HKSAR v. GURUNG MOHIT

DCCC 146/2022

[2023] HKDC 779

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 146 OF 2022

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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. The defendant pleaded guilty to the charge, admitted the summary of facts and was convicted accordingly.

Summary of facts

2.  At about 10 pm on 9 July 2021, an Indonesian female Ms Fatmawati (“Fatmawati”), who was the girlfriend of the defendant, was gathering with a group of about 20 female friends (“the Group”)  at the Man Cheong Street Park, Man Cheong Street, Yau Ma Tei, Kowloon.

3.  At about 10:20 pm on the same day, a Nepalese male Mr Thapa Chandra Kumar (“PW1”)  approached the Group accusing them for not wearing face masks and filmed them with his mobile phone. A dispute ensued. The Group asked PW1 to surrender his mobile phone but he refused. In the heat, there were physical contacts between PW1 and the Group including PW1 pulled the hair of Fatmawati and the Group assaulted PW1. During the pushing and shoving, Fatmawati made a phone call to the defendant asking for help.

4.  At about 11 pm on the same night, the defendant appeared at the scene and approached PW1. He then took out a machete of about 47 cm long and used it to attack PW1. PW1 blocked the machete with his left arm and immediately escaped from the scene.

5.  Subsequently PW1 was admitted to hospital. Upon medical examination, he was diagnosed with a 7-cm long laceration on his left hand dorsum, down to the bone layer with multiple muscles completely cut. Fractures of at least two fingers were also observed. All torn tendons and muscles were later repaired and the fractures were fixed with plating but a branch of superficial radial nerve was torn beyond repair. PW1was granted a total of 63 days of sick leave.

6.  A house search was conducted on the defendant’s residence on 10 July 2021 and the machete used and the clothes worn by the defendant at the material time were seized. On 19 September 2021, the defendant was formally arrested.

7.  A video recording interview was conducted on the same day of the arrest. Under caution, the defendant admitted the machete and the clothes seized from his residence belonged to him.

8.  The defendant now admits that at the material time he unlawfully and maliciously wounded PW1 with intent to do him grievous bodily harm.

Mitigation

9.  The defendant is now 33 years of age and is single. He was born in Nepal and received education in Nepal up to Form 3. His family had a connection with Hong Kong via British Army Gurkha Brigade and he moved to live in Hong Kong in 2006 when he was about 16. Before the arrest, he co-habited with his girlfriend Ms Fatmawati in a flat at Jordan, Kowloon. He used to work as a construction site worker earning around HK$26,000 per month but had been out of job since 2020.

10.  The defendant has a total of 10 previous convictions. Most of the convictions are possession of dangerous drug and theft. None is related to violence. The latest convictions were dated in November 2020 where the defendant was sentenced to prison for possession of offensive weapon and possession of dangerous drug.

11.  Defence submitted that PW1 was not entirely blameless in this incident as he resorted to violence himself and was seen pulling the hair of the defendant’s girlfriend. The defendant was trying to protect his girlfriend though he accepted that what he did was a totally wrong and illegal.

12.  Lastly, concerning the discount for guilty plea, Defence submitted that though the guilty plea came at a late stage, it was partly due to communication problem between the defendant and his legal representatives. Defence urged the court to give a discount of 20% to 25% for the guilty plea.

13.  All in all, Defence urged the court to take into account of all the above and impose a lenient sentence.

Sentencing consideration

14.  Wounding with intent is of course a very serious offence as its maximum sentence is life imprisonment. Time and again the Court of Appeal indicated that any form of violence must be met with punishment sufficient to serve the purposes of retribution and deterrence. However, the Court of Appeal made it clear that there are no sentencing guidelines for wounding. It has been suggested that the usual range will be between 3 to 12 years’ imprisonment, depending on the particular circumstances of each case, though the court is not obliged to impose 3 years’ imprisonment as a minimum term: HKSAR v Hung Kar Chun [2011] 1 HKLRD 1083.

15.  In HKSAR v Chan Chun Tat [2013] 6 HKC 225, the Court of Appeal listed out the following major sentencing consideration for wounding cases:

(a)  the extent to which the assault was premeditated;

(b)  the motivation underlying the assault;

(c)  the mental or emotional state of the assailant;

(d)  whether the assailant was acting under the influence of alcohol or drugs;

(e)  whether the assault was committed by the assailant alone or as part of a group;

(f)  the type of weapons employed;

(g)  the level of force used;

(h)  the injuries caused to the victim; and

(i)  the effect of the assault upon the victim and those close to him or her.

16.  This court accepts that PW1 had played a role in causing the dispute. However, even accepting that PW1 had pulled the hair of the defendant’s girlfriend at some stage, what the defendant did in response was unreasonable, dangerous and totally out of proportion. There is no evidence that PW1 was armed. It is simply unjustifiable for the defendant to bring any weapon, let alone a potentially lethal weapon, to the scene. No reasonable person would believe that bringing a weapon to the scene would resolve the dispute. It would only intensify it. Just as what the defendant did ultimately, the dispute ended with serious injuries caused to a person. The defendant ‘s behavior in the case is totally unacceptable and the court cannot accept anyone taking the law into his or her own hands.

17.  There are clearly aggravating factors in this case. First, a weapon was used and it was a very dangerous one, if not lethal. Second, the injuries that the victim sustained were very serious.

18.  On the other hand, the court has considered the following circumstances. Firstly, the attack was out of impulse and not premeditated. Secondly, the defendant acted alone. Thirdly, only a single blow was inflicted on the victim. Lastly, there is no evidence that the victim suffered any permanent disability.

19.  To decide a suitable starting point, the court has also considered the authorities submitted by the defence including HKSAR v Wong Luk Sau [2013] 2 HKLRD 201 and HKSAR v Roka Sijan, CACC 281/2017, [2018] HKCA 986. However, as the Court of Appeal emphasized repeatedly, for this type of offence each case turns on its own facts and the assistance that can be drawn from the authorities is very limited.

20.  Considered all of the above, in particular the weapon used and the level of injuries the victim suffered, and balancing the facts that the defendant acted alone and it was a single blow, the court adopts 44 months as the starting point. The defendant indicated his guilty plea after the plea day but before the first day of the trial. Considered all the circumstances the court is prepared to give his guilty plea a discount of 25%. There being no other mitigating factor, the sentence is 33 months’ imprisonment.