  That caused a series of domestic issues within his family.  As a result, he sustained enormous pressure from his own family for the failed marriage.  He then started drinking. 

15.The stress led to his experimenting initially with cannabis which later escalated to abusing cannabis regularly due to bad influences from his associates. 

16.He did try to seek help and was treated at hospital in May to July 2020.  His condition stabilised and he was drug-free for a while. 

17.However, he then consumed cannabis again and that led to his arrest for possession of dangerous drug for which he pleaded guilty and was fined in 2021. 

18.The defendant reflected on what caused the current incident.  He alluded to his upbringing at a housing estate where he and some of his ethnic minority friends resided as one where he was regularly bullied and discriminated against growing up as a child. 

19.On the day in question, he was not in the best shape of his mind.  As he was heading home, he saw the victim, he perceived and misconstrued a nasty gaze from the victim and his friends as discriminatory stare and felt it was racist.  That led him to lose control and cause harm to the victim. 

20.Fortunately, the victim had recovered and did not sustain serious injuries as evident from the medical report.  The defendant and the family wish to apologise to the victim. 

21.The defence submitted that there are no tariffs for wounding sentencing cases and each case is facts sensitive.  It is accepted that there may be some aggravating factors in this case, as this was an unprovoked attack in a public place and a bottle was used.  Balancing that with what the court may consider mitigating factors, like the defendant’s age, his clear record, his family pressure and his guilty plea. 

22.It is also said that the court may wish to give him credit for going to the police station, where he was bound to be arrested for the offence. 

23.It is submitted that an assault of this nature, with the level of harm done to the victim, usually will attract a starting sentence from 2 to 4 years. 

24.The defence submitted a few cases for court’s reference.  HKSAR v Chow On, CACC 194/2005, which involved a glass attack resulting in serious eye damage and 4 years 6 months’ imprisonment.  SJ v Chau Wan Fun [2006] 3 HKLRD 577, a wife attacked a husband with knife and the husband reduced to vegetative state, a starting point of 6 years was adopted.  HKSAR v Fan Tak Wan [2007] 5 HKC 50, husband’s attack on wife with chopper causing multiple chop wounds resulting in 4 years’ imprisonment.  HKSAR v Yu Yat Sang [2011] 1 HKC 155, an armed attack on a defenceless victim with permanent ear injury, a starting point of 5 years and 6 months was adopted. 

25.In court, the defence counsel also submitted the case, HKSAR v Chow Benjamin, CACC 118/2017, where the applicant was given a 15 months’ imprisonment for a wounding 17 offence.  I, however, noted that was an appeal against conviction only and did not find that useful for the present purpose. 

26.It is submitted that the defendant’s family are supportive of the defendant and have indicated that they would take defendant to Pakistan after his release to conclude his divorce matter and thereafter for him to remain in Pakistan. 

27.In conclusion, the defence submitted that the defendant has already served a period of detention of about 26 months, which is equivalent to a starting point sentence of about 5 years.  The court is urged to consider the defendant’s detention as the time served for his crime and he be released so that his family could take him back to Pakistan. 

Sentence

28.This offence of wounding with intent under section 17 of Chapter 212 is a serious offence, which carries a maximum penalty of life imprisonment. Sentencing of which is nevertheless very much case specific and there is no sentencing tariff. 

29.In Secretary for Justice v Hau Ping Chuen [2008] 3 HKC 398, the Court of Appeal was referred to an earlier judgment, in HKSAR v Tse Hok Lam [2005] HKLRD 344, where the usual range of sentence is described as being 3 to 12 years’ imprisonment.  Of course this is not to say that there may not be offences under section 17 which call for higher or lower sentences than the usual range described in Tse Hok Lam.  If the circumstances are so unusual that they might merit sentences above or below the usual bracket (see paragraphs 15 and 16 of the judgment). 

30.The same sentencing principle was reiterated in a more recent Court of Appeal decision in HKSAR v Wong Luk Sau, CACC 2/2012, it was stated in particular in paragraphs 17 and 18 of the judgment that the range of 3 to 12 years’ is not a sentencing tariff and the circumstances of the offence and the background of the offenders differ from case to case.  Other decided cases are of limited reference value. 

31.The same point is echoed and further elaborated in another more recent authority in HKSAR v Chan Chun Tat [2013] 6 HKC 225, the Court of Appeal stated that little is to be gained in embarking upon a comparative analysis of other cases.  The factor of primary importance is the intent of the assailant to cause the victim really serious bodily harm.  This is why even though the consequences to the victim will always be an important factor, the gravity of the offence lies in the deliberate resort to violence with the intent by the offender to inflict by violence really serious harm on the victim (see paragraphs 45 and 48 of the judgment). 

32.Also in paragraph 49 of the judgment, the Court of Appeal listed a number of usual factors in determining the gravity of a section 17 offence. For instance the extent to which the assault was premeditated, the reasons or motivations underlying the assault, 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 is 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. 

33.In my view, this case is not the worst or the most serious type.  As contended by the defence, it involved no premeditation, no use of lethal weapon like chopper or knife and that it was committed by the defendant alone under certain misunderstanding (it was said he was being nastily stared at by someone whom he believed to be a racist). 

34.On the other hand, this case is nevertheless a serious case where the defendant attacked the victim with a bottle in a public place in front of his friend just because of a trivial stare or misunderstanding.  The case became more serious when I took into account the fact that the attack was first landed on the victim’s head causing the latter to bleed and that the defendant continued to pursue when the victim tried to flee and eventually cause him more injuries on his hand when he tried to fend off the defendant’s attack with the broken bottle. 

35.The head and hand injuries led to five days hospitalisation of the victim.  But fortunately, as I was told by the defence and confirmed by the prosecution (also as appeared in the medical report dated 20 May 2021), that the victim appeared to be recovering well. 

36.In any event, as said in the earlier authority in Chan Chun Tat, the consequences to the victim though an important factor, the gravity of the offence lies in the intent of the defendant to cause really serious harm on the victim. 

37.In my view, it is obvious that the defendant did intend to inflict really serious harm on the victim in the circumstances of the case as it was not a single strike but a continuing attack. 

38.On the other hand, I have considered the defendant’s background and his personal circumstances.  He is now aged 27 and with no criminal records at the time of the offence.  As there are no grudges between the parties who were basically strangers to each other, I am therefore prepared to accept as put forward by the defence that the defendant was under a misunderstanding at the time of the offence.  That did not of course excuse him from committing this serious offence but explained for his out of character actions of violence. 

39.I accept that the defendant is now remorseful for his impulsive violent acts in this isolated incident.  I also accept that he committed this offence because of his misunderstanding, he was acting alone and without any premeditation. 

40.Nevertheless, as said, there were serious aspects in this case where there were repeated attacks of the victim, including his head region, that a broken bottle has been used as a weapon and that all were done in a public place. 

41.Having considered all the circumstances of the case and those of the defendant, I am prepared to adopt a starting point of 4 years or 48 months’ imprisonment. 

42.The defendant should be given a full one-third discount for his timely plea of guilty.  This is already the high watermark even for someone of no previous record like the defendant. 

43.So the final sentence is 32 months’ imprisonment, and I so order.