HKSAR v. GURUNG TOPENDRA

DCCC104/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 104 OF 2008

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Reasons for Sentence

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1.  The defendant appeared before me on 7 August 2008 and pleaded guilty to a single count of wounding, contrary to Section 19 of the Offences Against The Person Ordinance, Cap.212.

2.  Before sentencing, I adjourned the sentence for the purpose of obtaining a Community Service Order Report.  The report recommended that the defendant be placed on a Community Service Order. 

3.  I took into account the fact that the defendant was remorseful at that time and the fact the he had already been incarcerated for some 80 days and he should have learned a bitter lesson.  Also, the victim in that case was the defendant’s girlfriend.  The couple were co-habitating at the time and the victim had expressed that she had forgiven the mistake committed by the defendant and they were desirable to get married after the case.

4.   Based on the above consideration, I was of the view at that time that it was time the couple moved forward in their lives together and to rehabilitate rather then to punish the defendant. I imposed a Community Service Order for 160 hours in lieu of an immediate custodial sentence.

5.  After imposing the Order, I also explained to the defendant in clear terms the effect of the Order and also the consequences of the breach of the Order. 

6.  However, on 22 May this year, which is more than 8½  months after the Order was imposed, I received a letter from the Community Service Order Office, informing that the defendant was in breach of the Order.

7.  In the three pages Statement of the Facts, it clearly described the allegations how the defendant was in breach of the Order. 

8.  So far, the defendant had only completed a total of 32 hours of unpaid work.  He had defaulted lots of assignments of unpaid work arranged for him with all sort of excuses, such as physical illness or time clashes with his paid work in Macau, etc.  However, it is noted that he never was able to produce any medical certificate to substantiate his allegation of illness.

9.  When he also expressed that he was short of money to travel to do the assignment, the Community Service Office had also referred him to the Social Welfare Department for the application of Social Security payment but he never attended the Social Welfare Department for services.

10.  Four warning letters have so far been issued to him on his unsatisfactory performance but the defendant failed to improve and, as such, the officer concerned has grave doubt about the ability of the defendant to complete the outstanding 128 hours of unpaid work in the remaining weeks.

11.  In short, the defendant’s performance during the period was so unsatisfactory that he was considered to have failed to perform the Order.   

12.  The defendant was summonsed to appear before me this morning.  He is unrepresented and he has expressed that he had no intention to instruct lawyer to represent him in this hearing. 

13.  Before the hearing, I have also asked that the content of the Statement of the Facts be read and explained to the defendant and he told me that he understood the content of the report and, most importantly, he agreed that he was in breach of the Order. 

14.  I offered an opportunity for the defendant to explain to me what had happened and the defendant accepted his breach but asked me to consider, instead of sending him to prison, either to impose a fine or simply to increase the hours of the Order.

15.  He said that his relationship with his girlfriend had deteriorated to such an extent that his girlfriend has recently married with another person.  In any event, he planned to start work in July and stating that he was the breadwinner of the family in Nepal and asked that he would not be sent to prison for this matter.

16.   I am of the view that in light of the serious allegations which has been agreed by the defendant in the Statement of the Facts provided to the court, it is proved to the satisfaction of this court that the defendant has failed without any reasonable excuse to comply with the terms or conditions of the Order.

17.  In my mind, the only suitable course of action is simply to revoke the order. 

18.  Under the Community Service Orders Ordinance (Cap. 378) I have the power to deal with the defendant ‘in any manner in which the offender could have been dealt with for that offence by the court which made the order if the order had not been made’. 

19.  In my mind, in light of the breach of the Order, I consider an immediate custodial sentence is inevitable. This case was a wounding case involving, as it were, a domestic dispute between the defendant and a female girlfriend.  According to the Summary of Facts, at the material time, the defendant hit his girlfriend’s head with a 4 foot long metal sweeper handle.  There was bleeding from the back of her head, and later on, when the girlfriend was admitted to the hospital for treatment, medical finding confirmed that the girlfriend had four stitches at the back of the head. She has sustained altogether 4 cm laceration on the left occiput, which was described as deep; 3 cm laceration on the right occiput, which is described as superficial; there were also bruising on the right lateral aspect of the head and the right shoulder.

20.  The defendant had a clear record before the commission of this offence and that was why, as I said, I considered a CSO at that time but now that he had breached the Order, knowing full well the consequences of the breach, I have no alternative, as I said but to pass a sentence of 12 months. Taking into account that it was a plea of guilty case, I would give him the usual one-third discount, reducing the sentence therefore to a total of 8 months’ imprisonment. The Order was thereby revoked.