HKSAR v. HUSSEINI YAWUZA

DCCC 931/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 931 OF 2014

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Reasons for Sentence

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1.  This defendant has been convicted after trial of inflicting grievous bodily harm, contrary to section 19 of the Offences Against the Person Ordinance, Cap 212. I do not intend to repeat the facts of this case. I referred to the circumstances and facts in full in my verdict.

2.  The defendant is 28 years old and originally from Ghana and is in Hong Kong seeking asylum; his application for that asylum is being processed.  Since arriving in Hong Kong, he has met and married in the last few months a Hong Kong resident, and they have two children: a daughter who is 2 and a half and a son who is a month old.

3.  The defendant is not a man of clear record in Hong Kong.  He has two previous convictions.  In December 2012, he was convicted of trafficking in dangerous drugs and sentenced to 4 months’ imprisonment.  In June 2013, he was convicted of possession of dangerous drugs and sentenced to 4 weeks’ imprisonment suspended for 30 months.  This wounding charge took place on 1 August 2014.  The defendant is in breach of that suspended sentence.

4.  Mr Donald has mitigated in full for the defendant and referred me to several authorities.  However, there is no sentencing guideline in this type of crime.  The maximum term of imprisonment for a section 19 offence is 3 years’ imprisonment.  As there is no tariff, sentences depend on the facts of each individual case.

5.  To summarise the incident, at about 2 am on Cochrane Street in Central on 1 August last year, there was obviously a confrontation or some sort of altercation between the defendant and the victim.  They did not know each other.  On that evening, the victim walked past the defendant with his wife.  Both had been drinking and the wife described the victim as being drunk.  In fact, she was holding his arm and guiding him to a taxi because he was not steady on his feet.

6.  She recalls she thinks he bumped into somebody. The defendant was standing to one side of Cochrane Street and said he was sober.  From the CCTV camera footage of P2, there is a 15‑second gap where the victim walks out of the camera range.  That something, be it an altercation or a confrontation, happened within that 15-second period.

7.  The facts are that from the footage and the independent witness’ evidence, the victim steps down two steps and goes to walk up the same steps.  At the same time, one can see from the footage the defendant prepares himself and is ready to kick the victim.  In my findings, he executed a dangerous and skilful reverse high kick with force.  Instantaneously, the victim buckles and falls.  PW3 described him as being knocked flying off the stairs.

8.  From the time period seen in the photographs taken from the CCTV and the description given by PW3, the victim would not have seen that kick coming.  I found the defendant lied when he said he had never kicked like that.  I do not accept that anyone but a trained person could kick that way.  He executed it with skill and precision and made contact with the victim’s head or chest.  Such skill should not be used to attack.  I did not find that this kick was executed in self-defence.

9.  The victim was in the intensive care unit for days.  He suffered a fractured skull, fractured sinus bone and had a haematoma on his brain.  He was rushed into surgery.  He was in hospital for weeks.  In fact, according to the medical reports which I have said are P15 to P17, he was put into a medically-induced coma.  He did return to work a month later.

10.  In his evidence in court, he says that his left hearing is impaired; and in December 2014, he had a seizure which meant he has had to go back to taking anti-seizure medication which he was given as a result of this injury.  At the moment, he cannot drive and he cannot play football.  Memory‑loss issues have arisen and he has been told by doctors to avoid any stressful situations.  One cannot describe him as having fully recovered.  Although the injuries are not the only consideration where sentencing is concerned, it is still relevant.

11.  I have taken into account the defendant’s background and mitigation put forward on his behalf.  As I have said, I have also taken into account the injuries suffered by the victim as a result of the kick.  I have considered the facts of the case and how the confrontation arose.  It is not the worst possible case for an offence of this nature but nonetheless it is serious.  A term of imprisonment is entirely appropriate.

12.  Taking into account all those factors, I take a starting point of 2 years’ imprisonment.  Having been convicted after trial, I see no other reason to lower that starting point.  For this offence, the defendant is sentenced to 2 years’ imprisonment.

13.  There is the matter of the breach of suspended sentence, and considering its nature is entirely different and that this offence occurred within a year or so of that suspended sentence, I will order that 4 weeks of Eastern Magistracy case 2173 of 2013 be served and served consecutively to the 2 years.  The total sentence therefore is 2 years and 4 weeks’ imprisonment.