HKSAR v. THAPA MAGAR AKASH

DCCC 103/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 103 OF 2016

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Reasons for Sentence

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1.  The defendant has in fact pleaded guilty to one offence of assault occasioning actual bodily harm and he has agreed the facts in the case insofar as they relate to him.

2.  The offence took place in the morning, early morning of 26 June 2015 near a bar called Volar in D’Aguilar Street in Central, and the victim was a customer of that establishment.  The victim was outside the establishment and he was assaulted.  An unidentified Chinese male came and punched him in the face without saying anything.  Following this, there seemed to be some kind of melee evolved in which the defendant was involved, and the facts state that a fight ensued between four males, the defendant and other wanted persons and the victim. 

3.  During that time the victim was forced to retreat to the basement corridor of Volar by the defendant and the other men. And in the course of this the victim was hit with a bottle.  The entire attack lasted about three minutes.

4.  The defendant was arrested and admitted -- made an admission under caution that he did attack the victim, and that was confirmed by a CCTV recording.   The defendant made further admissions under caution.  He said that he was the person who had had a beer bottle in his hand.  He said at that time he hit the victim in self-defence and he had thrown the beer bottle.

5.  The victim himself received various injuries including lacerations over the nose and the upper lip.  There were lacerations over the left shoulder and he was in hospital for three days. 

6.  Now, the defendant’s admission -- his involvement relates to the commission of an assault occasioning actual bodily harm although it does appear some more serious injuries were incurred.   The defendant his liability and culpability relates only to that offence.

7.  Turning to the defendant’s antecedents.   He is 19 years old and he’s a person of clear record in Hong Kong.  He lives with his family in an address in Temple Street in Jordan, completed secondary education in Nepal in 2015.  I now understand that he is working for his father running a store in Jordan.  Although at some point he had wanted to continue further education in Nepal, that is not going to be the case now.

8.  The defendant’s mitigation is that he is remorseful. He had seen the fight develop between the victim and the other men, and some of the defendant’s friends became involved.  And he said he came under attack by the victim and hit him back in defence.  But he accepts that what he did went beyond what would be legitimately used in self-defence.  And he said he was a person who became caught in a situation that developed rather than setting out intentionally to attack someone. 

9.  Because the defendant has pleaded guilty to this charge where there is no guideline sentencing and there is no requirement on the court that the sentence should necessarily be one of immediate or suspended sentences of imprisonment, the court has a broad discretion when sentencing as to how to approach this case.

10.  The salient fact is although the offence is serious, the defendant is a person of clear record and he is a young man.  And with a person such as that, the object of the court at this stage should be to consider a sentence which is rehabilitative. 

11.  I obtained reports from the probation service as to the defendant’s suitability for either probation or for community service. Initially, in the report of 14 June there was some reluctance to recommend the defendant for either of those forms of rehabilitative sentence.  It was thought that the defendant had little insight into the infringement of the law and his responsibility. 

12.  A further report was obtained on 15 July this year.  The defendant was much more forthcoming about his place, his involvement in this offence and again expressed remorse and promised not to drink alcohol again when he went out.  

13.  The defendant has an -- I am told, has plans for further studies of computer science, business management at Vocational Training Council after the court’s disposal, whilst at the same time he will be helping his father run the store in Jordan.

14.  The conclusion of the probation officer’s report is, in view of the accused’s willingness to disclose more about his commission of the offence and having more inspection towards his impulsive acts, probation order with counselling service for 12 months, it says, can be tried for his rehabilitation.   This is contrasted with the community service order which being work orientated is considered not suitable for the defendant.

15.  I consider having regard to the defendant’s previous clear record, his age and the advantages that can be gained in preventing the commission of further offences by a probation order that is the appropriate disposal for the defendant.  He will benefit from counselling services and can be a person who will greatly benefit for this. 

16.  Having regard to that, the court will consider that is the appropriate disposal, so the court is minded to impose a probation order for 12 months.  That is an order that requires the defendant’s consent and the defendant must be aware of the nature of such an order before he gives his consent.

17.  The proposal is that you will be under the supervision of a probation officer for the next 12 months.   You must keep the peace generally during that period.  You must not commit any further offences.   You must follow the reasonable directions of your probation officer.  If you commit any further offence during the course of the probation order, then you can be brought back to this court and sentence again for the offence of which you were convicted.  Now, do you understand the requirements of the probation?  You must also tell your probation officer if you change your address or your employment.  Are you aware of these conditions?

DEFENDANT: Yes.

18.  Do you consent to be placed on probation for that period?

DEFENDANT: (Answers in English) Okay.

19.  All right.  I make that order then, probation order for 12 months.