HKSAR v. ABBAS YASIR AND OTHERS

DCCC 737/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 737 OF 2013

____________

____________

REASONS FOR SENTENCE

1.  D1 has pleaded guilty to one charge of wounding with intent, contrary to section 17 of the Offences against the Person Ordinance, Chapter 212. D2, D3 and D4 stand convicted after trial of the same charge. D1 however did not agree paragraph 11 of the summary of facts that the offence was planned and executed with the support of D2, D3 and D4. I therefore held a Newton hearing at the same time as the trial in which I determined that D1 acted in concert with D2, D3 and D4.

2.  Full particulars of the offence are set out in my verdict delivered yesterday.  In summary Mr Kung Ho and his wife worked at Nina Tower in Tsuen Wan.  Mr Kung would drive to work with his wife usually arriving at about 8:45 a.m and park his car in a fixed parking space on the lower basement of the car park. 

3.  On the 7 June 2013 the defendants were seen arriving at the West Rail Station from where they walked to the Tsuen Wan Park and later to Nina Tower eventually taking the lift down to the lower basement of the car park where they waited for the arrival of Mr Kung. A short while later Mr Kung and his wife arrived. After parking the car they walked towards the fire exit door leading to the lift lobby. 

4.  Having almost reached the lift lobby Mr Kung saw the defendants also walk towards the lift lobby.  All of a sudden D1, who was holding an umbrella, attacked Mr Kung striking him on his mouth with the umbrella.  This part of the attack was captured by the CCTV system of Nina Tower and shows Mr Kung was hit by D1 with the umbrella at least four times.  By this time Mr Kung had retreated into the car park spaces 5 & 6 where he was punched by someone.  Most of what happened in the car park spaces was out of view of the CCTV camera.     

5.  Before D1 hit Mr Kung with the umbrella D2 and D4 are seen walking behind D1 and just as D1is about tostrike Mr Kung for the first time D3 starts to walk behind D2.  D2 and D4 do not run forward to try stop D1 but continue walking towards D1.  When D1 is about to strike Mr Kung for the third time D3 changes direction towards the fire exit door.  D2 and D4 reach D1 only after he has struck Mr Kung four times with the umbrella.  D4 then puts his hand on the shoulder of D2 who goes to one side of D1 and Mr Kung whilst D4 goes towards the other side.  D3 stops at the fire exit door watching what is happening.

6.  Mr Kung still trying to prevent being hit by the umbrella manages to move away from D1 back into the middle of the car park.  The umbrella falls to the ground at which time D1 runs away.  Seeing D1 begin to run D3 leaves the car park. D2, followed by D4, chases after Mr Kung.  D2 punches Mr Kung then turns round and runs away together with D4.  Very soon after the police arrived and chased after the defendants who were intercepted and arrested in the lift lobby. 

7.  In passing sentence I have taken into account everything said on behalf of the defendants by Mr Loftus, Mr Beel and Mr Sadhwani. 

Wounding

8.  Fortunately the injury to Mr Kung was not very serious.  The wound was a soft tissue laceration at the apex of the root of teeth 32 ̴ 31, which required one intra oral black braided silk suture.  The veneer of tooth 21 was fractured and there was another soft tissue trauma causing the root of tooth 33 to be exposed. Both of Mr Kung’s lips were also swollen.  Whilst clearly this would have been very painful there is no evidence placed before me of permanent injury or damage to Mr Kung’s teeth. 

9.  Mr Beel refers the court to the often cited case of HKSAR v Hau Ping Chuen [2008] 4 HKLRD 673 where reference is made to the usual range of sentence as being ‘3-12 years’.  The Court of Appeal however accepted that there may be offences which call for a higher or lower sentence than the usual range depending on the circumstances of the case.  At the end of the day the Court said that a sentencing judge obtains a ‘feel’ for the appropriate sentence by regard to the attitude of courts over a period of time to a great variety of circumstances.  That there is a great variety of circumstances can be seen in the four sentence cases submitted by Mr Loftus, two of which sentences of less than 3 years were imposed for what may be regarded as more serious injuries. 

10.  Mr Beel submits that the use of an umbrella cannot be regarded as a lethal weapon.  Whilst an umbrella cannot be viewed in the same light as a knife, an iron bar or a glass bottle it is still quite capable of causing very serious injury.  The attack having been to the face of Mr Kung it is fortunate there was no injury to his eyes and that the injuries sustained are not the most serious.  

11.  The reason for the attack is unknown.  In mitigation D1 contends he attacked the wrong man.  Mr Loftus explains that three days earlier on the 4 June D1 was rushing across the road when he caused a car to suddenly brake.  D1 apologised to the driver however the driver swore at D1.  D1 was upset by this and having seen the car go into Nina Tower D1 went there again on the 7 June and attacked the driver.  Only when D1 received copies of the photographs did he realise he had struck the wrong man.

12.  As indicated yesterday I do not accept D1 hit the wrong man.  Not only does the long view of the CCTV footage of the car park show D1 had a clear view of Mr Kung as he was getting out of his car and walking towards the lift lobby, this clearly was a planned attack the defendants specifically waiting for the arrival of Mr Kung.   

13.  Taking all the circumstances into account including that this was a pre-arranged plan to attack Mr Kung; four persons were involved although only two physically attacked Mr Kung, one with an umbrella and that the injuries are not the most serious injuries, I am satisfied the proper starting point after trial is 2 years imprisonment. 

D1

14.  Notwithstanding D1 disagreed the summary of facts on plea that he acted in concert with the other defendants whereby a Newton hearing has been held Mr Loftus ask that D1 still be given the full one-third discount for pleading guilty.  Mr Loftus submits no extra time has been required in holding a Newton hearing there being no extra witnesses called and that D1 did not challenge the evidence called by the prosecution. 

15.  The issue to be decided at the trial of D2, D3 and D4 was in essence the same as to be determined on the Newton hearing.  Whilst no extra witnesses were called and D1 did not give evidence or challenge the prosecution evidence Mr Loftus did make a final submission albeit a very brief one.  Mr Loftus also asked one question of PC 6014 (PW6) arising from questions asked of the officer by the court and cross-examined PC 54447 (PW7) albeit also very briefly. 

16.  In HKSAR v Cheng Shiu Yu CACC 495/2006 the Court of Appeal said, “Although the Newton hearing occupied the time of the court, it is not the time expended that is significant, but rather the nature of the offence and the fact that a fanciful enquiry detracts from the remorse which is an important element of a guilty plea.”

17.  In HKSAR v Liu Lin Feng CACC 206/2012 a Newton hearing was held to determine whether the defendant acted alone in committing a pickpocketing offence.  The Court of Appeal said that: “A reduction of one-third is not mandatory in all circumstances in which a plea of guilty is made.  In the present case, while the applicant had pleaded guilty, his denial that he had committed the offence in concert with others went to an issue of central importance in the sentencing exercise.”  In that case a discount of about 20% was given where full evidence had to be led with little if any saving of court time. 

18.  In my view the only possible reason D1 did not agree he acted in concert with the other defendants yet did not challenge any of the evidence was to avoid being seen to implicate the other defendants.  This in my view detracts from his guilty plea for which a discount less than one third is appropriate.  I am satisfied in the circumstances a discount of 25% is appropriate.  D1 is convicted and sentenced to 18 months imprisonment. 

D2, D3 & D4

19.  In the normal course of events a knowing participant can expect the same sentence as the direct perpetrator of the injury.  Although D3 and D4 are not seen to physically attack Mr Kung I am satisfied no distinction should be drawn between the defendants. All the defendants went to the car park to wait for Mr Kung.  The fact only D1 caused injuries to Mr Kung’s mouth does not in my view give rise to difference in sentence. Indeed no counsel has suggested I sentence any of the defendants differently. 

20.  D1 has a minor conviction for theft in 2010.  D2 served 14 months imprisonment in 2011 for two immigration offences.  D3 has a clear record whereas D4 has a long criminal record including three convictions for violence arising out of two cases both in 2010.  Although D4 has convictions for violence I am satisfied the sentence should not be increased by reason of his repeat offending.  I am also satisfied sentence should not be increased on account of the fact all the defendants are asylum seekers. 

21.  D2, D3 & D4 are each convicted and sentenced to 2 years imprisonment.