HKSAR v. GURUNG SWATANTRA

DCCC 746/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 746 OF 2016

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Reasons for Sentence

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1.  As far as sentencing is concerned, the defendant, Mr Gurung, has been convicted after trial of an offence under section 17(a) of the Offences Against the Person Ordinance which is wounding with intent.

2.  I do not propose to rehearse in any detail the facts of the case because they can be found in my earlier reasons for verdict. Suffice it to say this occurred during an incident in a club in the early hours of 1 January 2015.  The essence of the offence was an attack by a number of men up to nine where at least two of them were armed with weapons capable of cutting skin and were used by them to injure the victim, the victim suffering a 15-centimetre-long curved laceration surrounding his right pinna and laceration on his right shoulder with 11 stitches being applied.  

3.  The medical evidence appears to show that and also from the victim himself that there is no ongoing disability from those cuts, cutting injuries.

4.  The evidence also showed that the defendant’s role in this was to be one of the men involved in the gang attacking the victim and using his feet and fists to attack the victim, and at no stage has it been said that the defendant was a man who was armed with one of the weapons that eventually resulted in the injury to the victim.

5.  As far as the defendant’s background is concerned, he is a 23-year-old Nepali man.  He had completed his secondary education in Nepal in 2009, migrating to Hong Kong in 2011, since his time coming to Hong Kong has maintained himself in work in this city and of late had been a construction worker and then a scaffolder since 2013, earning up to $20,000 a month.  He enjoys good relations with his family members and contributes substantially to his family. 

6.  The background report shows the defendant was described as behaving within bounds and maintained good relationship with his grandparents, parents and siblings, has worked hard continuously to support himself and his family.  At leisure, he says he enjoys drinking with friends, and that may be what led to this, his involvement in this incident, his social background.  It is that the defendant out of recklessness it says the defendant committed the present offence.  He is now regretful of his criminal act and knows he should not link with what are described as vice peers who bring him trouble and has learnt a great lesson from the present trial.  Defendant promises to reform himself by cutting his ties with peers and working hard for his family, and he asks for leniency.  And the background report sums up quite well the defendant’s position now and how he has conducted himself since he came to Hong Kong.  He has involved himself in a serious crime out of his reckless and fun-seeking behaviour and is now regretful of that.

7.  Now, the question is: how does one approach sentence in respect of an offence such as this?  In respect of the offence of section 17(a) wounding, there is no guideline sentence.  There is a range within which sentences have been seen to be imposed in the past, and reference has been made to that in appellate cases.  I can summarise that to say that generally, sentencing ranges between 3 to 12 years’ imprisonment, depending on a number of factors, such as the nature of the assault, the weapons used, the injuries received, whether those injuries are still troubling the victim, the defendant’s particular role in those injuries.

8.  Looking at the factors in mitigation, reference was made to the defendant’s criminal record.  This is for an unlike offence involving a licensing case.  So it seems to me it has no role in consideration of his sentence today. 

9.  The factors which would aggravate the sentence are the use of weapons capable of cutting the skin, the fact that the attack was conducted by a group of men which is obviously more serious than when an attack is perpetrated by an individual because people lend support to each other and injuries can be more serious.    

10.  The mitigating factors would appear to be the defendant’s role in this offence is one of supporting and encouraging by using violence himself, but the evidence does not show he was one of those who wielded the weapon that caused the injuries in any event.

11.  Secondly, the nature of the injuries are what I call cutting injuries which appear to have healed at this time with no ongoing disability to the victim. 

12.  Taking these factors into consideration, I must allocate a sentence, what we describe as the starting point of the sentence but as there is no reason for reducing that starting point here, that will be, as it were, the finishing point as well.

13.  Taking all these factors into consideration, I consider for this defendant, having regard to his background, the regret he has shown in the course of the pre-sentence interview and the other factors I have outlined, I shall impose a sentence on this defendant of 30 months’ imprisonment.  That will be the sentence of the court.