HKSAR v. Radhey Shyam
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HCMA 756/2009 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO. 756 OF 2009 (ON APPEAL FROM TMCC 983/2009) ----------------------
---------------------- Before: Deputy High Court Judge Geiser in Court Date of Hearing: 15 October 2009 Date of Judgment: 15 October 2009 ---------------------- J U D G M E N T ---------------------- 1.The Appellant was convicted on 8 May 2009 after trial by a Deputy Magistrate sitting in the Tsuen Wan Magistracy of “Inflicting grievous bodily harm”, contrary to section 19 of the Offences Against the Person Ordinance, Cap. 212, Laws of Hong Kong. He was sentenced to a term of 18 months’ imprisonment. It is against this sentence that the Appellant now appeals. 2.Attached to the standard notice of appeal against sentence, there is a letter to the court written by the Appellant. The letter is dated 24 August 2009. The letter essentially pleads for a reduction in the sentence as his wife is seriously ill in India and apparently has been admitted to hospital since the Appellant has been imprisoned. She therefore he says has difficulty in caring for the 3 children of the family. 3.In court today the Appellant repeats the fact that his wife is sick and wishes to go back to India as soon as possible to care for his children. 4.The facts as found by the learned Deputy Magistrate in relation to this case were to say the least horrific. They showed that the Appellant who was aged 35 at the time of the offence, lived in a wooden hut in Yuen Long. PW3 was his neighbour. The victim in this case PW1 was a friend of PW3 and stayed with him for a few days at the material time. 5.On 11 March 2009 at about 10:00 p.m., the Appellant invited PW1 to have a drink in the common area outside his room. At approximately midnight, PW1 indicated that he wanted to leave, but the Appellant became angry, left his seat went into his bedroom and took out a fruit knife 12 inches in length. PW1 told the Appellant again that he needed to go home and sleep. When PW1 tried to leave, the Appellant attacked him with this knife. 6.PW1 tried to protect himself from the attack by grabbing the blade of the knife over his head resulting in an injury to his thumb. The Appellant then attacked him with the knife on the left side of his face. PW1 fell to the floor, but the Appellant further attacked him on the left side of his buttock. 7.PW3 heard the commotion from next door and came to rescue PW1. The police were called. 8.As a result of the attack, PW1 suffered multiple injuries described in the medical report. He had a 4 cm superficial laceration over his left cheek, a 1 cm superficial laceration at the base of the left thumb, an undisplaced fracture of the base of left thumb distal phalanx. In addition he had superficial abrasion to his left buttock and tenderness in his right arm. 9.It is to be noted that on 12 June 2009, the Appellant applied for a review of the sentence of 18 months’ imprisonment. He claimed that his wife suffered from tuberculosis and on learning that he had been imprisoned, she had suffered from a heart attach and had been admitted to hospital. He said that he wanted to go back to India to take care of his family. 10.The learned Deputy Magistrate rightly adjourned the matter for 2 months to allow the Appellant time to obtain medical proof from India. Upon resumption of the review hearing in August, the documents submitted made no mention of the Appellant’s wife suffering a heart attack merely stating that she suffered from hepatitis and had a chronic cough. The learned Deputy Magistrate dismissed the application. In court before me today – the Appellant has produced precisely the same medical report on his wife that was available to the learned Deputy Magistrate on the hearing of the review. 11.I have already stated that the facts giving rise to this offence are horrific. This was a brutal, unprovoked and sustained attack on the victim involving the use of a 12 inches fruit knife. Were it not for the intervention of his friend PW3, the consequences to the victim would undoubtedly have been much more serious. 12.The circumstances of this offence justified the learned Deputy Magistrate in imposing a lengthy term of imprisonment. The sentence of 18 months' imprisonment cannot be said to be wrong in principle or manifestly excessive, accordingly the appeal against sentence is dismissed.
Ms Ada Chan, Senior Public Prosecutor of the Department of Justice, for the Respondent The Appellant, in person |