HKSAR v. Rai Gun Raj

CACC 174/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 174 OF 2006

(ON APPEAL FROM DCCC NO. 1150 of 2005)

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BETWEEN

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Before:   Hon Stuart-Moore VP, Yeung JA and Beeson J

Date of Hearing: 27 September 2006

Date of Judgment: 27 September 2006

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.On 4 April 2006, the applicant, aged twenty-four, pleaded guilty before Deputy District Judge DI Thomas to a charge of attempting to cause grievous bodily harm to Ale Durgadebi (the victim) with intent to do so, contrary to section 17(a) of the Offences Against the Person Ordinance, Cap. 200.  He was sentenced to 3 years’ imprisonment against which he now seeks leave to appeal.

The facts

2.The applicant, originally from Nepal, had been resident in Hong Kong since 2002 where, at the material time, he was in employment.  His immigration status did not permit his wife and young child to live with him.

3.In April 2005, the applicant began communicating with the victim through the internet.  The victim was a university student, also aged twenty-four, who lived in Nepal.  After some weeks, the applicant indicated to her that, although he was married, his wife and child had left him.

4.In June 2005, the victim came to visit her father who was living in Hong Kong.  She brought with her an article of clothing at the applicant’s request.

5.In the course of the following two weeks, the applicant met the victim on five occasions and, during this time, he made clear his feelings for her.  On one occasion, he made physical advances which the victim plainly regarded as unwelcome.  Despite this, the applicant continued to pester the victim and, on 20 June 2005, he said that he wanted to marry her.  In reply, the victim said she would not even consider this unless her father consented.  This was followed by an arrangement for the applicant to meet at 7.00 pm outside the block of flats where the victim’s father lived.  The applicant’s mother was also supposed to be in attendance.  However, when the applicant arrived, he was on his own.  The victim’s father advised the applicant to end the friendship but the applicant begged to be allowed fifteen minutes in her company.  The victim, against her father’s advice, agreed to this.

6.The victim then accompanied the applicant to a park nearby.  At that stage, the applicant telephoned his mother and the victim overheard him saying: “Give my love to my daughter; maybe I will not come back tonight and lose you forever.”  This, not unnaturally, alarmed the victim and she then spoke to the applicant’s mother asking to see her later on that evening.

7.Later, a meeting took place in a restaurant in Jordan where the victim met the applicant’s mother and sister.  While the applicant was absent for a short time, the applicant’s mother told the victim to keep the truth from her son even if she wanted to leave him.  When the applicant returned, therefore, she made out that she would stay in contact with him even after she had returned to Nepal.  The applicant’s mother and sister then left as the applicant had insisted on taking the victim back to her home in Cheung Sha Wan.

8.When the applicant and the victim arrived at Cheung Sha Wan MTR Station at about 9.30 pm, the applicant dragged her into a park to a secluded area.  He made the victim sit on a stool and he placed round her neck a piece of strong nylon rope which he had picked up from the park.  He then said: “If I can’t have you, nobody can.  I will kill you and then kill myself.”  He then pulled the rope tightly around the victim’s neck and, although she was able to prevent herself from being strangled, she began to lose consciousness.  The applicant then threw her to the ground and began to bang her head against the ground by using her hair as a grip.  She screamed before lapsing into semi-consciousness.  Fortunately, a security guard heard her screams and, when he saw what was happening to the victim, he alerted the police.  The police were extremely fast in their response, and the applicant was arrested as he tried to run away.  By this stage, the applicant was found to have a rope around his neck.

9.The victim was admitted to hospital and remained there for four days.  Her symptoms were loss of consciousness and vomiting.  She also had a black eye, abrasions to her forehead, a small cut on her neck and small cuts to her arms, hands and left foot.

10.The applicant was also taken to hospital with a minor injury to his neck.  He was referred to a consultant psychiatrist to whom he stated that he had not attempted suicide and to whom he denied having attempted to kill or even harm his girlfriend.  The psychiatrist found that the applicant was not suffering from psychotic symptoms but was suffering from a “situational reaction”.

Sentencing

11.The judge, in the course of lengthy Reasons for Sentence, analysed the facts and the mitigation with clarity and careful regard to all the circumstances before concluding, rightly in our view, that there were parallels to be found in regard to cases involving “those who abuse their partners in domestic situations because [the applicant] was clearly endeavouring to elicit sympathy and to portray [himself] as a victim”.  He stated also that it was the applicant who had, on each occasion, “raised the emotional temperature” during his contacts with the victim, adding that the applicant had throughout “placed greater and greater emotional pressure on [the victim] in order to cause her to continue a contact which she clearly wished to end”.

12.Finally, the judge expressed his conclusions as follows:

“42. The view that I take of the situation is that the young lady concerned at no stage regarded herself as your girlfriend and that there was no relationship whatsoever between you and her other than that of acquaintanceship.  It is clear that you wanted there to be a relationship between the young lady concerned and you, and very early on in your dealings with the young lady concerned in Hong Kong you made it abundantly clear that such relationship should include a physical relationship as well.  You took every opportunity to take advantage of the slightest opening offered to you.  Far from being discouraged, you took advantage of those openings and then ratcheted up the emotional pressure on the young lady concerned to comply with your wishes.  On the pretext of seeing the young lady home, you then dragged her into the park and began strangling her.  You told the young lady concerned that it was your intention to kill her.

43. It has not been suggested on your behalf that that was an idle threat said in the heat of the moment and I take it as a serious statement of your intent.

44. When the young lady resisted your attempts to strangle her, you then threw her to the ground – and I would remind you that you had already made her sit on the stool so that she was at a much more convenient height for you to attempt strangulation.  You were then banging her head against the ground using her own hair to get a purchase and more effectively to bang her head.  The young lady lost full consciousness, she was subject to vomiting as a result of the attack, and although the prosecution has realistically accepted that the injuries did not go as far as to amount to grievous bodily harm, it is abundantly clear that you inflicted injury on her; you inflicted a serious injury to the eye area and to her forehead.

45. I regard the attacks upon the young lady as the culmination of a determined and manipulative endeavour to force upon an unwilling young lady a relationship that you wished to describe as being that of boyfriend and girlfriend.  Indeed, despite the fact that you are a married man with a child, you purported to propose marriage to her.  You refused to be discouraged and you refused to take at face value what the young lady and her father were telling you.  You then took advantage of your superior strength and weight to drag the young lady from the MTR Station into this nearby park where you deliberately used considerable force on her.

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47. I do not regard you as an anguished man in the throes of passion driven beyond his normal limits.  I regard you as a calculating and manipulative young man who visited a brutal, unprovoked, unwarranted attack upon a defenceless woman.  She was entitled to say no in the sense of wishing to have nothing further to do with you.”

13.The judge adopted a starting point of 4½ years’ imprisonment which he reduced to 3 years to reflect the applicant’s plea of guilty.

The application

14.The grounds of appeal advanced by Mr de Boinville were that the sentence was manifestly excessive and wrong in principle because, essentially, full credit had not been given to the applicant for his good character and on account of the fact that no serious injury had ultimately been inflicted on the victim.

15.Mr de Boinville also relied on the facts in HKSAR v Liu Shi-qiong, CACC 25/2004, where 3 years’ imprisonment was imposed after trial on a woman, charged with wounding with intent, who had used a pair of scissors to stab a man in the stomach.  The defendant in that case had been seeking maintenance for a child from her former lover despite the fact that DNA tests had shown that the victim was not the father of the child.  The attack was not accompanied by any threat to kill and the defendant immediately fled the scene after her attack.  There are few similarities in Liu Shi-qiong when compared with the present case and we were not assisted by reference to it.

16.The facts of the case now before us revealed a serious use of violence with the potential for much greater violence had the applicant not been stopped in time.  Whilst it is true that no grievous injury was actually inflicted upon the victim, the applicant, as Mr Gavin Shiu on the respondent’s behalf rightly stated in his written submission, was on any view intent upon causing serious harm to her and only good fortune had prevented this from happening.  This was not a situation where the applicant desisted from his actions on his own volition.  On the contrary, the victim’s screams were heard and the police, having been alerted to what was happening, were able to intervene before more harm was done.  Had grievous bodily harm actually been inflicted, the sentence would undoubtedly have been far greater.

17.The judge was well aware of the context in which the applicant had to be sentenced and, as to this, he said:

“36.   You had clearly inflicted actual bodily harm on the young lady concerned, but very sensibly the prosecution has put the case on the basis that you were intending to inflict further harm on the young lady concerned such as to amount to grievous bodily harm but that you had not yet managed to inflict such injuries upon the young lady concerned.  You will recall that there was a moment when there was a question of whether you did have the intent to inflict grievous bodily harm on the young lady concerned but you tell me through Mr Acton-Bond that you fully accept that at the time that was your intention, that is, to inflict grievous bodily harm.”

18.The final matter calling for consideration was the submission that the judge had given insufficient weight to the applicant’s previous good character.  In this regard, the judge was well aware of the applicant’s background which he had described in some detail before concluding that he came from a “respectable and hard-working family”.  This point has no merit.

19.Accordingly, this application is dismissed.

Mr Gavin Shiu, SADPP, of the Department of Justice, for the Respondent.

Mr Nigel de Boinville, instructed by Messrs Krishnan & Tsang, assigned by Director of Legal Aid, for the Applicant.