HKSAR v. THAPA BIKASH

DCCC201/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 201 OF 2012

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Reasons for Sentence

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1.  Defendant, you pleaded guilty to two charges before me. The 1st charge is inflicting grievous bodily harm, contrary to section 19 of the Offences Against the Person Ordinance, Chapter 212; and the 2nd charge is one of assaulting a police officer in the due execution of his duty, contrary to section 36(b) of the same ordinance.

2.  Both offences took place on the same date, that is, 22 December 2011.  The 1st offence was committed outside Bar 109 in Lockhart Road, Wanchai where you unlawfully and maliciously inflicted grievous bodily harm upon a male named William Clair Allen.  Later that day, you also assaulted a senior police constable at the Report Room of Wanchai Police Station in Arsenal Street, Wanchai, in the due execution of his duty.

3.  On 22 December at about 10.40 am, the victim in Charge 1, Mr Allen, a 55-year-old USA citizen, was drinking alone at the Bar 109.  By that time, he had been out drinking, for much of the night before and had drunk several bottles of beer but was not drunk.

4.  Defendant you and a your friend named Limbu, who are both Nepalese males, were also inside the same bar.

5.  Inside the bar, the victim, Mr Allen, saw a dispute between other customers.  He tried to mediate between the parties.  Your friend Limbu then approached the victim and had a quarrel with him.  Shortly thereafter you, Limbu and the victim were expelled from the bar by the staff of the bar. 

6.  Despite being expelled from the bar the victim, nevertheless, remained standing in an area just outside the bar.  He left by the front door of the bar whilst you and your friend left by the rear door.  Whilst the victim was standing outside the bar he was making phone calls on his phone.

7.  Approximately nine minutes later, the following events were caught on a CCTV recording.   Whilst the victim was standing outside the bar, you and your friend rushed towards him.  You then hit the victim with your belt, knocking his mobile phone to the ground.  Your friend, Limbu, tried to separate you from the victim.  However, the three of you then wrestled.  You punched the victim for at least three times on his face and also kicked him at his face when the victim fell on the ground.  Mr Allen fell down as the victims became entangled with your friend and A staff member of the bar came forward and stopped you.  Thereafter you and your friend Limbu then fled from the scene aboard a taxi.  Fortunately, a report was made to police who were nearby and the police officers followed the taxi that you were aboard.  Eventually you and Limbu were intercepted by the police officers. 

8.  Bloodstains were found on both of your hands and the shirt and coat that you wore.  The victim’s face was bleeding seriously and he was taken to the hospital for medical treatment.  His injuries was one laceration with surrounding bruise over his forehead, swelling and bruising over his right face, two lacerations over his right face and small bruises over his right anterior neck.  His right face laceration was stitched and it was about 3 centimetres in length.  There was also subconjunctival haemorrhage over his right eye.  He was treated and discharged from the hospital on the same day.

9.  After you were intercepted, you were arrested.  You immediately put up a fierce struggle but was subsequently subdued and brought to Wanchai Police Station.  At the Wanchai Police Station, when you were already handcuffed, you put up another fierce struggle and tried to free yourself.  In doing so you elbowed the senior police officer of Charge 2 in his chest. Despite a verbal warning, you continued to struggle and hit the officer again, as a result, pepper spray was applied and you were subdued.  This again was all recorded by CCTV camera.

10.  The next day, there was a video-recorded-interview with you.  In the presence of a Nepalese interpreter you admitted that you had fought with a foreigner.  However, as you had drunk a lot of wine, you could not remember the details of the fight.  You also remembered someone had sprayed something on you at the police station but could not recall the details as you were drunk.

11.  Mr Duncan Percy, your counsel, has made full mitigation on your behalf and I have taken into account all that he has had to say.  At the time of the commission of this offence, you were 20 years of age.  You have two previous criminal convictions: one of theft (shoplifting) in 2009 to which you were fined $800 in the magistracy; and also obstructing a police officer in the due execution of his duty in the same month in 2009, to which you were sentenced to probation for 12 months.

12.  Prior to sentencing you, I called for a detention centre report.  That report, I am told by Mr Percy, is understood by you but you disagree that you are a drug dependent.  In the opinion of the medical officer he considers you a drug dependent, he considers you unsuitable for detention in a detention centre.  It appears that your drug history at paragraph 7 of the report states that you started smoking cannabis at the young age of 8 when you we were studying in Nepal and continued to take it twice a week with your friends when you came to Hong Kong.  In early 2012, you have said you smoked cocaine-filled cigarettes twice, and your last dose of cannabis and cocaine were taken in early 2012 and early June 2012.

13.  Mr Percy has rightly said that he cannot challenge the opinion of the medical officer although it appears to me that in view of your drug-taking you are not considered suitable for detention in a detention centre.

14.  As to the reasons why you were out early in the morning and drunk at that time, I am told that you had in fact been working as a guard or bouncer at one of the bars nearby.  You worked from 8 pm till 6 am.  After work, you then frequented some of the bars in Wanchai.  Inside the bar at 109, you had heard some sound of glass breaking and there was somebody in the bar who had pushed you out or challenged you to a fight and the security staff then expelled you from the bar.  

15.  It is said by Mr Percy that you were very drunk and did not recall what had happened.  However, what is clear, Mr Percy says, is that being a bouncer or security staff, it is not in your nature to be aggressive or to be involved in fights because you are there to actually prevent them from happening.  You have, however, realised that you did commit these offences, and through your plea of guilty, you have demonstrated your remorse and you are very sorry for what you did. 

16.  The explanation you can offer is that you had drunk too much and therefore involved yourself in a fight.  I think you now realise drinking can get you into trouble.  It is time that you are able to control yourself and stop drinking at a certain level. Otherwise as can be seen in this case, you will not be able to know what you are doing and lose control.

17.  These incidents did not happen at the spur of the moment.  It appears that after you were expelled from the bar, some nine minutes later you went at the victim with your belt and knocked his mobile phone out of his hand.  This is an aggravating factor.  You had continued to assault and wound the victim at his head area which is a very sensitive and dangerous part of the body to attack anyone.  I am informed that there were no permanent injuries and you are very fortunate that that is so.  

18.  At the material time of the offence, I accept you were a young man aged 20 years.  Rehabilitation should be uppermost in my mind.  The only option open to me really would be of detention centre and that is now no longer an option that is open.  I have taken into account, your young age and your greatest mitigating factor of a plea of guilty.  I have also been informed that you have given compensation to the victim, Mr Allen, of some $5,000.  These are all matters which I take into account when sentencing you.

19.  These are serious offences as you know, Defendant.  Both offences warrant immediate custodial sentences. 

20.  In the circumstances, Defendant, had I convicted you after trial on Charge 1, I would have imposed a sentence of 12 months’ imprisonment.  Taking into account your plea of guilty and the fact that you have paid compensation to the victim, I reduce that term to one of 6 months’ imprisonment.

21.  On Charge 2, had I convicted you after trial I would have taken are starting point of 3 months’ imprisonment, giving you full credit for your plea of guilty, I reduce that term to one of 2 months’ imprisonment.  Taking into account the principle of totality, the 2nd charge is a separate and distinct offence I order 1 month of Charge 2 to run consecutive to Charge 1. 

22.  The total term of imprisonment will therefore be 7 months’ imprisonment, to which you will be so sentenced.