HKSAR v. BUTT AHTSHAM

DCCC 839/2021

[2022] HKDC 752

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 839 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant is charged with one count of wounding with intent, contrary to section 17(a)  of the Offences against the Person Ordinance, Cap 212, to which he pleaded guilty and was convicted accordingly.

The Admitted Facts

2.  At around 5:00 pm on 4 June 2021, Asad Abbas, a Pakistani and Form 8 holder (PW1), was walking in Sham Shui Po area.  Upon reaching the junction between Kweilin Street and Tai Nan Street, he saw a Pakistani male standing in the middle of the road.  They were about 3 metres apart.  PW1 recognised that male (who was later identified as the defendant)  whom PW1 had known for seven or eight years, but as an acquaintance only.

3.  The defendant approached PW1 and was holding an object resembling a knife in his right hand.  Suddenly the defendant ran towards PW1.  PW1 turned around and ran.  Whilst running, PW1 suddenly felt his left waist near his lungs was stabbed by a sharp object.  PW1 felt painful but kept running and looking backwards and saw the defendant chasing after him with the knife.  On running to Lai Chi Kok Road near Yen Chow Street, PW1 saw the defendant no longer chasing after him.  PW1 walked to Sham Shui Po Police Station where he reported the case to the police.

4.  PW1 was then taken to the medical centre by ambulance where he was found to have sustained a stab wound on the left side chest wall and was sutured with six stitches.  Physical examination showed a 3 cm laceration over left lateral chest wall over the 7^th intercostal space.  Chest X-ray showed no pneumothorax.  PW1 was then transferred to Queen Elizabeth Hospital for admission.

5.  PW1 said he mainly met the defendant when they ran into each other on the street.  PW1 did not have the defendant’s contact and did not have any argument or dispute with him.  He also had no argument or dispute about money with other people and did not know why the defendant assaulted him.

6.  CCTV footages in the vicinity captured the defendant chasing after PW1 at Kweilin Street around 17:05 hours on 4 June 2021.

7.  At about 11:00 pm on the same day, the police arrested the defendant at his home in Kowloon City.

8.  The defendant’s clothing, that is a white T-shirt, green trousers and yellow sneakers, which he wore at the time of the offence were seized.  Two knives kept in a transparent plastic box found at defendant’s home were also seized, but the forensic examination of the knives could not find any connection with PW1’s injury.

9.  On 30 June 2021, PW1, in an ID parade, positively identified the defendant as the assailant.

10.  The defendant is a Form 8 holder.

The Defendant’s Background

11.  The defendant, who is single, is a recognizance holder.  He is now about 37 years old.  He was born in 1984 in Pakistan.  He was educated up to Primary 5 in Pakistan.  Prior to the offence, he was unemployed.  He has one criminal record of possession of offensive weapon for which he was sentenced to 9 weeks’ imprisonment in 2018.

Mitigation

12.  Ms Zahir submitted a written mitigation on behalf of the defendant.  It is submitted that the defendant committed the offence out of anger.  He had a history of dispute with PW1’s family and on the day in question, when he saw PW1, he became angry and acted without thinking.

13.  The defendant now accepts that he has a previous record for possession of offensive weapon in 2018 but it is submitted that he did not break the law again for around 33 months after that conviction.

14.  He has been in Hong Kong as a Form 8 holder since January 2011.  Apart from the basic information as supplied by the police, the defence submitted that the defendant has no family members in Hong Kong.  His parents who lived in Pakistan had passed away.  He has four brothers and one sister, and he is the youngest of the family.

15.  The defendant was living alone in To Kwa Wan prior to the arrest.  He has a girlfriend who is a Filipino and works as a domestic helper in Hong Kong.  The defendant has never been married and has no children.

16.  It is accepted by the defence that the biggest mitigation in this case is the guilty plea at the earliest opportunity which is indicative of his remorse and regret.  The defendant now understands that given the severity of the offence he is facing a prison sentence, but it is submitted on his behalf that now he is sorry for what he had done and would humbly request a lenient sentence.

Sentence

17.  Wounding with intent is a serious offence which carries a maximum penalty of life imprisonment, sentencing of which is very much case specific and there is no tariff.  In Secretary for Justice v Hau Ping Chuen [2008] 3 HKC 398, the Court of Appeal was referred to an earlier judgment in HKSAR v Tse Hok Lam [2005] HKLRD 344 where the usual range of sentence for wounding with intent is described as being “3 to 12 years’ imprisonment”.  Of course it is not to say that there may not be offences under section 17 which call for higher or lower sentences than the usual range described in Tse Hok Lam if the circumstances are so unusual that they might vary sentences above or below the usual bracket (see paragraphs 15 and 16 of the judgment).

18.  In HKSAR v Chan Chun Tat [2013] 6 HKC 225, the Court of Appeal, while expressing the view that little is to be gained in embarking upon a comparative analysis of other cases, identified the relevant sentencing principles and stated that the starting point would be an examination of the offence itself.  The reason that offences contrary to section 17 are serious is because they are committed with the intention of inflicting grievous bodily harm on the victim.  It is also stated that the range of 3 to 12 years’ imprisonment indicates that not only will imprisonment usually be the norm, but also that the minimum period of imprisonment will usually be 3 years (see paragraphs 45 to 47 of the judgment). 

19.  The Court of Appeal then at paragraph 48 of the judgment stressed that, in determining the gravity of the offence, the factor of primary importance is the intent of the assailant to cause the victim really serious bodily harm. Whether that intent was fully realised in the injuries sought to be inflicted has been said to be of “secondary significance”.  Even though the consequences to the victim will always be an important factor, the gravity of the offence lies in the deliberate resort to violence with the intent by the offender to inflict by such violence really serious harm on the victim.

20.  The Court of Appeal then went on to say that, many of the factors to which a court would have regard in determining the gravity of a section 17 offence and the culpability of the offender will relate to the type of harm intended to be inflicted, the means by which the harm was inflicted and the circumstances generally surrounding the assault.  The usual factors would 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 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. (See paragraph 49 of the judgment).

21.  I take the view that this case is not the most serious of its kind, but the circumstances here are serious in several aspects.  The fact that the defendant had with him a knife at the time of the attack in the street where the victim passed by indicated that the attack was to a certain extent premeditated or at least not the result of a pure impulsive or spontaneous act.  Not only that the defendant had attacked the victim with a lethal weapon in a public place, but he had also chased after the victim to inflict the injury which showed a certain degree of persistence.  There was a stab by knife on the left chest wall of the victim which was no doubt malicious and it was particularly serious when the violent attack was carried out in broad daylight in a busy area in Sham Shui Po.

22.  On the other hand, to the defendant’s advantage, I noted that the assault was committed by the defendant alone, it was only a single strike on the victim and there is no evidence of the attack being triad related.  Also, I asked and viewed two photographs of the injuries of the victim before sentencing and I do not consider that they were very serious injuries.  More importantly, it is fortunate that though the victim’s stab wound required six stitches, I was told by the prosecution and the defence upon my enquiry in court that the victim was discharged from hospital the next day and that he had fully recovered since then.

23.  Having considered all the circumstances, I decided to adopt an initial starting point of 3 years’ imprisonment. 

24.  There is however an aggravating factor arising from the defendant’s Form 8 status which should be reflected in the sentence. 

25.  It was as early as in 2013 where the Court of Appeal observed in HKSAR v Sandagdorj Altankhuyag and Another [2014] 1 HKC 206 that the commission of an offence by a foreign national who was the holder of a Form 8 recognizance could constitute an aggravating factor and could have his sentence enhanced. It is because that a foreign defendant, when committing a crime, he had abused the hospitality and liberty offered by the Hong Kong Government and his crime has affected Hong Kong’s reputation for order and security and gone to the very essence of Hong Kong’s integrity in the international community. 

26.  Since that judgment, the Court of Appeal had on various occasions enhanced or endorsed the enhancement by sentencing judges of sentences of defendants who were Form 8 holders.  The enhancement was usually in the region of several months or around a year.

27.  Also, as stated in HKSAR v Shah Syed Arif [2016] 4 HKLRD 664, the Court of Appeal at paragraphs 34 and 35 of the judgment observed that it was neither prudent nor possible to issue sentencing guidelines for such cases of Form 8 holders.  Such enhancement was best left to the discretion of the sentencing judge or magistrate.  But, obviously, the greater the impact of the particular offence on the community at large and on Hong Kong’s reputation for order and security, the greater the enhancement.  In that case the applicant was convicted of trafficking in a substantial amount of cocaine and for that primary offence the sentencing judge adopted a starting point of 8 years and 2 months.  The enhancement to reflect the applicant’s Form 8 status for 1 year and 10 months was nevertheless found to be too severe by the Court of Appeal and the enhancement was eventually reduced to one of 1 year’s imprisonment after appeal.

28.  In a more recent decision, in HKSAR v Butt Muhammad Gulzar [2020] 3 HKLRD 805, judgment handed down on 17 July 2020, the Court of Appeal at paragraph 32, while endorsing the principle that the amount of enhancement should be left to the sentencer’s discretion, emphasised that the enhancement must be substantial, otherwise it would have no deterrent value and that it generally should not be less than 6 months for serious offences.

29.  The Court of Appeal then in the same paragraph 32 of the judgment recited its earlier observations in another case, HKSAR v Singh Gursevak [2019] 2 HKLRD 274.  It was stated that the amount of the enhancement would reflect the court’s assessments of the seriousness of the offence and the severity of the adverse impact that the offence had on Hong Kong.  Making this assessment would entail the court having regard to the nature of the offence, the circumstances of its commission, its actual impact on the victim, its potential impact on the wider Hong Kong community and finally its potential impact on Hong Kong’s reputation.  The more serious the impact of the crime in the adverse way required by the authorities, the greater will be the amount of the enhancement.  It should not be disproportionate to the starting point and should not result in a final starting point that is excessive for the seriousness of the crime.

30.  Having considered the nature of the offence and the circumstances under which it was committed, I opine that the appropriate enhancement to reflect the defendant’s Form 8 status should be one of 6 months.  That brings the starting point to 3 years and 6 months or 42 months’ imprisonment.  The only mitigation is the defendant’s timely plea which should earn him the full one-third discount.  The final sentence should be 28 months’ imprisonment and I so order.