HKSAR v. PUN MAHENDRA AND OTHERS

HCCC 114/2017

[2018] HKCFI 2074

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 114 OF 2017

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The 1st defendant, Mr Pun Mahendra, the 2nd defendant, Mr Pun Binod, the 3rd defendant, Mr Rai Yogendra, and the 4th defendant, Mr Pun Soul, jointly face one count of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap 212. The particulars are that they, on 2 October 2016, at the junction of Parkes Street and Nanking Street, Yau Ma Tei, Kowloon in Hong Kong, together with other persons unknown, unlawfully and maliciously wounded Gurung Vishal with intent to do him grievous bodily harm. That is the 1st charge of the case.

The 2nd defendant also faces one count of assaulting a police officer in the due execution of his duty, contrary to section 36(b) of the Offences against the Person Ordinance, Cap 212. The particulars of the offence are that the 2nd defendant, on the same day and in the same location as the 1st charge, assaulted Tang Chi-yat, a police officer of the Hong Kong Police Force, in the due execution of his duty.

The 1st defendant pleads guilty to the charge he is facing, while the rest of the defendants all plead not guilty to the charges they are facing. The 3rd and the 4th defendants are convicted of Charge 1, while the 2nd defendant is convicted of Charge 2, but acquitted of Charge 1 after a trial by the jury.

Facts admitted by the 1st defendant and evidence in the trial

According to the facts admitted by the 1st defendant when he pleads guilty, at about 0600 hours on 2 October 2016, Gurung Vishal, the victim of Charge 1, left the 88 Bar at 87-89 Parkes Street, Yau Ma Tei, Kowloon, with a female friend and came across three Nepalese males, one of whom said to the victim, “You were also with the boy at that time, right?” This male then took out a knife-like object from the left side of his waistband. During the trial, there is evidence that this person was named Inesh Nimbu, although there is no evidence about him taking out a knife-like object at the time.

The victim at once fled along Parkes Street, but stumbled and fell down when he reached the junction of Ning Po Street. He was attacked by five to six Nepalese males who chased after him. There is evidence during the trial that one of them hit the victim’s head with a glass bottle and the victim bled. The victim managed to stand up and start running again. He saw the 1st defendant holding a knife and two persons holding a knife and a beer bottle respectively. They were all chasing after the victim together with some other Nepalese males.

There is evidence from CCTV during the trial that the 4th defendant picked up a glass bottle and, together with another Nepalese male, joined the chase of the victim a short moment later. The victim fell for the second time at the junction of Parkes Street and Nanking Street. He was chopped with a knife by the 1st defendant and was also attacked by other people. According to the CCTV evidence adduced in the trial, there were some other people who took part in attacking the victim.

Two males and one female police officers who patrolled in the vicinity of the scene saw four to five males attacking the victim. The two males officers warned the assailants to stop in Cantonese and English, but in vain. The two male officers drew their pistols and fired at the 1st defendant causing the 1st defendant to fall on the ground. There is similar evidence adduced in the trial.

According to the evidence of one of the male police officers at the trial, when he was trying to stop the attack on the victim, the 2nd defendant appeared and ran towards him holding something believed to be sharp objects of broken glass in his hand, stretching the other hand to hold down the pistol of the police officer. The police officer warned the 2nd defendant to stay away, but the 2nd defendant tried to use the sharp object to attack the police officer and to snatch his pistol. The police officer fired at the 2nd defendant and hit his left arm.

According to the facts admitted by the 1st defendant and the evidence during the trial, the victim suffered the following injuries:

(1) Posterior midline laceration of 10 cm of the head down to skull bone level;

(2) 6 cm oblique laceration at left posterior scalp down to skull level;

(3) 4 cm oblique laceration at right posterior scalp, partial thickness.

There were also one laceration and one abrasion at the back and one laceration at the thigh of the victim.

There is evidence at the trial that a mixture of DNA from three possible sources were found on an umbrella found at the scene. It is two times more probable that the DNA had come from the 3rd defendant and two unknown Nepalese than from three unknown Nepalese. The umbrella was seen on CCTV evidence to have been dropped on the ground near the scene by one of the persons chasing after the victim.

A mixture of DNA from three possible sources was found on a knife found at the scene and it is five times more probable that the 3rd defendant and two other unknown Nepalese had contributed the DNA than three unknown Nepalese having contributed it. The DNA of the bloodstains found on the shoes of the 4th defendant were found to have come from two sources, of which one was predominant and the predominant one matched the DNA of the victim and the random match probability is 183 times 10 to the power 15.

Criminal record

All the defendants have a clear criminal record.

Mitigation

The 1st to the 4th defendants are aged 27, 25, 21 and 20 respectively. Counsel for the defence submits that the 3rd and 4th defendants joined in the attack but there is no evidence that they used the knives in question. Although the DNA of the 3rd defendant was found on one of the knives found at the scene, there is no evidence this knife had been used in the attack on the victim.

Defence counsel points out that there are no sentencing tariffs in this type of offence and all depends on the facts of the case. In the present case, the 1st and the 2nd defendants had been attacked by a group of people before the incident. Thinking that the victim was part of the group, they took a revenge attack. There was no intention to cause more than really serious bodily harm. The defendants who took part in attacking the victim are strong men and there were two sharp knives. If full force was used, the victim would have died or at least lost an arm or hand or wounded all over the body.

Defence counsel says that the victim spent less time in hospital than the 1st and 2nd defendants. According to the CCTV evidence, the 4th defendant only joined in the chase and the attack of the victim when the group ran past him and the charge against the defendants focused on the attack that took place at Parkes Street near Nanking Street.

Regarding the 2nd defendant, defence counsel says that he joined in at the very late stage. He is convicted only of assaulting a police officer in the due execution of his duty. The 2nd defendant did not actually assault the police officer, but only caused an apprehension of an attack. He cites the case of HKSAR v Wong Chi Kai HCMA 353/2015, in which the appellant pulled the hair of a woman police officer who was escorting a person away from a protest against mainland parallel traders in Shatin. The Court of First Instance considered that a sentence of 8 weeks imprisonment was appropriate.

The defence counsel emphasises that all the defendants are young men and are of clear record.

The 1st defendant has pleaded guilty to the offence, showing remorsefulness on his part. The 1st, the 2nd and the 3rd defendants are offspring of the Gurkha soldiers who were based in Hong Kong before 1997, while the 4th defendant was born in Hong Kong, but received schooling in Nepal. He returned to live in Hong Kong after the education. The defence counsel submits letters of mitigation for the four defendants written by their parents, relatives, friends and a director of Youth and Outreach Ministry. The authors of these letters all express good opinion of the defendants. The defence counsel asks the court to treat the defendants leniently.

Sentence

Wounding with intent to cause grievous bodily harm is a very serious offence. As rightly pointed out by the defence counsel, there are no tariffs in this type of offence. This is understandable because the offence can be committed in differing circumstances and the degree of gravity may vary substantially, so do the sentences. There are ample authorities such as HKSAR v Tse Hok Lam CACC 85/2005 which is cited by the defence counsel, saying that the range of sentence for this type of offence is 3 to 12 years imprisonment, depending on the facts of individual case.

As the gravity of each case may vary substantially, the cases cited by the defence counsel, namely HKSAR v Chan Chun Tat [2013] 6 HKC 225, HKSAR v Lam Kwong Chau HCCC 197/2017 and HKSAR v Benjamin Chow CACC 118/2017 are not of particular assistance. They of course serve as reference for the court. In the present case the victim had not provoked the defendants. He was attacked by the group apparently because the 1st and the 2nd defendants thought that he was one of the group who had attacked them before the incident.

The assailants took revenge in public place with at least a knife and glass bottles. The attack was no doubt pre-planned because shortly after the victim and his female friend had come out of 88 Bar, he was chased after and attacked by a group of people carrying knives and glass bottles. As pointed out by the defence counsel, in this sort of case it is difficult to categorise what part or role a defendant played in the attack. The court accepts that there is no evidence the 3rd and the 4th defendants had used knife to attack the victim. There is, however, CCTV evidence that the 4th defendant took a glass bottle from a rubbish bin when he joined the group to chase after the victim.

The case against the 1st defendant is particularly serious. He used a knife to attack the victim and did not stop chopping him even when being warned to do so by the police officers. He only stopped when the police officers opened fire at him. Although he suffered gunshot injuries, it was a result of his own misdeed, and certainly cannot constitute a ground for mitigation.

The same applies to the injuries suffered by the 2nd defendant. The police officer concerned was at that time holding a pistol in his hand, trying to stop the attack on the victim. The intention of the 2nd defendant was no doubt to stop the police officer from intervening in the attack. Fortunately, there was another officer there who managed to stop the attack, otherwise the victim would have suffered much more serious injuries. This is an aggravating factor which the court has to take into account.

Although it is difficult to categorise the parts or roles played by the different defendants, the court must not lose sight that they took part in the attack on the victim as a joint enterprise. The attack on the victim was mainly on his head, and the more serious injuries he suffered are in fact on his head. One of the lacerations was down to the scalp bone level. Such an attack no doubt could be fatal. It is fortunate that the victim is still alive and has not suffered any permanent disability.

As pointed out above, the case of the 1st defendant is much more serious than that of the rest of the defendants because he refused to stop the attack even when being warned by the police officers. Taking this and other circumstances into account, the court adopts a starting point of 6 years imprisonment. In a case of such a serious nature, the clear record of the 1st defendant, and indeed, for the 3rd and 4th defendants, cannot constitute a valid ground for mitigation.

The 1st defendant indicated his desire to plead guilty after the trial date had been fixed. For that, the court gives him a discount of about 22 per cent and sentences him to 4 years 8 months imprisonment.

As regards the 3rd and the 4th defendants, the court is of the view that they are of equal culpability. Having considered the circumstances of the case, the court adopts a starting point of 5 years imprisonment for each one of them. The court is of the view that they do not have any valid ground for mitigation, thus sentencing each one of them to 5 years imprisonment for Charge 1.

For the 2nd defendant who is convicted only of assaulting a police officer in the due execution of his duty, the court adopts a starting point of 10 months imprisonment. Giving credit to the clear record of the 2nd defendant, the court sentences him to 8 months imprisonment.