HKSAR v. GENGATHARAN MAYURAN AND ANOTHER

DCCC1231/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1231 OF 2008

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Reasons for Sentence

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1.  The 2nd defendant has pleaded guilty to two charges.  The 1st charge is one of common assault. 

2.  The particulars are that on 1 October 2008 at premises in Pat Heung in the New Territories he assaulted Palanivelu Balasubramanian.  The 2nd charge to which the 2nd defendant has pleaded guilty is one of wounding with intent.  It was committed on the same day and at the same place as the first offence and the victim in that case was a brother of the first victim and the brother’s name is Palanivel Mahendran. 

3.  The 3rd charge which was proffered against the 1st defendant only is one of common assault.  The assault occurred on the same occasion as the first 2 charges and at the same venue and the victim in that case was Sivarajah Sivatharan. 

4.  The amended Summary of Facts admitted by both defendants discloses that the two victims are brothers.  The first one, Mr Mahendran, whom I’ll refer to as PW1, is aged 22; and the second one, Mr Balasubramanian, is 24.  I’ll refer to him as PW2.  The victim in the 3rd charge I will refer to as PW5 and he is aged 30. 

5.  The 1st and 2nd defendants are acquainted with each other and the victims and the defendants and a number of other people occupy very modest accommodation at the place where the offences were committed.  The defendants and the victims are all from outside Hong Kong.  They are from Sri Lanka and India and they are asylum seekers in Hong Kong.  At the premises where the offences were committed the 1st and 2nd defendant share a room inside those premises. 

6.  On the afternoon of 1 October last year at 4 pm a party was held in the corridor of the premises where the defendants live in order to celebrate the national day of Indonesia.  I am told that the reason for the celebration was that they were hosting some Indonesia ladies at the premises for the purposes of holding a party.  The celebrations went into the night and at 10 o’clock PW1 to PW5, as well as the defendants, were still in the corridor at the premises. 

7.  The first two victims complained to the 2nd defendant that the music coming from his room was too loud and requested that he turn down the volume.  When the defendant refused, an argument started.  In the heat of that argument the 2nd defendant bit the right thumb of PW2, and that was the subject of the 1st charge against him.  PW1 immediately pushed D2 aside in order to avoid further violence.  D2 then went to his room where he picked up an iron rod which was about a foot in length and he threw it at PW1.  The iron rod missed him.  The 2nd defendant then went back again to his room and he emerged on this occasion holding a sharp object which he hid behind his back.  He rushed towards PW1 and using this sharp object he stabbed the victim in his stomach. 

8.  The 2nd defendant immediately went away from the scene with the sharp object and he rushed back into his room and locked the door.  PW5 tried to enter the room to apprehend the 2nd defendant.  The 1st defendant was outside the room and he picked up a wooden plank from the ground and swung it at PW5 in order to stop him from entering the room.  PW5 attempted to force open the door of the room and D1 tried to stop him.  While struggling with PW5, the 1st defendant pushed PW5 to the ground and that is the subject of the charge to which he has pleaded guilty, and meanwhile the 2nd defendant fled from his room through a window.  The matter was reported to the police.

9.  The various victims took PW1 to Tuen Mun Hospital.  According to the doctor PW1 was in a stable haemodynamic status on admission.  He noted a 3.5 centimetre transverse wound over PW1’s left upper abdomen with active bleeding.  An emergency operation was performed.  Intraoperatively there was a transverse left upper abdomen wound of 3.5 centimetres in diameter extending through the muscle and breaching the peritoneum.  The tip of the left 10th rib was fractured.  Fortunately, there was no injury to the intra-abdominal organ.  The doctors noticed another 1 centimetre superficial abrasion below the 3.5 centimetre wound.  PW1 was kept in intensive care.  His recovery was uneventful and he was discharged from hospital on 8 October. 

10.  PW2 was examined at the hospital and found to have two small bite wounds over the dorsum of his right thumb with no active oozing or discharge. 

11.  The 1st defendant attended hospital and he was observed to have tenderness to his right knee.  At the hospital PW5 identified the 1st defendant to police officers there and he was arrested and cautioned and under caution denied having assaulted PW5. 

12.  On the following day, 2 October, the 2nd defendant surrendered to the police at Tuen Mun Police Station.  Two days later he attended the Accident and Emergency Department of the hospital for examination and was found to have no injury.  Certain objects which the police suspected to have been used by the defendant - namely, a wooden plank and by the 2nd defendant a fruit knife and an iron rod - were recovered by the police at the premises.  According to counsel representing the 2nd defendant the fruit knife which was recovered was not the implement used to inflict the injuries, nor was the iron rod. 

13.  Both defendants have clear records.  I do not propose to say much about the 1st defendant.  He has pleaded guilty to a relatively minor offence of common assault.  He is aged 21.  He comes from Sri Lanka.  He arrived in Hong Kong in 2006 and is seeking asylum.  He receives a very modest monthly social security payment.  I was told that in respect of this matter he has already had two days in custody when he was initially arrested and I propose to deal with him by sentencing him to one day’s imprisonment.  He can sit down.

14.  The 2nd defendant obviously is in a much more serious situation.  I am told that he is 32 years of age.  He is married and comes from India.  He has a child.  He came to Hong Kong in 2007.  He has applied for asylum status in Hong Kong.  Back in India he has elderly parents whom he is responsible for in addition to his wife and 4 year old son.  I am told that he has a clear record in India.  In mitigation, I am told that he is very remorseful.  I take into account that he voluntarily surrendered to the police the day after the incident. 

15.  I was told that on the day of the incident it was a party that was being held and drink had been taken by all parties concerned; the victims and the defendants.  The party started at 4 o’clock in the afternoon and the incident occurred at 10 pm.  I am told that there was ill feeling on the part of the 2nd defendant because he had had an item stolen from his room a couple of days previously.  I am told that when the 2nd victim started to complain to the 2nd defendant about the noise of music coming from his room that an argument developed and it was in the heat of that argument that the 2nd defendant assaulted PW2.  Unfortunately, the argument did not stop there and later on the 2nd defendant attacked PW1 with the implement.  I am told that the injury to the stomach was not caused by a knife but was caused by a part of a glass bottle which was broken. 

16.  The charge of wounding with intent to which the 2nd defendant has pleaded guilty is obviously a very serious offence.  Sentences for this kind of offence vary from 3 years to 12 years and it very much depends on the circumstances in which the injuries were inflicted.  Obviously, because of the nature of the offence - it is wounding with intent - the courts take a very serious view of this kind of offence.

17.  I accept what counsel has said in mitigation in this case that the defendant had lost his control in the spur of the moment and it was an incident where all parties had consumed a considerable amount of alcohol.  But this is not the sort of case where the defendant picked up an implement during the heat of an argument and used it.  After biting the second victim the defendant went to his room and came out with an iron rod and he threw that at PW1.  When that missed PW1 the 2nd defendant returned to his room and emerged a second time with an implement.  On this occasion it was a sharp object which he hid behind his back.  I am told by his counsel that the object was part of a broken bottle, and using this broken bottle he rushed towards PW1 and stabbed him at his waist and it caused a serious injury.  It is extremely fortunate that the victim suffered no injury to the intra-abdominal organ.  Had that occurred, a much more serious charge might well have been proffered in this case. 

18.  I have seen the photograph of the injury and the area to which the injury occurred.  It was in the photograph album, Photograph No. 47. 

19.  The only mitigation in this case is that the defendant surrendered to the police the day after the incident and he has pleaded guilty to this offence. 

20.  In respect of that serious matter, the 2nd charge, I take a view that a starting point of 5 years would be appropriate and I will give him the usual discount of one-third for his guilty plea.  He will be sentenced, therefore, to a prison sentence of 40 months. 

21.  In respect of the 1st charge, the common assault charge, I impose a sentence of one day’s imprisonment to run concurrently.