HKSAR v. MOHAMMAD MUNSUR

DCCC 213/2022

[2023] HKDC 1066

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 213 OF 2022

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REASONS FOR SENTENCE

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A. CHARGES

1.  The defendant (D)  pleaded guilty to two charges of Wounding with intent, contrary to section 17(a)  of the Offences against the Person Ordinance, Cap 212.

2.  Particulars of Charge 1 are that D, on 12 September 2021, outside No 86B Ha Shan Kai Wat, Ping Che Road, Ta Kwu Ling, New Territories, in Hong Kong, unlawfully and maliciously wounded Shahajul Mollah with intent to do him grievous bodily harm.

3.  Particulars of Charge 2 are that D, on the same day at the same location, unlawfully and maliciously wounded Md Nahid with intent to do him grievous bodily harm.

B. FACTS

4.  D admitted the following facts.

B.1 The incident

5.  D, Shahajul Mollah (“PW1”), Md Nahid (“PW2”)  and Md Nazmul (“PW3”)  came from Bangladesh and are Form 8 holders in Hong Kong.  All 3 PWs lived together at the Charge location. 

6.  On the Charge date, PW1 received a phone call from D urging him to repay debts.  PW1 insisted that he did not owe D any money and a dispute ensued between them.  PW1 then asked D to meet him outside the Charge location.

7.  Later the same day, PW1 together with four of his friends (including PW3)  returned home and found D waiting outside the Charge location.  A dispute ensued between PW1 and D, during the heat of which D drew out a military knife (“the Knife”)  of about 30 cm long from behind and tried to stab PW1.  PW1 blocked it with his right hand, turned around and ran away.  D chased PW1 and slashed the latter’s left thigh once with the Knife.  PW1 ran into the Charge location and shouted for help.

8.  PW2 heard the dispute and came out from the Charge location holding a plastic pipe.  He walked towards D and tried to calm him down.  D rushed towards PW2 and stabbed the latter’s left abdomen near the chest once.  The left side of PW2’s chest bled profusely.  PW2 immediately went into the Charge location to seek help.  Shortly afterwards, PW2 lost consciousness.

B.2 Injuries

9.  PW1 sustained a 10 cm deep laceration over the posterior aspect of left thigh and abrasions over both left and right index finger. He was discharged from hospital on 15 September 2021.

10.  PW2 sustained, inter alia, skin laceration with 1.5 cm wide x 2.5 cm long defect over the left upper anterior abdominal wall, with small amount of subcutaneous emphysema present, suggestive of penetrating injury, and a 4 cm laceration on left medial forearm.

11.  Emergency laparotomy was performed.  During operation, 600 ml blood clots and fresh blood were noted in abdominal cavity, pelvis and spleno-renal space.  There was a through and through laceration at left upper quadrant anterior abdominal wall of about 4 cm long, a 2 cm laceration at pancreatic tail, and a through and through perforation of about 2 cm wide at mid-transverse colon.  Repair of pancreas, resection of transverse colon and transverse colostomy were performed.

12.  PW2 was transferred to the Intensive Care Unit after the operation.  He was complicated with pancreatic leakage.  Two further laparotomies were performed on 13 and 20 September 2021.  Distal pancreatectomy and splenectomy were also performed.  PW2’s spleen was removed.

13.  He was transferred to Shatin Hospital for further wound care and rehabilitation on 3 November 2021.  PW2 was discharged from hospital on 24 November 2021.

B.3 Cautioned statements

14.  Under arrest and caution, D claimed that he was attacked by five people, including PW1, PW2 and PW3, so he assaulted them with the Knife.

15.  In a cautioned video-recorded interview, D claimed:-

(a)  PW1 and PW2 owed D’s brother around HK$8,000 in total.

(b)  D called PW1 for repayment on the Charge date and was asked to wait at the Charge location.

(c)  D was assaulted by PW1 and four of the latter’s friends.

(d)  Acting in self-defense, D fought back and caused injuries to PW1 and PW2.

16.  At the material times, D unlawfully and maliciously wounded PW1 and PW2 with intent to do them grievous bodily harm.

C. CRIMINAL RECORD

17.  D has 5 previous cases and 6 convictions in total from 2011 to 2015.  One of those convictions is common assault in 2011 for which 2 months’ imprisonment was imposed.  But the Prosecution agreed that D is not a repeated offender concerning the offences in this case.

D. D’S BACKGROUND

18.  D is a Form 8 holder and he received secondary education in Bangladesh.

E. MITIGATION

19.  The Defence submitted that PW1 owed D’s brother money for work that the brother had done for PW1 and so D arranged to meet with PW1.  D took the Knife with him because ‘the gang of men involved’ had previously been aggressive towards him and his brother, thus D feared the possibility of violence from them.

20.  The Defence pointed out that PW2 also carried a weapon, namely a plastic pipe, therefore D reacted instinctively in using the Knife to assault PW2.  The Defence submitted that D’s attack was not a ‘cold preplanned one’.

21.  The Defence argued that this case is not the worst type of its kind and suggested a starting point of 3.5 years for Charge 1 and one of 4 years for Charge 2.  The Prosecution agreed.

22.  The Defence accepted that D’s Form 8 holder status is an aggravating factor which warrants enhancement of sentence.  It was submitted that the 2 charges should be treated as part of one singular course of action, so their sentence should run partly concurrently.

F. SENTENCE

F.1. General principle

23.  The usual range of sentence for the offences in question is 3 to 12 years’ imprisonment (HKSAR v Yuen Wai Kui CACC 280/2004).  I have considered the sentencing considerations enunciated in HKSAR v Chan Chun Tat [2013] 6 HKC 225 and the aggravating factors identified in HKSAR v Chui Kwok Ming CACC 380/2013.

F.2 Charge 1

24.  For Charge 1, the relevant considerations are the followings:-

(a)  The assault was committed by D alone and motivated by his monetary dispute with PW1.

(b)  It was premeditated because D had had the dispute over the phone with PW1 earlier the same day, as a result of which they met up at the Charge location for further discussion, and D had brought with him the Knife.

(c)  He slashed PW1’s left thigh once, causing a 10 cm deep laceration over the posterior aspect of left thigh and abrasions over both left and right index finger. PW1 was discharged from hospital 3 days after the incident.

(d)  D’s mental and emotional states were normal. He was not acting under the influence of alcohol or drugs.

(e)  Under caution, D said that he had been assaulted by PW1, PW2 and three others in the subject incident and therefore he acted in self-defense.

25.  For the starting point, I agree with parties that 3.5 years’ or 42 months’ imprisonment is appropriate.

26.  D’s Form 8 holder status warrants an enhancement of 3 months, resulting in a sentence of 45 months’ imprisonment.

27.  The only mitigating factor is his guilty plea, so the sentence for Charge 1 is reduced by 1/3 to 30 months’ imprisonment. 

F.3 Charge 2

28.  For Charge 2, the relevant considerations are the followings:-

(a)  The assault was also committed by D alone and motivated by his monetary dispute with PW1 and possibly the fact that PW2 was holding a plastic pipe.

(b)  D stabbed PW2’s left abdomen near the chest once.

(c)  PW2 sustained, inter alia, skin laceration with 1.5 cm wide x 2.5 cm long defect over the left upper anterior abdominal wall, with small amount of subcutaneous emphysema present, and a 4 cm laceration on left medial forearm. There was a through and through laceration at left upper quadrant anterior abdominal wall of about 4 cm long, a 2 cm laceration at pancreatic tail, and a through and through perforation of about 2 cm wide at mid-transverse colon.

(d)  D’s mental and emotional states were normal. He was not acting under the influence of alcohol or drugs.

29.  There is the aggravating factor of the victim suffering serious and lasting injuries because PW2’s spleen had to be removed and he was hospitalized for over 2 months after the incident.

30.  In determining the starting point, I have considered 2 cases.  The first is Secretary for Justice v Hau Ping Chuen [2008] 4 HKLKRD 673 in which the defendant and the victim had financial dispute.  The defendant cut the victim’s abdomen with a knife which had a 5½-inch blade that the defendant had brought with him.  The victim slipped and the defendant stabbed the victim’s left inner thigh.  The victim ran away but the defendant attempted to stab at the victim again.  The defendant stopped when another person appeared and yelled at him.  The defendant ran away but eventually surrendered to the police.  The victim sustained a 5 cm cut wound over the abdomen and a 5 cm cut wound on his left groin.  He was hospitalized for 3 days and did not suffer any long-term ill effects.  The Court of Appeal held that a starting point of 5 years’ imprisonment would have been appropriate.

31.  The other case is Secretary for Justice v Hung Kar Chun [2011] 1 HKLRD 1083 in which the defendant was the boyfriend of the victim’s sister.  The defendant and the victim had a dispute because the latter did not allow his sister to continue the relationship with the defendant.  When the three of them met up to discuss the matter, the defendant stabbed the victim’s waist with a 20 cm long knife that the defendant had brought with him.  The victim sustained a 2 to 3 cm long and 5 cm deep laceration, a total laceration of 1.5 cm long in his spleen and blood clots and blood of approximately 200 ml in his abdominal cavity.  The victim’s whole spleen had to be removed.  The Court of Appeal considered that the appropriate sentence after trial should be 2½ years’ imprisonment on review.

32.  In light of the above, I agree with parties that a starting point of 4 years’ or 48 months’ imprisonment is appropriate for Charge 2.

33.  It is increased by 3 months to 51 months’ imprisonment because of D’s Form 8 holder status.

34.  The sentence for Charge 2 is reduced by 1/3 for D’s guilty plea, the only mitigating factor, to 34 months’ imprisonment.

F.4 Total

35.  Having considered totality, I am of the view that a global sentence of 48 months’ imprisonment for this case is appropriate.  Thus, I order that 14 months’ imprisonment for Charge 1 to run consecutively to the sentence for Charge 2, resulting in a total of 48 months’ imprisonment for all charges.