HKSAR v. KHAN ABID HUSSAIN

CACC 216/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 216 OF 2006

(ON APPEAL FROM HCCC No. 264 of 2005)

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J U D G M E N T

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Hon Yeung JA (giving the judgment of the Court):

1.  The applicant, Khan Abid Hussain, appeared before Lunn J with a jury on an indictment consisting of the 1^st charge of attempted murder and the alternative 2^nd charge of wounding with intent.

2.  The applicant pleaded not guilty to the charges.

3.  The applicant was acquitted of attempted murder, but convicted unanimously of wounding. Lunn J sentenced the applicant to six years’ imprisonment. The applicant now seeks leave to appeal against sentence, on the ground that it is manifestly excessive, as the judge sentenced on a factual basis that may well not have reflected the reasons behind the jury’s verdict.

4.  The prosecution allegation, briefly stated, is as follows:

5.  The victim, Mr Usman, was asleep on the sofa in the sitting room of a premises he shared with the applicant and others when the applicant stabbed him in the neck, causing two lacerations to the left side of his neck, one being a 2 centimetre wound at the point of entry, with an internal wound track of not less than 3 to 4 centimetres causing a 2.5 centimetres laceration to the windpipe.

6.  Mr Usman only escaped more serious harm because another flatmate intervened by grabbing hold of the applicant’s right wrist so that the knife was dislodged from his clenched fist.

7.  Mr Usman was hospitalised for about eight days. He suffered from a hoarse voice and felt strain when speaking.

8.  The cause of the attack appeared to be the different practices of Islam engaged in by the applicant and Mr Usman.

9.  The jury rejected the applicant’s defence of self-defence and no issue turned on it.

10.  In sentencing, Lunn J observed “the jury accepted the evidence of Usman (the victim) that you attacked him while he slept and rejected your evidence that Usman had attacked you and that the injuries had occurred whilst you sought to defend yourself.”

11.  The applicant’s counsel at trial, Mr Coghlan, appeared to share the same view as he said in mitigation, “it was an unprovoked attack, at night, when Usman was sleeping.”

12.  Mr Acton-Bond, submits on behalf of the applicant that on the basis of Lunn J’s direction, the jury’s verdict would be open to two interpretations, (1) that the applicant had attacked a sleeping man with a knife, and (2) that although they did not find it proved that the applicant had attacked a sleeping man or, indeed, that he had introduced a knife into the matter, that at some point they were sure that he had intentionally gone beyond the boundaries of reasonable self-defence when he wounded the victim with a knife.

13.  Mr Acton-Bond suggests that Mr Coghlan was wrong when he made the concession without client instruction, and that Lunn J could have been misled when he sentenced the applicant on the basis as he did.

14.  Mr Acton-Bond argues that on the evidence, the jury could have convicted the applicant on the basis that the applicant had just gone beyond the boundaries of reasonable self-defence and not on the basis that he had attacked a sleeping man.

15.  In any event, Mr Acton-Bond suggests in his amended perfected grounds of appeal that the sentence on the applicant was manifestly excessive and he refers the court to a number of previous decisions to support his contention.

16.  A judge is obliged, in directing a jury, to put before them all the possible defences. It does not mean, however, that a judge is not entitled to form his own view on the facts when it comes to sentence.

17.  Lunn J had heard all the evidence and was clearly in a position to decide the precise circumstances in which the offence was committed. Lunn J had in fact stated that the applicant “was in a position to deliver multiple blows with the knife on the sleeping and helpless (victim) if (he) so wished.”

18.  We have also examined the evidence adduced by both the prosecution and the defence. There was a valid basis upon which Lunn J came to the view he did. There is no question of Lunn J being misled and/or sentencing the applicant on the wrong premises. We fail to see how it can be argued that the sentence imposed on the applicant was inconsistent with the jury’s verdict.

19.  We have also examined the cases referred to us by Mr Acton-Bond on sentence for similar offences; most of them are rather ancient, as Mr Acton-Bond realises and concerned much younger offenders.

20.  We have to stress that sentences for this type of offence must reflect the peculiar facts of each case.

21.  This was a very serious case of wounding indeed. The applicant targeted the victim on his neck, causing him serious injuries and resulting in permanent disability. It was a pre-meditated and serious attack with the use of a lethal instrument.

22.  Despite the applicant’s clear record, the sentence of six years after trial is not manifestly excessive.

23.  We reject the application for leave to appeal against sentence.