HKSAR v. Khan Ijaz Ahmed

DCCC 389/2022

[2024] HKDC 1830

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 389 OF 2022

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REASONS FOR SENTENCE

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1.D1 was convicted of 5 charges of common assault, contrary to Common Law and punishable under section 40 of the Offences against the Person Ordinance, Cap 212 (Charges 1, 4, 5, 6 and 7)  after trial.

Facts

2.The facts of the case has been set out in the verdict delivered on 17 September 2024, and this court would not repeat the same here.

Criminal record

3.D1 has a clear record save for a spent conviction for driving offence in 2008.

Mitigation

4.D1 is aged 50.  He was born in Hong Kong and had received education up to university level.  He is married with 4 children, 3 daughters and 1 son aged between 8 and 17. 

5.D1 is a businessman trading in electronics, earning about $150,000 per month.  He is the main breadwinner of the family.

6.It is said that D1 is a respected member in the Pakistani and Muslim community in Hong Kong. 

7.It is also said that there was delay in prosecution as the matter complained of happened more than 10 years ago before D1 was first arrested.

8.Defence counsel previously submitted that D1 was told he would not be prosecuted when he was released from police bail on 12 July 2019.  That submission was later withdrawn. 

9.It is said there was a delay of around 5 years between the victim’s first report to the Labour Department and the subsequent police investigation, ie year 2012 and January 2017.

10.Defence counsel said that “mistreatments” was a matter already reported to Labour Department and the authorities in the torture claim.  The victim, however, did not make the criminal complaint to the police in 2012.  This matter was also not referred to police for follow-up action and investigation by the authorities.

11.Defence counsel submitted that in the victim’s judicial review application, the matter reported by the victim should have alerted the authorities to the situation[1]. On appeal, the Court of Appeal had no difficulty in “… upholding the Judge’s finding that the government has failed in its investigative duty…”[2].

12.26 video recorded interviews over 8 months were conducted with the victim.  Defence counsel submitted that this process resulted in further delay.  Later, the Department of Justice advised the police that further statements were needed from the victim.  Defence counsel said that it is not clear why this was not dealt with adequately by police in the first place.  Further, despite obtaining advice from the Department of Justice in March 2019, it was not until 10 months later that the police contacted PW1 for further statement taking. 

13.Defence counsel also submitted that due to the victim’s request for a specific interpreter, and long time taken by the Department of Justice to render their advice, there was further delays.

14.He submitted that this delay has caused additional stress to D1 and that the significant delay in prosecution has profoundly impacted him, resulting in prolonged period of uncertainty and anxiety which affected both his personal and professional life.  It is also submitted that the extended process of inquiry led D1 to operate under the assumption that he would not face charges, resulting in potential disruptions to his financial and familial arrangements.

15.Defence counsel urged this court to give D1 substantial sentencing discount and also consideration to suspend sentence of imprisonment by reason of the significant delay in prosecution. 

16.He further submitted that D1 had made charitable donations following this case.  He handed to court letters from the Chief Imam of Hong Kong and the Pakistan Islamic Welfare Union, as well as letters from D1 and his wife.  These letters said that D1 used to help the Pakistani Islamic Welfare Union to organise social and religious activities, that he is a devoted person to his family and community, a loving husband and a responsible father, and that he respects the law and value of the community.  It is said that he is compassionate and has strong ethical principles.

17.Defence counsel also referred this court to cases including:

(a)  HKSAR v Sham Kwok Kee, CACC 142/2013;

(b)  Mills v HM Advocate and The Advocate General for Scotland [2002] SCR 860, 877 (PC);

(c)  Secretary for Justice v Hui Siu Man [1999] 2 HKLRD 236;

(d)  Secretary for Justice v Chan Kit Bing [2001] 1 HKLRD 844;

(e)  Secretary for Justice v Lin Min Ying & Another [2002] 2 HKLRD 823; and

(f)  HKSAR v Chiu Chi Wing, CACC 243/2012.

Discussion

18.Before sentencing, the court has carefully considered the mitigation submissions from defence counsel, the mitigation letters submitted and the authorities cited.

19.Any person convicted of common assault upon indictment shall be liable to imprisonment for 1 year. 

20.It is not disputed that:

(a)  the victim used to work for D1’s household in Pakistan before he came to Hong Kong on 1 May 2007 and he worked for D1 in his office, though employed as a foreign domestic helper;

(b)  D1’s family is rich and influential in Pakistan whereas the victim came from a poor family in the same village.

21.The period within which D1 committed these 5 offences were between 3 May 2007 and 7 December 2010.  The severity of these offences did not stem from the physical pain or injuries inflicted on the victim, but rather the relationship between D1 and the victim, the readiness of D1 to commit the offences, and the very degrading nature of these assaults on the dignity and self-esteem of the victim.  Clearly, D1 has no respect to the victim and treated him as someone he could manipulate and ill-treat anytime he felt like.

22.As an employer, D1 should provide the victim a safe workplace.  Instead, he assaulted the victim frequently, thus breached the trust that the victim placed in him.  He also exploited the victim by paying him not even in full wages for foreign domestic helper when the victim worked in his office, and on undisputed evidence before this court, long hours.

23.D1 assaulted the victim not once but 5 times over minor things.  This is a very serious case of common assault.  The features of this case bear a lot of resemblance to that of slavery.

24.D1 is convicted after trial.  Considering the circumstances of the case, especially the relationship between D1 and the victim, this court finds that 5 months’ imprisonment appropriate for each of the 5 charges.

25.D1 has a clear record, and from the letters before the court, he has made positive contribution to society.  For this very reason, the court is willing to afford him sentencing discount of 1 month.

26.Defence counsel also submitted that there is serious delay in prosecution in this case.  For this reason, the prosecution has helpfully set out the chronology of events of this case as at 3 October 2024. 

27.The matter in question occurred between 3 May 2007 and 7 December 2010. Victim failed to report the matter to police immediately after their occurrences.  This is understandable from the point of view of the victim because he was then working for D1, his work and accommodation was all being arranged and controlled by D1.  His family was in Pakistan, in the same village as D1.  According to the victim, D1 could do a lot of things harmful to them. He had no support in Hong Kong and he could not get any help from his colleagues in D1’s office because the colleagues were all relatives or closely related to D1.  Further, the victim could only speak Punjabi.  In court, the victim did relate to court an incident when he was intercepted in the street by police, he had to ring back to his office and ask his colleagues to tell him what the police was saying as he did not understand what the police was saying, and vice versa.  This was not disputed. 

28.The victim was also sent back to Pakistan by D1, which therefore made any report by the victim to Hong Kong authorities pending his return to Hong Kong impossible, in view of his limited resources. 

29.When the victim returned to Hong Kong in April 2012, he lodged claim in the Labour Tribunal for outstanding wages against D1.  It is not clear whether in the claim form itself the victim did disclose the assault incidents to the Labour Tribunal, but from the transcripts of the Labour Tribunal mention hearings, the victim did mention that he was being beaten.

30.The victim has also lodged torture claim and commenced judicial review proceedings against Director of Immigration and the others.  In the torture claim and the judicial review proceedings, victim did relate the assaults by D1.  Police started their criminal investigation against D1 and others shortly after the delivery of judgment in the judicial review proceedings in December 2016.  26 video recorded interviews were then conducted by the police with the victim in relation to his allegations against D1.

31.The victim here is a person who is totally illiterate.  He could only understand and speak Punjabi (obviously with limited vocabulary).  The assault incidents happened within the 3 years and 7 months’ period, 7 to 10 years prior.  Taking statement from the victim surely was a difficult task.

32.D1 was arrested 3 months after the last interview of the victim, after the police had conducted a detailed analysis of the case coupled with communication with the Immigration Department and the Correctional Services Department.

33.The case was taken to the Department of Justice for legal advice at various times coupled with inquiries by police to the Immigration Department and the Correctional Services Department.  There were further video recorded interviews conducted with the victim.  D1 and others were brought to court in April 2022. 

34.No doubt, the total time taken for the case to be brought to court is very long.  Much time was spent by the police in awaiting result of the ongoing judicial review proceeding (HCAL 15/2015)  and its appeal proceedings.

35.The judicial review proceedings was taken out by the victim for the alleged failure by the Director of Immigration and others to protect him as a victim of human trafficking for servitude or forced labour after he was enticed to come to Hong Kong to work as a foreign domestic helper between 2007 and 2010.  It was after the delivery of judgment of HCAL 15/2015, that police commenced the criminal investigation in January 2017.

36.D1 was first arrested on 19 March 2018.  There was some delay in preparation of the case by the police to seek legal advice in August 2018. 

37.Investigation by police in this case is clearly complicated by the way the assaults were disclosed and the ongoing proceedings as well as the background of the victim.  This court takes the view that the time taken for police investigation and analysis is reasonable. 

38.This court does not find any delay from the moment this case was brought to court until the delivery of the verdict. 

39.There exists delay in this case, but the unreasonable delay by the prosecution could not be said to be substantial or unduly long.

40.In the Court of Appeal case of HKSAR v Lau Ting Sing Jerome, CACC 279/2012, the court in paragraph 95 to 97 of the judgment sets out how delay may become a valid mitigating factor.

41.Defence counsel submitted that as D1 was released from police bail on 12 July 2019 and he was only re-arrested nearly 3 years later, it is reasonable for him to expect that he would not be further pursued in the matter.

42.In this case, having regard to the circumstances under which the complaint of the victim came to light, the court finds albeit the total time taken for the case to be brought to court is long, the unreasonable delay by the prosecution exists, but the same is not substantial.

43.However, the court accepts that the delay had caused additional anxiety and stress to D1.  For this reason, the court will afford D1 sentencing discount of 1 month for each of the charges. 

44.Accordingly, D1 is sentenced to 3 months for each of the 5 charges.

Totality

45.Having regard to the overall culpability of the defendant, the court considers that a total sentence of 7 months’ imprisonment just and proportionate.  Accordingly, 1 month of the sentence for Charges 4, 5, 6 and 7 are to run consecutively to the sentence for Charge 1, the rest to run concurrently.

46.D1 is sentenced to a total of 7 months’ imprisonment.