HKSAR v. Dharminder Singh

DCCC 166/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 166 OF 2015

____________

REASONS FOR SENTENCE

1.Dharminder Singh you have pleaded guilty to three charges of wounding with intent to do grievous bodily harm, contrary to section 17 of the Offences against the Person Ordinance, Chapter 212. The offences relate to two incidents, one in December last year and one in January this year.

Charges 1 & 2

2.Full particulars of the offences are set out in the facts admitted by you yesterday.  In summary shortly before midnight on the 26 December last year together with other persons you attacked Gary Sukhwinder Singh and Sohail Mohammad while they were sitting on a bench at the podium of the Gold Coast Piazza. 

3.In the course of the attack, which lasted about 2-3 minutes, you punched Gary Sukhwinder Singh.  The others punched and kicked both Gary Sukhwinder Singh and Sohail Mohammad with one of the attackers using a hammer; one attacker using an umbrella-shaped object and one attacker using a black whip like object.  Some of the weapons were found by the police and can be seen in photographs 2-4, album 2. 

4.Both Gary Sukhwinder Singh and Sohail Mohammad received serious injuries, including lacerations to the head which required suturing.  Full details of the injuries are set out in the medical reports submitted to court and shown in photographs 1-21, album 1.  I am informed that both victims have fortunately made a full recovery. 

Charge 3

5.Shortly before midnight on the 10 January this year together with other persons you approached Sohail Mohammad and Zubbar Hussain Chand while they were standing outside the Yau Oi Sports Centre in Tuen Mun.  Your group were carrying hammers, iron pipes, baseball bats and wooden sticks. 

6.In the course of the attack, which lasted about 1-2 minutes, you used a hammer to strike the forehead of Zubbar Hussain Chand.  As a result he suffered a 2cm laceration to the right side of his forehead as seen in photograph 23, album 1.  Again I am informed that he has also made a full recovery.  Also fortunately on this occasion Sohail Mohammad was not injured. 

Mitigation

7.In passing sentence I take into account everything said on your behalf by Mr Polson.  I take into account you are 20 years of age and have only one conviction for shoplifting in February last year.  You are not however a Hong Kong resident.  You came to Hong Kong with your mother, brother and sister in 2010 and applied for asylum as a dependant of your mother.  That application is apparently still pending. 

8.I am told that you knew the victims with whom you and your friends would play cricket.  However in the middle of last year an argument broke out during a cricket match leading to two groups fighting.  Since that time the two groups have not been on friendly terms. 

9.On Christmas day last year you went with your friends to Lan Kwai Fong when you were set upon by a group of people with beer bottles, including Zubbar Hussain Chand and Gary Sukhwinder Singh.  You received an injury to your head for which you received treatment at the Queen Mary Hospital.  The matter was reported to the police and you gave a witness statement.  Mr Arthur informs the court that the suspects are still on police bail, no charges having yet been preferred.

10.The next day was, as put by Mr Polson, “pay-back” time.  Whilst this explains the background to the first attack the courts cannot condone violence of this kind.  The attack was a serious one involving between 7-10 persons intent on revenge, some of whom were armed.  Both victims having been hit with a hammer it is most fortunate the injuries to the head were not more serious.  Although you did not use a hammer you joined in an attack in which weapons were used.  Having knowingly participated in a violent enterprise your culpability is the same as the other attackers (see HKSAR v Wong Kam & another [2013] 1 HKLRD 15 at paragraph 17).

11.The second attack in January occurred after the two groups met in Tuen Mun apparently to resolve a dispute.  Mr Polson submits that what happened was more of a fight rather than an attack with both sides being injured.  Whether properly described as an attack or a fight the fact remains that you and your group went armed with weapons including hammers, iron pipes, baseball bats and wooden sticks. Fortunately the injuries to Zubbar Hussain Chand were not as serious as those sustained by Gary Sukhwinder Singh and Sohail Mohammad in the first attack and on this occasion Sohail Mohammad was able to escape without injury.

12.Violence of this kind must be met with deterrent sentences.  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. 

13.You are a young offender.  Section 109A of the Criminal Procedure Ordinance, Chapter 221 provides no court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of the opinion that no other method of dealing with such person is appropriate.  Whilst this provision does not apply to wounding with intent, which is an excepted offence, a court must exercise great care before committing a young offender to prison. 

14.Mr Polson has not asked the court to call for reports before passing sentence.  As you are not a resident of Hong Kong you are most unlikely to be suitable for any form of training whether in a Detention Centre, Rehabilitation Centre or a Training Centre.  Furthermore I am satisfied that a period of training would not reflect the gravity of the offences and that such an order would be too lenient (see Wong Chun Cheong v HKSAR (2001) 4 HKCFAR 12).  In the circumstances I have not called for any reports before passing sentence on you.

15.In Hau Ping Chuen the Court of Appeal 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 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.”

16.In HKSAR v Chan Chun Tat CACC 317/2012 the court listed a number of relevant factors to be considered in determining the gravity of the offence and the culpability of the offender, including the extent to which the assault was premeditated, the reasons or motivation underlying the assault upon the victim, the mental or emotional state of the assailant at the time of the assault, whether alcohol or drugs contributed to the actions of the assailant, whether the assault was committed by the assailant alone or as part of a group, the type of weapons employed, the level of force or aggression and the persistence with which the assault was pressed home, the injuries caused to the victim and the effect of the assault upon the victim and those close to him or her (see paragraph 50 of the judgment).

17.Whilst it has been said that little purpose will be served by comparing sentences imposed on the basis of different facts a review of some cases gives the court an indication of where the sentence will fall within that range of 3-12 years. I will refer to two cases.

18.Hau Ping Chuen was an application for review of sentence.  In summary the facts were that at a meeting of indigenous villagers the victim proposed a new practice of allocating invitation cards for villagers to attend banquets.  The proposal was accepted by all except the respondent’s family, who as a result of the proposal would no longer be invited automatically to attend the banquets.  The next day the respondent confronted the victim asking why his invitation had been cancelled.  Dissatisfied with the explanation the respondent took out a knife and attacked the victim.  The victim sustained a 5 cm cut wound over the abdomen and a 5 cm cut wound on his left groin for which he was hospitalised for three days.  Fortunately the victim suffered no long-term ill effects.

19.In describing the respondent’s actions the Court of Appeal said:

“…it is clear that the respondent felt aggrieved at what had occurred but his response was out of all proportion to his grievance. By taking the law into his own hands in this way, the respondent reacted in an extremely dangerous manner, using a knife which was both large and sharp…..we have concluded that the least starting point which could be imposed for an offence as serious as this is 5 years.”

20.Whilst you and your friends may have felt aggrieved about being attacked the day before you cannot take the law into your own hands.  In my view the first attack is more serious involving a group of 7-10, some armed with weapons, who were intent on extracting revenge resulting in both victims suffering more serious injuries than the victim in Hau Ping Chuen.  On the other hand you are a young offender.

21.In HKSAR v Ma Tik Lun, Dicky [2015] 1 HKLRD 380, a case which had triad overtones a sentence of 6 years imprisonment after trial was upheld.  Briefly the victim was dragged out of a bar by a group of people who punched and kicked him with some also using glass bottles to hit him on the head.  Whilst lying on the ground the victim was subject to further attack.  The victim suffered from cognitive impairment as well as other injuries and was hospitalized for 40 days to undergo various operations and treatments.  When he was discharged, the doctor expected that it would take one to two years for him to recover.  The trial judge described the victim as being fortunate that he did not die or become permanently disabled.  The injuries in that case were clearly more serious.

22.Considering both attacks were by a group of people armed with weapons; the attacks were clearly premeditated; the first attack was a revenge attack; you took an active part in the attacks by punching one of the victims in the first attack and using a hammer to cause the most serious injury to the victim of charge 3; the injuries sustained by the victims were serious in particular the victims of charges 1 & 2 and that you are a young offender, I am satisfied that a starting point of 5 years imprisonment is appropriate for charges 1 & 2 and 3 years and 6 months imprisonment for charge 3. 

23.Giving you full credit for your pleas of guilty the sentences are reduced to 3 years and 4 months and 2 years and 4 months imprisonment respectively.

Totality

24.Charges 1 & 2 arising out of the same attack I am satisfied concurrent sentences are appropriate.  Charge 3 is a separate attack for which a consecutive sentence is appropriate.  Considering totality of sentence to be served I am satisfied that a total sentence of 4 years imprisonment properly reflects your criminal culpability on the charges.

Sentence

25.You are convicted and sentenced as follows:

Charge 1 – 3 years and 4 months imprisonment;

Charge 2 – 3 years and 4 months imprisonment concurrent to charge 1;

Charge 3 – 2 years and 4 months imprisonment

8 months will be served consecutively to charges 1 & 2 and 20 months served concurrently making a total sentence to be served by you of 4 years imprisonment.