HKSAR v. Malkit Singh and Another

DCCC 1074/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1074 OF 2014

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Reasons for Sentence

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1.D2 and D3 are jointly charged with one count of wounding with intent (charge 2). D2 and D3 each faces one additional count of resisting a Police officer in the due execution of his duty (charge 3 and 4 respectively). They were convicted of all charges after trial.

Background

2.PW1, Mr. Singh, was attacked on the street by some people on 19th October. One of the people who was present around the time of the attack in the vicinity was D1. D1 was one of the two people whom PW1 thought had blackmailed him on 1st October.

3.D2 and D3 in turn took part in the attack on PW1. They put up resistance against the Police officer who was present at the time of the attack and who tried to stop them from carrying out or continuing with the attack. The two were eventually arrested at scene.

4.It was found after trial that D2 and D3 had taken part in the attack on PW1 and had intended to and did cause PW1 grievous bodily harm, together with two unknown persons. It was also that D2 and D3 had resisted the Police officer when they struggled against being controlled from carrying out or continuing with the attack.

5.Full findings on the facts are set out in the Reasons for Verdict.

Previous convictions

6.D2 was convicted on 2 August 2013 for one charge of possession of an identity card relating to another person; possession of forged Hong Kong identity card; and one charge of taking employment while remaining in Hong Kong without the authority of the Director of Immigration after landed in Hong Kong unlawfully. He was sentenced to 12 months’ imprisonment on each charge, to run concurrently.

7.D3 is of previously clear record.

Sentence

8.The maximum sentence for a conviction for wounding under section 17 of the Offences Against the Person Ordinance, Cap.212 upon indictment is that of life imprisonment. There are no guideline sentences for this offence.

9.The maximum sentence for a conviction upon indictment for an offence under section 36(b) of the Offences Against the Person Ordinance is that of 2 years’ imprisonment.

Charge 2

10.PW1 was attacked by D3 and 2 other men and his head was hit by one of them with a beer bottle after D3 had attacked him with a hockey stick. PW1’s head bled as a result of the attacks. D2, D3 and the 2 unknown men who attacked PW1 were in the attack together. The timing of D2’s attempted attack on PW1 with the hockey stick, together with the close proximity in time and location of the follow up attack by D3 with the same hockey stick on PW1 and together with the attack by the unknown person with the beer bottle on PW1’s head was no coincidence.

11.I found that D3 had used the hockey stick to hit PW1 twice. Once on his left face and once on his left forearm. When D3 tried to hit PW1 a third time, PW2 Police officer intervened to stop the attack.

12.The attack on PW1 by D3 and the two unknown men started while PW2 was still trying to subdue D2.

13.According to the two medical reports, PW1 suffered left forehead laceration, four laceration wounds over upper back region, deep laceration over left upper arm with suspected tendon cut; superficial laceration on his arm, back and scalp. Surgical toilet and suturing was performed and PW1 was discharged the following day. Follow up treatment showed that the wounds had healed well and there was no need for orthopaedic follow up. I found that these injuries were inflicted during the attack on PW1 on that day.

14.In relation to charge 2, the attack was carried out in broad daylight and on a public street. Prior to the approach of D2 with the hockey stick held high, PW2, a uniformed Police officer was already standing next to PW1. Furthermore, just a short time earlier a team of Police officers was at the same place to investigate the 999 call with PW1 and they also made an arrest of D1. Police presence was therefore obvious.

15.Yet, D2, D3 and their group was not deterred at all by the Police presence. They chose to carry out the attack regardless of the obvious possibility of the Police officer intervening in and witnessing the incident.

16.The offence was committed by D2, D3 and two other men, with weapons in the form of the hockey stick and the beer bottle.

17.The injuries suffered by PW1 was serious, although there is no permanent disability.

18.The wounding is not the most serious of its kind but, for the above factors, it is also not the least serious.

19.Taking into consideration all the circumstances of the wounding, I find that an appropriate starting point is that of 4 years’ imprisonment for D2 and D3.

20.Since I have already taken into consideration the number of assailants, the time and location of the attack, the presence of Police officer before the attack when arriving at the starting point, I will not use them as aggravating factors.

21.As for mitigating factor, first of all, I find that the fact that D2 and D3 had been in administrative custody as a result of the Immigration Department dealing with their immigration status is not a relevant factor when considering their sentence and definitely not a mitigating factor to take into account. The previous custody was entirely unrelated to the defendants’ later choice to commit the offences.

22.I find however that D3’s active role in the education of children at his temple a mitigating factor. I would regard this as evidence of positive good character.

23.For that, in relation to D3, I will reduce the 4 year sentence by 2 months.

24.Since I have found that D2 and D3 committed the wounding offence together with each other and the two unknown men, they are therefore all equally culpable for the attack and there is to be no difference in their sentence despite the fact that D2’s attack was stopped by the Police officer.

25.D2 is sentenced to 4 year’s imprisonment on charge 2.

26.D3 is sentenced to 3 years and 10 months’ imprisonment on charge 2.

Charge 3

27.I found that D2 was on his way to attack PW1 when PW2 tackled D2 to the ground to prevent the attack. I found that D2 had struggled with PW2, who was in Police uniform, and that what he did amounted to resisting the Police officer. I found that passers-by had stepped up to assist the Police office to subdue D2.

28.The struggle was strong but did not last too long. The Police officer did not appear to have suffered any injuries as a result.

29.Bearing in mind the circumstances of the offence, I adopt a starting point of 4 months’ imprisonment on charge 3.

Charge 4

30.I found that PW2 Police officer did see D3 attack PW1 with the hockey stick and as a result decided to immediately go up to tackle D3 to stop the attack and to protect PW1 from further harm. I found that D3 put up a strong struggle against PW2. I found that D3 struggled because he did not want to be apprehended by the Police officer. I found that D3 did bite PW2 during his struggle. I found that the continued struggling by D3 amounted to resisting the Police officer. I also found that the Police officer did not use excessive force when subduing D3.

31.D3’s struggle was strong and lasted longer. D3 bit the Police officer during the struggle causing minor injuries.

32.I adopt a starting point of 6 months’ imprisonment, reducing it by one month for the above stated positive good character mitigating factor to that of 5 months’ imprisonment on charge 4.

Concurrent or consecutive

33.I find that the commission of charge 2 does not necessarily lead to the commission of charge 3 and 4. The defendants could very well have just given themselves up when tackled. Yet they chose not to do so. They knew PW2 was a Police officer. They knew they had committed a criminal offence in attacking PW1. Yet they chose to commit another criminal offence by resisting the Police officer. I find that in principle the sentence for the resisting charge should be served consecutively to the sentence for the wounding charge.

Totality

34.Having taken a step back to apply the principle of totality, I make the following orders.

35.In relation to D2, I order that 3 months of the sentence in charge 3 to be served consecutively to the sentence in charge 2, making a total sentence after trial of 4 years and 3 months’ imprisonment for charges 2 and 3.

36.In relation to D3, I order that 3 months of the sentence in charge 4 to be served consecutively to the sentence in charge 2, making a total sentence after trial of 4 years and 1 month’s imprisonment for charges 2 and 4.