HKSAR v. SALIM KASIM AND ANOTHER

DCCC 266/2018

[2019] HKDC 776

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 266 OF 2018

--------------------------

--------------------------

-----------------------------------------

REASONS FOR SENTENCE

-----------------------------------------

Charges

1.  After trial, D1 and D2 are convicted of Charge 1, wounding with intent. Both are acquitted of Charge 2, criminal damage.

Facts

2.  The facts of the case are set out in detail in the Reasons for Decision announced on 10 May 2019.  I do not intend to repeat everything here.

3.  Suffice to say, both defendants were under the influence of alcohol on the day in question.  They had an argument with the people of the “Spades” bar, in particular, the security guard there called “Hadi”.  After leaving the bar, the two defendants came back with two men in black T-shirts.  The four held bottles in their hands.  They rushed into the bar to attack the people inside. However, they were outfought.  After the four had retreated from the bar, D1 went to a neighbouring restaurant to fetch a chopper.  He came back to chase Hadi and others.  Those people rushed back to the bar.  D1 chased them to the door of the bar.  He chopped fiercely and repeatedly towards Hadi through the half-open door.  The chopper cut Hadi’s left thumb and index finger, causing laceration and cut wound with tissue loss.  Hadi was treated and discharged. He need not be hospitalised.  The doctor only gave him one-day sick leave.  The injuries, though not slight, did not qualify as grievous bodily harm.  Yet, I find as I am sure that when D1 so chopped towards Hadi, he had the intention of causing Hadi grievous bodily harm with the chopper.  It was only through luck that Hadi was not more severely injured by D1’s ferocious attack. 

4.  When D1 was chasing Hadi to the door of the bar, D2 also rushed up there.  He kicked the door and swung the left side of the door open.  When D1 was attacking Hadi, D2 shouted behind D1 and raised his left arm towards the bar.  I find as I am sure D2 was endorsing and adopting D1’s chopping act.  D2 made himself a joint party with D1 in the latter’s chopping attack against Hadi in that circumstance.

5.  D1 and D2 were thus in a joint enterprise but there was a distinction in their roles and culpability.  D1 was more culpable as the one who actually performed the violent chopping.  D2 endorsed and adopted D1’s attack against Hadi.

Records

6.  D1 is aged 30.  He has two previous convictions.  The first one was in 2014 involving assault occasioning actual bodily harm and claiming to be a member of a triad society.  The second one was in 2017 for failing to provide specimens of breath for alcohol analysis.

7.  D2 is aged 22.  He has one previous conviction.  It was in 2014 for attempted fraud.

Mitigation

D1

8.  Counsel says D1’s parents have become separated.  D1 used to live with his father, who was partially crippled.  The father has difficulty in walking and doing household chores.  D1 used to look after his father.  D1 was the sole breadwinner.  He worked as an estate agent.  Counsel also says D1 has a girlfriend and the two had planned to get married but that plan had to be postponed due to the present trial.

9.  Counsel says D1 relied on alcohol to ease the pressure of life.  On the day in question, he was under the influence of alcohol.  He thus became emotional and impulsive.

10.  Counsel points out that Hadi’s injuries were not really serious.  She also says D1 did not enter the bar with the chopper in any event.  Counsel urges the court to pass a lenient sentence on D1.

D2

11.  Counsel for D2 says D2 used to live with his parents.  D2 worked as a salesman and performed well in his job.

12.  Counsel says although D2 has a previous conviction it is not related to violence.  He says D2 is not a violent man.  Counsel submits that D2 only played a relatively minor role in the present case.  He asks the court to pass a lenient sentence on D2.

Background report on D1

13.  Since Counsel for D1 says D1’s father was a disabled man who might face great hardship if D1 is imprisoned, I asked the probation officer to prepare a background report to verify the situation.

14.  The background report confirms that D1’s father is disabled to a certain extent but he can still walk slowly with aid.  His self-care ability is all right and he can make simple meals for himself.  Nevertheless, the probation officer has taken the chance to inform the old man of the social assistance that he may turn to in case he needs help.

15.  The report concludes that D1 is a filial son despite his drinking problem and his breach of the law in the past and in the present case.

16.  D1 tells the probation officer that he is innocent, though he also tells the officer that he would reform himself by exercising self-control after drinking and staying away from undesirable peers.

17.  D1 wishes the court to be lenient towards him.  His girlfriend and his family members also plead mercy for him.

Sentence

18.  The attack by D1 on Hadi was violent and wicked.  D2 was a joint party to the attack.  D1 was the more violent one of the two.  He also had one record of violence in 2014.

19.  D1’s attack on Hadi was to cause the latter grievous bodily harm. Fortunately, the injuries resulted were not really serious.  It was because D1 could not get nearer to Hadi at the material time to wound him.  The half-open door of the bar also provided some kind of barrier between D1 and Hadi.  I am sure if D1 was able to get closer to Hadi at that time, he certainly could and would have hurt Hadi more severely.

20.  I accept D1 and D2 were under the influence of alcohol at the material time.  That weakened their self-control but they were still fully conscious of their own deed. 

21.  Both defendants plead not guilty to Charge 1.  They are convicted after trial.  They have not been able to show any genuine remorse for what they did.

22.  In the chopping attack, D1 was the more violent culprit and therefore more culpable.  I adopt 3 years’ imprisonment as the starting point in D1’s case for Charge 1.  There are no factors for any discount.  I thus sentence D1 to 3 years’ imprisonment on Charge 1.

23.  D2 was a joint party with D1 when the latter chopped Hadi.  I do not agree with Counsel for D2, who said D2 played a relatively minor role.  D2’s role was not minor.  He endorsed and adopted D1’s use of the chopper against Hadi.  D2’s role was not minor, though he was less culpable than D1 because D2 did not incite D1 to fetch the chopper to attack Hadi in the first place.  D2 only endorsed and adopted D1’s use of the chopper after D1 had been chasing Hadi with the weapon.  Furthermore, credit should be given to D2 because he pulled D1 away at some stage, although a bit too late.  D2 also finally signalled others to leave the scene.  In this case, I adopt a starting point of 2 years and 6 months’ imprisonment for Charge 1.  There being no factors for mitigation, I thus sentence D2to 2 years and 6 months’ imprisonment on Charge 1.