HKSAR v. CHHEENA MUHAMMAD BINIAMEEN AND ANOTHER

DCCC 839/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 839 OF 2013

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1. The defendants have been found guilty of Charge 1, joint charge of wounding (a Section 17 offence), and the 1st defendant has been found guilty of the second charge, theft of the mobile phone belonging to the victim, who dropped it in the course of the attack. Both defendants have been found guilty after trial.

2. I have given full reasons and described the evidence in detail in my verdict.  I do not intend to repeat it, except to summarise my findings. 

3. I am sure the victim on 9 May last year was out (meaning not home) when he received a telephone call threatening him and his family, warning him not to give evidence in a case where he witnessed an attack a few weeks prior.  He was on his way home when he received this call. 

4. Not long after, he arrived at his home and outside his building he saw a group of Southeast Asian men with weapons.  He saw golf clubs and a knife or chopper.  He was identified by someone in the group and that person told the others to beat him up.  He entered his building and started to hurry upstairs. 

5. From the CCTV footage, it seems he heard some noise (and I note there is no audio on the CCTV footage) when he started to rush and look behind him. 

6. On the CCTV footage, one can see three men running into the building, one after the other.  The first two men were carrying golf clubs and the third man a hockey stick. 

7. From the CCTV footage, one can see the third man trip up the stairs and fall behind.  However, he regains his balance and carries on up to follow the other two men, who are pursuing PW1, the victim. 

8. The only male of the three able to hit the victim is the man in front, because the other two are one behind the other. The first male swings viciously.  From CCTV footage, I see seven blows and one cannot see how many other blows there were out of the camera range.  It is fortunate PW1 was not more seriously injured.  The force of the swings or the blows is vicious and a golf club is very capable of doing serious injury.

9. From the CCTV footage, one sees the first and second male turn to retreat and grab the third male on the way down.  That third male is seen reaching the group with his hockey stick held upwards.

10. The victim received a cut to the web between his thumb and first finger that he says was split when it was hit by several blows with a golf club.  He required 15 stitches in his hand.

11. The defendants deny their presence on the stairwell, but I found that they were stopped by a group of police officers approximately one street away, running away from the scene of the attack.

12. I found that the 1st defendant had a golf club in one hand and PW1’s mobile phone in the other.  The 2nd defendant held nothing, but was running with the 1st defendant.

13. Not long after they were stopped, a hockey stick was found lying on the road, from which they had run out of.

14. Forensic evidence showed that the 1st defendant had a spot of PW1’s blood on his vest and shoe.  The golf club he was holding had PW1’s blood on it.  2nd defendant’s shoe was found to have PW1’s blood on it.  The hockey stick found on the road was found to have PW1’s blood on it. In total, five items had PW1’s blood on it.

15. When both defendants were stopped and separated, both told the police they had been in a fight.  The 1st defendant said it was in Portland Street.  The 2nd defendant said nothing, but did point towards Portland Street.

16. The victim, PW1, identified both defendants in an identification parade the next day, but I found his identification evidence weak and not reliable on its own.  I found I could take it into account when considering it with other facts I found proved.

17. As I have said, both defendants denied involvement in this attack and it was alternatively argued for the 2nd defendant that, if he was the third male with the hockey stick, he had distanced himself sufficiently on the staircase from the other men to no longer be part of a joint enterprise. 

18. I did reject their submissions.

19. I found the 1st defendant was the second male in the CCTV footage, holding a golf club.  The 2nd defendant was either the first male who delivered all the blows or the third male with a hockey stick.

20. PW1 said he identified the 2nd defendant because he looked like the third male with a hockey stick, but he was not 100 per cent sure.

21. The 2nd defendant’s shoes, which were seized, are very similar to the shoes seen worn by the third male carrying the hockey stick on the CCTV footage.

22. The 1st defendant absconded before verdict was delivered and nobody could locate him.  The police confirmed that he had not been arrested nor was he in a public hospital.

23. I found he deliberately absented himself and proceeded in his absence.

24. Mr Tibbo mitigated on his behalf in his absence after he was convicted of both offences.

25. Mrs Panesar has mitigated today on behalf of the 2nd defendant.

26. The 1st defendant is not a man of clear record.  He came to Hong Kong seeking asylum from Pakistan.  He is now 28 years old.  Since 2009, he has five previous convictions:  three involve violence, one involves criminal damage and one involves dangerous drugs.

27. The 2nd defendant came to Hong Kong in 2011 from India and is now 24 years old.  He also is not of clear record.  In 2012, he committed an attempted indecent assault and a breach of his condition of stay. He too is seeking asylum in Hong Kong.

28. Both defendants held a Form 8 issued by the Immigration Department to prove their status in Hong Kong.

29. I have heard mitigation on behalf of both defendants.

30. Mr Tibbo asks the court to consider a starting point under 3 years.  This is despite the 1st defendant’s poor record for offences that involve violence.

31. Mrs Panesar submits again this morning that the court should consider 2nd defendant did not have the same intent as the other men to wound PW1, in that he did not carry through with any agreement made between assailants.

32. I rejected this submission again:  I found both defendants party to a joint enterprise.

33. Joint enterprise is where one or more immediately cause the actus reus of an offence.  I did find an irresistible inference that a joint enterprise existed and the defendants participated in it, the agreement being an intention to harm/wound PW1.

34. Certainly, to be armed with either a golf club or a hockey stick and chase the victim on command to beat him up would lead any participant to this agreement to foresee PW1 would be wounded.

35. If the joint enterprise is to intend to cause grievous bodily harm, which I find existed on the facts proven and considered together, especially after viewing the CCTV footage, then it matters not which person in the joint enterprise struck the blow that wounded PW1.  The two defendants are as culpable as each other.

36. With an offence such as this, an appropriate sentence is fact sensitive.  It has been said often that the usual range of sentence is between 3 to 12 years for this offence and I referred to Secretary for Justice v Hau Ping Chuen [2008] 3 HKC 398.  However, everything depends entirely on the particular facts of each case.

37. I find in this case there are relevant and particularly serious factors.  These include:  the attack was unprovoked by PW1; the attack on him was premeditated; he was threatened, then ambushed and wounded.  I am sure the reason behind it was to prevent him giving evidence in court; essentially, to pervert the course of justice.

38. The defendants and others went to his residence armed with golf clubs and hockey sticks, which can cause serious injury if used to beat someone.  Without a doubt, the type of injury that would result from using such weapons can be foreseen.

39. It is also relevant the defendants brazenly confronted PW1, the victim, in a public place on the street, in a concerted attack, concerted in that there were three of them at least.  In this case, there were multiple armed attackers against one unarmed victim taken by surprise. 

40. The CCTV footage shows the suddenness of the attack and the ferocious way in which the first male swung his golf club at him.  It is entirely fortuitous that PW1 was not more seriously injured and that the defendants were not facing a more serious charge.

41. I take all those factors into account, plus the fact that PW1 has made a full recovery with no lasting damage to his hand.

42. Defendant, please stand up.

43. After considering the facts of this case, and those relevant factors I have just set out, as well as mitigation put forward, for:

(1) Charge 1, I take a starting point of 4 years’ imprisonment for both defendants;

(2) Charge 2, I take a starting point of 6 months for the theft of the phone. I found it to be an opportunistic theft. I see no reason for any further discount.

44. 1st defendant:

(1) Charge 1 would be a 4-year term of imprisonment;

(2) Charge 2, 6-month term of imprisonment, 3 months of which would be served consecutively to Charge 1;

total of 4 years and 3 months.

45. 2nd defendant:  Charge 1, you are sentenced to 4 years’ imprisonment.