HKSAR v. Shamsher Singh and Another
|
DCCC 1075/2024 [2026] HKDC 1009 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 1075 OF 2024 ------------------------------
------------------------------
--------------------------------------------- REASONS FOR SENTENCE --------------------------------------------- Charges 1.D1 and D2 faced a total of 4 charges. 2.D1 and D2 were jointly charged with 3 of them to which they both pleaded guilty, namely:
In addition, D1 also pleaded guilty to a further charge, namely:
Summary of Facts The Incident 3.Mr TABOCTABOC Cecil Cruz, 61 years of age, was the owner of a bar called “THE PORT LKF” situated on 3/F, Ho Lee Commercial Building, 38 – 40 D’Aguilar Street, Central. 4.At about 12.40 pm on 28 January 2024, Mr TABOCTABOC was standing at the entrance of the bar while there were around 20 customers inside. 5.Suddenly, without warning, 9 non-ethnic Chinese males, including D1 and D2, (the “Offenders”) entered the bar. Some of them were holding machetes of about 50 cm in length. Without saying a word, they started smashing up the bar for about 1 minute, causing damage to a bar table, some glassware, some liquor bottles and lighting fixtures. The total loss was estimated to be about HK$5,000. 6.During the incident, the Offenders, armed with their weapons, also approached the customers and tried to provoke them. With a view to fend off, one of the customers threw a table at the Offenders. 3 of them then started attacking the customer with their weapons but no one was injured. The matter was reported to the police. 7.The police arrived at around 1.30 pm, they located some tissue paper with bloodstains outside the bar’s entrance. They also located on the floor of the bar a 47 cm long machete the handle of which was wrapped with a white cloth, an 89 cm long wooden rod and a 29 cm long hammer. Arrests 8.At around 1.40 pm on the same day, Police Constable 26239 (the “Constable”) observed D1 lingering in the vicinity of Theatre Lane and Queens Road Central, outside a jewellery shop. 2 backpacks, one in black and the other in green, were placed respectively in the flowerbed and on a trolley outside the shop. The Constable notified Sgt 58567 (the “Sergeant”) and they kept an observation of the 2 backpacks. 9.Around 10 minutes later, D2 arrived and joined D1. They had a discussion before they approached the 2 backpacks. D1 was intercepted by the Sergeant when he picked up the black backpack and placed it upon his left shoulder. D2 was intercepted by the Constable when he picked up the green backpack and placed it on his right shoulder. 10.Upon search, the green backpack was found to contain 3 machetes, all 50 cm in length. 2 of the machetes had their handles wrapped in white cloth while the third was found to be damaged. A grey mask was found in the black backpack. 11.D1 and D2 were arrested for the offence of “Possession of Offensive Weapons”. When questioned, D1 admitted that he had come to Hong Kong by ship and that he had no HKID card or passport. Cautioned statement and video-recorded interview 12.In his cautioned statement, D1 admitted that he had entered Hong Kong from the Mainland by ferry. In their respective video-recorded interviews, both D1 and D2 denied knowing each other. Forensic Examination 13.Contact evidence was found between a table in the bar and the blade of a machete found in the green backpack. CCTV 14.Among other things, CCTV footage of Ho Lee Commercial Building captured a group of 6 males, including D1 and D2, entering the building at around 12.40 pm on the day and taking the elevator to the 3/F. The footage also captured the smashing up of the bar by D2 and others, while D1 stayed at the back of the group holding a wooden rod in his hand. The clothing worn by D1 and D2 in the bar was the same as that they were wearing at the time of arrest. Immigration 15.Immigration records established that there was no valid or lawful entry of D1 into Hong Kong. Personal Background and Criminal Conviction D1 16.D1 is aged 24, born and educated up to Form 5 in India. He is the only child of the family and his parents are farmers in India. His mother suffers from hypertension. 17.D1 resided alone in Sham Shui Po prior to his arrest. 18.He has a clear record in Hong Kong. D2 19.D2 is aged 30, born and educated up to primary level in India. 20.His family members reside in India. His father is a farmer while his mother is a housewife. He also has two sisters who are living apart from his parents. 21.His father has heart problems and needs medical consultations at the hospital. His mother suffers from hypertension and is on long term medication. 22.D2 came to Hong Kong in 2021 and is a Form 8 recognisance holder. 23.He has a clear record in Hong Kong. Mitigation 24.Counsel for D1 and D2 submitted that the attack at the bar was not the worst of its kind, in particular, the damage to property only cost about HK$5,000 and that no one was injured. Counsel also suggested to the Court the discounts their clients should be entitled to in respect of individual charges. 25.As to why D1, an illegal immigrant, and D2, a Form 8 holder, were involved in the offences, nothing was advanced on their behalf. 26.All in all, Counsel said their clients had been remanded in custody since arrest and urged the Court to pass a concurrent sentence for all the charges they pleaded guilty to. Sentencing Considerations 27.With a view to assist the Court, Counsel for D1 and D2 referred to various authorities relevant to the sentence of individual charges. Charge 1 28.“Wounding with intent” is a very serious offence and the maximum sentence is life imprisonment. 29.There is no sentencing tariff and the usual range of sentence is 3 to 12 years’ imprisonment after a guilty plea: Secretary for Justice v Hau Ping Chuen [2008] 3 HKC 398. This range of sentences is not a tariff. The sentence depends on the facts of each case and assistance may be obtained from the case of HKSAR v Chan Chun Tat [2013] 6 HKC 225 where the Court of Appeal set out certain factors to be considered. 30.In the present case, the following are relevant:
31.Considering Counsel’s submissions and the overall circumstances under which the offence was committed, in particular, lethal weapons were used by the assailants, I take 3 years 6 months’ imprisonment ie, 42 months’ imprisonment as the starting point for Charge 1. Charge 2 32.The maximum sentence for an offence under section 63 of the Crimes Ordinance, Cap. 200, is 10 years’ imprisonment. Again, there is no sentencing tariff. 33.The facts revealed that the property damaged included one table, some glassware, some liquor bottles and lighting fixtures. The total loss was about HK$5,000, which was not particularly high. 34.I take 15 months’ imprisonment as the starting point for the Charge 2. Charge 3 35.The maximum sentence according to section 33(2)(d) of the Public Order Ordinance, Cap. 245, is 3 years’ imprisonment. There is no sentencing tariff. 36.Considering the overall circumstances, including the machetes in question, the degree of injury that might be caused, as well as the ultimate intention of possessing such weapons, I take 15 months’ imprisonment as the starting point for Charge 3. Charge 4 37.The maximum sentence according to section 38(1) of the Immigration Ordinance, Cap. 115, is 3 years’ imprisonment and a fine at level 4. 38.The tariff sentence for “illegal remaining in Hong Kong” is 15 months’ imprisonment after a plea of guilty for a first offender: R v So Man King and others [1989] 1 HKLR 142; HKSAR v Usman Butt and another [2010] 5 HKLRD 452. I will adopt the same for Charge 4. Sentence of D1 39.D1 indicated his plea of guilty to Charges 1-3 after the trial in November 2025 was refixed. I grant him a discount of 20% and reduce the sentence on Charge 1 to 33 months’ imprisonment; the sentences on Charge 2 and 3 to 12 months’ imprisonment each. 40.On the other hand, D1 pleaded guilty to Charge 4 at the outset of the proceedings and is entitled to the customary sentence of 15 months’ imprisonment. 41.Given the close proximity of time and place Charges 1-3 took place, I regard them as ‘part and parcel’ of a series of criminal conduct. I therefore order the sentences on Charges 1-3 to run concurrent to each other, making it a sentence of 33 months’ imprisonment. 42.As to Charge 4, the Court of Appeal in HKSAR v Tong Fuk Sing, CACC 216/1999 stated that, unless, for example, there existed some compelling circumstances, such as strong humanitarian reasons, this sentence should normally be imposed consecutively to the sentence imposed for the offence which accompanied it. I do not find any humanitarian grounds in the case of D1. Besides, Charge 4 was a separate and distinct offence and it clearly added to the gravity of Charges 1-3. 43.Nevertheless, considering the totality principle, I order 9 months of the sentence on Charge 4 to run consecutive to the sentence of 33 months on Charges 1-3, making a total sentence of 42 months’ imprisonment. Compensation regarding Charge 2 44.The prosecution confirmed that D1 had paid compensation of HK$2,500 to the owner of the bar. On account of that, I reduce the total sentence of 42 months’ imprisonment by a further 2 months to 40 months’ imprisonment. Sentence of D2 Aggravating factor 45.D2 is a Form 8 holder when he committed Charges 1-3, which constituted an aggravating factor. 46.In HKSAR v Ali Saif [2018] HKCA 358, a case involving “trafficking in dangerous drugs”, the Court of Appeal stated that:
47.In HKSAR v Singh Gursevak [2019] 2 HKLRD 274, a robbery case, it was stated that there were two principles underlying the amount of enhancement, namely, denunciation of criminal activity by Form 8 holders, and deterrence of all Form 8 holders from committing crimes while they enjoyed the freedom to live in Hong Kong as they awaited resolution of their claims. 48.In the present case, the offences committed by D2 was no less serious than that of “trafficking in dangerous drugs”, in particular, the offence of “wounding with intent” carries a maximum sentence of life imprisonment. 49.Considering the circumstances of the case, I enhance:
50.D2 indicated his plea of guilty to Charges 1 and 2 after the trial in November 2025 was refixed. I grant him a discount of 20% and reduce:
51.D2 indicated his plea of guilty to Charge 3 before the trial in November 2025. I grant him a discount of 25% and reduce the sentence on Charge 3 to 13.5 months’ imprisonment. 52.As discussed above, I order the sentences on Charges 1-3 to run concurrent to each other, making a total sentence of 38 months’ imprisonment. Compensation regarding Charge 2 53.The prosecution confirmed that D2 had also paid compensation of HK$2,500 to the owner of the bar. On account of that, I reduce the total sentence of 38 months’ imprisonment by a further 2 months to 36 months’ imprisonment. Sentence 54.For Charges 1-4, D1 is sentenced to a total of 40 months’imprisonment. 55.For Charges 1-3, D2 is sentenced to a total of 36 months’imprisonment.
|
Cases cited in this judgment