HKSAR v. NAWAZ AHSAN AND OTHERS

HCCC 191/2017

[2018] HKCFI 1130

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 191 OF 2017

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

This case involved the killing of a 62-year-old security officer who was a mere 155 centimetres in height; he was thin in build, and he weighed just 47 kilogrammes. The defendants who were, for reasons that are somewhat obscure on the papers, at the scene to carry this attack out, had planned in advance to attack him, and I will come to the reason for that in a moment.

The two Nawaz brothers – that is the 1st and the 3rd defendants in this case - who physically launched the attack on the victim, did so under cover of darkness. They are twins, those two defendants, aged 25 at the time, and were both in perfectly good health, and it goes without saying that this attack was brutal and very cowardly indeed.

The deceased was killed by a combination of kicks, fists, and ultimately stamping, and it is right to point out that no weapon was used. The evidence all points to the fact that it was not the intention to kill the deceased, or even probably to cause him GBH. It seems that it was the frailty of their victim and the manner of the attack which combined to bring about his death. But the serious feature behind this, apart obviously from the result of the attack, is that this was a very carefully planned attack which had been preceded by a reconnaissance mission a few days before, and certainly on the day before and so they knew exactly what the victim looked like, and that he would be no match for their strength.

The role of Arbaz Muhammad, the 2nd defendant on the indictment, was to keep a lookout for any intruders while the assault was in progress, and using the 1st defendant’s mobile phone to make a video recording of the event, which is an illustration of how utterly callous this attack was. I have seen that recording, and although it only lasts about 23 seconds, it is perfectly plain that this was a merciless attack on a helpless elderly man who was simply walking home after a 12-hour shift at work. He had been working as a security officer at a building site in Tin Shui Wai.

The place where he was attacked was a very quiet location. It was a path which led between two roads, and it was also at the time of Chinese New Year when fewer people than normal would be expected to be in the vicinity. The attack itself happened at about 20 to 7 in the evening, on 14 February 2016. But, sadly, it was not until about an hour or so later that someone passing the place where the victim lay, realised that there was something wrong with the victim and so a 999 call was made and by the time the ambulance arrived the deceased had no pulse and was not breathing. In fact, the deceased had only been 70 metres from the exit from the place where he worked, so he had hardly started on his walk home.

His property had not been stolen so it was quite clear that this was not a robbery. The reason for the attack appears to have been that an older brother of the 1st and 3rd defendants, who goes by the name of Khan Asaf Nawaz, had been the subject of a complaint about lateness in taking over his shift which the deceased had made to his supervisor and as a result of the deceased’s complaint, Khan was transferred to another site. Later, when Khan tried to be transferred back to where he had originally been working, the request was refused, and it was after that that Khan resigned from the company. And it is for that reason that this case can properly be described as a revenge attack.

The autopsy carried out by Dr Mok Ka-kin on 17 February 2016 showed that the death had resulted from multiple injuries. In particular, external examination revealed multiple blunt force injuries. The pathologist found deep bruising on the back of the neck, and over the front and back of the trunk, and there were less serious injuries to the face and head.

The internal examination revealed very severe injury indeed, and these were, notably, to the liver, kidney, and ribs. There was an 11-centimetre laceration in length, and 4 centimetres in depth to the liver, and this, as the pathologist puts it, “Would have required a large amount of force.” The 2-centimetre laceration to the kidney, which he also found, would have required moderate force.

In addition, the pathologist saw the video recording of the attack and this confirmed his view that the action taken by those who attacked would have led to some, or all, of the rib fractures on the right side of the deceased’s flank, where it was found that 7th to 11th ribs had all been fractured, and those in turn could have lacerated the liver and the kidney. And similarly, the 4th to the 7th ribs on the left side of the deceased’s body were also found to be fractured.

A point that is made in mitigation, rightly, is that some of those fractures, particularly to the outer front sides of the body, could have been due to chest compression during resuscitation. By contrast, the fractures to the back of both sides, left and right, were caused by blunt impact trauma whilst the deceased was still alive. Internal bleeding had led to the abdominal cavity containing about a litre of blood.

There was also, on the deceased’s face, a mark which was hexagonal in shape which had been left by a shoe, and following the 1st defendant’s arrest, his shoes were taken by the police. On the right shoe, blood was found which matched the deceased’s DNA, and in addition, the shoes matched the size and pattern of the hexagonal bruise found on the deceased’s face.

In interview at the police station, the 1st and the 3rd defendants said nothing to the police, but the 2nd defendant had a great deal to say in his two interviews. In short, he admitted that he knew that both twin brothers were going to beat someone when he went along with them on the night of this attack. He had been less than truthful in his first interview about certain aspects of the beating, but in the second interview he admitted being asked to act as a lookout and to video record the beating, and to use his words, “That was done as a joke.” The video recording was less than half a minute but one of the features of that recording is the way in which the victim was screaming very loudly.

The 2nd defendant expressed his surprise that the deceased had died, and indeed, it’s a feature of this case that it is quite clear that none of them expected that the deceased would die, and it appears that such serious harm was never intended. Hence, the prosecution has very responsibly accepted the pleas to manslaughter in a case where that is entirely appropriate.

Following what was obviously a painstaking police enquiry into the culprits responsible for this attack - because there was no immediate connection between the victim and these defendants - the defendants were eventually arrested only eight days later, on 22 February. Amongst other evidence, there was the CCTV material which comes from the Hang Mei Tsuen LRT station, just a very short distance from where this attack occurred and it showed that the 1st and 2nd defendants had travelled to that station together on 9 February 2016, and that on 13 February, the day before the attack, the 1st defendant had gone there with his brother, the 3rd defendant. They did so at 6.55 in the evening, which as it happens was just before the deceased finished work that day.

Then on 14 February, the day of the attack itself, all three defendants were together when they arrived at the station at about 20 past 6 in the evening. And in addition, phone records reveal very close and frequent contact between the three defendants over this period of time. In due course the defendants were remanded in custody. The 2nd defendant, who had heavily implicated the twin brothers in this crime when he was interviewed, was originally kept at Siu Lam, whereas the twin brothers were kept at Lai Chi Kok.

Whilst seeing visitors, recordings are made of their conversations, and notices of that fact clearly state that recordings are made. From what was said by the defendants to their visitors, it is quite clear that they were aware of the fact that recordings are made. The 1st defendant told a visitor on 1 March that there had been no intention to kill, and that they had just kicked and punched the deceased. On 4 March, the 1st defendant told a visitor, a clear reference to the deceased, “He was flying by blows, and that is it, I did hit two or three blows and he died.” When the visitor asked what was the need for such karate, the 1st defendant replied, “Those were not, I only hit three. I did not hit him more than three kicks.”

The 3rd defendant, speaking to a visitor on 26 February 2016 said, “It happened by mistake”, and it was obvious that it was not their intention to kill. And in a later conversation, two days later, he spoke of the 2nd defendant, who had, in his word “blurted” -- I think it was “blurted”, is one of the translations, or “barked” in another, giving the names of the attackers, and had admitted that he had made a video of the attack. The visitor then told the 3rd defendant, who was speaking about the 2nd defendant’s admissions to the police, that he should be quiet because there was a recording. Well, there are many other admissions to manslaughter by the defendants in the time they were in custody, and a number of the 3rd defendant’s admissions in particular are set out on the summary of facts which I do not intend now to repeat.

The main mitigation advanced by all three defendants, clearly, is their pleas of guilty. In a case such as this, it’s hard to imagine, really, that there can be very much other worthwhile mitigation for the main perpetrator, the 1st defendant, who had, in such a cowardly fashion, carried out this premeditated attack and on such a weak and elderly person because it wasn’t just by punching and hitting, it was the kicking and stamping which makes his position much worse.

It is plain from the tape recordings of their conversations with visitors whilst in custody that the 1st defendant and his brother, the 3rd defendant, show very little remorse for what they had done. They did feel sorry for themselves that they had been caught. I do not need to repeat what is set out in the summaries of facts about that, but in one reference to the attack made by the – that is a reference by the 3rd defendant to a visitor who was speaking to him, the 3rd defendant did make it plain that they had only gone for “slapping and punching”, and that the victim, and these were his words, “Was dead anyway because his age was 61 or 62”, and D1’s callousness was clear from his action in giving the 2nd defendant his phone and telling him to video the attack whilst he was keeping a lookout.

So it is plainly obvious that the attack by the 1st defendant went well beyond merely slapping and punching, and I am satisfied in the case of the 2nd defendant who was filming the event, that this is all he believed would happen, and no more. When it escalated to stamping and kicking, this is not something the 2nd defendant had envisaged, and hence although he was acting as a lookout, which would normally call for the same sentence as the main perpetrator, I can feel justified here in making a considerable distinction between his case and the others. I am also satisfied that the 2nd defendant did show some remorse after the event when he revealed to the police what had happened in some considerable detail.

In the case of the 3rd defendant, there is no evidence that he actually kicked the deceased, or stamped on him, but he was physically participating in the attack. When it was taken to a new level by the 1st defendant, there is no suggestion that he tried to stop it. Having regard to the role he played, I can still make some distinction between the two brothers, and that is because of the aggravated role played by the 1st defendant.

It is perfectly plain that this attack was done for revenge and was known to be carried out on a victim who was elderly and very small in size. So far as the 1st defendant is concerned, this was a bad case of manslaughter which comes very close to the line with murder. Both brothers acted in a violent way as cowardly thugs; there is no other description. You have tragically taken away the life of a man who was just a hardworking individual, no doubt with very sad consequences to the family.

It is people like you who bring shame on the Pakistani community, most of whom try to live peaceful law-abiding lives. Just imagine how you would feel if someone, in the fashion you beat up this man, did that to somebody in your family. And just to show how your mind was thinking, to make matters worse you got someone to make a film of it as a joke. And why was it done? Just because the deceased had complained about your older brother being late for work. No wonder he complained; he couldn’t knock off duty until your brother turned up, and so he paid with his life for that complaint. Well, society has to reflect its revulsion at this kind of conduct.

Nawaz Ahsan, would you stand, please? I take into account your pleas of -- no, would you stand, just the 1st defendant please. Taking into account your plea of guilty, and all of the matters which have been raised by Mr Egan on your behalf, the least sentence that I can impose on you is one of 10 years’ imprisonment. Sit down, please.

Nawaz Mohsin, your position is quite different, but I make it plain that at the time your brother started to kick and stamp, you did nothing to stop it or get away from the scene. You were part of the physical attack on this unfortunate man. You’ll go to prison for 7 years. Sit down, please.

Arbaz Muhammad. To some extent your mitigation does stand you in good stead, and it puts you in a different category to the other two. You misguidedly chose to help them when they launched this attack on Au Chi-shing, and you should be utterly ashamed of what you did. Your attitude is clear from the fact that you were prepared not only to act as a lookout, but to actually film what they were doing. You knew perfectly well that this had been planned in advance. I take into account the mitigation which has been advanced on your behalf as well, but it’s clear that no sentence less than 5 years would be appropriate, and I impose 5 years’ imprisonment in your case.