HKSAR v. QAISER , FAISAL

HCMA 637/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 637 OF 2013

(ON APPEAL FROM TMCC NO. 1276 OF 2013)

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REASONS FOR JUDGMENT

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Introduction

1. The appellant was the 2^nd accused in a joint trial with four other persons for an offence of assault occasioning actual bodily harm (“AOABH”), contrary to common law and section 39 of the Offences Against the Person Ordinance, Cap 212 .  He pleaded not guilty and was tried with his co-accuseds before Deputy Magistrate Mr Hui Chun-sing at Tuen Mun Magistracy between 22 and 23 July 2013.  On 13 August 2013 the appellant, together with three of his co-accuseds, was convicted and on 10 September 2013 was sentenced to Detention Centre.

2. The appellant appealed against his sentence.  At the hearing of the appeal I allowed the appeal and substituted for the sentence of the magistrate a sentence of 6 months’ imprisonment suspended for 18 months.  I said I would give my reasons for so doing and this I now do.

The Background to the Offence

3. On 15 May 2012 the victim was walking along Castle Peak Road with a friend when he was stopped and surrounded by a group of six Pakistani males amongst whom was the appellant.  The victim, who was only 19 years of age at the time, was also of Pakistani ethnicity.  One of these Pakistani males spoke to the victim in Urdu and told the victim that he was a member of the 14K triad society.  After about 2 to 3 minutes, a motor vehicle arrived at the scene and three Chinese males alighted from it.  The victim was then assaulted by all those present.  After punching and kicking the victim for 1 to 2 minutes all the assailants left.

4. The victim appears to have suffered no permanent injury as a result of this assault.  After the assault he received medical treatment and was diagnosed as suffering from tenderness over the forehead and neck, a superficial abrasion over the forehead, bruising over the right posterior scalp and superficial lacerations over both forearms.

The Background of the Appellant

5. The appellant was born on 7 July 1991 in Pakistan.  He came to Hong Kong in 1994 and lived with his family.  In January 2002, the appellant’s family were allotted a public housing unit and it is there they now live.  The appellant’s mother and father are both alive and he has three brothers and two sisters. The appellant is the second eldest in the family and the older brother has already left home.

6. The appellant performed very poorly in school and left school in September 2007 after failing to complete Form One.  He would then have been 16 years of age.  However, in October 2006, whilst still in school, he was involved in a group attack on another young boy for which he was ultimately prosecuted for the offence of AOABH and placed on probation for 12 months.

7. After dropping out of school, the appellant commenced employment.  At the age of 18 he married a Pakistani girl in Pakistan.  His wife moved to England and later gave birth to a daughter and a son there and it is there that they currently reside.  The appellant provides financial support for them from time to time.  His most recent employment was with his brother who runs a night-time vegetable delivery service.

8. On 5 November 2007 the appellant was arrested for an outstanding triad-related case in which he is accused of claiming to a Pakistani youngster to be a member of a triad society.  This case was brought on for mention before Tuen Mun Magistrates’ Courts on 16 and 30 August 2013.  I am informed by his counsel that the appellant pleaded guilty to this offence and was sentenced to 2 months’ imprisonment suspended for 12 months.  Whilst on remand for that and the current case he has apparently been behaving himself without incurring any disciplinary offences.  Whilst on bail he has been gainfully employed and has complied with all his bail conditions.

The Sentencing Hearing

9. At the sentencing hearing on 13 August 2013, the counsel from the Duty Lawyer Service then appearing for the appellant requested the magistrate to call for a probation report.  Although the case was clearly prosecuted as a joint enterprise, it was said that the protagonist in the assault was another person and that the appellant had played a much lesser role in the assault.  Although the magistrate was minded to call for a probation report for the 3^rd, 4^th and 5^th accuseds, in respect of the appellant, he decided to call for only a Detention Centre report.

10. At the resumed hearing on 27 August 2013 the appellant was represented by a different lawyer from the Duty Lawyer Service.  At this hearing his new counsel repeated the request that the magistrate obtain a probation report.  In support of his request, he informed the magistrate that the appellant had been gainfully employed in the period that he had been on bail and that notwithstanding a comment in the Detention Centre report that he continued to deny the offence he did, in fact, admit his involvement in the assault and expressed remorse for it.  Reference was made by his counsel to the earlier occasion when he had been placed on probation, some 6 years previously, and the magistrate was reminded that he had satisfactorily completed that probation order.  The magistrate was persuaded to accede to the appellant counsel’s request for a Probation Officer’s report and adjourned the case further to 10 September.

11. Whenever the magistrate adjourned the case for the purpose of obtaining reports on the appellant or, for that matter any of the other accuseds, the accuseds were remanded in custody.

12. On 10 September 2013 the case resumed.  Now, the magistrate had the benefit not only of a Detention Centre report, which contained the recommendation that the appellant was suitable for Detention Centre, but also a Probation Officer’s report.  The Probation Officer’s report did not recommend probation.

13. The Detention Centre report went into some detail on the family background of the appellant.  It revealed that the father had been diagnosed with heart disease and required regular follow up treatments at hospital.  It said of the mother that she was quite “a permissive mother who did not manage to spare sufficient time taking good care of every child of her.  Coupled with bad peer influence, defendant turned playful in his teens and sometimes turned a deaf ear to his parents’ advice”.  The parents are still responsible for looking after the appellant’s younger siblings and they vary in age from 18 to 4 years of age.  The appellant remains on good terms with his family but he does not live there with them, only visiting from time to time.  At the time of the offence, the appellant was living in his older brother’s place and was working for him.

14. In the Probation Officer’s report, the appellant did refer to his outstanding case at Tuen Mun Magistrates’ Courts and admitted that he had verbally claimed himself to be a triad member of the Wo Shing Wo but said that this was a false claim and that he did not have, in fact, any triad society links.

15. In respect of the current offence, he said that he became involved in the assault because a friend of the 3^rd accused had been beaten recently by the victim.  Thus, the assault on this victim was a revenge attack on behalf of the 3^rd accused’s friend.  The appellant said that at the scene he only kicked the victim’s left leg twice while the victim lay on the ground.  He stressed that he had not punched the victim’s head and face in the incident.

16. In the Probation Officer’s Conclusion and Recommendation to her report, she said that in recent years the appellant had not appeared to grasp the chance to reform himself as his current offence appeared to be similar in nature to his first offence.  Furthermore, he was involved in an outstanding court case of claiming to be a member of a triad society.  The Probation Officer was also concerned that there were different versions from the appellant and his family as to where he lived and she felt that this indicated that there might not be genuine cooperation with a Supervising Officer should the appellant be placed on probation.  She concluded that the appellant’s rehabilitation will depend very much on his own individual efforts to reform rather than any external intervention. Thus, she did not see that probation supervision was appropriate as that is, in fact, a form of external advice.  However, she did note that the appellant appeared to have learnt a bitter lesson from his recent experience with the police and the courts and, in her words “understood the weakness of resorting violence to settle dispute and the legal consequence of violating the law”.

17. In addressing the matters contained within these two reports, the appellant’s counsel emphasized that the appellant was now indicating remorse and emphasized that he had learned a lesson from this experience.  He noted that the appellant had been in custody for 4 weeks and suggested to the magistrate that a suspended sentence or a custodial sentence which allowed for his immediate release were options that should commend themselves to the magistrate.  His counsel again emphasized that the appellant had been in employment whenever he had been on bail.  As to the issue in respect of his accommodation, his counsel said that there was simply a breakdown in communication between the family members and the Probation Officer because of their poor language ability.  He said that the appellant would live both with his brother and his parents as he would often go back to the parents’ place for a sleep in the afternoon.

18. The magistrate recognized, correctly in my view, that the circumstances of this offence made it a serious case.  He noted that the appellant was 22 years of age and so concluded that a rehabilitative approach should be adopted to his sentencing.  He also noted that the appellant had been given an opportunity to rehabilitate himself in an open setting in 2006 when he had committed a similar offence.  By this she was clearly referring to his experience then with probation.

19. The magistrate concluded that there was an inability of the appellant’s family to render sufficient supervision to him and that he was subject to the influence of his peers.  The magistrate concluded that “a period of disciplinary training in a setting which could assist the 2^nd Defendant to sever the bad influence by his peers would be both appropriate in the personal circumstances of the 2^nd Defendant and in the light of the assault committed by the 2^nd Defendant”.  This was essentially the reason she gave for ordering the appellant to be placed in a Detention Centre.

Grounds of Appeal Against Sentence

20. There are six grounds of appeal.  The first is the magistrate did not take into account the appellant’s physical and mental fitness before imposing a Detention Centre order.  Although the appellant was said in the Detention Centre report to be fit for Detention Centre, it now transpires that he has suffered from mild adolescent scoliosis which was diagnosed in April 2004.  A report on his condition has only come to life after his sentencing.  This ground of appeal relies on his medical condition to suggest that he is unsuitable for Detention Centre.

21. The second ground of appeal complained that the magistrate erred in remanding the appellant in custody for a total of 28 days after his conviction in order to call for the two reports.  This, it is said, breaches section 4(5) of the Detention Centre Ordinance, Cap 239 and results in the magistrate’s order being ulta vires the provisions of the ordinance.  The section of the Detention Centre’s Ordinance requires that a court not remand a person in custody for more than 3 weeks in order to enable the Commissioner of Correctional Services to form an opinion as to whether or not the young offender is suitable for detention.

22. The third ground of appeal is the magistrate erred in his finding that the appellant’s family was unable to render sufficient supervision on him in order to ensure his rehabilitation.

23. The fourth ground of appeal is in effect a disparity of sentence ground and the complaint is that the appellant has been treated more harshly than his co-accused.

24. The fifth ground of appeal complains that the magistrate erred in taking into account the appellant’s 2006 Spent Conviction.

25. The sixth ground of appeal is simply a ground complaining that the sentence is ultra vires manifestly excessive and wrong in principle.

26. In addition, the appellant applies to adduce fresh evidence on appeal through an affirmation of his father.  The key piece of fresh evidence is the diagnosis of scoliosis which condition has apparently caused the appellant some difficulty with the physical aspects of the Detention Centre regime.  One of the documents exhibited to the affirmation is an up-to-date medical report by the Medical Officer of Sha Tsui Correctional Institution.  That Medical Officer said that X-ray investigation of the appellant’s spine has been arranged and the appellant has been referred to the orthopedic clinic of Queen Elizabeth Hospital for further assessment of his back problem.

Discussion

27. An appeal from a magistrate’s decision is a rehearing and so it is now incumbent upon me to reach my own conclusion as to the appropriate sentence for the appellant.  In order to do so I thought that it was necessary in the interests of justice that I should receive the affirmation of the father and so I allowed the application to adduce fresh evidence on appeal.

28. I share the magistrate’s opinion that probation is not likely to be assistance to the rehabilitation of the appellant.  I think the Probation Officer is correct in her assessment that the appellant’s rehabilitation is now very much in his hands and if it is to be achieved it will be through his own efforts. Given his age and past response to parental supervision and the family’s circumstances I do not see any point in looking to his mother and father for meaningful supervision and monitoring of his behaviour.  That is not to undervalue the benefit that he will receive from their continuing love and support.  Clearly, these will be most important to the success of his efforts to rehabilitate himself.

29. The appellant has served 3 months in Detention Centre and spent 1 month on remand.  I am told by his counsel that he has learnt a bitter lesson from all of this and is determined to reform.  I am concerned that with his health problems any further period in detention will be counter-productive to his rehabilitation.  I think the best way that this Court can contribute to his rehabilitation is to release him from detention now but to leave hanging over his head the prospect of incarceration should he not continue with his efforts to reform himself.  This can be achieved by imposing on him a suspended sentence.

30. Determining the length of the suspended sentence is my first task.  I take into account the period spend in detention and on remand but, nevertheless, I am of the view that a sentence of 6 months’ imprisonment is appropriate.  This was a joint enterprise attack by 9 persons against one 19 years old youth.  It had triad overtones to it and involved multiple assaults upon the victim about his body and head.  Even though the injuries to the victim appear not to have been significant this is more fortuitous than anything else.  For an offence of this kind a deterrent sentence is needed and given the appellant’s background and the fact that his conviction was after trial there is no reason extend any leniency to him in the assessment of the length of the sentence.

31. The period of the suspended sentence is important in providing the appellant with the motivation to pursue his efforts to reform and rehabilitate himself.  I adjudge 18 months as necessary to achieve this goal.

32. For these reasons I allowed the appeal, quashed the sentence of the magistrate and in substitution for it imposed on the appellant a sentence of 6 months’ imprisonment suspended for 18 months.