HKSAR v. Abid Akram

DCCC203/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 203 OF 2011

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Reasons for Sentence

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1.Defendant, you have pleaded guilty to two charges of wounding with intent, contrary to section 17(a) of the Offences Against the Person Ordinance.

2.You admitted that on 22 November 2010 outside your abode, which was a hut at No. 35, Tai To Tsuen Road, Yuen Long, you unlawfully and maliciously wounded two victims, one by the name of Khan Umar Hayat, the victim of Charge 1, and Hussain Zahoor, victim of Charge 2.

3.Despite your plea of guilty, you disputed the facts relied upon by the prosecution in support of the charges and thus a Newton Inquiry was held.

4.The Newton Inquiry took a period of four days to hear the evidence of five prosecution witnesses and evidence from yourself and your wife.  The issue at the Newton Inquiry was what was the cause or the reason why you had wounded the two victims in the manner you did.

5.Having heard all the evidence, I came to the finding that the two victims had gone to your house in the early hours of 22 November and, whilst there, a glass window of your hut had been broken by them or others.  After the window was broken you had opened the door of your hut to the two victims.  An argument ensued between you and the two victims.  The argument, I found, was about your telling one of the victims that is, Mr Khan in Charge 1, that he should not live at the village any more where you and Khan lived.

6.I found, in the heat of the argument, you lost control of yourself and attacked Khan with a chopper and Hussain with a glass bottle.  At the material time, neither Khan nor Hussain were armed with any weapon.  The chopper was grabbed by you from your kitchen which was at close proximity to you, about three feet away, and the empty glass bottle was taken from the ground within your hut.

7.I found the attack on them was deliberate and intentional, and that all the injuries sustained by the victims were caused by you and rejected any contention that they may have been caused accidentally by you or had been self-induced by the victims.  It is clear to me that the attack on the victims came from behind them as the injuries were to the back of the head and back on Khan, and on Hussain to his head and neck.

8.I rejected your case that you had lost control of yourself because you had thought that Hussain was going to rape your wife because he had torn her T-shirt.

9.I found, which was not disputed, that the victims and yourself were all of Pakistani nationality, all living in the same village.  The victims were friends whilst you and the victims were only acquaintances.

10.Miss Panesar, your counsel, has made very thorough and full mitigation on your behalf, which I have taken into account when considering what sentence to pass upon you.

11.In summary, she has said that you have pleaded guilty and, therefore, have shown remorse and you have indicated your plea from the very outset.  She asked me to give a full discount to you despite you disputing the facts of this case.  She has mitigated on the basis that this was not premeditated, that you had wounded the victims in the heat of the moment and, given your clear record, it appears that there is no evidence that you are violent in any way and this was totally out of character.

12.She has asked me to pass a concurrent sentence in respect of the two charges, as the two charges arose out of the same heated argument.

13.She has brought to the court’s attention a case, Secretary for Justice v Yu Yat Sang [2011] 1 HKC 155, where the Court of Appeal made reference to sentencing in wounding with intent cases and where the attacks were vicious knife attacks to heads of defenceless victims.

14.I state from the outset that I had in this trial found that neither the victims nor yourself or your wife were reliable witnesses.  However my finding on the issue was that you had had an argument as you had asked one of the victim’s, Khan, to leave the village, and in the heat of the moment, you attacked both Khan and Hussain.  I accept, therefore, that this attack to the victims was not premeditated.

15.It is clear from the cases that there are no sentencing guidelines or tariffs for the offence of wounding with intent.  The usual range was said to be one of between 3 to 12 years.  That range was referred to in Secretary of Justice v Yu Yat Sang and mentioned the case of HKSAR v Hau Ping Chuen [2008] 3 HKC 398, that wide range reflecting the fact of the circumstances in which such offences were committed were infinitely varied, and in Hau Ping Chuen, although the court acknowledged there might be offences contrary to section 17 which called for sentences higher or lower than that range.

16.In sentencing, courts must look at the matter from all angles.  The circumstance of the offence must be looked at, regard must be had to the relationship between the person charged and the victims, but regard should also be had to public interest as well.

17.In the present case, albeit unpremeditated, this was an extremely serious and violent attack on both victims.  The use of a chopper, which is an extremely deadly and dangerous weapon in any assault, on a head of a victim can cause life-threatening injuries.  The head is a very vulnerable part of the body.  The weapon you used, a chopper and a bottle, is capable of inflicting lethal wounds.  The injuries are well depicted on the victims in the photographs taken of the victims at the hospital and are set out in both the medical reports.

18.The victim in Charge 1, Mr Khan, received a long laceration over the left side of his head caused by the chopper.  Although it is not said in one of the report’s as to the length of the laceration, but looking at the photo, it can be seen it is fairly long. There was a 1- to 2-centimetre stab wound at the left back area.  In another report, it does say that the scalp wounds was 6 centimetres at the left parietal region and there were multiple small lesions on the scalp.  Suturing was done to the wounds on the head and the back.

19.As to Mr Hussain, there were wounds over his scalp and neck.  The scalp wound was 7-centimetres long and there were 2.5-centimetre and 4-centimetre wounds over his neck.  Suturing was also done on these lacerations.

20.It is clear to me from the photographs exhibited at trial there was much bleeding and loss of blood by the two victims.

21.In their evidence in court, Mr Hussain stated that although there were no permanent injuries, he still suffers from some pain to his wounds.  Mr Khan expressed his thankfulness to God that he does not suffer any permanent injuries nor any further pain.  It is perhaps of sheer good fortune that these two victims did not suffer any permanent injuries.

22.Your attack on them as unarmed victims was vicious and excessive.  You did not at any time show them a shred of mercy. Your attack on them, as a result of an argument, with these weapons was out of all proportion.

23.In the case of Yu Yat Sang, the court set out factors to be considered for section 17 wounding.  In that case the court held that a starting point with those facts involved for a section 17 charge was one of 5½ years’ imprisonment after trial.   In that case, the defendant had an argument with the victim some five hours earlier, he reported the matter to the police and the matter was settled.  About five hours later, whilst the victim and another victim were sleeping, the defendant went over with the chopper and chopped the victim.  The other victim was also injured after he tried to grab the hands and the body of the defendant to prevent him from carrying out further attacks.

24.In that case, the attacks were serious.  A chopper was used and directed to the region of the head as well as to the back of the victim.  The victim’s right ear was largely cut through and there was a large cut at the side of the neck.  The two victims were attacked when they were sleeping.

25.In this case, defendant, in respect of Mr Khan, you had attacked him with the chopper on his head and there were multiple scalp wounds of smaller lesions, which shows that you attacked him on more than one occasion.  When he had his back to you, you attacked him on his back,

26.With Mr Hussain, the initial attack was on his head and, again, he had further lacerations on his neck and a fairly lengthy laceration near his neck, which was near to his jugular, a very sensitive area.

27.This was a frenzied multiple attack on unarmed victims by you.

28.Taking these facts into account, I consider that these offences should be looked at together and I have taken into account the principle of totality.  Had I convicted you after trial for these two attacks on these two victims, I would have imposed a term of 5 years’ imprisonment.

29.I must, however, sentence you for both offences separately.

30.For Charge 1, defendant, I would have taken a starting point after trial of 4 years and 6 months’ imprisonment and, giving you full credit for your plea of guilty, I will reduce that term to one of 3 years’ imprisonment.

31.On Charge 2, I would have imposed a sentence of 4 years’ imprisonment and, giving you full credit for your plea of guilty, reduce that term to one of 2 years 8 months’ imprisonment.

32.I do consider that the sentence should be run partly consecutive, partly concurrent, and I have stated that I consider the total imprisonment should have been 5 years after trial.

33.That means the sentence, given full reduction for your plea of guilty, would be reduced to 3 years and 4 months’ imprisonment.  Therefore, 4 months of Charge 2 are to run consecutive to Charge 1 the remainder of the terms to run concurrent to each other. 

34.You will, therefore, be sentenced, defendant, to 3 years and 4 months’ imprisonment.