HKSAR v. KHAN ASHRAF

DCCC497/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 497 OF 2009

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Reasons for Sentence

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1.  The defendant has been convicted after trial of one offence of blackmail, one offence of assault occasioning actual bodily harm, and one offence of carrying an imitation firearm.

2.  The facts of the case are set out in the verdict that I delivered two weeks ago, but briefly the position is that the defendant and the victim were Pakistani residents of the Pat Heung area, the victim being a person who ran a car braking yard, and it is that on 6 February the defendant went over there and before doing so demanded money with threats to the victim’s family, threats that were issued on a mobile telephone text. When he was at the victim’s office he produced an imitation firearm - which in fact was agreed to be a defective air pistol - from a brown paper bag, struck some blows with that to the head of the victim, and was disarmed promptly by the victim, who is a much bigger man in fact.

3.  The defendant is up to these offences a man of clear record. I obtained a Background Report because the nature of the offences appeared, on the face of the evidence I heard, to be very much out of character for this gentleman. He reached the age of 40 with no criminal record at all and it is unusual for a man to involve himself in such serious crime at that age.

4.  The defendant came to Hong Kong at the age of 20 and he has two wives and two children. His second wife had returned to Pakistan and the defendant remained in Hong Kong. At the time of the offence he was in a trading partnership of second-hand electronic appliances. A common feature of the case is the defendant is isolated from his own family, his own clan and people of his own faith because of his interests in other religions besides Islam. The defendant still maintained before the interviewing officer that he was innocent of these offences.

5.  I have rejected the defence put before me, nevertheless, I do look at these offences against the background of the defendant’s previous character and the fact, as I have said, that these are offences which are committed out of that character, not consistent with his previous behaviour. That is also characterised in the way the offences took place. When Mr Richmond was mitigating, I used the word “shambolic”, but they certainly seem to be ill-planned and ill-thought out. The victim himself, who was a much stronger man, easily disarmed the defendant and was able to subdue him very promptly and drag him out into the yard.

6.  As far as the offences are concerned, I take into account the submissions of the defence, firstly, that the blackmail was an isolated incident; the assaults, such as they were, were of a minor nature; and thirdly, the use of the firearm was in a private home, it was briefly brandished, and I believe was in fact brought along because of the disparity in physical strength between the defendant and his victim. Without the possession of the defective airgun, there would have been little reason for the victim to have taken any of this seriously, and also the firearm itself was defective. The only person who perceived any danger from it was the victim. This is not analogous with cases where a firearm is used in a robbery, in a public area, where police officers or others may become involved.

7.  Nevertheless, it is a serious offence and it is common ground here that on conviction the starting point of between 5 to 6 years’ imprisonment would be an appropriate sentence.

8.  I have taken into account the rather isolated nature of these offences and the fact they exist within this community and the way in which they were carried out, and I have decided the following sentences should be imposed for these three offences.

9.  On the first offence, that is the blackmail offence, there will be a sentence of 2 years 6 months’ imprisonment.

10.  On the assault occasioning bodily harm, there will be a sentence of 12 months’ imprisonment.

11.  On the carrying an imitation firearm with intent to commit an arrestable offence, there will be a sentence of 3 years 9 months’ imprisonment.

12.  Having regard to the overall totality, I consider that the offences were all effectively committed together and I consider the sentences should be served concurrently.

13.  There will be an overall sentence then of 3 years 9 months’ imprisonment.