HKSAR v. SHAKEEL AWAIS

DCCC 312/2021

[2021] HKDC 1200

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 312 OF 2021

________________________

________________________

________________________

Reasons for Sentence

________________________

1.  The defendant has pleaded guilty to three charges. Firstly, theft of 13 packs of toothpaste from a ParkNShop supermarket on 29 December 2020 and then two charges of wounding with intent, contrary to section 17(a)  of the Offences against the Person Ordinance, Cap 212. These two charges relate to two separate victims.

2.  The particulars of offence allege that the wounding was committed in the vicinity of ParkNShop on 29 December 2020 and the defendant unlawfully and maliciously wounded the victims with intent to resist or prevent the lawful apprehension or detainer of the defendant.  The case involves a theft offence and two wounding offences committed in the vicinity of ParkNShop.  The victims are staff members of the supermarket.  They were on duty at the supermarket.

3.  On the evening of 29 December 2020, when the defendant was leaving the supermarket, an anti-theft alarm was triggered.  The defendant was asked to walk through the anti-theft alarm again and it was reactivated.  The defendant then initially took out one pack of toothpaste from his rucksack and later he became emotional and threw all the items inside the rucksack onto the floor.  There were a total of 13 packs of toothpaste found on the floor as a result and those packs of toothpaste form the particulars of items stolen in the 1^st charge.

4.  The defendant tried to leave the scene at that stage.  He took out a sharp object and waved it at the staff members, trying to scare them.  Then he walked to a pedestrian bridge located outside the supermarket and the staff of the supermarket gave chase to the defendant trying to prevent him walking down the staircase.  As the defendant was about to walk down the staircase, PW1, one of the victims, stood in front of the defendant trying to stop him from doing so.  The defendant used his right hand to entrap PW1’s neck, pointed the sharp object towards his neck and said in Chinese, “Let me go as I had given back all the things to you guys.”  The defendant then pushed this victim away and ran down the staircase.  There was a further struggle with the defendant waving the sharp object in front of him.  As a result of this, the second witness, PW2, felt his left forearm was cut by a sharp object and he saw that it was bleeding.  He sat down and rested.

5.  Other staff pursued the defendant, including PW1.  PW1 used a mobile phone to record the defendant.  He also felt a cold feeling in his lower left chest but did not check what had happened.  The pursuit continued.  Eventually, PW1 found his left lower chest was bleeding.

6.  And police were seen and brought into the chase. The defendant was eventually intercepted and arrested by police officers. Inside his rucksack, cutting pliers and a cutter was found.  And later on, on the next morning, a sweep in the vicinity of the staircase found what are described as thread snips.  They were 21 cm long when they were opened.

7.  As far as the victims’ injuries were concerned, PW1 was sent to the Caritas Medical Centre.  He was found to have a 1 cm long cut wound on his left lower chest wall and two stitches were applied to the wound.  As a result, he had four days’ sick leave granted to him although he was not detained in hospital.  For the second prosecution witness, he went to Princess Margaret Hospital.  He had a 6 cm long laceration on his left forearm resulting in 11 stitches being applied to the wound.  He was eventually granted 22 days’ sick leave.  Again, there is no suggestion that he was detained in the hospital for treatment.

8.  The defendant did give a video-recorded interview on two occasions.  He is a refugee from Pakistan and was unable to work in Hong Kong.  He would go to the supermarket, steal the toothpaste with intent to sell them to provide for himself.  The thread snips were being carried for cutting off the anti-theft alarm tags on the toothpaste.  The defendant had discarded the thread snips on the street before he was arrested by the police.  The defendant admits he stole on that occasion the 13 packs of toothpaste in the supermarket and also unlawfully and maliciously wounded both the first and second prosecution witnesses with intent to resist or prevent his lawful apprehension or detainer.

9.  The defendant is aged 26 years old.  His place of birth was Pakistan.  He is described as being in receipt of ISS funding for living.  I believe that is described as being a Form 8 holder, he being an application for refugee status.

10.  He has a previous conviction in 2010 relating to immigration offences.  They are not relevant to this offence.  The defendant was in fact discharged from prison on 30 May 2011 after receiving a sentence of imprisonment of, in total, 12 months’ imprisonment.  Such relatives as the defendant has live in Pakistan and he lives alone in Hong Kong.

11.  In mitigation, it is said that the defendant was himself in a state of panic and desperation when he inflicted the injuries on the two victims.  He did co-operate with the police to locate the thread snips after they had been discarded.  He has always indicated a plea of guilty to these offences.  He expresses remorse.  The injuries are described by the defence as not being life-threatening and it is said by them there is no tariff for this offence and the court should properly approach this matter by following principles in cases of resisting arrest, although it is conceded that an immediate custodial sentence is the appropriate form of dealing with these offences.  It is also noted that the defendant as a Form 8 holder, this can lead to an aggravation of the sentence.

12.  The sentencing on the 1^st charge, the shop theft, is of course at large.  The amount stolen is not large, but given the circumstances of the offence it would appear, although it is the defendant’s first offence, it would appear that a custodial sentence is appropriate for the defendant.  As far as the second offence is concerned, that is the conviction under section 17(a)  of the Offences against the Person Ordinance, the maximum sentence in fact for that offence is one of life imprisonment.

13.  It is clear from the authorities that there are no sentencing guidelines of tariff for this offence of wounding with intent. We can see that from the case of HKSAR v Hau Ping Chuen [2008] 4 HKLRD 673.  The Court of Appeal refer to the usual range of sentencing for wounding with intent being described as 3 to 12 years’ imprisonment.  The court, noting there were a host of wounding with intent decisions which might be used in favour of a lenient view whereas others favour a stricter view, the court said, in that case, “At the end of the day, a sentencing court obtains a ‘feel’ for the appropriate result by regard to the attitude of courts over a period of time to a great variety of circumstances.”  In sentencing, the court must look at the matters from all angles, the circumstance of the offence, the relationship between the defendant and the victim, but regard should also be had to the public interest as well.

14.  In HKSAR v Chan Chun Tat [2013] 6 HKC 225, the Court of Appeal listed a number of relevant factors to be considered in determining the gravity of the offence and the culpability of the offender, including the extent to which an assault is premeditated, the reason or motivation underlying the assault, the mental or emotional state of the assailant at the time of the assault, whether or alcohol or drugs contributed to the actions of the assailant, whether the assault was committed alone or as part of a group, the type of weapon employed, the level of force of aggression and persistence of the attack, the injuries caused to the victim and the effect of the assault upon the victim and those close to him.

15.  Having regard to this assault, we can see the assault flowed out of the fact that the defendant was detained by the supermarket staff.  The thread cutters were possessed for the purpose of pursuing the theft offence but were used in a spontaneous way to apparently threaten the staff members of ParkNShop.  The motivation for the assault of course is clearly to escape his lawful detention and arrest, the defendant being described as being in an emotional state at the time of the assault.  No alcohol or drugs contribute to this assault and the assault was committed by the defendant alone.  The type of weapon employed is not the usual form of weapon used in these kind of wounding with intent cases, there is no chopper or knife used, or hammer.  It is simply a weapon of opportunity, namely the thread cutter.  The level of force or aggression; a degree of force is used, certainly on the second victim where the wound required a total of 11 stitches to be sealed, so it’s a serious injury.  We can see from that the injuries caused to the victims were cut wounds, cuts to the flesh, a total between them of 26 days were given to the victims, although it would appear they were not detained in hospital and it would appear they have made full recoveries from their injuries.

16.  I must balance and take all those factors into account.  The case is unusual in that the injuries were inflicted during the defendant attempting to prevent his own detention and it must be in the public interest that assailants are discouraged or deterred from using force and weapons to prevent their lawful detention.  The assault offences are serious offences.  They are not obviously the most serious of their kind, namely because the weapon used was not capable of inflicting life-threatening injuries and the victims themselves have seemed to have recovered from those injuries.

17.  I shall now elucidate the starting point for sentence.  I shall also indicate that in respect of these offences there must be an enhancement for the defendant’s Form 8 status.  I do not consider this to be a highly significant factor in this case, so the enhancement I will make to each charge is one of 3 months’ imprisonment for this factor.

18.  As far as the 1^st charge is concerned, I will take a starting point of 3 months’ imprisonment enhanced to 6 months’ imprisonment for the defendant’s Form 8 status.  After his plea of guilty is considered, that leads to a final sentence on 1^st Charge of 4 months’ imprisonment.

19.  On both the 2^nd and 3^rd charges, I take into account that the normal range of sentencing is between 36 months to 12 years’ imprisonment.  However, I consider that in these cases, having regard to the nature of the injuries inflicted, the starting point for sentence should be one of 30 months’ imprisonment, enhanced to 33 months’ imprisonment having regard to the defendant’s Form 8 status.  After the deduction for plea of guilty is taken into account, then the final sentence on the 2^nd and 3^rd charges will be one of 22 months’ imprisonment.

20.  Although all the offences are committed at separate times chronologically, they do form part of a series of offences of a similar nature committed within one incident.  However I consider that the 2^nd and 3^rd charges should be served concurrently to one another but that the 1^st charge should be served consecutively to those charges.  That would lead to a total final sentence of 26 months’ imprisonment for these offences.