HKSAR v. Ali Khurram

DCCC 672/2022

[2023] HKDC 1324

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 672 OF 2022

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to 3 charges –

(a)  Charge 1: assault occasioning actual bodily harm contrary to s 39 of the offences against Persons Ordinance, Cap 212;

(b)  Charge 2: wounding with intent, contrary to s 17(a)  of the Offences against the person Ordinance, Cap 212;

(c)  Charge 3: failed to wear a face mask in a public place, contrary to s 5A(1)  and 6(1)  of the Prevention and Control of Disease (Wearing of Mask)  Regulation, Cap 599I.

SUMMARY OF FACTS

Charge 1

2.At around 10:05 am on 3 March, 2022, PW1 was waiting a bus stop, he suddenly received one blow from a hard object on top of his head from behind.  PW1 turned around and the defendant was holding a metal silver plate in his hand.  The defendant murmured a while, he then assaulted at PW1 at the left side of his head with the metal plate.

3.As a result of which, PW1 suffered a 2 cm wound abrasion on the right top of his head and a red mark on the left side of his head.

Charge 2

4.At around 10:30 am on the same day, the D suddenly rushed towards PW2 and punched on chest with his fists for 6 times.  The D then took out a silver hard object from his trousers pocket to hit on the head of PW2 three times.

5.As a result of the attack, PW2 suffered a laceration wound of about 10 cm long over the left side of the forehead with underlying hematoma.

Charge 3

6.At 10:50 am on the same day, the police found the defendant in Nathan Road.  He did not wear facial mask at that time.

7.The police also found the metal plate in his trouser pocket.

CRIMINAL RECORD

8.The defendant has a clear record

PERSONAL BACKGROUND OF THE DEFENDANT

9.He is aged 38.  He came to Hong Kong from Pakistan in 2015, leaving his 2 teenage children in Pakistan.

10.He also has 2 children with his partner in Hong Kong.  She failed to visit him and he has lost in touch with her.

11.He committed the present offences due to his partner failed to pay rent and the family was being evicted.  He had not slept nor eaten for 5 days, he went to the police station to ask to be arrested so that he could get off the street.

12.In mitigation, the defence said that:-

(a)  There was no premeditation to commit the present offences.

(b)  The injuries suffered by PW1 were relatively minor.

(c)  The D has a clear record; it was due to external stressors that caused the D to act in a way that was out of his character.

(d)  He has insight into his problem, in his letter, he said he is very remorseful.

REPORTS

13.This court calls one psychiatric and one psychologist report.

Psychiatrist and Psychologist reports

14.The psychiatrist and psychologist reports all stated that the D did not suffer from any kind of mental illness.  However, Dr Lui said that he has difficulty adjusting to the life situation at the time of the offence.

15.While in the two psychiatric reports in March 2022, the defendant claimed that PW1 and PW2 were unfriendly to him as they shouted to him in foul language.

16.The psychologist said that his risk of re-offending was assessed to be at the moderate range.

SENTENCE

17.The maximum sentence for each charge:-

(a)  Charge 1: 3 years

(b)  Charge 2: life imprisonment

(c)  Charge 3: a fine of $10,000

18.In paragraph 49 of the judgment in HKSAR v Chan Chun Tat [2013] 6 HKC 225 which has listed a number of relevant factors to be considered in determining the gravity of the offence and culpability of the offender in the assault charges, in the present case:-

(i)  Both victims do not know the defendant, they were just pedestrians in the street at that time.

(ii)  There were no signs of provocation from the victims.

(iii)  The defendant was homeless at that time and had no foods for days, he committed the present offence just to get off the street. He randomly picked up two victims to attack them.

(iv)  We all have the opportunity to examine the weapon in court. It was a brand new blade which was a kind of spare part used in industrial tools. It was 5 cm in diameter, round in shape and the edge was not as sharp as a knife.

(v)  The point of contact should be a small one as the surface of forehead of PW2 is slightly curved. It means the defendant having found a contact point on PW2’s forehead, he rolled the blade onto the forehead of PW1. It resulted with a scar of 10 cm long.

(vi)  As said before, the attack was unprovoked and they did not know each other, the victims did not expect to be attacked in such a circumstances, they did not have anything to protect themselves.

(vii)  As his counsel rightly put it that it was a nasty attack on PW2. The defendant’s conduct was totally outrageous.

(viii)  The defendant is a Form 8 holder and I consider that as an aggravator factor.

(ix)  The injuries:-

(a)  PW1 suffered a 2 cm wound of abrasion on the top of his head and a red mark on the left side of his head.

(b)  PW2 had a laceration wound of about 10 cm long on his forehead with underlying haematoma.

(c)  From the photos, I can see that the scar has a very predominant line over the forehead of PW2 and needless to say, it affects his facial appearance.

19.As to charge 3, it was mandatory at the time of pandemic that the Defendant is required to wear mask for personal protection and a safeguard to the general public.

20.As the D pleaded guilty to the first day of the trial, he is not entitled to the usual 1/3 discount.

21.Having regards to all the circumstances of the case, I consider that 25% discount is appropriate :-

(a)  Charge 1: a starting point of 6 months, I reduce the sentence to 4.5 months.

(b)  Charge 2: a starting point of 3 years and 3 months

As the defendant is a Form 8 holder, this is regard as an aggravating factor, starting point is to be enhanced by 3 months. That arrives at 3 years and 6 months, given 25% discount, the sentence is reduced to 31 months and 2 weeks.

I order 2 months from Charge 1 to run consecutively to Charge 2. It arrives at a total of 33 months and 2 weeks’ imprisonment.

(c)  Charge 3: a fine of $500.

The defendant is given a period of 3 days to pay, failure to pay the fine within 3 days, the defendant is ordered to serve a term of 3 days’ imprisonment and be run consecutively to Charges 1 and 2.