HKSAR v. MUHAMMAD QASIM BHATTI

DCCC 101/2018

[2018] HKDC 1156

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 101 OF 2018

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Reasons for Sentence

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1.  Defendant pleaded guilty to 3 charges, including theft, inflicting grievous bodily harm and wounding with intent, contrary to s.9 of the Theft Ordinance, Cap 210, s.19 and s.17(a) of the Offences against the Person Ordinance, Cap 212.

Charge 1

2.  At about 1 pm on 26 October 2017, defendant approached the fruit stall at hawker stall No RE78, No 45A Reclamation Street, Yau Ma Tei, Kowloon.  The owner of the stall, PW1, Mr Cheung, saw the defendant take a guava from the stall and about to eat it without payment, so he stopped the defendant.  The defendant threw the guava at the stall and then attempted to push over the fruit baskets.  PW1 stopped the defendant by pressing his hands down.

Charge 2

3.  The defendant scolded PW1 with Cantonese foul language and tried to flee, but was stopped by PW1 as PW1 grabbed his jacket.  The defendant then scratched PW1’s neck with his left hand and hit PW1’s head with his right elbow 2 to 3 times.  PW1 managed to block a few hits.  Then the defendant pulled him, causing him to fall onto the ground facing upwards.  As PW1’s left foot was stuck at the bottom of a trolley, he twisted his ankle as he fell.  Afterwards, the defendant sat on top of him and punched him.  PW1 grabbed the defendant’s hands to stop him and shouted for help.

4.  Owner of the nearby stall, PW2, Mr Tang, came forth to stop the defendant from further attacking PW1.

Charge 3

5.  The defendant ran away along Saigon Street.  PW2 gave chase on Saigon Street.  PW2 locked the defendant’s hands behind his back and pushed him against the railings. Suddenly, the defendant took out a 16-cm long yellow cutter with his left hand and cut PW2’s left forearm 3 times.  PW2’s forearm began bleeding right away. 

6.  The defendant fled again.  PW2 continued to chase and grabbed the defendant’s jacket.  The defendant took it off and continued to run away.  Some passers-by called the ambulance while some others chased the defendant.  They also saw the attack by the defendant’s cutter.

7.  The police officers later arrived and saw the defendant holding a yellow cutter and warned him to put it down.  The defendant dropped the cutter and then dropped a black spanner and 2 pliers from his trousers pocket onto the ground.  The defendant struggled but was eventually subdued and arrested by the police officers.

Victims’ Injuries

8.  PW1 was diagnosed with fracture of left ankle and abrasion of upper chest.  Open surgery was performed on his ankle.  He was hospitalised for a total of 11 days.

9.  PW2 sustained a left wrist laceration wound and 2 forearm laceration wounds and had tendon injury. PW2 had received 43 stitches and upon a further hospital visit in December 2017, it was diagnosed that his left wrist extension movement was satisfactory.

10.  PW1 and PW2 had positively identified the defendant in the identification parade.  The defendant now admits that he stole property belonging to another, namely, a guava; unlawfully and maliciously inflicted grievous bodily harm upon PW1; and unlawfully and maliciously wounded PW2 with intent to do him grievous bodily harm.

11.  The defendant is a Form 8 recognisance holder.  He is aged 36 and had 5 previous criminal convictions, 2 involving possession of dangerous drugs and Part I poisons and both were fined.  No similar record, but the defendant is in breach of a binding over order imposed on 27 June 2016 for 24 months of $2,000 to keep peace and not to commit any offences involving violence.

12.  Mr Hotten submits that the defendant feels very remorseful for what he had done.  He had not planned to injure anyone, but for the fast and quick escalation of the event, that may be out of fear then he had foolishly resorted to violence.  The defendant now sincerely apologise and is sorry for causing all the injuries to both victims. He pleaded guilty at the earliest opportunity and hope for a lenient sentence.

13.  Wounding with intent and inflicting grievous bodily harm are both serious offences.  The Court of Appeal in HKSAR v Yuen Wai Kui CACC 280/2004 and Secretary for Justice v Yu Yat Sang [2011] 1 HKC 155 has stated that the normal range of sentence is from 3 to 12 years’ imprisonment depending on the facts of the case.  And in HKSAR v Chan Chun Tat [2013] 6 HKC 225, it further stated that the sentence is meant to be deterrent; the factors to be taken into account would include whether the assault was premeditated, reasons and motivation underlying, the mental or emotional state of the assailants, alone or as part of a group, the persistency and injuries and effect of the assault upon the victim.

14.  In the present case, the defendant acted alone and apparently did not plan to cause the injury at the outset, but for the running away and out of fear that he took out the cutter and wounded the victim.  The cutter was 16 cm long and the defendant inflicted 3 times that the victim needed to receive 43 stitches.  It is fortunate that the left wrist movement is now apparently satisfactory.

15.  As to the inflicting grievous bodily harm on Mr Cheung, the scratch and the elbow hits were serious and eventually causing him to fall and hurt his ankle seriously.  Operation needed to be done and he was hospitalised for 11 days.  The facts were clearly serious, but taking into account all the above factors, I consider it appropriate for the wounding charge, the starting point to be 2 years and 9 months’ imprisonment.  And for the inflicting bodily harm, 18 months’ imprisonment be adopted. 

16.  However, as for the Form 8 recognisance holder, the Court of Appeal in HKSAR v Junaid Ahmed CACC 79/2017 summarised some previous cases and affirmed the decision to enhance the sentence for offenders of such status.

17.  So for the above 2 charges, it is appropriate to enhance 3 months’ imprisonment separately and accordingly.  And upon guilty plea, for the wounding charge, it comes down to 2 years’ and for the inflicting charge, it comes down to 14 months’ imprisonment.  And for the theft charge, I consider it appropriate to impose 1 week’s imprisonment after guilty plea.

18.  And lastly, on the totality principle, I consider the total sentence to be 28 months’ imprisonment to be appropriate for all charges.  So the sentence will be as follows:

1st charge: 1 week’s imprisonment;

2nd charge: 14 months’ imprisonment;

3rd charge: 2 years’ imprisonment;

The 1st and the 2nd charge to be run concurrently, of which 4 months to be made consecutive to the 3rd charge.

19.  So for all the offences, a total of 28 months’ imprisonment will be imposed.

20.  And lastly, in relation to the breach of binding order, in view of the substantial imprisonment term and that the defendant had no money to pay, I do not think it necessary and appropriate to impose any further sanction.