HKSAR v. Laxman Chadaro

HCMA 374/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 374 OF 2014

(On appeal from KCCC No 514 of 2014)

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S E N T E N C E

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1.I have granted leave to the appellant to file a notice of appeal against sentence out of time, although in the meantime he has filed a notice setting out relevant grounds. I have upheld the conviction by the magistrate against the appellant for the offence of possession of an offensive weapon.

2.The appellant had been sentenced by the magistrate to six months’ imprisonment.  By his conduct he showed as blatant disregard and disrespect for the law and for the officers entrusted with the responsibility to uphold it.  He created as dangerous situation both for himself and others, in particular the police officers present at the police station. 

3.I have received a very helpful and comprehensive probation report from Ms Denise Wong Wai Kum, who sets out the appellant’s background and family history as well as the circumstances that lead the appellant to commit the offence in question.

4.The appellant is a torture claimant.  He lives in Hong Kong with his wife and two children.  His wife at the time of the incident was pregnant but has now given birth.  She is also a torture claimant.  They are from Nepal and came here to Hong Kong in August 2010.  He deserted from the Nepalese army as he did not want to become entangled in the country’s civil war.  His brother was a member of the anti‑government party.  He and his wife receive welfare assistance while their claims are being processed.  In the meantime, they are not permitted to work.  The appellant had taken up drinking but not heavily, although it appears on the day he had been drinking heavily.  They have become Christians and attend The Vine Church.  Members of the church congregation have rallied behind the appellant and his family and have provided considerable support and assistance to them.  That is as matter I have taken into account and has significant bearing.

5.The magistrate was correct to impose a sentence of six months’ imprisonment.  The issue is whether there are exceptional circumstances in this case to warrant a suspension of the sentence.  In the appropriate case, it can be a very effective form of punishment and means of rehabilitation.  A suspended sentence is sometimes given where a person has lived a blameless life but circumstances had arisen at the time that had influenced their behaviour and lead them into crime.  In other words, the offender is basically a good person, but he needs to be kept in check during difficult times so that he thinks twice before he misbehaves and runs afoul of the law again.

6.A suspended sentence is like the sword of Damocles, where the sentence of six months’ imprisonment hangs over the head of a defendant for a period of time and liable to be activated if during that time the defendant reoffends. 

7.The appellant explained to the probation officer that he attributed the incident to his impulsiveness and heavy drinking on the day.  It appears he was frustrated by his circumstances and the alcohol got the better of him. Mr Phil Chau, counsel for the appellant, submitted that he deeply regretted his actions and whilst the offence was both dangerous and serious, it only lasted for 45 seconds from the moment he walked into the police station to the moment he put down the chopper.  Mr Chau also noted that he had been in custody for two weeks while a background report was obtained and that he had learnt a salutary lesson from the circumstances and outcome of this incident.

8.I have borne in mind his general circumstances, and that he has displayed true remorse for his conduct on that day.  I am also prepared to accept that he was affected by alcohol, whilst not to the point of being unaware of what he was doing.  I find that there are the exceptional circumstances as submitted in the background of the appellant and the circumstances of the offence.  I accept that the appellant is basically a good person who acted out of character on the day and was troubled by his personal circumstances.  I will suspend the sentence for two years.  This means that the sentence will not take effect. However, if during the two years’ period of suspension the appellant commits another offence punishable with imprisonment, a court has power to activate the sentence.  I do this to give the appellant the opportunity to rehabilitate and reform and make amends for the wrong that he has done. I believe this to be a just punishment in the circumstances of this case.

Mr Prakash L Daryanani, SPP of Department of Justice, for HKSAR

Mr Phil Chau, assigned by Director of Legal Aid, for the appellant