HKSAR v. TAMANG MILAN

DCCC 313/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 313 OF 2016

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Reasons for Sentence

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1.  The defendant has pleaded guilty to a single charge of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance.

2.  He has agreed the facts of the case, and as far as he is concerned, these facts are that in the early morning of 1 January 2016, the defendant was at the IFC Podium Level 4, as was the victim, PW1.  The defendant walked towards the victim, surrounded by other people, who were holding beer bottles and hockey bats and knives, apparently.

3.  What the defendant did was he assaulted the victim with a hard object, which turns out to have been a beer bottle, whilst other people attacked the victim.

4.  The victim was able to escape via a staircase, but fell over, and then attackers then went after the victim and continued to assault him with various weapons.  As a result of that attack, the victim was wounded on his right shoulder, right forearm and what is described as bilateral knees.  Nine lacerations were found from 1 to 10 centimetres over his legs and forearms, and, most seriously, his left ring finger was partially amputated and his left little finger suffered a partial amputation.  It would appear they were reattached at a later stage.

5.  The 1st defendant was arrested on the same day and was identified by the victim and his girlfriend.

6.  The facts make reference to a CCTV footage which shows a group of South-Asian males surrounding the victim and attacking him.  I have had the opportunity of seeing that CCTV recording in relation to proceedings against other defendants.  It shows the defendant striking the victim with a beer bottle.  It also shows other men striking him, although at that stage the weapons described in the facts are not evident in the CCTV recording and the number of attackers is less than is set out in the facts, there being around four to five.

7.  The video-recorded interview with the defendant described his motivation for fighting the victim or attacking the victim was because he was an annoying person who he had met in 2010, and he said he attacked the victim with a bottle, and that is borne out by the CCTV recording.  He says there were 10 to 15 other persons attacking him using items such as knives, hockey bats and beer bottles.  He held the bottle in his hands and hit PW1's head with the bottle.  There were also two to three persons using hockey bats to hit PW1.  He did not know how many had used a knife.  He did not know any of the other 15 attackers.

8.  Those are the facts admitted by the defendant: his use of a beer bottle to strike towards the head of the victim.

9.  As far as the defendant's antecedents are concerned, he is, before this matter, a person of clear record.  He is aged 18.  Because of his age, I considered whether any other mode of disposal of this case could be achieved other than the sentencing of the defendant to an immediate custodial sentence.  The court is always necessarily obliged to do that with a person of his age, especially someone with a clear record.

10.  Probation services were able to give an in-depth background to the defendant.  He is what is described locally as South-Asian, but is in fact Nepalese, his family living in an old tenement flat in Yuen Long.  The defendant is the youngest of three sons of that family.  His grandfather served in the Ghurkha Regiment in Hong Kong during the colonial times.  The defendant had been sent back to boarding school in Kathmandu for his primary education, but returned to enrol in local secondary schools in 2012.  The defendant's record at the school in Hong Kong is poor.  He was found to be what is described as unruly, but still respectful towards the teachers. He had disciplinary problems and a late class attendance, but is recorded as having an exceptional sporting talent.  He left school last year and is described as hanging out with street peers at a public basketball court in Hong Lok Road in the neighbourhood during his leisure time.  He has tried some jobs, such as waiting, but nothing succeeded for very long.

11.  In respect of the probation officer's report, the defendant did describe remorse for this offence and said it was committed under the influence of alcohol.  He had gone to the IFC for the countdown celebrations on New Year's Eve with a number of Nepalese street peers.  They had been drinking, and then he became angry and had a dispute with the victim, and that is when the attack occurred.

12.  The view of the probation officer was fairly pessimistic as to the defendant's future.  He said that he would have a difficult life here integrating into the local society.

13.  Besides that report, there was also a report from the Commissioner of Correctional Services.  The conclusion of that report found that the defendant was mentally and physically fit for detention in any of the institutions available to the Correctional Services.  That is, a detention centre, a rehabilitation centre, or a training centre.  He was considered generally more suitable for detention in a detention centre.  Their conclusion was based on the fact that they described the defendant born in Hong Kong to Nepali parents, spending his childhood in Nepal, settling in Hong Kong in 2012, poor academic performance, and becoming wayward after quitting school, his defence of his recklessness and momentary anger landing him in the present offence in January 2016.  They note he has been remanded in prison custody since that point.  It is thought that the defendant needs to gain insight into his problems, strengthen his law-abiding concept, and that a period of disciplinary training, coupled with statutory supervision, will be beneficial to him.

14.  Finally, having seen the recommendation, I remanded the defendant for a further report from the Young Offenders Assessment Panel.  This is to have what I would describe as a more expert view on which of the sentences the defendant was most properly suitable for.

15.  Their description of the defendant is as follows:  "Impulsive and unruly youngster who had gone beyond family control, indulging in hedonistic pursuits with like-minded peers, leading a dissipated life.  A poor sense of lawfulness and morality, developing a habit of using violence in resolving interpersonal disputes or conflicts."  They said he had a lack of insight into his problems, and considered a period of strict disciplinary training with sharp and shocking impact and close after-care supervision is necessary to cast on him a deterrent effect and help him acquire law-abiding behaviour.

16.  Those are the recommendations that I have from Correctional Services Department on how to deal with this young man.

17.  Turning to the offence for which the defendant has been convicted, the offence is serious.  The injuries to the victim are serious.  I must, in assessing the proper sentence for the defendant, assess his culpability.  The gravamen of this offence is a wounding with intent.  That is an intent to cause grievous or serious bodily harm, and the culpability of the defendant lies more in what he intended by his act than necessarily by the actual injuries suffered by the victim, although the injuries to the victim are serious; there is no doubt about that.

18.  There is no guideline sentence for this offence.  There is, in the authorities, what is described as a customary sentence, which can range between 3 to 12 years' imprisonment for this offence, so it is clearly seen that this is a serious offence, with a lengthy period of imprisonment being seen to be the most usual form of disposal, even for a person of the defendant's age.

19.  Having regard to the defendant's participation in this offence, I must consider whether it is appropriate that anything other than an immediate custodial sentence of a lengthy period should be appropriate for the defendant.

20.  Firstly, there is the act of the defendant.  The act of the defendant in this case was to strike the victim with a beer bottle. It appears from the video that the beer bottle was an unbroken one.  One can see from that that obviously the defendant intended to do grievous bodily harm, because grievous bodily harm could result from that, but not necessarily the harm that in fact transpired, the degree of bodily harm that transpired to this victim.  The evidence at trial did not really go further than the evidence the defendant admitted in the facts against him.  Other than that, the most serious part of the offence, which was the assault with the knife, was committed by another person who was apparently unknown to the defendant, and at a later stage that did not appear in the CCTV recording.

21.  But the defendant, of course, must bear some responsibility for that because he was present and lent assistance to that later attack.  The defendant's culpability, the harm he intended, one can see is not necessarily the harm that flowed from this assault.

22.  Secondly, the defendant is young; 18 years old at the time of the offence, and 19 now.  Thirdly, he has pleaded guilty and admitted his involvement in this from the outset; and fourthly, my understanding is the defendant has been on remand since his arrest for this matter, and that is in January of this year, so the defendant has already been subject to incarceration for a period from that date.  And of course were I to adopt any of the recommendations from the Correctional Services Department, that period of imprisonment would not count towards his present sentence and could be seen as time served.  So the defendant has served already the equivalent of a substantial period of imprisonment for this matter.

23.  The final factor I consider is the recommendation which is the best way to deal with this young man.  The recommendation is for a sentence that would be both punitive and rehabilitative, the defendant still being seen as a person who is at an age where a rehabilitative and disciplinary sentence could have the effect of preventing further offending, and by doing so, protecting the public in future, and the protection of the public must also be a factor that I must consider: that the recommendation is that the public would be further protected from the defendant receiving a period of strict disciplinary training.

24.  I consider the outcome of this case is somewhat finely balanced, but having regard to the defendant's age, his period of detention for this matter to this stage, and the necessity for a disciplinary outcome and also after-care supervision, brings me down on the side of a sentence that does not involve the defendant receiving an immediate sentence of imprisonment.

25.  The only realistic option open to me, therefore, is to follow the recommendation given to me by the Young Offenders Assessment Panel from their November interview with the defendant, and in order to do so, I will follow that recommendation and sentence the defendant to a sentence of detention centre.