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DCCC 934/2017
[2018] HKDC 736
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 934 OF 2017
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| Before: |
HH Judge C P Pang |
| Present: |
Mr Frederic Whitehouse, Counsel on fiat, for HKSAR |
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Mr Kamlesh Arjan Sadhwani, instructed by Littlewoods,
assigned by the Director of Legal Aid, for the defendant |
| Offence: |
Attempted wounding (企圖傷人) |
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REASONS FOR SENTENCE
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1. The defendant originally faced one charge of attempted wounding with intent, contrary to section 17(a) of the Offences Against the Person Ordinance. The defendant pleaded not guilty to the charge. The case was hence set down for trial before me. On the first day of trial, the parties informed the court that as a result of discussion on the plea, the prosecution would accept a guilty plea to a lesser charge, namely, attempted wounding, contrary to section 19 of the same ordinance. The charge was subsequently amended accordingly, to which the defendant pleaded guilty. He was convicted accordingly upon his admission of the facts read out in court.
2. The facts admitted by the defendant reveal that the incident took place on the night of 19 August 2017 at Ground Floor, No 28 Marble Road, Quarry Bay, Hong Kong (“the offence location”). PW1 had known the defendant for about a month. On that night, PW1 was with PW2 and PW3 in Central. At about 11:20 pm, PW1 received a call from the defendant. They later met at the offence location. The defendant appeared to be drunk and he immediately asked why PW1 said the defendant was a rapist. Suddenly, the defendant pulled out a knife to attack PW1. PW2 and PW3 held onto the defendant and stopped the attack.
3. A nearby CCTV captured the incident. It can be seen that at about 11:54 pm, the defendant who was originally sitting, suddenly withdrew a sharp object from his back pocket and appeared to stab one of the other males. The other three males immediately responded by grabbing his arms and wrestling him to ground where he was assaulted by the group.
4. Police officers later attended the offence location and noticed that the defendant was acting emotionally and smelt of alcohol. A fruit knife with handle about 19 cm long was seized at the scene. The blade is pointed and about 8.5 cm long.
5. PW1 was medically examined and discharged on the same day. He was diagnosed to have suffered abrasions on his abdominal wall. The defendant also suffered injuries in the later assault on him.
6. A video-recorded interview was conducted with the defendant. Under caution, he claimed that he asked PW3 to repay a debt of HK$3,000 but PW1 responded by insulting the defendant’s mother. PW1 then drew a knife to attack the defendant. The defendant only tried to snatch away the knife, and in the process, PW1’s abdomen was stabbed. The defendant was then beaten up by PW1, PW2 and PW3. He could not remember anything else after that.
7. The defendant is a 27-year-old Indian. He is a Form 8 holder, ie a torture-claim applicant, who came to Hong Kong in 2010 and since then overstayed here. He has four previous convictions, including rape and violent offences.
8. In mitigation, Mr Sadhwani, counsel for the defendant, tells the court that on the night in question, the defendant had consumed eight cans of beer. He committed the offence under the influence of alcohol. The attack was not premeditated. While the defendant caused the minor injury to PW1, he was himself assaulted by the group and sustained a more serious injury as revealed in his medical report. It is said that the defendant is now remorseful.
9. Defence counsel draws my attention to two cases: a Magistracy Appeal case decided 30 years ago and a District Court sentencing case. The two cases having their own special facts are, with respect, not much of assistance to this court. Initially, defence counsel relied upon what the defendant said in the video-recorded interview. After a short adjournment for clarification, Mr Sadhwani confirms that he would not rely on the defendant’s claim in the video-recorded interview.
10. In relation to the proper discount for the defendant’s plea of guilty, defence counsel complains that the defence only received the CCTV footage of the incident and informed that PW2 and PW3 would also be called as prosecution witnesses only a few days before trial. The defence was therefore deprived of proper notice of the strength of the prosecution’s case. Counsel asks for full one-third discount for the defendant’s plea of guilty.
11. Mr Whitehouse for the prosecution confirms that PW2 and PW3 are additional witnesses called by the prosecution. He does not accept that there was a delay in providing the defence the CCTV footage of the incident which was served on the defence on 12 January this year. Mr Whitehouse, however, fairly concedes that the defendant only has the first opportunity now to plead guilty to the lesser charge.
12. Mr Sadhwani makes the suggestion that the prosecution might ascertain the attitude of the victim as to whether he would forgive the defendant, but defence counsel has no idea about it yet.
Reasons for sentence
13. In my judgment, the offence committed by the defendant was a serious one. I have inspected the weapon used by the defendant. It is a fruit knife with an 8.5 cm long sharp and pointed blade, which can be a lethal weapon. As can be seen from the prosecution’s photo album, the knife actually punched through the victim’s upper garment, causing abrasion to his abdomen. The defendant must have used it to stab at the abdomen of the victim. It was only by sheer luck that the victim did not sustain more serious injury.
14. I accept that it was not a premeditated offence. I also accept that the defendant was under the influence of alcohol at the time of the offence. In the circumstances of the case, I would adopt 18 months’ imprisonment as the starting point of the offence. The injury sustained by the defendant must have been to some extent caused to him when the prosecution witnesses had to subdue him. In any case, the severity of the defendant’s injury is not to such an extent that a reduction of sentence is warranted. Committing the offence under the influence of alcohol is not a mitigating factor.
15. Mr Sadhwani has not put forward any basis in support of his suggestion that the victim might have forgiven the defendant. Even if it was the case, little weight can be given for a reduction of sentence when the crime was committed by a dangerous weapon and under the influence of alcohol in a public place. Moreover, the defendant has previous convictions for violence. In my view, apart from the defendant’s plea of guilty, there is no mitigating factor to justify any reduction of his sentence.
16. Insofar as the proper discount for the plea of guilty is concerned, the prosecution fairly concedes that the defendant was only afforded the opportunity to plead guilty to the lesser charge on the first day of trial. The defendant indeed immediately pleaded guilty to the charge when it was amended. In the circumstances, I will therefore treat his guilty plea as a timely plea and exercise my discretion to allow him the full one-third discount as if he pleaded guilty at the first reasonable opportunity. The dispute as to when the CCTV footage of the incident was served on the defence becomes irrelevant and I do not need to make any finding.
17. For the reasons given above, the defendant is sentenced to 12 months’ imprisonment.
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( C P Pang ) |
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District Judge |
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