HKSAR v. AMIT AND ANOTHER

DCCC 1423/2024

[2025] HKDC 1785

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1423 OF 2024

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REASONS FOR SENTENCE

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Charges

1.  There are five defendants (D1 to D5)  and three charges.  D3, D4 and D5 face Charge 3. Prosecution withdraws that charge from those three defendants.

2.  D1 and D2 plead guilty to the amended Charge 1, attempt to inflict grievous bodily harm.  The other charge, Charge 2, assaulting a police officer in the due execution of his duty is against D2 only.  That charge is withdrawn now.

Facts

3.  At about 2337 hours on 4 April 2024, Mr Palwinder Singh (Palwinder)  made a report to the police that he had been assaulted earlier that evening.  As a result, police came to make enquiry with Palwinder in Marsh Street, Hung Hom.

4.  At about 0037 hours on 5 April 2024, while DPC24940 was making enquiries with regard to the report made by Palwinder, a group of four men including D1 and D2 appeared.  Some were carrying stick-like objects and rushed towards Palwinder, who was standing near the junction of Marsh Road and Wuhu Street. Palwinder fled and entered a restaurant nearby.  D2 threw his hockey stick at Palwinder before Palwinder entered the restaurant.  The hockey stick failed to hit Palwinder.

5.  When Palwinder was entering the restaurant, he was closely followed by D1.  D1 was carrying a baseball bat and he attempted to hit Palwinder with that.  At that time, a group of police officers were inside the restaurant reviewing CCTV in relation to Palwinder’s earlier report.  The police officers subdued D1 and arrested him.

6.  Outside the restaurant, D2 picked up the hockey stick he had thrown at Palwinder earlier.  He was intercepted by the police officers before he could enter the restaurant.  He was arrested.

7.  CCTV from inside and outside the restaurant captured the incident.

8.  In court, both D1 and D2 accept that at the material time they attempted to inflict grievous bodily harm on Palwinder.

Record

9.  Both defendants came from India.  In Hong Kong, they are Form 8 recognizance holders.  Both are aged 28 now.  Both have no previous convictions.

Mitigation

D1

10.  Counsel says D1 came from India.  He arrived in Hong Kong in 2016 to seek refuge.  He is asking for judicial review of the Torture Claims Appeal Board decision.  But his father is sick recently in India, he wants to go back to look after the old man so he will give up his appeal.

11.  Counsel says D1 has no previous conviction.  He pleads guilty finally. Counsel also says in this case there was no injury caused to anyone.

12.  Counsel says D1 has been remanded in custody for a total of eight months.  She asked the court to impose a lenient sentence on D1.

D2

13.  Counsel says D2 also came from India.  He arrived in Hong Kong in 2020. He is a Form 8 recognizance holder here.

14.  Counsel says D2’s father also became ill in India recently and D2 wants to go back there to see the old man.  Counsel asks the court to impose a lenient sentence on D2 so that he can leave Hong Kong as soon as possible.

15.  Counsel says D2 has a clear record in Hong Kong and he pleads guilty to Charge 1, which has now been amended to a lesser one, only attempt to inflict grievous bodily harm under section 19 of the Offences Against the Person Ordinance.  Counsel says D2 is remorseful. He asks the court to impose a lenient sentence on D2.  Counsel mentions the fact that D2 has been in custody for also eight months.

16.  Counsel mentions a case HCMA 996/1986 The Queen v Vu Van Tien. There, an inmate in Hei Ling Chau picked up an iron bar to attack a fellow prisoner.  The injured person suffered a laceration wound and some scratch marks.  The magistrate imposed a 9-month sentence upon the defendant’s plea. The defendant appealed against that sentence.  The Chief Justice then heard the appeal and said that the magistrate had imposed a perfectly proper sentence. He dismissed the appeal.  Apparently, counsel asks me to consider a short sentence as imposed in that HCMA case.

Sentence

17.  Attempt to inflict grievous bodily harm, even under section 19 of the Offences Against the Persons Ordinance, is still a serious crime.  The maximum penalty is 3 years’ imprisonment.  Such offence has no tariff.  The HCMA case referred to by counsel for D2 is not significant.  It is just an individual case.  The sentence and appeal were decided on their own facts.  The right principle of sentence is to decide the right sentence on the facts of the case.

18.  The present case is a serious one.  Both defendants were part of a group of four armed assailants.  They tried to hurt Palwinder with mighty objects like a long hockey stick and heavy baseball bat.  Those weapons could cause serious harm.  Fortunately, Palwinder was not hurt because there were police officers at the scene to thwart the attack.

19.  No doubt the offence was premeditated.

20.  In sentencing, the intent to harm the victim is of primary importance. Whether the unlawful intent was realised is only of secondary significance.  As said, Palwinder was not hurt just because there were police officers there to intervene.

21.  Both defendants have clear record.  But clear record does not count much in a serious case like this.

22.  There is really not much mitigation counsel can put forward for the defendants except for the fact that the two eventually plead guilty, just before the trial was to begin.  Although Charge 1 was amended to a lesser one and then the two defendants plead guilty, they had not indicated any plea to anything earlier.  They are therefore entitled to a mere 20 per cent discount.

23.  Both defendants are Form 8 recognizance holders.

24.  In paragraph 33 of HKSAR v Butt Muhammad Gulzar CACC 205/2019, the Court of Appeal says “The enhancement for being a Form 8 recognizance holder must be substantial otherwise it has no deterrent value.  On many occasions this court has said that the amount of enhancement should be left to the discretion of sentencers but that it will lose its deterrent value in respect of serious criminal conduct if it is less than 6 months.”  And in paragraph 39 of the same case, the court further says “...proportionality must give way to the need for meaningful deterrence.  The primary goal of the enhancement for the Form 8 status is denunciation and deterrence through severe punishment.  If this at times results in disproportion between the amount of enhancement and the head sentence to which it is added, then so be it.  Courts cannot allow the importance of the message being sent by the sentences they impose to be undermined or diluted by arguments based on percentages or disproportion.”

25.  In each of D1’s and D2’s case, I shall adopt 21 months’ imprisonment as the starting point before enhancement.  The Form 8 enhancement is 6 months for each of them.  The final starting point is 27 months’ imprisonment.  After 20 per cent discount for their plea before trial, each is to be imprisoned for 21 months and 2 weeks.