HKSAR v. HUSSAIN ARSALAN AND OTHERS

DCCC 206/2025

[2026] HKDC 914

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 206 OF 2025

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REASONS FOR SENTENCE

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1.  After trial before me, D1 to D3 were convicted of the following 4 charges on the Charge Sheet.

2.  Charge 1 is Wounding with intent, contrary to section 17(a)  of the Offences against the Person Ordinance, Cap 212.  Particulars are that D1 to D3, on 29 July 2024, at Central Kwai Chung Park, San Kwai Street, Kwai Chung, New Territories, in Hong Kong, unlawfully and maliciously wounded MANJ Mohammad Suleman Khan (PW1)  with intent to do him grievous bodily harm.

3.  Charge 2 is Causing grievous bodily harm with intent, contrary to section 17(a)  of the Offences against the Person Ordinance, Cap 212.  Particulars are that D1 to D3, on the same day, at the same place, in Hong Kong, unlawfully and maliciously caused grievous bodily harm to MANJ Mohammad Qasim Khan (PW3)  with intent to do him grievous bodily harm.

4.  Charge 3 is Assault occasioning actual bodily harm, contrary to Common Law and punishable under section 39 of the Offences against the Person Ordinance, Cap 212. Particulars are that D1 to D3, on the same day, at the same place, in Hong Kong, assaulted MANJ Mohammad Ibrahim Khan (PW2), thereby occasioning him actual bodily harm.

5.  Charge 4 is Assault occasioning actual bodily harm, contrary to Common Law and punishable under Section 39 of the Offences against the Person Ordinance, Cap 212. Particulars are that D1 to D3, on the same day, at the same place, in Hong Kong, assaulted Subhaan-Naveed-Khan (PW4), thereby occasioning him actual bodily harm.

Salient facts upon which D1 to D3 are to be sentenced

6.  There was a prior misunderstanding or dispute between two groups of brothers ie PW1-3 on the one hand and D1-3 on the other.

7.  On the day of the offences, at night time, D3 went to the crime scene to negotiate for a settlement between the two groups.  D3 spoke with PW1-3.  PW4, a cousin of PW1-3, was also present.

8.  After some brief exchanges, D3 left the scene by walking away while at the same time using a mobile phone.

9.  A few minutes later, an LGV arrived near the scene.  D3 ran to the LGV and yelled, “Grab the tools.”

10.  D1 got out of the front passenger seat with a stick-like weapon.

11.  D2 got out of the driver’s seat with a hammer.

12.  D3 opened the door at the backseat and took out a stick-like weapon.

13.  D1-3 rushed towards PW1-4.

14.  D1 hit PW1’s head with stick-like weapon.  PW1[1] snatched the weapon from D1. (Charge 1 Part 1)

15.  D2 hit PW3’s head with hammer.  PW1 said, “Don’t do it.”  D2 said, “Hit them on their heads.” (Charge 2)

16.  D1 approached PW3.  PW1 swung the stick-like weapon towards D1 to scare away D1 and might have hit D1.

17.  D3 snatched the stick-like weapon from PW1.

18.  D3 and D2 chased after PW1.  D3 and D2 hit PW1’s head with stick-like weapon and hammer respectively for 2-3 times.  PW1 fell to the ground.  D3 dragged PW1 causing him knee injuries. (Charge 1 Part 2)

19.  PW2 tried to stop D3 and D2.  D2 hit PW2’s head with hammer.  PW2 protected his head with his arms but fell to the ground.  D2 continued to hit PW2 in his arm and leg several times. (Charge 3)

20.  D3 and D2 then approached PW4.  D2 hit PW4’s left elbow with hammer 2-3 times.  D3 hit PW4’s left knee with stick-like weapon. (Charge 4)

21.  Eventually, D1-3 left by the same LGV.

22.  The following injuries were suffered:

(a)  PW1: (i)  an 8 cm central scalp laceration; (ii)  a 1 cm left scalp laceration; (iii)  abrasions over both hands, right elbow and both knees. PW1’s scalp wounds were sutured and he was discharged same day. (Charge 1)

(b)  PW2: (i)  tenderness over left scalp and left lateral elbow; (ii)  abrasions over left elbow, left wrist, both knees, left big and 2^nd toes and right hand dorsum; (iii)  range of motion of left elbow, left big and 2^nd toes was limited. PW2 was discharged the same day after treatment. (Charge 3)

(c)  PW3: (i)  swelling and tenderness on left scalp; (ii)  abrasion over right elbow; (iii)  CT brain showed left pneumocephalus and subdural hemorrhage. PW3 was admitted to Neurosurgery Ward for further management where CT brain showed traumatic subarachnoid hemorrhage, cerebral contusion, and fracture at left temporal region. Repeated CT scans showed static lesions. He was hospitalized for about 7 days. (Charge 2)

(d)  PW4: (i)  bruises on left elbow; (ii)  tenderness over proximal radius. PW4 was discharged on same day after treatment. (Charge 4)

Criminal records

23.  D1 has a clear record.

24.  D2 has 4 previous convictions one of which was for common assault recorded in 2017.

25.  D3 has 6 previous convictions, three of which were related to violence with the last one recorded in 2019.  On 10 August 2022, D3 was given a suspended sentence for possession of dangerous drug of 6 weeks’ imprisonment suspended for 24 months (hence operational on the date of the present offences).

Antecedents

26.  D1 born in Hong Kong is aged 27 (25 at the time of the offences), educated to secondary school level in Hong Kong.  Before arrest, D1 worked as a transportation worker with a monthly salary of $13,000.  D1 has 2 elder brothers D2 and D3 and one younger sister.  D1 is married and has a daughter aged 2.  D1 lives with his parents and D3 and the younger sister in public housing in Kwai Chung.

27.  D2 born in Pakistan is aged 34 (32 at the time of the offences), educated to secondary school level in Hong Kong.  Before arrest, D2 worked as a transportation worker with a monthly salary of $13,000.  D2 has 2 younger brothers D3 and D1 and one younger sister.  D2 is single, living in private housing in Tai Kok Tsui alone.

28.  D3 born in Hong Kong is aged 30 (29 at the time of the offences), educated to F2 level in Hong Kong.  Before arrest, D3 was unemployed.  D3 was last discharged from prison in September 2019.  D3 has an elder brother D2 and a younger brother D1 and one younger sister.  D3 is married and has a daughter and a son.  D3 lives with his parents, D1, his younger sister, his wife and his two children.

Mitigation

29.  Mr William Allan and Ms Natalie Lam both of counsel mitigated on behalf of D1 to D3.  The following is a summary of the mitigation submissions.

30.  This is a tragedy in which three brothers have been convicted.  Defence have been trying to agree the whole case except for the testimonies of PW1-3.

31.  D1 has a clear record.  He is a family man.  Wife is in UK.  He has been unable to go back to UK because of these proceedings.  D1 is a good husband and gave his salary to his wife.

32.  D1 has been suffering from emotional distress because of this case.  There was something going on in the background.

33.  Although Wounding 17 is the most serious in the family of similar offences, the PWs did not suffer permanent physical injuries or mental distress.

34.  Although D2 has a criminal record, there was nothing related save and except a common assault in 2017.

35.  D2 did not dispute the majority of the evidence.  Similar to D1, there was something going on in the background.

36.  D3 has a criminal record; his last conviction was in 2022.

37.  Generally, this case has no triad element.  Defence all along agreed most of the evidence and challenged only the ID issue.  Defence never dragged on the case.

38.  There were no permanent injuries on the victims.

39.  The court is urged to adopt the lowest starting point for “Wounding 17” and to consider totality for all offences before passing short prison sentences on the defendants.

Sentence

40.  A common theme running across all of the charges is that this was a joint enterprise premeditated attack led by D2, fueled by a prior misunderstanding or dispute.  I infer the dominant role of D2 from a combination of factors: he was the eldest brother; he was the driver; he held the most lethal weapon – a hammer; he almost always played the role of spear-head in the attacks on all victims; and in the heat of the attack, he gave the order: “Hit them on their heads.”

41.  Charge 1 Wounding with intent, and Charge 2 Causing grievous bodily harm with intent (both contrary to section 17(a)  of the Offences against the Person Ordinance, Cap 212), may be considered together.  They constitute the most serious offences on the Charge Sheet.  The maximum sentence is life imprisonment.  There are no tariff guidelines for the offence.

42.  The usual sentence after trial for this offence is 3 to 12 years’ imprisonment: HKSAR v Chan Chun Tat [2013] 6 HKC 225.

43.  The Court of Appeal in paras 49-50 of Chan Chun Tat gave helpful guidance to a sentencing court when dealing with this sort of case:

“49. … many of the factors to which a court will have regard in determining the gravity of a s 17 offence and the culpability of the offender will relate to the type of harm intended to be inflicted, the means by which that harm was inflicted and the circumstances generally surrounding the assault. Thus, without attempting to exhaustively identi[f]y all the relevant factors, the usual ones will be the extent to which the assault was premeditated, the reasons or motivation underlying the assault upon the victim, the mental or emotional state of the assailant at the time of the assault, whether alcohol or drugs contributed to the actions of the assailant, whether the assault was committed by the assailant alone or as a part of a group, the type of weapons employed, the level of force or aggression and the persistence with which the assault was pressed home, the injuries caused to the victim and the effect of the assault upon the victim and those close to him or her.

50. In arriving at an appropriate sentence the court will have regard not just to the need to punish the offender for his conduct, but also to the sentencing principles of deterrence, both general and individual, and, in appropriate cases, the need to denounce the resort to violence. Of course deterrence and denunciation are always important when there is resort to violence but there may be particular situations that call for greater deterrence, such as in triad gang or contract attacks, or more denunciatory sentences, such as in domestic violence cases.”

44.  For Charge 1, although the injuries suffered by PW1 were not severe, it is the intent to cause really serious bodily injury that is of primary importance.  A hammer has been used on PW1’s head.  This has the potential of causing death.  After PW1 fell, D3 continued to drag him causing him knee injuries.

45.  For Charge 2, PW3 suffered more severe injuries including internal bleeding and fracture in the head.  The attack on his head with hammer was merciless.  Again, the use of a hammer on the head has the potential of causing death.

46.  For Charges 1 and 2, factoring in the elements of joint enterprise and planning and premeditation, I adopt a starting point of 4 years 3 months’ imprisonment on each.  D2 being the ring-leader will attract an additional 3 months for his role.

47.  Charges 3 and 4 are Assault occasioning actual bodily harm.  The maximum sentence is 3 years’ imprisonment.

48.  For Charge 3, PW2’s head was attacked with a hammer.  He defended his head with his arms resulting in injuries.  D2 continued to hit him after he fell.  It is pure luck he did not sustain a more severe injury in the head.

49.  Again, factoring in the elements of joint enterprise and planning and premeditation, for Charge 3, I adopt a starting point of 1 year 9 months’ imprisonment.  For his leading role, D2 will get an additional 3 months.

50.  For Charge 4, the injuries sustained by PW4 were relatively slight.  Factoring in the elements of joint enterprise and planning and premeditation, I adopt a starting point of 12 months’ imprisonment.  For his leading role, D2 will get an additional 3 months.

51.  None of the 3 defendants pleaded guilty so they cannot benefit from a sentence reduction stemmimg from remorse.

52.  However, the defence was run sensibly by agreeing to the majority of the prosecution’s case.  For that positive attitude, I will take off two months from the sentences of Charges 1 and 2, and one month from the sentences of Charges 3 and 4.

53.  In addition, in the case of D1 only, for his clear record, I will take off from his sentences an extra one month for his previous clear record.

54.  There are no other mitigating factors of weight that can justify another sentence reduction for any of the defendants.

55.  D3 committed these offences during the operational period of a suspended sentence.  Since he was nearing the end of the operational period (by only 12 days), I will activate one month only of the 6 weeks’ suspended term that was imposed in August 2022, to be served consecutively to the sentences about to be imposed in this case.

56.  All four offences in this case took place at the same place at the same time.  However, they were directed at different victims.  I feel unable to order their associated sentences to be served wholly concurrently.

57.  I will order partly concurrent sentences wherever I could; and I also bear in mind the principle of totality when I do so.

(D1 to D3, please stand)

58.  On Charge 1, the sentence for D1 is 48 months’ imprisonment; the sentence for D2 is 52 months’ imprisonment; the sentence for D3 is 49 months’ imprisonment.

59.  On Charge 2, the sentence for D1 is 48 months’ imprisonment; the sentence for D2 is 52 months’ imprisonment; the sentence for D3 is 49 months’ imprisonment.

60.  On Charge 3, the sentence for D1 is 19 months’ imprisonment; the sentence for D2 is 23 months’ imprisonment; the sentence for D3 is 20 months’ imprisonment.

61.  On Charge 4, the sentence for D1 is 10 months’ imprisonment; the sentence for D2 is 14 months’ imprisonment; the sentence for D3 is 11 months’ imprisonment.

62.  I make the following orders.

63.  For D1, I order that two months of the sentence on Charge 2, one month of the sentence on Charge 3, and one month of the sentence on Charge 4, are each to run consecutively to the sentence on Charge 1, making an aggregate sentence of 52 months’ imprisonment.

64.  For D2, I order that two months of the sentence on Charge 2, one month of the sentence on Charge 3, and one month of the sentence on Charge 4, are each to run consecutively to the sentence on Charge 1, making an aggregate sentence of 56 months’ imprisonment.

65.  For D3, I order that two months of the sentence on Charge 2, one month of the sentence on Charge 3, and one month of the sentence on Charge 4, are each to run consecutively to the sentence on Charge 1, making an aggregate sentence of 53 months’ imprisonment in this case alone.  I further order that one month of the 6 weeks’ imprisonment sentence suspended under WK/2783/22 be activated and to run consecutively to the aggregate sentence of this case, making a final sentence for D3 of 54 months’ imprisonment.