HKSAR v. JATINDER SINGH

HCCC 206/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 206 OF 2016

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

Defendant, you have pleaded guilty to a charge of wounding with intent, contrary to section 17A of the Offences against the Person Ordinance. You have admitted that on 8 January 2016, at No 251 Pak Sha Tsuen, Kung Um Road, Shap Pat Heung, New Territories, you unlawfully and maliciously wounded Syairoh, with the intent to do her grievous bodily harm.

Syairoh, whom I will refer to now as ‘the victim’, is an Indonesian woman. She came to work in Hong Kong in 2012 and thereafter she made a claim for non-refoulement, commonly referred to as a torture claim. Thereafter, she became a Form 8 recognisance holder.

In 2014, she began living at Room 5, at the address where this offence took place. The location where the offence took place is a converted shed containing seven rooms, all occupied by other Form 8 holders. Outside the shed was a large open area.

In or about 2015, the victim and yourself became lovers. You were also a Form 8 holder. You moved into Room 5 to live with the victim. Your relationship with her did not last long. In or about September 2015, she asked for a separation from you because she found you to be violent. The relationship broke up and you then moved into Room 2 at the premises. You, however, did not leave the victim alone. Although you had moved out, you kept pleading with her to get back together with yourself. You had a habit of following the victim.

In the afternoon just the day before your attack on her, you followed her to Yuen Long and slapped her many times after she asked you why you were following her. That evening at the premises, the victim asked you to come out of your room and explain why you had hit her earlier that day. You became agitated and told the victim to be careful and that you would kill her. That night, the victim slept not in her own room but in Room 1 with a friend called Yanti.

On the following day in the afternoon, shortly after ISS workers had inspected the premises, the victim was standing outside Room 2. You then came out of your room, Room 5, with a knife in your right hand. Sorry, that is your room; she was standing outside your room and you came out of your room with a knife in your right hand. Without saying anything, you cut her throat from right to left and after that, slashed downwards on the left side of her abdomen. Blood gushed from her neck and you ran away immediately.

The emergency services were called. The victim was rushed to hospital where she was intubated for airway protection in the Accident and Emergency Department. In the early evening, emergency surgery was performed.

According to the medical evidence, as a result of your assault on the victim, there was a 15 centimetre transverse open sharp neck wound with active bleeding from multiple veins, neck muscles and thyroid and which also included a 2 centimetre anterior tracheal cut resulting in exposure of the endotracheal tube. The victim also suffered a 3.5 centimetre and 12 centimetre left chest wall superficial sharp laceration but the underlying muscle layer was not involved.

Dr Yam Po-chu was of the opinion that these injuries were potentially fatal.

The victim was discharged from hospital 17 days later but attended hospital for follow-up in the month of February, March and May following. At the time of the attack, the victim was aged 38.

At about 2.45 pm on the same day as the attack, the police located and arrested you outside the village office in Wong Nai Tun Tsuen. You told the police officer, “I cut my girlfriend” and you used a hand gesture to indicate a cutting motion in front of your own neck from left to right. On the following day, you were interviewed by a police officer and you stated the following, that:

(a) You wanted to marry the victim.

(b) Earlier the relationship between the victim and yourself was good, but you had quarrels.

(c) You had moved from Room 5 to Room 2 because the victim did not like you and said you were following her and you had lots of fights with her.

(d) You had followed her to Yuen Long where you fought a lot. She spat on your face first, then you slapped her and then she hit you.

(e) As to the wounding, you explained that you got angry, went inside, picked up the knife, brought it out hidden under your armpit and cut the victim before running away.

(f) You explained and demonstrated how you were standing face to face with the victim, took out the knife and slashed her.

(g) You did not know how the victim got the chest wound.

(h) You ran away because you were scared you would be beaten up by the boys.

(i) You led the police to find the knife you used to slash her.

Ms Diane Crebbin, your counsel, has mitigated thoroughly on your behalf. In essence, she accepts that this is a horrendous attack on the victim, but explains that this was fuelled as a result of your love for her but rejected by her love to you.

You are 35 years of age and have a clear record. You were born in India and have been educated up to Primary 5 level. You are single. You came to Hong Kong in 2014. You are a torture claimant, also a Form 8 recognisance holder.

Ms Crebbin has urged the court to take into account that this was a spur of the moment attack, committed out of deep emotional feelings of which the victim did not reciprocate. She says that the anger and jealousy of the victim built up inside you. The victim did not reciprocate love for you and continued to reject you. The anger and jealousy took the better of you. You took a knife from your room and used it to wound the victim. She says that your mind seems to have been a blur at the time as you did not even realise you had cut her more than once.

She says that this was not premediated in so much as if it really was a premediated attack, you would have chosen a time when no one could have seen you. As it was, it was committed in broad daylight and many witnesses were able to witness the attack you committed on the victim. You had immediately confessed to the police when they approached you and you have maintained your plea of guilty.

She has put forward the fact that although the victim has suffered physical and emotional damage and bears scars, she can continue with her everyday life. The victim was offered psychological counselling but refused it and defaulted on her last follow-up which is evidence of the victim’s road to recovery.

Ms Crebbin has asked me to take into account the plea of guilty as a strong mitigating factor and, of course, the fact that as a result of your plea of guilty, the victim has not had to go through the trauma of giving evidence in court. She says that every case is dependent on its own particular facts. There is a wide discrepancy and there is a range of between 3 and 12 years’ imprisonment. She has asked me not to consider a sentence at the upper range.

As Ms Crebbin had said, even though a number of cases have been submitted to the court as examples of the kind of sentence, these cases are not of any great assistance, as Ms Crebbin accepts. As is common ground, everything will depend so heavily on the particular facts of each case.

The maximum sentence for section 17 wounding is life imprisonment. There are no tariffs as such and sentences range from 3 to 12 and 15 years’ imprisonment. Sentencing is case specific. It depends on the facts specific to the case.

Mr Grounds, counsel on fiat for the prosecution, and Ms Crebbin both rely and submitted on the case of Chan Chun Tat, CACC 317/2012, where the Court of Appeal set out factors to be taken into consideration for sentencing in wounding with intent. At paragraph 45, the court there said:

“We are of the view that little is to be gained in embarking upon a comparative analysis of other cases. We believe it is more helpful to identify the relevant sentencing principles and by properly applying them arrive at a just sentence. The starting point for this is an examination of the offence itself.”

Paragraph 46:

“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. In helping the lay person to understand what this legal phrase means, the courts have said that it means not just serious bodily harm but ‘really serious bodily harm’...

It must be remembered that an intent to inflict this level of harm will have the consequence, should the victim die from the assault, of rendering the assailant liable to conviction for murder.”

Paragraph 47:

“It is hardly surprising, therefore, that the offence is regarded as a serious one. Indeed, the fact that the usual range of sentence is 3 to 12 years’ imprisonment reflects that very seriousness...”

Paragraph 48:

“Thus 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’...”

Just to carry on a bit further down:

“The gravity of the offence lies in a deliberate resort to violence with the intent by the offender to inflict, by such violence, really serious harm on the victim.”

Paragraph 49 sets out:

“Consequently, many of the factors to which a court will 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 that harm was inflicted and the circumstances generally surrounding the assault. Thus, without attempting to exhaustively identify all the relevant factors, the usual ones will be to 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 assault, 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.”

I turn to paragraph 51 where it says:

“The courts have long played a role in denouncing a resort to violence. People living together, whether they are husband and wife, parent and child or in any other relationship, inevitably suffer stresses from their work or personal life which may manifest themselves within the home environment in arguments or emotional outbursts. How people, within the privacy of their homes, resolve their problems is not usually a matter that concerns the courts; but the moment the law is broken by a resort to violence in order to solve such problems, then the courts will become involved. By their sentences, I stress, the courts must make clear that violence will never be regarded as an acceptable way of dealing with personal issues.”

This incident of an assault, an attack on the victim did not arise out of a domestic violence incident. This was not an incident where an angry argument escalated out of control and one party resorted to violence. This incident did not arise out of a relationship. The relationship was over. They have lived in separate rooms. The relationship was over for about four months.

This was a premediated attack by a cold, jilted boyfriend, bent on taking revenge for what he considered love that was not reciprocated, in harming the victim really seriously. He surreptitiously hid the knife under his armpit, intending to pounce upon her to cause her really serious injury. Just the day before, he had slapped her in Yuen Long. In the evening, he warned her that he would kill her. She had feared for her safety and therefore slept in her friend’s room that evening.

The attack upon her was in one of the most vulnerable areas of a person. He slashed her neck from ear to ear with a dangerously sharp knife. It cannot be said he did not expect her to have suffered very, very serious injury. His targeting of her neck was to say, from any objective view, that he had intended almost to kill her.

The defendant could have perhaps equally been charged with attempted murder. I was informed by the prosecution that this was considered but the Department of Justice did not lay this charge against him for reasons, I understand, that this was an offence arising from a broken relationship. I am fully aware that the defendant is not charged with an offence of attempted murder and I am not sentencing him on that basis.

However, with these facts in mind, this takes this case to the uppermost seriousness of this offence, at the upper end of the scale for sentencing for wounding offences. This is despite the victim’s most fortunate present condition today of not being too seriously affected physically or emotionally. I fully understand that in other cases the victims have been paralysed or bed-bound or have much more serious impacts resulting from the attacks upon them. In my view, as I mentioned, it is most fortunate that her condition is in a “good state”.

What caused the defendant to become so violent, using this knife? The psychological report I called for does not shred too much light on this. The psychologist, at paragraph 2, says: “This report should be read with caution”. It says that the defendant pleaded guilty to the charge of wounding but, throughout the interview, he totally denied the charge.

This matter has since been cleared up. Ms Crebbin has told me today, and I have confirmed with the defendant, that he maintains his plea of guilty. Ms Crebbin explains that he maintained his not guilty plea throughout the interviews because he was upset by the victim impact report and the matters the victim said about him.

What is clear from the report, as stated in paragraph 11, is that the defendant did not accept the breakup of his relationship with the victim. He regarded the victim as his girlfriend, yet he justified his unwelcome acts as the expression of his love and care for the victim.

The psychologist concluded by saying that there were a number of risk factors, namely relationship problems, sexual jealousy, anger feeling, unemployment and history of physical assault which were associated with the risk of violence in an intimate relationship were identified in the defendant irrespective of his present offence. His risk of violence towards his partner was assessed to be moderate, but the defendant should not maintain contact with the victim.

Ms Crebbin has stressed upon the court that this attack was due to his inability to accept the breakup, inability to achieve a reconciliation, inability to accept that she did not reciprocate his love for her and his jealousy of her.

In the present case, the relevant factors are these. One, the attack was, in my view, long premediated. He had told her the night before that he was going to kill her. I do not accept the fact that even if he suspected her to have thrown out his things or burnt his belongings and hidden his guitar, that this would have caused him to act in the way he did.

This was a completely unprovoked attack and it was entirely initiated by the defendant. The incident came out of the blue. She was standing outside Room 2, there was no argument, no quarrel. The defendant came out of his room, armed with a knife surreptitiously under his arm. The victim was unarmed. She was even unaware that this was going to happen. No mercy was shown to her, I dare say, but for the fact that the defendant realised there were witnesses and then immediately ran away.

The defendant demonstrated a complete disregard for another human being’s life. The defendant intended to cause her really serious harm. The face to face slashing of her neck with a long sharp knife is indicative of this. Horrific wounds were inflicted on the victim’s neck. The victim suffers lasting effects as a consequence. There is no medical evidence before me that says that the victim suffers from any permanent disability.

The victim impact report does, however, illustrate that the victim suffers psychologically and has difficulty in swallowing and speaking loudly. The psychologist’s opinion in the report states that despite improvement both physically and psychologically after treatment and the passage of time, the victim still suffers post-traumatic stress symptoms, psychological distress and impairment of functioning chronically. In the psychologist report, according to the victim, she was tolerating pain and fear in relation to the injured area on her neck every day, showing anxiety due to the uncertainty of whether and when the pain will be healed.

Moreover, she expressed difficulty in speaking loudly and swallowing big pieces of food. These altogether evoked a sense of hopelessness in her which appeared to be temporarily remedied by the prescription of pain killer. Psychological treatment was recommended to the victim but she had refused it and expressed thankfulness and belief that her religion would help her recover.

Defendant, given all the factors in this case that I have referred to, I do consider this offence which you committed to be at the upper end of the scale for sentencing. Had you been convicted after trial, I consider an appropriate starting point to be one of 15 years’ imprisonment.

The strongest mitigating factor is your plea of guilty and for that, I shall afford you the full one-third discount and you shall be sentenced to 10 years’ imprisonment.

As regards enhancement of your starting point as you are a Form 8 holder and torture claimant, I accede to Ms Crebbin’s submission in that this is not a situation that calls for enhancement of the starting point as you did not go out selling drugs or affecting the public. This was effectively a private dispute. Though not to say I am in any way condoning this type of behaviour by Form 8 holders.