HKSAR v. BHUIYAN JASHIM UDDIN

DCCC 563/2024

[2025] HKDC 1249

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 563 OF 2024

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REASONS FOR SENTENCE

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Charge

1.  The defendant pleaded guilty to an amended charge of wounding, contrary to section 19 of the Offences Against the Person Ordinance, Cap. 212.  He admitted the following facts.

Facts

2.  At the material time, the defendant and Mr. HUMAYUN MOHAMMAD (the victim aged 35) and another person (Male A) lived at Room A, 1^st Floor, No. 107 Temple Street (the Flat).  Both the defendant and the victim shared the same bedroom whilst Male A also lived in the Flat.  The defendant had been living at the Flat for about 13 to 14 months whilst the victim moved in above 6 to 7 months ago.

3.  In the morning on 26 November 2023, the defendant went to the bathroom and moved away the water bucket placed under the air conditioner.  Seeing this, the victim swore at him in the presence of Male A.  The victim and Male A also punched the defendant on his left shoulder, though the defendant suffered no injury.  In response, the defendant picked up a 28-cm long knife, with 16-cm long blade, from the kitchen area and used it to strike the victim on the left ear and the chest.  The case was then reported to the police.

4.  At about 10.22 am, PC 15784 (PW1), together with other police officers, arrived at the Flat.  The victim was lying on the floor and was found to have a 6 cm cut on the back of his left ear, a 3 cm cut on his left ear and a 2 cm cut on his chest.  At about 10.47 am, PW1 arrested the defendant for “Wounding”.  The victim was then sent to Kwong Wah Hospital.

5.  A cautioned interview was taken from the defendant.  He admitted that it was wrong to hurt someone with a knife.  A video-recorded cautioned interview was subsequently conducted with the defendant by WDPC 25190.  Under caution, he revealed the incident to PW2.

Criminal Record

6.  The defendant is of clear record.

Mitigation

7.  Mr Tracy, Counsel for the defendant, submitted that the defendant is now 55 years old.  In 2015, he left Bangladesh for China and then entered Hong Kong unlawfully to make a claim for refugee status.  He then became a Form 8 Recognizance holder.

8.  The defendant completed High School education in Bangladesh.  He managed his own grocery shop business in the village where he lived in Bangladesh and earned around $5,000 “taka” (about HK$300) each month.  He is married with three children.

9.  On the date of the offence he lived at the Flat which was assigned by I.S.S. for the three of them to live together.  He first resided there in October 2022.  He is, of necessity, unemployed and relies on I.S.S.

10.  The defendant declined medical assistance on the day of the offence out of panic. 

11.  Mr Tracy said the defendant was a frail thin elderly man who was physically no match for his much younger and more robust room-mate and Male A.

12.  Mr Tracy also said the victim did not give a witness statement until about two months after the incident, and some weeks later contacted the police and made clear that he would not pursue the wounding case against the defendant.  In a letter of 8 March 2024, the victim wrote to the police that he had forgiven the defendant and would not testify.  It is submitted that the victim has made a complete recovery. 

13.  Mr Tracy considered that the offence is definitely at the lower end of the spectrum for a section 19 wounding offence.  He provided the following two cases for the court’s reference: HKSAR v Liu Man Kuen [2000] 4 HKC 397 and SJ v Yu Yat Sang [2011] 1 HKC 155 and was of the view that in all the circumstances of the case, a sentence of less than 12 months would not be reviewable.

Reasons for Sentence

14.  In passing sentence, I have carefully considered everything said on behalf of the defendant by Mr Tracy and the authorities referred to. 

15.  In HKSAR v Wong Luk Sau [2013] 2 HKLRD 201, the Court of Appeal said that there were no sentencing guidelines for this offence.  

“18. For the offence of wounding with intent, the circumstances of the offence and the background of offenders differ from case to case, and other decided cases are, in our view, of limited reference value.”

16.  In HKSAR v Chan Chun Tat CACC 317/2012, the Court of Appeal has given a non-exhaustive list of factors usually relevant to the sentence as follows, at paragraph 49:-

(1) the extent to which the assault was premeditated;

(2) the reasons or motivation underlying the assault upon the victim;

(3) the mental or emotional state of the assailant at the time of the assault;

(4) whether alcohol or drugs contributed to the actions of the assailant;

(5) whether the assault was committed by the assailant alone or as part of a group;

(6) the type of weapons employed;

(7) the level of force or aggression and the persistence with which the assault was pressed home;

(8) the injuries caused to the victim;

(9) the effect of the assault upon the victim and those close to him or her.

17.  In paragraphs 50 and 51, the Court of Appeal also said:-

“In arriving at an appropriate sentence the court will have regard not just to the need to punish the offender for his conduct, but also to the sentencing principles of deterrence, both general and individual, and, in appropriate cases, the need to denounce the resort to violence…

…By their sentences the courts must make clear that violence will never be regarded as an acceptable way of dealing with personal issues.”

18.  Although we are dealing with a section 19 not a section 17 wounding offence, the above mentioned guidelines are still applicable. 

19.  In the present case, I note that the defendant is a first offender.  I also note that the defendant was somehow insulted and assaulted by the victim and Male A before the defendant attacked the victim.  It appears that the defendant lost control on the spur of the moment and picked up a weapon that was to hand.  That said, the attack was not premeditated. 

20.  However, I do not lose sight that the weapon, i.e. the chopper which I have examined in court, is a vicious weapon and it can cause serious bodily harm. The defendant did not use the weapon to strike the victim once.  He struck him again.  As a result, the victim suffered injuries to his ear and chest.

21.  I have looked at the photo album which depicts the wounds of the defendant.  There was a deep cut to the outer part (helix) to his left ear.  The photo showing the injury is rather gruesome, and Mr Tracy accepted that it was a serious wounding.  There was also a wound to the victim’s chest though it appears to be not very serious.

22.  Fortunately, the medical report submitted by Mr Davies, Counsel for the prosecution, revealed that the on the day of admission, “Wounds were managed by suturing under local anesthesia, regular dressing, analgesia and antibiotics.  He was last seen in plastic surgery outpatient on 8/1/2024 with all wounds healed without significant scarring problem.”

23.  As stated in Chan Chun Tat, “…deterrence and denunciation are always important when there is resort to violence…”.  Here, a deterrent sentence is called for.  Having considered all the circumstances of the case, I adopt a starting point of 18 months’ imprisonment. 

24.  The defendant is a Form 8 holder.  Mr Tracy considered that if the court was minded to enhance the sentence, it should only be 1 or 2 months.

25.  In HKSAR v Ali Saif CACC 309/2017, the Hon Macrae VP said:

“17. … Form 8 recognizance holders, whose non-refoulement applications may take several years to deal with, must be firmly discouraged from becoming involved in serious crimes, whilst their applications are being processed.”

26.  In HKSAR v Singh Gursevak [2019] 2 HKLRD 274[1], it was said that there are two principles underlying the amount of enhancement where the accused is a Form 8 recognizance holder, namely denunciation of criminal activity by Form 8 holders, and deterrence of all Form 8 holders from committing crimes while they enjoy the freedom to live in Hong Kong as they await resolution of their claims[2].

27.  In light of the aforesaid, I enhance the sentence, for the defendant’s status as a Form 8 holder, by 3 months to 21 months’ imprisonment.

28.  The defendant indicated his plea of guilty immediately after the charge was amended from a wounding 17 offence to a wounding 19 offence.  As such, he is entitled to a one-third discount for sentence.  Therefore, the sentence is reduced to 14 months’ imprisonment.

29.  There are no other valid mitigating factors which can further reduce the sentence.

30.  The defendant is sentenced to 14 month’s imprisonment.