HKSAR v. Balakrishnan Mahendran

DCCC88/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 88 OF 2015

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Reasons for Sentence

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1.The defendant faced 3 charges. At the end of the trial, he was convicted of one charge only, namely, Charge 1 for the offence of criminal damage, contrary to section 60(1) of the Crimes Ordinance, Chapter 200.

Facts

2.The facts found to have been proved beyond reasonable doubt at the trial were as follows.

3.PW1 and the defendant, coming to Hong Kong from Sri Lanka and India respectively, were making claims to be classified as refugees or torture claimants.  They were living in the same village house which was an accommodation provided by International Social Service.  There were 5 rooms in the house.  PW1 and the defendant were occupying different rooms as next door neighbours.  There was a kitchen in the house for the common use of all the occupants living there. Some plates and cups placed inside the kitchen were also available for common use.  PW2 was at the material times the girlfriend of PW1.  She was an Indonesian domestic helper in Hong Kong.

4.In the afternoon of 31 August 2014, PW1 and PW2 were sitting on a sofa by the side of a low coffee table inside PW1’s room.  At that time, they were having their meal that was prepared by PW2 in the common kitchen, and they put their food and dish plates on the table.  The defendant came into the room and accused PW2 of breaking some cup and plate in the kitchen.  PW2 denied.  They then had an argument during which PW1 joined in.  The defendant got angry.  He stamped on the table with his right foot and the glass top of the table was broken into pieces.  The broken glass hit PW2 and caused her to sustain wounds over the middle finger of her left hand, her right shin just below her right knee, and the big toe joint of her right foot on the side.  PW2 bled a lot.  PW2 later received medical examination and treatment in Tuen Mun Hospital.  All her wounds required stitching.  She was discharged after treatment.

5.The table which glass top had been damaged by the defendant in fact belonged to the defendant.  He had however given the table to PW1 for use in PW1’s room about 2 years prior to the incident in question, and he had not at any time before the incident indicated his intention to take the table back, although PW1 admitted that the table still belonged to the defendant.

Criminal record

6.The defendant has one previous conviction for the offence of breach of condition in 2010.  I shall ignore this record in sentencing.

Personal and family background of the defendant

7.The defendant was born in Tamil Nadu, India in 1988.  He is 26 years old now.  He was educated up to Grade 9 in India.  He was a farmer by occupation when he was in India.  He came to Hong Kong in 2009 and is a torture claimant. He has no occupation in Hong Kong.  His stay here is entirely supported by International Social Service.

Mitigation

8.Learned counsel for the defendant informed me that the table damaged by the defendant was in fact given to him as a gift by his friend.  He pointed out that while the defendant had damaged the table in an unpleasant manner when PW1 and PW2 were having meal there, it was rare for a conviction of criminal damage of this kind to result in a prison term.  He informed me that the defendant could pay a fine.  The defendant had $1,000 bail money, and he could raise some further sum with the assistance of his friend.

Reasons for sentence

9.In sentencing the defendant, I note that although the table damaged by the defendant was for the purpose of the offence of criminal damage treated as the property belonging to PW1 on the basis that he had custody or control of the table, the defendant was in fact the owner of the table and he had complete proprietary interest in it at the time of the offence.  While the defendant could not rely on his ownership of the property as his defence, this was a factor that I should take into account in sentencing.  In short, he had caused no real loss to PW1, and any loss in fact fell on his own shoulder.

10.Furthermore, according to my findings, I have to sentence the defendant on the basis that he did not intend to damage the glass top of the table but he was reckless as to whether it would be damaged.  In this regard, his mental culpability was less serious.

11.On the other hand, I also note that while the defendant was acquitted of the alleged offence of wounding PW2, PW2 was indeed wounded in the incident, and the wounds suffered by her were a direct consequence of the criminal act of the defendant when he damaged the glass top of the table.  I am therefore of the view that this particular consequence of his crime should be taken into account in sentencing.  Of course, I cannot sentence him as if he had been convicted of the wounding charge.  Besides, I note that the wounds sustained by PW2 would not result in permanent injuries.

12.In addition, from the facts I find, I accept that the defendant was acting in the spur of a moment when he got angry when PW2 with the help of PW1 argued with him on whether or not PW2 had broken some cup and plate which were to be used by all occupants inside the village house.

13.Having taken all these factors into account, I am of the view that the offence committed by the defendant was not so minor that it could be dealt with by way of a conditional discharge, but it was not so serious that warrants taking away the defendant’s liberty.  All in all, I am of the view that imposing a fine on the defendant is the appropriate sentencing option.

14.I note what learned counsel had informed me about the defendant’s ability to pay a fine, including his ability to raise money to pay the fine.  I also take into account the seriousness of the offence as disclosed from the facts.  I am of the view that a fine of $2,000 was appropriate.

15.For these reasons, in respect of Charge 1, the defendant is fined $2,000.

16.With the defendant’s consent, his cash bail of $1,000 will be deducted forthwith as part payment of the fine. 

17.The defendant has to pay the balance of $1,000 before 3 p.m. on 17 July 2015.  In default, he has to serve a term of imprisonment for non-payment of fine for a period of 7 days.