HKSAR v. SALAS DONN MANANSALA

DCCC 452/2019

[2019] HKDC 1546

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 452 OF 2019

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to one count of causing grievous bodily harm with intent, contrary to section 17(a) of the Offences against Person Ordinance, Cap 212.

2.  The victim (“PW1”) borrowed $200 from the defendant in November 2017 and had not yet repaid the debt.  On 2 December 2017 at about 3:30 am, PW1 went to a public toilet at Hung Hom because he was told that the defendant was looking for him.

3.  Shortly after arrival nearby the public toilet, the defendant and 2 other males suddenly appeared and attacked PW1 with fists and kicks.  PW1 soon lost consciousness.  PW1’s girlfriend (“PW2”) witnessed the incident and also saw the defendant taking out a cutter.  She was afraid and left the scene to seek help from PW1’s brothers.

4.  When PW2 and others went back to the scene, they saw PW1 lying unconscious on the ground, while the defendant and the other 2 males had left.

5.  PW1 was conveyed to hospital and the diagnosis was “a chop wound at left back about 10 cm, and multiple abrasion wounds on his face”.  PW1 was hospitalized for 3 days.

6.  On 24 January 2018, the defendant was arrested.  He admitted assaulting PW1 under caution.

7.  The defendant admits that he unlawfully and maliciously caused grievous bodily harm to PW1 with intent to do him grievous bodily harm.

8.  The defendant is a Filipino and was born in Hong Kong.  He is now 32 years old, married with 3 children aged 9 months, 5 years and 8 years.  He has been working as a chef for many years and was earning $19,000 per month.  His wife is a housewife.  He has 1 previous conviction record of AOABH in 2007, namely more than 10 years ago.

9.  In mitigation, Mr Khosa, counsel for the defendant, said that the defendant and PW1 got acquainted in June 2017.  The defendant lent $200 to PW1, who did not repay it despite repeated demands.  On the night in question, after the defendant and his friends had a dinner and consumed some alcohol, they bumped into PW2.  The defendant asked PW2 to phone PW1 and ask him to come down as the defendant was intending to collect his debt.  Later on, the defendant and 2 of his friends assaulted PW1.

10.  I do not accept that it was not premeditated.  In fact, the summary of facts admitted by the defendant says clearly that the defendant and 2 males “suddenly” appeared and then assaulted the victim.  Mr Khosa admits that there was some degree of premeditation.

11.  The defendant is now remorse for what he did and wrote a mitigation letter.  Mr Khosa also submits several mitigation letters written by defendant’s wife, relatives, colleague and employer.

12.  The present charge is the most serious crimes of violence (non-fatal) in our law, which carries a maximum of life sentence.  However, there are no tariffs for this type of offence because of the myriad circumstances under which the offence can be committed.  That said, the usual range for consideration is one of 3 to 12 years’ imprisonment.

13.  In HKSAR v Chan Chun Tat, CACC 317/2012, the Court of Appeal listed out a number of facts relevant to a determination of the gravity of the offence and the culpability of the offender.  These factors include:-

“the extent to which the assault was premeditated, the reasons or motivation underlying the assault upon the victim, the mental or emotional state of the assailant at the time of the assault, whether alcohol or drugs contributed to the actions of the assailant, whether the assault was committed by the assailant alone or as part of a group, the type of weapons employed, the level of force or aggression and the persistence with which the assault was pressed home, the injuries caused to the victim and the effect of the assault upon the victim and those close to him or her.”

14.  I accept that the whole matter derived from PW1’s failure to repay a debt and the defendant had just consumed some alcohol. However, the facts of the present case were that upon PW1’s arrival at the scene, the defendant and 2 other males suddenly appeared and started attacked PW1 with fist and kicks at first and then the defendant used a cutter.  It was premeditated.  Further, the assault was committed jointly against PW1 who was obviously barehanded.  Mr Khosa pointed out that the main injuries suffered by PW1 was to the head caused by kicks and punches, and a 10 cm cut wound under PW1’s left shoulder.  However, the fact is that PW1 was being assaulted until he became unconscious.  The fortunate fact is that PW1 suffered no permanent or lasting injury.

15.  I have also considered the personal background of the defendant.  His last conviction dated back to 2007 when he was about 20 years old.  He is now the sole breadwinner of his family, including 3 young children.  Although I do not consider these are important mitigation factor, I accept that the defendant had learnt a lesson and is unlikely to re-offend in future.

16.  Without downplaying the seriousness of what the defendant had done to PW1, I accept the facts of the present case appears to be not the serious of its kind.  Taking all the circumstance into account, I adopt a starting point of 3 years and 6 months’ imprisonment.  Given the usual one-third discount, the defendant is sentenced to 2 years and 4 months’ imprisonment.