HKSAR v. Shafi Aafaq

DCCC937/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 937 OF 2011

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Reasons for Sentence

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1.The defence counsel has drawn my attention to a number of authorities and I will deal with them one by one. Most of them are application for review to the Court of Appeal from the District Court.

2.The first case is CAAR9/2010, Hung Kar Chun. The fact is this:- it was one stab at the lower waist, it was a long knife that produced 2 to 3 centimetres in length wound, 5 centimetres in depth and it went into the spleen.  As a result, the spleen was removed.  After trial, the defendant was sentenced to 9 months’ imprisonment.  On appeal, having considered everything including the nature of review hearing, the court sentenced the defendant to 2½ years’ imprisonment. 

3.CACC25/2004, Liu Chi Qiong.  The facts was one stab with the scissors at the lower abdomen, which created a small haematoma at the surface of the small bowel.  The attack was not premeditated and after trial the defendant was sentenced to 3 years’ imprisonment.  On appeal, the sentence was not disturbed.

4.CAAR1/2006, Chau Wan Fun.  It was said on appeal that in reality the case was like manslaughter.  The victim was left into a vegetative state and therefore I think the facts are very much different from the present case.  I will not rely this authority.

5.CAAR4/1992, Lam Yat Sing.  A chopper was used to inflict two wounds.  One was a 7 centimetres long laceration on the face, six stitches were applied after.  Another wound was a 3 centimetre superficial laceration on the jaw and three stitches were applied in emergency.  The victim was in hospital for two days with no permanent injury.  After trial, the defendant was sentenced to 4 months’ imprisonment.  On appeal, the Court of Appeal said the proper starting point would be 2½ years. 

6.CAAR12/2007, Hau Ping Chuen.  It is said for this kind of offence (Section 17 wounding with intent), the usual range of sentence would be 3 to 12 years.  The particular facts of the case are the:  The defendant used an 11 inches long knife with 5½ inches blade to stab on the victim several times.  Eventually, there were two wounds on the body of the victim, 5 centimetre cut wound at the abdomen, 5 cm cut wound on the groin.  He was hospitalised for three days with no permanent damage.  At trial, the starting point was 27 months, but it was disturbed on appeal and it was said the proper starting point would be 60 months - 5 years.    

7.CAAR2/2010, Yu Yat Sang.  A chopper was used to stab the victim several times.  As a result, the right ear was cut apart and there was also a 10 inch cut on the neck and a 6 inch cut on the back.  The starting point at trial was 30 months’ imprisonment.  On appeal, it was changed to a 66 months starting point.

8.CAAR8/1995, Low Wing Wah.  A chopper was used to wound the eye of the victim.  As the result, one eye was permanently lost.  The starting point at trial was not mentioned but after trial the court passed 33 months’ imprisonment.  The Court of Appeal said the starting point for the facts of case was 5 years but having heard all the mitigating factors, passed a sentence of 4 years on the defendant.

9.For the present case the defence reiterated that the defendant is young, he has a clear record.  The defence counsel said that it is not a premeditated attack.  The defence asked the court to believe in the possibility that perhaps the defendant just found a knife in the corridor and carried it to the shop. 

10.I have considered everything.  For the defence allegation that perhaps the knife was just found on the way, that was not persuasive and I find it hard to accept.  In any event, the defendant came with the knife which was long.  He had it hidden inside the sleeve of the jacket.  He came with the purpose to harm and only to harm. 

11.Once he was inside the shop he yelled in Punjabi, “I have told you before” and then he walked to the victim and stabbed him there and then.  The friend stood up, but the defendant shouted at the friend, asking the friend to sit down or else he would be stabbed too.

12.The victim was breeding heavily with the intestine protruding.  The cut was deep through the abdominal wall (or else the intestine will not be externalised).  True, it was only a single stab incident, but the stab was at the upper torso, the abdomen, which is an important part of the body. It was lucky because though the injury was serious, it was not too serious. 

13.He was treated at the Emergency at first and then Intensive Care.  Some operation was done to the abdomen which left behind two more scars.  Apart from the wound scar of 2 centimetres x 3 centimetres, there was also a long vertical surgery scar, more than 20 centimetres long, and there was also a surgery scar on the right abdomen which was used for the drainage pipe.

14.It was a premeditated attack with a lethal weapon, a long knife.  The attack was committed in the presence and in the close range of a by-stander.  The attack was vicious.   

15.The defence asked the court to consider a range of a starting point of 2½years to 3 years. Having considered all the authorities, I think this range is proper.  Having considered everything, I will adopt the top of the range as the starting point.  The facts of the case justify the starting point of 3 years’ imprisonment. 

16.It was a full trial, the defendant pleaded not guilty.  I cannot think of any discount on the basis of remorse. 

17.The fact that the defendant is 24 years old, a relatively young age, the defendant has an otherwise clear record and the fact that he is a torture claimant, all the factors do not persuade me into giving him any discount nor did the defence counsel submit to me any authorities that I can discount the otherwise proper sentence into a lower sentence.

18.I therefore adopt 3 years’ imprisonment as a starting point for the charge and I impose a 3 years imprisonment sentence.