HKSAR v. Rai Rushal

DCCC233/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 233 OF 2012

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Reasons for Sentence

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1.Defendant, you pleaded guilty to the 3rd charge an offence of assault occasioning actual bodily harm, contrary to Common Law and section 39 of the Offences against the Person Ordinance. I convicted you after trial of the 1st and 2nd charges of wounding with intent, contrary to section 17(a) of the same ordinance.

2.All three offences were committed on 20 November 2011 at the junction of Shanghai Street and Ning Po Street, Yau Ma Tei, Kowloon, in Hong Kong together with persons unknown.  The victim of the 1st charge was a person named Limbu Bob.  The victim of the 2nd charge was a person by the name of Thapa Manish and of the 3rd charge, Rai Asish. 

3.Quite simply, this was an attack made by you and about 10 other Nepalese men on the victims of the charges.  I found on the evidence before me that this was a joint enterprise of the group including you to inflict grievous bodily harm on the victims in Charges 1 and 2.  At the outset of the attack, the victim of Charge 1 was attacked with a knife yielded by one person named Iswa Limbu.  As a result of the attack by Limbu, PW1 was wounded on various parts of the body and received multiple wounds.  The victim of Charge 2 was initially hit with a glass bottle on his head and then beaten with a wooden stick by you.  PW2 also received multiple wounds on his body. PW3, the victim of Charge 3, says that he was assaulted with punches and kicks, and you yourself had admitted to kicking PW3.

4.From the evidence before the court, there was no evidence that you, Defendant, used a glass bottle or a knife to attack any of the victims.  It matters not that you however did not strike the blow or blows which caused the serious injuries to PW1 and PW2 as I found that you were part of a joint enterprise.  What, however, I did find was that you had used a wooden stick in the attack, that stick was part of a broomstick, and you had used that stick to hit PW2, the victim of Charge 2, when he was on the ground having already received the attack on his head with a glass bottle. 

5.The injuries to PW1 and 2, as your counsel Mr Shaun Kelly has conceded, were serious.  PW1 sustained an 8-centimetre right scalp laceration, a 10-centimeter left neck laceration and a 4-centimetre forearm laceration.  These lacerations were all sutured.  He had two operations and an operation for posterior interosseous nerve was performed on 25 November 2011.  PW1 was hospitalised for approximately six days.

6.For PW2, he sustained two shallow 3-centimetre scalp wounds on his vertex, 5-centimetre longitudinal right back wound about 2 centimetres in depth, a 4-centimetre right shoulder wound about 2 centimetres in depth, a 4-centimetre left shoulder wound about 2 centimetres in depth, and all wounds were sutured.  He was treated and discharged from hospital on the same day. 

7.PW3 sustained bruises and erythema over his forehead and erythema and tenderness over his left eye, corner of his left eye and face, and had soft tissue injuries.

8.None of the victims had been diagnosed with any permanent injury, but PW1 still complains of pain when lifting heavy objects left arm which was wounded with the knife. 

9.Defendant, you are 21 years of age and have two previous convictions.  Those are criminal damage to which you were fined $1,000 in 2009 and theft to which you were fined $2,000 in 2011.  You are Nepalese.  You came to Hong Kong, I am informed, as a dependent in 2008 as you were sponsored by your parents.  You live in Hong Kong with your mother who is now divorced from your father. 

10.Mr Kelly has properly conceded that, and to which you have been informed and also acknowledge, that the offences to which I have found you guilty, those are Charges 1 and 2, are offences of a very serious nature and warrant imprisonment of some length.

11.This attack was made by a group of youths of about 10 of you on the three victims also Nepalese.  It was an unprovoked attack in a public place.  The victims were unarmed and you and at least two of the co-attackers were armed with lethal weapons such as a knife and a beer bottle.  PW’s 1 and 2, suffered very serious multiple wounds.  PW1 was perhaps very fortunate to escape those serious wounds and not have any permanent injury and also to be still living today.  One can see from the photographs the serious wound on his neck stretches down behind his left ear down his neck.  The victims were attacked all over their body but more seriously to the sensitive and tender part of their bodies which is their heads. 

12.As can be seen from the photos taken after the attack, there were bloodstains around the area.  The victims were bleeding profusely.  PW1 was fortunate enough to escape his attack, but nonetheless collapsed and fell fortunately in front of a police officer when consequently he was taken to hospital. 

13.As for you, Defendant, I have acknowledged that you did not use a knife or a glass bottle, but this does not mean, as I said, that you were not involved in the joint enterprise.  What is clear from your actions, Defendant, was that whilst PW2 was on the ground wounded after he had been cracked on the head with a beer bottle.  You callously attacked him with a stick when he was down on the ground, unable to defend himself.  That is an aggravating factor. 

14.As Mr Kelly rightly acknowledged, there are no guidelines or tariffs for these offences as each offence depends largely on the facts of each case.  I have set out the facts of this case and in considering those facts I consider the following sentences to be appropriate.

15.Defendant, on Charge 1, you are sentenced to 4½ years’ imprisonment.  On Charge 2, you are sentenced to 4 years’ imprisonment. On Charge 3, you are sentenced to 6 months’ imprisonment and giving you full credit for your plea of guilty, that term should be reduced to 4 months’ imprisonment.

16.In sentencing you, I must bear in mind the principle of totality.  These offences were committed on the same date and the same time and arising out of the same circumstances.  In considering the totality, I bear in mind that there were three offences to which you have been convicted of, of three victims and two of which received multiple serious wounds.  On that basis, to reflect the totality, I order 3 months of Charge 2 to run consecutive to Charge 1 which makes a total term of imprisonment to which you shall serve is 4 years 9 months’ imprisonment.  The remaining terms are to run concurrent to each other. 

Please refer to CACC118/2013 for the relevant appeal(s) to the Court of Appeal.