HKSAR v. Ganbold Batzaya

DCCC 310/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 310 OF 2014

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REASONS FOR SENTENCE

1.Ganbold Batzaya you have pleaded guilty to one charge of wounding, contrary to section 17 of the Offences against the Person Ordinance, Chapter 212.

2.In summary in the early hours of the 4 January this year you had an altercation with a Pakistani male Ahmed Aziz as a result of which you chased Ahmed Aziz along Nathan Road and stabbed him in the lower right abdomen with a sharp object.  I have seen the CCTV footage which captures you chasing Ahmed Aziz and stabbing him once before you fled along Nathan Road.  The CCTV footage is not clear enough to say with certainty what you used to stab Ahmed Aziz.  When you were arrested you told the police you had used a broken bottle. 

3.Ahmed Aziz was admitted to hospital with a deep penetrating wound to the abdomen.  A laparoscopy revealed a 2cm clean incision over the right lower quadrant.  The wound was irrigated and closed with Ahmed Aziz remaining in hospital for 3 nights.  Fortunately the injury was not more serious and that Ahmed Aziz has now made a full recovery. 

4.In passing sentence I have carefully considered everything said on your behalf by Mr Ching.  I take into account you have no convictions in Hong Kong however this carries little weight where you have been in Hong Kong less than two weeks before committing crime. 

5.In HKSAR v Hau Ping Chuen [2008] 4 HKLRD 673 the Court of Appeal referred to the usual range of sentence for wounding with intent being described as 3-12 years. Noting that there were a host of wounding with intent decisions which might be used in favour of a lenient view whereas others favour a stricter view the Court of Appeal said that, “At the end of the day, a sentencing court obtains a ‘feel’ for the appropriate result by regard to the attitude of courts over a period of time to a great variety of circumstances.” 

6.Mr Ching explains that at the time you were under the influence of alcohol.  Due to a misunderstanding thatAhmed Aziz had used abusive language towards you and your friend an argument started in the course of which Ahmed Aziz spat on your face and the face of your friend.  Provoked by this conduct, which you found deeply insulting, you chased after Ahmed Aziz and stabbed him.

7.Inthe Secretary for Justice v Hung Kar Chun [2011] 1 HKLRD 1083 the Court of Appeal said that the courts would not tolerate attacking another person with a lethal weapon such as a chopper or knife on minor provocation or while having a dispute, and that the court would, in dealing with this kind of case, impose more severe punishment as a deterrence. 

8.A broken glass bottle is quite capable of causing very serious injury as seen for example in HKSAR v Ho Wing Lung CACC 149/2011.  Whilst that case was a sustained attack and far more serious than the present case I am satisfied a broken glass bottle is properly to be regarded as a lethal weapon for which a deterrent sentence is required.

9.Mr Ching refers the court to the case of HKSAR v Yeung Kam Kwai CACC 458/2007 where the applicant who was 69 with no previous convictions, suffered from epilepsy which made him more susceptible to stress.  When the applicant, who lived in an old aged home, suffered from an epileptic fit another resident laughed at him and teased him about his illness.  The applicant brooded over the matter overnight and the next day decided to teach the victim a lesson and stabbed him causing eight wounds to the chest wall and both shoulders.  The Court of Appeal substituted a sentence which enabled the immediate release of the applicant who had served over 9½ months imprisonment.  

10.As can be seen by that brief description the facts are very different to the present case.  Furthermore the Court of Appeal described the case as a very exceptional case (see paragraph 15 of the judgment).  That the case was very exceptional can be seen by comparison with HKSAR v Wong Luk Sau CACC 2/2012 where the applicant used a knife to chase after a 78 year old, with whom he had a dispute over chess the day before, causing a stab wound 1.5 cm long under the left armpit and injuries to the left upper limb.  Taking into account the applicant was 72; had recently undergone a coronary bypass operation and had only one minor conviction for gambling the Court of Appeal said a sentence after trial of 2 years and 3 months imprisonment was appropriate.

11.Taking into account the attack was not premeditated; occurred as a result of provocation and was an isolated incident;your relatively young age and clear record and that the injury sustained by Ahmed Aziz is not the most serious and from which he has now made a full recovery, I am satisfied the proper starting point after trial is 2 years and 6 months imprisonment.  Giving you full credit for your plea of guilty you are convicted and sentenced to 1 year and 8 months imprisonment.