HKSAR v. BUTT AHTSHAM

DCCC 244/2024

[2026] HKDC 403

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 244 OF 2024

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REASONS FOR SENTENCE

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1.  The Defendant was charged with:

(1)  one count of Wounding with intent, contrary to section 17(a)  of the Offences Against the Person Ordinance, Cap. 212 (Charge 1); and

(2)  one count of Assault Occasioning Actual Bodily Harm, contrary to common law and punishable under section 39 of the Offences Against the Person Ordinance, Cap. 212 (Charge 2).

2.  He pleaded guilty to Charge 1.  In those circumstances, the Prosecution agreed to leave Charge 2 on file, not to be proceeded with except with the leave of Court.

Summary of Facts

3.  The Summary of Facts admitted by the Defendant are as follows:

(1)  On 12 September 2023 at about 1600 hours Mr. Ahmad Ali (PW1), Mr. IQBAL Bilal (IQBAL)  and 2 friends were chatting outside No. HPP 26 & 26 stalls, 91-93A Kweilin Street, Sham Shui Po, Kowloon when the Defendant confronted PW1. The Defendant suddenly took a chopper out of a red plastic bag and used it to attack and inflict injury on PW1’s head.

(2)  The left side of PW1’s head was seriously injured. When PW1 attempted to escape and avoid the Defendant’s attack, the Defendant chased after him and attacked him again with the chopper, inflicting two more injuries.

(3)  IQBAL and other bystanders attempted to stop the Defendant. After the Defendant was subdued, the incident was reported to the police. The Defendant remained at the scene of the attack and when he was identified to the police as the assailant, he was arrested.

(4)  CCTV footage of the attack upon PW1 was captured by a security camera located outside the street stall. It showed the Defendant wielding the chopper at PW1.

(5)  As a result of the Defendant’s attack, PW1 sustained the following injuries:

(a)  A large 20cm long cut wound across the head from the left parotid to the occipital region;

(b)  An 8 cm long cut wound over the left side of his jaw;

(c)  A 1 cm abrasion over his left knee;

(d)  Damage of the temporal branch of the left facial nerve causing palsy;

(e)  Open comminuted depressed fracture of the left parietal bone and left temporal bone;

(f)  Left zygoma fracture with associated subcutaneous emphysema, pneumocephalus, subarachnoid haemorrhage and left mastoid effusion.

A medical report dated 22 December 2023 which related to PW1’s injuries was later prepared. PW1 was treated and discharged from hospital on 13 September 2023.

Arrest of the Defendant

(6)  The Defendant was arrested at the crime scene shortly after the incident. His clothing was covered in blood stains. He was not cautioned at the scene by the arresting officer PC 24253 (PW4)  due to language barrier.

(7)  PC 26846 (PW6)  the Exhibits Officer drew a sketch of the crime scene and seized a chopper with blood stains and a red plastic bag.

(8)  Subsequently, on 14 September 2023 between 1151 hours and 1613 hours at the Caritas Medical Centre, Sham Shui Po, DPC 18700 (PW5)  recorded a cautioned statement with the Defendant with the assistance of an Urdu interpreter. The Defendant claimed, inter alia, that he had attacked PW1 with the chopper because he had learnt that PW1 was involved in the death of his brother in Pakistan.

The Defendant’s Background

4.  The Defendant is 41 years old and single.  He was born in Pakistan and was educated up to primary 5 level.  He lives in Hong Kong alone and has been living in Hong Kong as a Form 8 recognizance holder since January 2011.

5.  The Defendant has 2 previous convictions. The first conviction was for possession of an offensive weapon.  He was sentenced to 9 weeks’ imprisonment on 17 September 2018. The second conviction was for wounding with intent (i.e. the same offence as the present case)  in DCCC 839/2021.  He was sentenced to 28 months’ imprisonment after a guilty plea on 6 July 2022.  He was released from prison for that offence on 31 December 2022.

Sentencing Principles

6.  Wounding with intent is a very serious offence, the maximum sentence is life imprisonment.

7.  In HKSAR v Nguyen Van Phuong [2006] HKCU 432 (CACC 341/2005, 9 March 2006, unreported), the Court of Appeal stated that “All offences contrary to section 17 of Cap 212 are serious because they all contain the ingredient that the offender intended to inflict really serious injury at the time”.  In HKSAR v Roka Sijan [2019] HKCU 6, Zervos JA stated that “any form of violence must be visited by condign punishment to serve the purposes of retribution and punishment”.

8.  There is no sentencing tariff. The usual range of sentence is 3 to 12 years’ imprisonment after a guilty plea: HKSAR v Tse Hok-lam  [2005] HKLRD (Yrbk)  344; Secretary for Justice v Hau Ping-chuen [2008] 3 HKC 398; HKSAR v Chan Chun-tat [2013] 6 HKC 225; HKSAR v Roka (supra). This range of sentences is not a tariff.  The sentence depends on the facts of each case: HKSAR v Wong Luk-sau [2013] 2 HKLRD 201 and Attorney General v Lam Yat-sing [1993] HKCU 35 (CAAR 14/1992, 14 January 1993, unreported).

9.  Comparing sentences imposed in different cases is not the correct sentencing approach. The factors to be considered in sentence are well established.

10.  In R v Fisher (2008)  189 A Crim R 16, the Court of Appeal in Queensland suggested that in offences of this type, punishment at the higher end of the scale is appropriate if:

(1)  the accused was the principal offender;

(2)  the accused assaulted the victim in company;

(3)  the assault was entirely unprovoked;

(4)  the assault occurred in a public place;

(5)  the accused not only punched the victim but kicked him once he fell to the ground;

(6)  the accused continued the attack after the complainant was unable to defend himself;

(7)  the victim suffered serious and lasting injuries;

(8)  lies to the police showing an absence of remorse.

11.  In HKSAR v Chan Chun-tat (supra), the Court of Appeal pointed out that:

“44. As to ground two it is difficult to derive very much in legal principle from the decided cases. This court has said on innumerable occasions that the sentences for this offence are very much case and fact specific and hence the wide range of 3-12 years for the usual type of wounding with intent. Of course there will always be cases which, for one reason or another, require a starting point beyond this range. Likewise, although cases attracting a starting point towards the top of this range will often be cases involving severe injuries and/or severe residual disabilities it cannot be said that only cases with these features are appropriate candidates for such a high starting point.

45. Consequently, we are of the view that little is to be gained in embarking upon a comparative analysis of other cases. We believe it is more helpful to identify the relevant sentencing principles and by properly applying them arrive at a just sentence. The starting point for this is an examination of the offence itself.

46. The reason that offences contrary to section 17 are serious is because they are committed with the intention of inflicting grievous bodily harm on the victim. In helping the lay person to understand what this legal phrase means the courts have said that it means not just serious bodily harm but “really serious bodily harm”, laying emphasis on the qualifying word “really” [1] It must be remembered that an intent to inflict this level of harm will have the consequence, should the victim die from the assault, of rendering the assailant liable to conviction for murder. In upholding the grievous bodily harm rule as a basis of liability for murder the Court of Final Appeal in Lau Cheong & Anor v HKSAR (2002)  5 HKCFAR 415 made the important point that an assailant intending to inflict this level of harm may not be able to control the consequences to the victim. At page 437 C - D it said:

‘A person may not subjectively intend or even foresee that he will cause death. He may desire to limit the consequences of his actions to the infliction of grievous bodily injury. However, as a matter of commonsense it is impossible to predict that the consequences of an intentional infliction of really serious bodily harm will necessarily be successfully limited and will not prove to be life threatening.’

47. It is hardly surprising, therefore, that the offence is regarded as such a serious one. Indeed, the fact that the usual range of sentence is 3 ‑ 12 years’ imprisonment reflects that very seriousness. For this range indicates that not only will imprisonment usually be the norm but also that the minimum period of imprisonment will usually be 3 years.

48. Thus in determining the gravity of the offence, the factor of primary importance is the intent of the assailant to cause the victim really serious bodily harm. Whether that intent was fully realized in the injuries sought to be inflicted has been said to be of “secondary significance”.[2] That must be so for, as the Court of Final Appeal pointed out in the Lau Cheong case, the consequences to the victim may not be as the assailant intended. Tragically, they may be worse, but even when they are not or they are not as bad as the assailant hoped to achieve that may not lessen the gravity of the offence. For the failure of the offender to achieve the level of harm he intended may be due to resistance by the victim, the intervention of others, speedy medical attention or purely unanticipated fortuitous circumstances. That is why, even though the consequences to the victim will always be an important factor, the gravity of the offence lies in the deliberate resort to violence with the intent by the offender to inflict by such violence really serious harm on the victim.

49. Consequently, many of the factors to which a court will have regard in determining the gravity of a section 17 offence and the culpability of the offender will relate to the type of harm intended to be inflicted, the means by which that harm was inflicted and the circumstances generally surrounding the assault. Thus, without attempting to exhaustively identity all the relevant factors, the usual ones will be the extent to which the assault was premeditated, the reasons or motivation underlying the assault upon the victim, the mental or emotional state of the assailant at the time of the assault, whether alcohol or drugs contributed to the actions of the assailant, whether the assault was committed by the assailant alone or as part of a group, the type of weapons employed, the level of force or aggression and the persistence with which the assault was pressed home, the injuries caused to the victim and the effect of the assault upon the victim and those close to him or her.

50. In arriving at an appropriate sentence the court will have regard not just to the need to punish the offender for his conduct, but also to the sentencing principles of deterrence, both general and individual, and, in appropriate cases, the need to denounce the resort to violence. Of course deterrence and denunciation are always important when there is resort to violence but there may be particular situations that call for greater deterrence, such as in triad gang or contract attacks, or more denunciatory sentences, such as in domestic violence cases.”

12.  In HKSAR v Ma Tik Lun Dicky [2015] 1 HKLRD 380:

(1)  The Defendant was convicted of unlawfully and maliciously causing greivous bodily harm with intent. The victim introduced the Defendant to PW1 in a bar and they had drinks together. The victim and the Defendant left for a while before the victim returned. The Defendant returned later with several other men (Xs). The victim was unwillingly taken to the lift, followed by PW1, where someone said using obscenities, “Sun Yee On is [XXX] almighty in Tsim Sha Tsui!”. The Defendant led the group away. Xs dragged the victim outside where for about 5 minutes, they punched, kicked and hit him on the head with glass bottles, even after he lost consciousness. The victim was hospitalized and had to be intubated. He sustained head lacerations, bruises, mild intracranial haemorrhages, a fractured jaw and underwent surgery. The Judge rejected the Defendant’s evidence that he did not know the group or instruct them to assault the victim; and found that he was the leader who ordered Xs to attack the victim and then to leave. The Judge held that the offence fell within the most serious category because the Defendant and Xs had participated in a joint enterprise to assault the victim which involved triad elements. The Defendant was sentenced to 6 years’ imprisonment. He applied for leave to appeal against both conviction and sentence.

(2)  The Court of Appeal refused the application and held:

“39. The first ground of appeal is that although the injuries sustained by the victim were serious, the sentence imposed on the applicant is, compared to other cases of wounding with intent, manifestly excessive. In our judgment, it cannot be a correct sentencing approach to compare sentences imposed in different cases: each case involves its own set of facts and little purpose will be served by comparing sentences imposed on the basis of different facts.

40. In HKSAR v Chan Chun Tat [2013] 6 HKC 225, the Court of Appeal reiterated that “wounding with intent” is a serious offence which warrants a deterrent sentence, and that the major sentencing considerations are:

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

(b)  the motivation underlying the assault;

(c)  The mental and 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;

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

The Court of Appeal also pointed out that in respect of certain acts of violence, such as those involving triad gang attacks, the court must issue strong denunciation and impose sentences with a greater deterrent effect.

41. Furthermore, the aggravating factors for this type of wounding case are: (1)  the defendant was the principal offender; (2)  the assault was committed in company; (3)  the assault was unprovoked; (4)  the assault took place in a public place; (5)  the assault went on after the victim had fallen down; (6)  the assault went on after the victim became unable to defend himself; (7)  the victim suffered serious and lasting injuries; (8)  at the police interview, the defendant misled the police as to the facts, indicating a lack of remorse.”

13.  In HKSAR v Roka (supra), Zervos JA set out the key factors in determining the appropriate level of sentence.  In that case:

(1)  On 18 July 2015, PW1, PW2 and PW3 finished work in Central at 6 am and went to have a drink together at the Buddha Lounge in Central. They were together inside the bar when the applicant and some friends came in and approached them. All of them were Nepalese and the applicant was the ex-boyfriend of PW3. The applicant was also known to PW1 as they had worked together in the past. Without warning, the applicant slapped PW3’s face. PW1 and others in the bar came to PW3’s defence. The applicant wanted to strike PW3 a second time but was pushed away by PW1. PW1 and PW2 escorted PW3 out of the bar through the back door to avoid any further confrontation. At about 9:45 am, PW3 was put in a taxi by PW1 and PW2, who both returned to the entrance of the Buddha Lounge where they saw the applicant and his friends again. The applicant shouted “Give me kukri, kukri”. A man took out a kukri and gave it to the applicant. There was a confrontation and the applicant attacked PW1 with a Kukri, a Nepalese knife with a curved blade that was about 40 to 45 cm long. At that moment, PW2 and another man tried to restrain PW1, and in the attack by the applicant, PW2 was chopped once to his arm. He then immediately retreated. The applicant then chopped PW1, who tried to protect himself with his hands and arms. The applicant chopped him repeatedly until he fell to the ground but he managed to get up and run away. The applicant chased after him but he was restrained by two men who led him away.

(2)  The attack took place on the pavement outside the Buddha Lounge and was captured by CCTV cameras in the locality. It was about 10 am on a Sunday morning, with adults and children out on the streets.

(3)  It was not in dispute that PW1 and PW2 received wounds after the attack. Nor was it disputed that later the same day the applicant left Hong Kong for Nepal. He returned to Hong Kong on 30 January 2016 when he was arrested.

(4)  The applicant was convicted of 2 charges of wounding with intent, contrary to section 17(a)  of the Offences against the Person Ordinance, Cap 212 and was sentenced to a term of 5 years’ imprisonment for Charge 1 and a term of 4 years’ imprisonment for Charge 2, to be served concurrently.

(5)  The Court of Appeal pointed out that:

“45. This was an extremely serious and sustained attack in a public place by the applicant with a lethal weapon (a kukri knife)  on two victims. Both victims were defenceless at the time of the attack and both sustained serious injury, particularly PW1. The applicant chopped PW2 because he got in the way in his pursuit of PW1 and when he eventually got to PW1, he chopped him many times to his neck, left elbow, left wrist, left leg and left thigh.

46. The judge noted that the scars from these injuries showed that PW1 was a victim of a frenzied attack. She particularly noted the scar to his neck, which was over 12 cm long wrapped around his neck. She said that the applicant kept on chopping PW1, even when he had fallen to the ground. She said that he wanted to continue chopping him, but fortunately he was restrained by his friends, and PW1 was able to get up and run away. Even then the applicant still wanted to pursue him.

47. The judge noted that the frenzy of the attack was clearly apparent from the CCTV footage and that no one could have helped PW1 at that moment. She said that if he had not had the strength to get up and run away, “I do not think he would be here to give evidence.” She added that this showed how serious a case it was and that she had not seen injuries like this in such a case before. We entirely agree. This was a very serious case of wounding.

48. In mitigation, defence counsel accepted that the injuries suffered by PW1 and PW2 were serious, and that PW1 particularly sustained “lasting injuries”. He noted that the general range of sentences for such an offence was between 3 and 12 years’ imprisonment.

49. The judge in her sentencing remarks noted that there were no tariffs for such an offence and that sentences were case specific. However, she went on to note that there were relevant factors that put the sentence to be imposed at the higher end of the scale. She said:

“Those include the fact the assault or the attack was in public. It was at 10 am on a Sunday and from CCTV footage there were many people walking up and down that section of Hollywood Road, including children. The attack continued when PW1 was on the ground and unable to defend himself at all. There was no evidence the defendant was provoked by PW1 to such an extent that it could justify such a response. PW1 in particular suffered very serious and lasting injuries.”

50. The judge considered that a global sentence of 5 years’ imprisonment was appropriate. She sentenced the applicant to 5 years’ imprisonment on Charge 1, and 4 years’ imprisonment on Charge 2. She ordered both sentences to run concurrently, resulting in a total sentence of 5 years’ imprisonment.

51. We were of the view that the overall sentence of 5 years’ imprisonment was very lenient in the circumstances of the case, but in fairness to the judge, she may have felt constrained by the jurisdictional ceiling of the District Court of 7 years’ imprisonment.

52. Any form of violence must be visited by condign punishment in order to serve the purposes of retribution and deterrence. This is especially true in cases of wounding, where the element of the offence is that the offender intended to inflict really serious injury on the victim. Whilst there are no sentencing guidelines for wounding, it has been said that the usual range will be between 3 to 12 years’ imprisonment, although this will very much depend on the particular circumstances of each case. See HKSAR v Tse Hok Lam [2005] HKLRD 344 and HKSAR v Chun Sze Wing, CACC 289/2011, 14 June 2012, unreported at paragraph 12. However, we would add that in very serious cases of wounding, a sentence outside this range may well be warranted.

53. Key factors in determining the appropriate level of sentence for the offence of wounding, include the nature and circumstances of the assault, the use of a weapon and the circumstances of its use, the defenceless state of the victim, and the nature and effect of the injuries suffered by the victim. For these factors, the judge in the present case should have imposed a much higher starting point. The applicant called for a “kukri” which was given to him, and he then engaged in a deliberate and sustained attack on PW1. He chopped PW2 first in his pursuit of PW1. Both men were unable to defend themselves. He continued to attack and strike PW1, even when he laid on the ground. The applicant struck several blows at and near the neck of PW1, a vulnerable part of the body, which could have been fatal. PW1 sustained serious injuries all over his body, which will have a lasting effect on his future wellbeing and quality of life. PW2 also sustained a serious injury even though he was struck only once.

(6)  The applicant’s application for leave to appeal against conviction out of time was dismissed. He abandoned his application for leave to appeal against sentence out of time. The Court of Appeal invoked the power under section 83W(1)  of the Criminal Procedure Ordinance and made a loss of time order of 2 months against him.

Discussion

14.  I now turn to deal with Counsel’s Submissions.

Alleged Background to the Assault

15.  Counsel tried to explain the reasons behind the Defendant’s assault (paragraphs 6 to 8 and 10 of the Submissions).  She stated that:

(1)  The Defendant’s cousin lent money to PW1’s brother. PW1’s brother refused to repay the loan which caused tension between the Defendant and PW1’s families. As a result, there was an altercation between PW1’s brother and the Defendant’s cousin in 2012. In 2018, the Defendant’s brother was killed. The Defendant later learned from family and friends that PW1 was involved in the murder of his brother. He was told that his brother was killed because of the rift between the families and altercation in 2012.

(2)  When the Defendant came to Hong Kong, he came into contact with PW1 on a few occasions. After the Defendant learned about PW1’s involvement in his brother’s murder, he repeatedly asked PW1 to surrender to the police in Hong Kong and to admit to the murder. PW1 refused.

(3)  The Defendant became more frustrated and angry with PW1. His mother had suffered a lot after his brother’s death and his mother died shortly thereafter. The Defendant decided to commit the offence, intending to cause injury to PW1 to teach him a lesson and cause PW1’s family to suffer.

16.  Counsel referred to Secretary for Justice v Yu Yat Sang CAAR 2/2010 but no submissions were made in respect of the same. In that case:

(1)  After the Respondent’s cautioned statements were admitted in evidence, he pleaded guilty to one count of Wounding with intent to do grievous bodily harm, contrary to section 17(a)  of the Offences Against the Person Ordinance, Cap. 212 (Charge 1)  and one count of unlawful and malicious wounding, contrary to section 19 of that Ordinance (Charge 2).

(2)  The charges arose from a dispute between the Respondent who was employed as a fisherman on a fishing vessel berthed at the Pier of the Tai Po Wholesale Fish Market and two other fishermen employed on another such vessel. All three men were from the Mainland and they had known each other for a few months.

(3)  In the evening of 6 July 2009, the Respondent was playing mahjong with others on a fishing vessel berthed at the Pier and one of the victims (PW1)  was watching the game. The Respondent lost some money and because of comments made by PW1, a heated argument developed which resulted in some pushing and a struggle. The Respondent reported the matter to the police and the matter was settled between the parties by the payment of $500 to the Respondent as compensation. The Respondent and PW1 then returned to their respective boats. About 5 hours later, at about 12:39 am, whilst PW1 and PW2 were sleeping next to each other on their fishing vessel, the Respondent came over to PW1 and PW2’s boat with a chopper and chopped PW1. PW1 felt great pain and screamed which woke up PW2. The Respondent stood next to PW1, held up the chopper and tried to chop PW1. PW1 and PW2 held the Respondent in an attempt to stop further attacks. During the struggle, PW2’s right forearm was chopped but PW1 eventually managed to snatch the chopper from the Respondent. However, PW1 and the Respondent lost their balance and fell into the sea. A report was made to the police and the Respondent was arrested. It was established that the chopper came from the Respondent’s boat.

(4)  Under caution, the Respondent stated that in the course of the mahjong incident, he had a dispute with PW1 and was punched. The matter was subsequently settled. Later that night, the Respondent took a chopper from his boat, went over to PW1 and PW2’s vessel to chop PW1.

(5)  PW1 and PW2 were taken to the hospital. PW1’s right ear was cut apart and he also suffered a 10-inch long cut wound on his neck and a 6-inch long cut wound on his back as a result of the attack. PW2 also suffered a 6-inch long cut wound on his right forearm as a result of the attack. No medical report or photographs of the injuries were placed before the sentencing judge.

(6)  The sentencing Judge noted that according to the Respondent’s psychologist report, he nursed a feeling of inferiority and inadequacy which the Judge found “no doubt contributed to his commission of the present offences” . The Judge further noted that the Respondent lived in a boat in a confined environment and because of his residency status was not entitled to wander about Hong Kong. He held:

“8. I have taken the following matters into consideration when sentencing. The attack cannot be said to have been premeditated. The defendant was still suffering from the effect of the attack by the victims on him earlier on in the day. The defendant has a clear record and according to the psychologist his chance of re-offending is low. The victims had refused to come forward to testify against the defendant thus indicating that they probably did not suffer too much trauma and did not think much about the incident.

9. I have also taken into consideration that the defendant had only decided to plead guilty after I had ruled admissible his cautioned statement, as well as the seriousness of the injuries of the victims.

10. Bearing in mind the range of sentences in relation to s.17 wounding cases, I find that an appropriate starting point for charge 1 is 30 months' imprisonment. Although I have taken into consideration the defendant's late plea, I also bear in mind that he is someone of clear record and it is clear from what he had been telling the probation officer and the psychologist that given the defendant's disposition, he might have honestly believed that he was acting in self-defence and hence insisted on pleading not guilty. I will grant the defendant the full one third discount despite his late plea, and sentence him to 20 months’ imprisonment on charge 1…”

(7)  The Secretary for Justice made an application for Review of Sentence. The Court of Appeal held:

“24. We have seen the photograph of the weapon used; the judge saw that weapon himself in the course of the hearing. The weapon used is a vicious weapon and the description of it by the applicant as a very dangerous weapon is accurate. The attacks themselves were serious; in the case of PW1, the chopper was directed to the region of the head as well as to the back and it is precisely this type of attack that can lead to consequences considerably more serious than those which were occasioned in this instance. PW1’s right ear was largely cut through. There is a large cut at the side of the neck, a particularly dangerous place for an attack with a sharp weapon; the wound to his back was 6 inches long and the wound to the forearm of PW2 was also 6 inches long. It is not to be forgotten that, by definition, the first offence was one executed with an intent to cause really serious harm.

25. It is to be remembered as well that this was an attack visited upon men who were sleeping at the time of the attack. Certainly PW1 was asleep when he was attacked even though PW2 may very well have been awake when he sustained his injury. In the case of the attack on PW1, the attack was launched on a man who at the time was entirely defenceless.

26. The judge’s categorisation of the attack as one that was not premeditated is on its face strange but having heard the submissions of Mr Beel, we are perhaps in a better position than previously to understand what it is that the judge may well have had in mind. It will be remembered that the respondent told the police upon his arrest that he had acted in a moment of sudden madness. He had been the subject of earlier provocation by someone whom, we are told today, acted like a bully and was larger in size than the respondent. … The view which the judge probably took was that this was a case different from one in which, with a cool head, someone plans an attack in revenge or perceived revenge or for some other motive. It was rather, he must have meant, a case of a man living in confined circumstances and in close proximity to someone who had offered him offence and who had permitted his grievance to fester and to build to a point where he lost his head, picked up a weapon, took it to a place nearby and unlawfully released a rage which he had allowed to develop.

27. The judge was entitled to sentence on that basis. Yet, that said, this was an attack that took place about five hours after the original incident and, although the men lived in close proximity and it was therefore easier for such an attack to take place upon pent-up rage, the fact remains that the respondent took the chopper to the other boat and attacked two men who were sleeping. The mitigation thus advanced is valuable in so far as it enables sentencing to proceed upon a fair factual basis, but the value of the mitigation is in this case limited by the fact that hours had passed, that the attack was visited upon defenceless men, and that it was effected with a dangerous weapon upon a highly vulnerable part of PW1’s body.

28. It is difficult to understand the suggestion made by the judge that the victims "probably did not suffer too much trauma and did not think much about the incident." One does not know why these two Mainlanders did not come to give evidence. There may be many reasons and it is pointless to speculate about it. But having regard to the nature of the injuries, it is unrealistic to conclude other than that at least PW1 suffered considerable pain and that he must have thought a great deal about the incident at the time and after. There are no medical reports to indicate whether there will be any serious lasting disfigurement. Nonetheless, one can safely assume that the ear injury will leave some permanent disfigurement, although it is not possible for this court to say how marked in due course that will be. …

32. On the facts agreed it must be assumed in favour of the respondent, that there was a degree of provocation offered by PW1 as against him earlier that day. The respondent himself called the police and was obviously perceived by others, including PW1 himself, sufficiently to be in the right at that stage to warrant some compensation. The men lived in close proximity and confined to their boats. Against this background and in that setting, the respondent’s anger simmered. This is not for a moment to excuse what subsequently happened but it provides the contextual background which must not be ignored. It is also to be borne in mind that but for the respondent’s own admission to the police of what had happened, the case may not have successfully been concluded against him, although his subsequent plea of not guilty and the stories he gave to the psychologist and to the probation officer detract from suggestions of remorse. We bear in mind as well the advantage that the judge had of assessing the respondent’s personality and we assume that it supported the assessment made by the clinical psychologist.

33. In all these circumstances, in our judgment, an appropriate starting point in this case upon charge 1 was one of 5 ½ years’ imprisonment. But for the mitigating factors to which we have referred, the absence of medical reports dealing with the permanence or otherwise of injuries, the absence of photographs upon which we would otherwise be entitled to rely, and the view taken by the judge of the respondent’s personality, a higher starting point would be warranted.. …

35. In Secretary for Justice v Wong Hong Leung, to which we have earlier referred, the Court reminded sentencing judges that they do no favour to defendants by imposing unduly lenient sentences. This case is a good illustration of how such undue leniency works to the ultimate disadvantage of a defendant… “

17.  The Defendant’s explanation of the background is wholly illogical. Even if there were a loan, PW1 was not party to the loan, it was a matter between PW1’s brother and the Defendant’s cousin.  The alleged altercation between PW1’s brother and the Defendant’s cousin took place in 2012. Yet the Defendant’s brother was only killed in 2018. Counsel submitted that the Defendant “later learned from family and friends that PW1 was involved in the killing…he had information linking PW1 to the murder of his brother.  He repeatedly asked PW1 to go to the police station and turn himself in and to admit that PW1 killed his brother”.  Firstly, the Defendant’s alleged information was all hearsay.  Secondly, if he had cogent evidence to link PW1 to his brother’s murder, there was nothing to stop the Defendant from reporting the matter to the police himself.  Thirdly, the Defendant has other siblings.  If they are still in Pakistan and have information linking PW1 to the death of one of their brothers, they can also report the matter to the authorities in Pakistan.  Fourthly, even if PW1 were to surrender himself as requested, it is difficult to see how the Hong Kong Police could investigate a murder in Pakistan.  Lastly, the Defendant suggested that PW1 killed his brother.  However, when the Court was informed that PW1 was also a Form 8 Recognizance holder who came to Hong Kong in 2011 (and it was therefore physically impossible for PW1 to have killed the Defendant’s brother in Pakistan in 2018), the Defendant changed his allegation and stated that PW1 ordered the murder of his brother.

18.  It is unclear whether Counsel is asserting that the alleged family history amounts to provocation.  If that were the case, that assertion is rejected.

19.  In Yu Yat Sang, the possibility of provocation was based on admitted facts. In the present case, there is only a bare allegation from the Defendant.  In Yu Yat Sang, the dispute and altercation took place mere hours before the attack.  Even then, the Court of Appeal stated that the value of such mitigation was limited by the passage of time (paragraph 27). In the present case, the Defendant stated that the alleged loan from his cousin to PW1’s brother was in 2012 (about 11 years prior to the attack); the alleged altercation between the parties to the loan was in 2012 (again about 11 years prior to the attack); the alleged murder of the Defendant’s brother was in 2018 and his mother died shortly thereafter  (i.e. 5 years prior to the attack).

20.  There is no dispute that the assault in the present case was premeditated.  The Defendant bought the chopper in the same morning to attack PW1 (paragraphs 15 and 16(iv)  of the Submissions)  Even assuming that the Defendant believed that PW1 was involved in his brother’s death, there can be no doubt that this was a revenge attack.

21.  Hong Kong is a civilized society which prides itself in upholding the rule of law; such behaviour (taking the law in one’s own hands)  is not and will not be tolerated.  Far from being mitigation, a cool-headed plan to exact revenge or perceived revenge is in fact an aggravating factor.

The Absence of Witnesses

22.  As in Yu Yat-sang, PW1 and PW2 in the present case were not available to give evidence (paragraph 3 of the Submissions).  However, the circumstances of their non-attendance are completely different.  In Yu Yat-sang, the two victims refused to give evidence. In the present case, the police were unable to contact PW1 and PW2 has been deported.  In any event, the Court of Appeal stated in Yu Yat-sang that there may be many reasons why a witness is unwilling to give evidence and it is pointless to speculate on the same.

23.  This is not a case where the Prosecution would be unable to prove any of the charges in the absence of witnesses.  Part of the incident was captured by a nearby CCTV.  The Prosecution had cogent evidence against the Defendant in respect of Charge 1.

Sentencing Approach

24.  Counsel cited Ma Tik Lun Dicky and accepted the cardinal principle that “it cannot be a correct sentencing approach to compare sentences imposed in different cases; each case involves its own set of facts and little purpose will be served by comparing sentences imposed on the basis of different facts” (paragraph 11 of the Submissions).

25.  However, she then proceeded to refer to the sentence in HKSAR v Lu A Tung DCCC 1203/2023.  In that case:

(1)  The Defendant pleaded guilty to:

(a)  one charge of Wounding with intent, contrary to s.17(a)  of the Offences Against the Person Ordinance, Cap. 212 (Charge 1); and

(b)  one charge of Taking employment while being a person in respect of whom a removal order is in force, contrary to section 38AA(1)(b)  and 38AA(2)  of the Immigration Ordinance, Cap. 115 (Charge 2).

(2)  PW1 was the manager of a vegetable shop since October 2022. The Defendant (who was a Form 8 Recognizance Holder from Vietnam)  started working as the night shift general worker in the same shop since April 2023. Since May 2023, PW1 found that the Defendant’s work performance was unsatisfactory. She told both the Defendant and the regional manger (PW2)  about her views. On 8 June 2023, in the absence of improvement, PW1 suggested to PW2 that the Defendant should be dismissed. After he was informed of the decision, the Defendant tried to call PW1 but she did not answer the telephone.

(3)  At about 7:30 pm on the same day, PW1 left the shop with a colleague. Subsequently, when PW1 was walking alone in the subway leading to the Choi Hung MTR station, the Defendant appeared with a kitchen knife in his right hand and another object in his left hand. Without a word, the Defendant used the kitchen knife to slash PW1’s right hand, right thigh, right side of her back and left upper arm. The attack lasted for about 20 seconds and the Defendant then fled.

(4)  A passer-by (PW3)  witnessed the attack after he heard PW1’s screams. He saw the Defendant slashed PW1 after she fell to the ground. There were approximately 10 slashes in total. The police seized an unopened chopper in the vicinity; its blade was 17 cm in length with a 12 cm handle. The kitchen knife could not be located.

(5)  As a result of the attack, PW1 suffered multiple lacerations on her limbs and back and an open fracture of the head of the middle phalanx of the right index finger. She was hospitalized at the United Christian Hospital between 8 June 2023 and 30 June 2023. An update of PW1’s condition revealed that although all her wounds were healed, she has to see a physiotherapist for follow-up treatment. She also suffered weakness at her right fingers and right anterior thigh; she has periodic pain in her upper left arm at night which caused insomnia; she has nightmares recalling the incident.

(6)  The Defendant was arrested on 11 June 2023 and was positively identified by PW3 in an ID parade on 13 June 2023. The surveillance CCTV footages in Sham Shui Po district and Ngau Chi Wan district showed that between 5:13 pm and 6:40 pm on 8 June 2023, the Defendant purchased a kitchen knife and a chopper from a grocery shop and the length of the kitchen knife was similar to that of the chopper; before the attack, the Defendant was wandering near the scene wearing a black sleeve on his right arm and a pair of white labour gloves.

(7)  In mitigation, the Defence asserted that in fact the Defendant worked very long hours and wanted to quit the job. PW1 tried to retain his services by offering a pay rise. Instead of honoring her promise, PW1 caused the Defendant to be dismissed. He felt “extremely cheated, exploited, enraged and provoked” by PW1. Counsel prayed in aid of 7 cases and argued that the facts of the case before the court were less serious than in those cases. Counsel averred that the appropriate sentence should be in the range of 3 to 4 years.

(8)  In assessing the proper starting point for Charge 1, the court first referred to the principles set out in HKSAR v Wong Luk-sau CACC 2/2012 and Ma Tik Lun Dicky. The court stated:

“21. In the present case, the defendant’s unlawful act entirely stemmed from the grievance and anger he nursed against PW1 for his dismissal. It is all too common that an employee will feel frustrated in facing employment termination. An aggrieved employee should never resort to violence as a means to vent his or her anger under any circumstances, albeit he or she may disagree with the decision or consider it unreasonable or unjustified. The attack carried out by the defendant was undoubtedly a planned revenge for his treatment at work. The sentence must hence carry deterrent effect in that the defendant should be firmly deterred from resorting to weapons and violence. In my view, there is a strong need for deterrence, generally and individually, in sentencing.

22. In mitigation, it is submitted by Mr Leung that “the degree of pre-meditation was only around 1 hour in advance of the attack as a result of PW1’s oral dispute with D; D was furious as he felt cheated and provoked by PW1 at the material time” and “he felt provoked by PW1 at the time of the attack.”. If I understand the submission correctly, it is suggested that the act of the defendant was less culpable, as compared with other decided cases, in terms of planning and his mental status. With respect, I do not agree.

23. Firstly, prior to the attack, the defendant left the Store and attended a grocery shop in Sham Shui Po district. Secondly, he bought a kitchen knife and a chopper, the blade of each of them was approximately 18 cm in length. Without a doubt, those are lethal weapons capable of causing serious and fatal injuries. Therefore, he must have the intent to inflict really serious bodily harm on PW1. Thirdly, he returned to the vicinity of the Store and waited for PW1. In my view, it is not an exaggeration to describe his act as a planned ambush on a defenseless victim in a public place.

24. In Secretary for Justice v Hung Kar Chun, CAAR 9/2010, Cheung JA gave a practical definition of premeditation:

“11(2)  This was not purely an unpremeditated case. It was not the case that the respondent offhandedly picked up an object at the scene to attack PW1 when he was engulfed in rage. His acts were planned and malicious: after the two had an argument over the phone, the respondent left the mall and took a 10 minutes’ walk to buy the weapon before returning to the mall. On the way, he even phoned his girl friend, making threatening remarks to PW1. This is different from the circumstances where a person attacked another person having lost control of his emotions as a result of a dispute.”

25. Insofar as his mental status is concerned, assuming that he had heated argument with PW1 as alleged by Mr Leung (which is contrary to the Summary of Facts to which to the defendant admits), he subsequently left the Store and he must have time to cool himself off. However, he planned to take revenge on PW1 by way of a vicious attack, which was not carried out at the spur of the moment. I do not accept that he committed the offence due to sudden and momentary loss of self-control, let alone provocation.

26. In the course of mitigation, I have been referred to a number of cases, one of which is a Court of Appeal judgment, one is from the Court of First Instance and 5 are District Court decisions.

27. Time and again, the Court of Appeal has reiterated that for an offence of wounding with intent, the circumstances and factual matrix differ from case to case and the other decided cases are of limited assistance in sentencing …”

26.  In paragraphs 27 to 33 of his Reasons for Sentence, the learned Judge did mention the District Court cases cited by Counsel.  However:

(1)  He only did this to point out the factual differences between those District Court cases and the case before him (See paragraph 28 of the Reasons for Sentence); and

(2)  In the footnote to paragraph 27 (Footnote 6), the learned Judge specifically pointed out that District Court cases were not binding on him.

27.  The purpose of citing Lu A Tung to this Court is unclear. It is trite law that District Court cases are not binding on this Court. In fact, in recent years, this has been repeatedly pointed out by the Court of Appeal specifically and repeatedly pointed out that sentences in District Court cases have not been tested by appeals; they do not set out any principles; they should not be referred to as “authorities” and have no value even as a reference.  The Court of Appeal urged the profession to desist from this practice: See 香港特別行政區訴溫達揚 [2022] HKCA 1328; 律政司司長對唐健帮（Tong Kin-pong) 及另2人 [2023] HKCA 896 and 香港特別行政區對劉晉旭 (Lau Chun Yuk) 及其他人 [2023] HKCA 1098.

28.  Counsel then set out the factors considered by the learned Judge in paragraph 34 of that case and informed this Court that the starting pointed adopted was 4 years and 6 months.  The factors were:

“(1)  It was not an impulsive attack and it was premeditated. He purchased the weapons before the attack and wore a pair of white gloves. He waited for PW1 on her way home from work in the vicinity of the MTR station;

(2)  The attack was clearly a revenge for his dismissal;

(3)  It took place in a public place;

(4)  The weapon used was a kitchen knife. The defendant also carried a chopper with him. They were lethal weapons;

(5)  The defendant continued to attack after PW1 had fallen to the ground. The entire attack lasted for about 20 seconds with about 10 slashes;

(6)  PW1 sustained multiple lacerations on her limbs and back, and an open fracture on right index finger.”

29.  The factors considered by the learned Judge were facts specific to that particular case.  There are certain similarities between the present case and Lu A Tung, including premeditation, the use of a lethal weapon, a revenge attack, the offence being committed in a public place and the offender’s immigration status as a Form 8 holder.  However, there are also marked differences, including the area of the body targeted in the attack, the nature and extent of the injuries caused and the Defendant’s previous record.

30.  By reason of all the matters mentioned above, I do not propose to perform a comparison exercise between the present case and Lu A Tung.

Injuries caused to PW1

31.  The Defendant admitted that as a result of his attack, PW1 sustained the following injuries (paragraph 5 of the Summary of Facts admitted by the Defendant):

(1)  A large 20cm long cut wound across the head from the left parotid to the occipital region.

(2)  An 8 cm long cut wound over the left side of his jaw.

(3)  A 1 cm abrasion over his left knee.

(4)  Damage of the temporal branch of the left facial nerve causing palsy.

(5)  Open comminuted depressed fracture of left parietal bone and left temporal bone.

(6)  Left zygoma fracture with associated subcutaneous emphysema, pneumocephalus, subarachnoid haemorrhage and left mastoid effusion.”

32.  The admitted injuries are consistent with the medical report from Caritas Medical Centre dated 22 December 2023.  That report also stated:

“Intravenous fluids, Panadol and intravenous Augmenting was given as initial treatment. An urgent CT of head and neck with contrast was arranged …”

33.  Contrary to what was stated in paragraph 5 of the Summary of Facts, PW1 was not discharged from hospital on 13 September 2023. He was in fact transferred to the neurosurgical ward of PMH on that day.

34.  Surprisingly, no medical report from the PMH was initially produced to this Court.  It was only produced upon the Court’s enquiry.  That report stated:

“(PW1)  was transferred from Caritas Medical Centre (CMC)  to our department on 13/9/2023 for stab wound and open skull fracture … His computed tomography of brain (CTB)  showed open left parietal and temporal bone comminuted depressed fracture with <2 millimeter (mm)  thick epidural hematoma. Therefore, patient underwent emergency surgery of left craniectomy for depressed skull fracture on 13/9/2023 with 11 x 4 cm bone removed and dura repaired. General surgery also went in for exploration of wound and suturing of the 8 cm lower face / upper neck laceration.

Post-operative CTB showed post-operative changes and his GCS remained full with all 4 limbs power full. During the admission, we completed a course of antibiotic injection. In the most recent ward follow-up on 20/10/2023, wound remained clean with no sign of infection. All stitches were removed. ”

35.  Photographs of PW1’s injuries some 2 weeks after the incident were produced.  Surprisingly, no information was obtained as to the effects of PW1’s injuries.

36.  In relation to the injuries caused to PW1 and prior to the production of the Medical report from PMH, Counsel submitted in paragraph 16 of her Submissions that:

“(ii)  From the photos of PW1, it can be seen that the injuries are not the most serious of its kind. The report dated 22.11.2023 also stated that “Patient’s extraocular movement was full with no diplopia … Chest X-ray was unremarkable. There was no obvious vertebral collapse or fracture in cervical spine X-ray … No surgical follow up in CMC was required …

(v)  There is no evidence from the prosecution to show the long term / permanent effect of the injuries sustained in light of the incident, and impact on PW1. No reports have been prepared for the court …”

37.  Those submissions were made prior to the production of the PMH medical report.  However:

(1)  It will be more than obvious from the injuries set out in the Summary of Facts that the injuries suffered by PW1 were extremely serious;

(2)  It was clear from the CMC Medical report that PW1 only received initial examination and treatment at CMC and that he was then transferred to the neurosurgical ward in PMH on the following day. It was surprising that Counsel omitted to mention this in her Submission.

38.  In any event, it is now admitted that the assertion in paragraph 16(ii)  of the Submissions that the injuries were not the most serious of its kind are not tenable.  Surprisingly, the prosecution has failed to obtain any information as to whether PW1 continued to attend follow-up at PMH after 20 October 2023, his condition and the possible long-term effect of the injuries.  There was also no request from the prosecution for any adjournment for them to obtain such information.  This Court will have to assume that there are no permanent disabilities (such as permanent left facial palsy).  However, Counsel now accepts that it is likely that PW1 would have to live with two large permanent disfiguring scars on his face, although it is not possible for this Court to say how marked in due course that will be.

39.  It is only fortuitous that the injuries suffered by PW1 were not fatal and that the wounds appeared to have fully healed.  The lack of permanent and serious injuries will not lessen the Defendant’s culpability.  In HKSAR v Tung Pak Fai CACC 231/2021, M Poon JA observed that:

“21. Given the many imponderables as to why an assailant failed to achieve the injuries intended by him, the actual injuries caused is only one of the myriad of factors to be take into account. The gravamen of the offence is in the intent to inflict really serious injuries, which is the same intent as that required for murder. The lack of serious injuries does not necessarily reduce the gravity of the offence or offset the other aggravating factors.”

40.  The fact that a victim is not injured as badly as the accused intended is not something upon which reliance may be placed for sentencing purposes.  In HKSAR v Fok Ka Po [2019] 6 HKC 230, where there was an acid attack on a young woman, it was said that although the victim had only sustained limited injuries, this was a matter of ‘sheer luck and happenstance’, and not of mitigation.

The Defendant’s Intent

41.  Despite the Defendant’s guilty plea to Charge 1 and admission of the Summary of Facts, there are assertions that were self-contradictory and equivocal to a guilty plea in paragraph 16(iv) of Counsel’s Submissions:

“The chopper was bought that morning, and the reason he bought a chopper was because the shop sold that type of knife, he did not think too much about the type of knife being used and he wanted to use it to scare PW1; …”

42.  She also pointed out in her Submissions that the attack was premeditated and that the Defendant had decided to commit the offence to teach PW1 a lesson hoping to cause some injury to PW1 (paragraphs 8 and 15 of the Submissions).

43.  Yet, in the same breath (paragraph 8 of the Submissions), she stated that the Defendant believed that PW1 killed his brother and that his mother suffered immensely and died soon thereafter.  She explained that the Defendant decided to commit the offence so that PW1’s family would also suffer like his family.  It is implicit from this statement that the Defendant intended to cause really serious (even fatal)  injuries to PW1 and is inconsistent with the abovementioned assertions.

44.  But for Counsel’s repeated confirmation in Court that the Defendant intended to cause really serious injury to PW1, this Court would have entered a not guilty plea.

Circumstances of the Attack

45.  I find that the circumstances of the attack in the present case are as follows:

(1)  The Defendant acted alone;

(2)  There is no evidence that the attack was triad related;

(3)  The attack was premeditated;

(4)  The attack was unprovoked;

(5)  The attack was clearly a revenge attack;

(6)  PW1 was defenseless at the time of the attack;

(7)  The attack took place in a public place in broad daylight. The screen shots of the CCTV footage showed that there were many pedestrians around. In fact, the Defendant admitted that IQBAL and other by-standers attempted to stop the Defendant and eventually subdued him before a report was made to the police (paragraph 3 of the Summary of Facts);

(8)  The weapon used was a chopper, a lethal weapon;

(9)  Although Counsel pointed out that the CCTV footage only showed the initial attack to the left side of PW1’s head, the Defendant admitted that the left side of PW1’s head was seriously injured after the initial attack. He tried to escape from the Defendant but the Defendant gave chase and attacked him again, inflicting two more injuries (See paragraph 2 of the Summary of Facts admitted by the Defendant). Not only was the attack vicious and serious, it was persistent;

(10)  It is apparent from the injuries suffered by PW1 that the attack was extremely serious. The attacks were directed at PW1’s head. As was pointed out by the Court of Appeal in Yu Yat-sang that “it is precisely this type of attack that can lead to consequences considerably more serious than those which were occasioned in this instance” (See paragraph 24);

(11)  The Defendant admitted in his Record of Interview that he attacked PW1 because he heard that PW1 was involved in his brother’s death in Pakistan. However, since the initial attack was recorded by a nearby CCTV, this is not a case where the Prosecution would be unable to bring the case to its conclusion without the Defendant’s admission;

(12)  It is likely that PW1 will have to live with 2 permanent facial scars. The Defendant is lucky that there is no evidence of any permanent disabilities. However, PW1 suffered an open comminuted depressed fracture of the left parietal bone and left temporal bone, which resulted in emergency brain surgery where 11 x 4 cm bone was removed. The nature of that injury alone demonstrates how vicious the attack was and the extent of force used by the Defendant. It is fortunate that the injuries were not fatal.

46.  In my judgment, having considered all the circumstances and the mitigation put forward on the Defendant’s behalf, the appropriate initial starting point is 6 years’ imprisonment.

Other Aggravating Factors

47.  There is no dispute that the Defendant is a Form 8 Recognizance holder and that the Defendant has 2 previous convictions, one for possession of an offensive weapon and one for wounding with intent.  Counsel admitted that these are both aggravating factors.

48.  In relation to being a Form 8 holder, Counsel urged the Court to consider “the fact that he did not come to Hong Kong and immediately commit offence as a F8 holder”  (paragraph 15 of the Submissions). That submission is clearly contrary to established principles.

49.  Sentencing in Hong Kong 11th Edition stated as follows:

“[1-98] If an offender comes to Hong Kong from the Mainland on a two-way permit specifically to commit serious crime, this will constitute an aggravating factor: HKSAR v Chau Chun-yee [2001] 3 HKC 605, 608.

[1-99] The same applies not only to a foreign national who enters Hong Kong with the intention of committing an offence, but also to a foreigner who is allowed to remain by the authorities, pending the resolution of an asylum claim, but then abuses the hospitality he has been shown by turning to  crime: HKSAR v Sandagdori and Another [2014] 1 HKC 206. It is equally an aggravating factor if a foreigner who has mandated refugee status commits an offence, and such persons are treated in the same way as torture claimants: HKSAR v Junaid Ahmed [2018] HKCU 939 …

[1-100] There is ‘nothing discriminatory in treating the circumstances of the offender’s immigration status as a factor aggravating his culpability and there is no infringement of the principle that everyone is equal before the law’: HKSAR v Novena GC Andres [2015] HKCU 957 (CACC 319/2014, 30 April 2015, unreported). In HKSAR v Londono Montealegre [2017] 1 HKLRD 450 … an accused’s immigration status as a Form 8 holder was considered to be an aggravating factor in a drug trafficking case (see also HKSAR v SK Hasnninzzaman [2018] HKCU 2124 … In HKSAR v Singh Gursevak [2019] 2 HKLRD 274 … a robbery case, it was said that there are two principles underlying the amount of enhancement where the accused as a Form 8 recognizance holder, namely denunciation of criminal activity by Form 8 holders, and deterrence of all Form 8 holders from committing crimes while they enjoy the freedom to live in Hong Kong as they await resolution of their claims. Form 8 holders must be firmly discouraged from becoming involved in serious crime: HKSAR v Ali Saif [2018] 6 HKC 19 … In HKSAR v Butt Muhammad Gulzar [2020] 3 HKLRD 805 …, it was emphasized that ‘The enhancement for being a Form 8 recognizance holder must be substantial otherwise it has no deterrent effect’.… ”

The Amount of Enhancement for Form 8 Holders

50.  The Court of Appeal has enhanced or endorsed the enhancement by sentencing judges of sentences of Form 8 holders.  The enhancement ranged between several months to 2 years.

51.  In HKSAR v Shah Syed Arif [2016] 4 HKLRD 664:

(1)  The applicant was convicted of trafficking in 142.98 grammes of a solid containing 55.88 grammes of cocaine. The judge adopted a starting point of 8 years and 2 months in accordance with the guidelines set out in R v Lau Tak Ming [1990] 2 HKLR 370. The judge then referred to HKSAR v Sandagdorj Altankhuyag & Anor [2014] 1 HKC 206. He considered that the fact that the applicant had come to Hong Kong illegally, when he was permitted to remain at large as a torture claimant, and yet chosen to commit a serious criminal offence affecting the order and security of Hong Kong, was a blatant abuse of the goodwill and good intentions of the people of Hong Kong. He said starting point was enhanced by 1 year and 10 months by reason of the applicant’s Form 8 status resulting in an ultimate sentence after trial of 10 years’ imprisonment. The applicant appealed against that sentence.

(2)  The Court of Appeal held that:

30. As we have said, no issue is taken with the obvious proposition that those who are privileged to be permitted to remain in Hong Kong and to be at liberty whilst their various claims for asylum are being determined by the authorities, are required to behave themselves and abide by the laws of this jurisdiction. If they abuse that licence by deliberately engaging in serious criminal activities aimed at the very community which has granted them that privilege, and if the crime in which they engage has the effect of tarnishing Hong Kong’s reputation for order and security, which are the very qualities they are seeking to secure for themselves, then that is a factor capable of aggravating the seriousness of their crime. In HKSAR v Sandagdorj Altankhuyag, as the judge was fully aware, we drew a distinction between crimes committed by claimants, which do not affect the community at large or have any significant impact on Hong Kong’s reputation, and those which do.

31. HKSAR v Sandagdorj Althankhuyag was later followed and applied in HKSAR v Norena Gutierrez Christhian Andres, where a different division of this Court explained, at paragraphs 23-27:

“23. Underlying the court’s conclusion in Sandagdorj is the reality that without making an immigration claim this foreigner would have no right to remain in Hong Kong, indeed his continued presence here would in itself be unlawful. It is only because his immigration claim is being processed that he is permitted to remain in Hong Kong. This permission flows from Hong Kong complying with international obligations that it has freely accepted and the human rights provisions of the Basic Law.

24. But Hong Kong does not keep imprisoned a person who remains in Hong Kong pending the processing of his immigration claim. It does not do so because it sees itself, and wants to be seen by the rest of the world, as a society governed by the rule of law whose members place a high premium on the rights of the individual. One such right – perhaps Hong Kong’s most prized right – is the right of the liberty of the individual and Hong Kong extends this right to immigration claimants. As a consequence the immigration claimant will not just be allowed to remain in Hong Kong pending the resolution of his claim, but he will also be given his liberty and permitted to live in the community until his claim has been processed.

25. By allowing him his freedom, Hong Kong exposes its residents to the risk that this person will not live a law-abiding life whilst he awaits the processing of his claim. This is a risk of crime to which the Hong Kong community would not otherwise be exposed. There is also, as Macrae JA pointed out, a risk of reputational damage to Hong Kong as a safe and orderly world class city.

26. Analyzed in this way, punishing this category of offender more heavily than others is not to discriminate against him for being a foreigner. Rather, he is being punished more heavily by virtue of the fact that an element of his culpability is that he has caused harm to Hong Kong to which Hong Kong would not otherwise be exposed but for the fact that it has allowed him to remain in Hong Kong, and at liberty, pending the determination of his immigration claim. Seen in this way, there is nothing discriminatory in treating the circumstances of the offender’s immigration status as a factor aggravating his culpability and there is no infringement of the principle that everyone is equal before the law.

27. But as Macrae JA pointed out in Sandagdorj, not every crime will justify taking account of the offenders’ immigration situation as an aggravating feature. The offence committed must, by its nature or the circumstances of its commission, have a serious detrimental effect on the community at large or significantly impact, prejudicially, on Hong Kong’s reputation. Clearly drug trafficking falls within this category of crime as its commission both affects the community at large and has a significant impact on Hong Kong’s reputation.”

32. It seems to us undeniable that the trafficking of cocaine by people who are not normally entitled to be in Hong Kong but are licensed to remain at liberty in the community while their various claims for asylum are being processed, not only affects the community at large but has an obvious and significant impact on the reputation of this City. The judge was plainly right to regard the applicant’s offence as a serious breach of the trust and privilege extended to him by the people of Hong Kong.

33. We should say here that this Court has been concerned for some time by what appears to us to be the increasing prevalence of serious crimes being committed by non-refoulement claimants, in particular torture claimants. That is apparent from the weekly diet of appeals which routinely come before this Court. Mr Man has confirmed that the Department of Justice is similarly concerned by this trend. So that the courts are properly advised as to the extent of the problem, if it be a problem, we have requested through Mr Man that statistics be provided by the Department of Justice at some suitable opportunity in the future as to the number and types of crimes being committed by non-refoulement claimants in Hong Kong. We make clear, however, that our perception of prevalence does not impact on the present application.

34. We do not agree that this Court should attempt some form of guidelines for the enhancement of sentences which come within this category. The circumstances of each case and each individual will be different, and crimes will differ in the seriousness of their impact on the community and their effect on the reputation of Hong Kong. HKSAR v Sandagdorj Althankhuyag was concerned with an offence of pickpocketing, while the argument in HKSAR v Norena Gutierrez Christhian Andres was primarily concerned with simple possession of a substantial quantity of 19.02 grammes of cocaine, albeit in the context of the trafficking in a further 5.41 grammes of cocaine. In HKSAR v Azad Mohammad Farhan, this Court applied the same principle of enhancement to a torture claimant who had dragged a lone woman off a street in Kowloon into the staircase of a building, where she was subjected to a terrifying ordeal of rape, buggery and robbery. The present case concerns a torture claimant who trafficked in a sizeable and valuable quantity of 55.88 grammes of cocaine on the streets of Hong Kong.

35. We do not in the circumstances think it is either prudent or possible to issue guidelines in cases which fall into the category we have been discussing. The enhancement of sentence is best left to the discretion of the sentencing judge or magistrate. Obviously, the greater the impact of the particular offence on the community at large and on Hong Kong’s reputation for order and security, the greater the enhancement.

(3)  In the end, the Court of Appeal reduced the enhancement to 1 year, making an overall sentence after trial of 9 years and 2 months’ imprisonment.

52.  In HKSAR v Butt Mohammad Gulzar[2020] 3 HKLRD 805, the Court of Appeal endorsed the substantial enhancement of sentence for Form 8 recognizance holders :

“32. 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. In HKSAR v Singh Gursevak another division of this court discussed this aggravating factor in a thorough traverse of the authorities, which bears repeating:

“36. This Court has already decided that it should not attempt to provide guidelines on the length of enhancement for this particular aggravating factor. In giving the judgment of the Court of Appeal in Shah Syed Arif, Macrae JA, as Macrae V-P then was, said at p.675:

[34] We do not agree that this Court should attempt some form of guidelines for the enhancement of sentences which come within this category. The circumstances of each case and each individual will be different, and crimes will differ in the seriousness of their impact on the community and their effect on the reputation of Hong Kong. …

[35] We do not in the circumstances think it is either prudent or possible to issue guidelines in cases which fall into the category we have been discussing. The enhancement of sentence is best left to the discretion of the sentencing judge or magistrate. Obviously, the greater the impact of the particular offence on the community at large and on Hong Kong’s reputation for order and security, the greater the enhancement.

37. However, as Ms Chan points out, helpful guidance on how a sentencing court should approach this particular aggravating factor was provided by Macrae V-P in Ali Saif where he said:

[17] When Shah Syed Arif was decided, the Court was of the view that it was neither prudent nor possible to issue guidelines in respect of enhancements of sentence in respect of Form 8 recognizance holders for trafficking in dangerous drugs cases, considering that the enhancement of sentence was best left to the discretion of sentencing judges. However, we should say that we would not expect an enhancement for this factor to be less than 6 months’ imprisonment for a serious offence of trafficking in dangerous drugs in any case before the District or High Court. If the courts do not mark in a meaningful way the significance of a defendant’s betrayal of the trust placed in him by the people of Hong Kong, and the impact of that betrayal on the lives of its citizens and the reputation of this city, then Hong Kong risks becoming a magnet for foreign drug traffickers in the guise of non-refoulement applicants. Furthermore, Form 8 recognizance holders, whose non-refoulement applications may take several years to deal with, must be firmly discouraged from becoming involved in serious crimes, whilst their applications are being processed.

38. The following principles can be derived from this passage of the judgment:

(i)  the purpose of the enhancement is for the courts to ‘mark in a meaningful way the significance of a defendant’s betrayal of the trust placed in him by the people of Hong Kong, and the impact of that betrayal on the lives of its citizens and the reputation of the city’;

(ii)  the enhancement must be of such a length that it will deter Form 8 holders from becoming involved in serious crime; and

(iii)  in order for the enhancement to have a meaningful deterrent effect it generally should not be less than 6 months for serious offences.

39. Thus, the sentencing principles that underlay the assessment of the amount of the enhancement are:

(i)  denunciation by the courts of criminal activity by Form 8 holders; and

(ii)  deterrence of all Form 8 holders from committing crimes while they enjoy the freedom to live in Hong Kong as they await the resolution of their claims.

40. The length of the enhancement must adequately accommodate these sentencing principles. But apart from having to accommodate these sentencing principles, how is the length of the enhancement to be assessed? Answering this question requires that regard be had to both the contextual reality for Hong Kong of Form 8 holders and the rationale for their status being an aggravating factor.

41. The contextual reality for Hong Kong in respect of Form 8 holders is that the number of Form 8 holders is many thousands and that the processing of their claims can take years, indeed many years, rather than months. During the period that they await the processing of their claim they are not permitted to work and exist on a limited welfare payment. Finally, it is the experience of the courts that an increasing number of Form 8 holders are being prosecuted for their involvement in a broad range of criminal activity that is committed by them in the time they are at large in Hong Kong awaiting the processing of their claims. In Shah Syed Arif, Macrae JA said:

[33] We should say here that this Court has been concerned for some time by what appears to us to be the increasing prevalence of serious crimes being committed by non-refoulement claimants, in particular torture claimants. That is apparent from the weekly diet of appeals which routinely come before this Court. …

42. The rationale for the status of a Form 8 holder being an aggravating factor was discussed by the Court of Appeal in Norena Gutierrez Cristhian Andres. The court explained:

[25] By allowing him his freedom, Hong Kong exposes its residents to the risk that this person will not live a law-abiding life whilst he awaits the processing of his claim. This is a risk of crime to which the Hong Kong community would not otherwise be exposed. There is also, as Macrae JA pointed out, a risk of reputational damage to Hong Kong as a safe and orderly world class city.

43. Of course, the amount of the enhancement will reflect the court’s assessment of the seriousness of the offence and the severity of the adverse impact that the offence has on Hong Kong. Making this assessment will entail the court having regard to the nature of the offence, the circumstances of its commission, its actual impact on the victim, its potential impact on the wider Hong Kong community and finally its potential impact on Hong Kong’s reputation.

44. Clearly, the more serious the impact of the crime in the adverse way required by the authorities, the greater will be the amount of the enhancement. If the enhancement is to have a deterrent effect then it will usually be at least 6 months but it can, obviously, be greater than this amount and there is no reason why it cannot be greater than 18 months. We do not wish to set an upper limit to the amount of the enhancement other than to make the obvious comments that it should not be disproportionate to the starting point and should not result in a final starting point that is excessive for the seriousness of the crime that has been committed. Finally, the sentencing court must always have regard to the totality principle in order to ensure that the sentence it imposes is a just and balanced one. But, as this Court pointed out in HKSAR v Lam See Chung Stephen, such a sentence may still be a severe one. As the court said:

… It is clear that a just and balanced sentence is one that is not concerned solely with the rehabilitation needs of the offender but also accommodates other relevant sentencing principles, such as retribution, that is, the need to punish an offender for his misdeeds; where deterrence is needed in respect of a particular offender or offence, to appropriately deter him and others; the need to denounce the conduct and, where an offender preys upon the community, to protect it from his depredations. It is well to remember that at times a severe sentence will be an appropriate sentencing response and just because a sentence is severe does not mean that it is not just and balanced.” …

39. In respect of Charge 1 we do not agree that an enhancement of 2 months is disproportionate to a starting point sentence of 3 months’ imprisonment. With such a short sentence, 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.

40. For Charges 2-4, which involved 0.39 gramme, 0.44 gramme and 1.32 grammes of cocaine respectively, an appropriate starting point is 2 years’ imprisonment. This must then be enhanced to allow for the aggravating factors we have identified. As we have said, an appropriate enhancement for these factors is 1 year. …”

53.  In HKSAR v Singh Gursevak [2019] 2 HKLRD 274, the Court of Appeal referred to the above mentioned passages in Shah Syed Arif. In that case:

(1)  The applicant was charged with 2 counts of robbery and 1 count of possession of an offensive weapon. The applicant pleaded guilty to the first count of robbery and the remaining 2 counts were left in court file. One evening in 2018, the victim (PW1), the proprietor of the Gold Forward Exchange Shop, was attacked from behind by 2 South Asian males who were armed with knives. The assailants chopped PW1 on his back and right lower leg as they robbed PW1 of his rucksack which contained $350,000 cash. When PW1 resisted, one of the assailants chopped PW1’s right wrist with a knife.

(2)  PW1 bled profusely from his injuries and was taken to hospital. Medical examination revealed that his right hand was nearly amputated at the wrist level, multiple flexor and extensor tendons were cut, a nerve was cut and he had a carpal bone fracture. There were deep chop wounds on both calves of his legs, down to the muscle layer, and a laceration on his back. The applicant was arrested 5 days after the robbery and was found to be in possession of a knife with a handle wrapped with blood stained gauze. The DNA of both the applicant and PW1 were found on this knife.

(3)  The applicant was a Form 8 recognizance holder who came to Hong Kong in 2014. He had 2 previous convictions; the first was in 2014 for breach of condition of stay and the second was in 2015 for theft and breach of suspended sentence.

(4)  For the robbery, the learned Judge adopted a starting point of 15 years’ imprisonment. By reason of the applicant’s Form 8 holder status, the starting point was enhanced by 2 years.

(5)  The applicant applied for leave to appeal against sentence. The Court of Appeal held:

“47. That robbery is a very serious offence is indisputable. That this particular manifestation of it was particularly serious is also indisputable. So, what then of the impact of it on Hong Kong and its residents?

48. In the present case, the impact on the community is considerable. It goes well beyond the victim and his family and into the wider Hong Kong community. It affects people’s sense of security, especially those who are engaged in businesses similar to the victim’s. It affects the community’s attitudes to people of different ethnicities as they live side by side with them in a multicultural community. It creates anxiety and distrust within a community.

49. The reputational damage to a city which promotes itself as a tourist destination is obvious. But Hong Kong is more than just a city to visit. It is a home to many in the international business community and it seeks to attract more international businesses to set up here. In order to do that it portrays itself as a safe city for people in which to do business and go about their daily lives. Nothing undermines that perception more than violent street crime.

50. The impact upon the individual victim also cannot be ignored …

51. We take this opportunity to observe that, here, the violence inflicted upon the victim was far more than is usually encountered in a robbery and should have been the subject of a separate charge for which consecutive sentences should have been imposed …

52. Here, the nature of the violence was a wounding with intent to do grievous bodily harm, contrary to section 17 of the Offences Against the Person Ordinance, Cap 212, and was far too serious to be regarded as merely an aggravating factor in the robbery offence.

53. For all these reasons, we are satisfied that in respect of the particular circumstances of this offence it was within the judge’s sentencing discretion to assess 2 years as the appropriate enhancement for this applicant and that such an enhancement did not result in a manifestly excessive sentence.”

54.  The Defendant is not a first offender. He has 2 previous convictions and is clearly a violent man.  His first conviction was for possession of a knife.  His last conviction was also for wounding with intent, where he stabbed the victim with a knife.  The learned judge adopted a starting point of 3 years which was enhanced by 6 months by reason of the Defendant’s status as a Form 8 holder.  The Defendant was released from prison on 31 December 2022.  He committed the present offence (which is the same as the previous conviction)  within 9 months after his release.  He has repeatedly abuse the privilege of being allowed to remain in Hong Kong pending his asylum claim.

55.  Although the present case does not involve a robbery, most of the factors considered by the Court of Appeal in Gursevak are applicable to the present case.

56.  In his last conviction, the learned judge enhanced the sentence by 6 months.  At the time, the Defendant had no previous similar convictions.  It is obvious that the enhancement of sentence in that case was not a sufficient deterrent.  The Defendant committed the same offence, causing much more serious injuries within 9 months of his release from prison.

57.  In the light of all the above mentioned matters, I consider an enhancement to the starting point of 8 months imprisonment to be appropriate.  In other words, the starting point is 6 years 8 months’ imprisonment.

Mitigating Factors

Guilty Plea

58.  The Defendant indicated his intention to plead guilty to Charge 1 at the mention hearing on 17 December 2024.  However, he disputed the factual basis of the Summary of Facts and asked for a Newton Hearing.  A trial date was subsequently fixed.  On 12 November 2025, the parties attended a Pre-trial review hearing when the prosecution informed this Court that PW1 could not be reached and IQBAL had been deported.  After discussions between the parties after the hearing, the Defendant decided to plead guilty to Charge 1 and admit the Summary of Facts in full; Charge 2 will be left on Court file.  The Prosecution wrote to inform the Court of this agreement on 24 November 2025.  She urged the Court to give the Defendant the full one-third discount for his guilty plea.

59.  To benefit from the full discount, the indication of a guilty plea must be given before the trial dates are fixed and must be clear and unequivocal.  At the Pre-trial review hearing, Counsel informed the Court that the Defendant only used the side of the chopper to swipe at PW1; he denied that all of the injuries sustained by PW1 were caused by him.  In my view, those are matters which go to the heart of the offence.  After the Defendant was convicted, Counsel explained that in relation to the extent of PW1’s injuries, the Defendant initially only admitted to causing the 20 cm cut wound.

60.  It is clear that the Defendant’s indication was neither clear nor unequivocal.  He was denying the intention to cause grievous bodily harm, which is an essential ingredient of the offence.  This persisted even after the Defendant pleaded guilty. Counsel alleged that the Defendant only bought the knife with the intention to scare PW1.  Further, after conviction, Counsel informed the Court that initially the Defendant only admitted that he caused the 20 cm cut wound but not the much more serious injuries. This raises the question as to whether this amounted to grievous bodily harm.  The issues disputed by the Defendant goes to the heart of the offence. If pursued, this Court would have entered a not guilty plea.  The Defendant only indicated that he would admit the Summary of Facts after trial dates were fixed (in fact 1 working day before the trial).  He is not entitled to the full discount. I consider that a discount of 25% would be appropriate.  The sentence is reduced to 60 months’ imprisonment.

The Defendant’s injuries

61.  Counsel submitted that the Defendant himself also suffered serious injuries as a result of the incident and was hospitalized for 3 days.  The DNA evidence shows that the blade of the chopper had blood of both the Defendant and PW1.

62.  Sentencing in Hong Kong 11th Edition states:

[30-200] Although injuries sustained by an accused during an offence rarely constitutes effective mitigation, ‘there are exceptions where the injuries are very serious’: Yip Kai-foon v HKSAR [2000] 1 HKC 335, 340. In Secretary for Justice v Wong Kwong-Fei and Anor [1998] 1 HKC 738, 744, the court said of an accused who was shot during a robbery, ‘we are not prepared to give any discount because of the injury he suffered. That he brought upon himself’. A like approach was applied in Secretary for Justice v Tsang Ho-pong [2009] 6 HKC 389, 395, where the accused sustained harm when he killed a motorcyclist while driving dangerously. It is the criminal act that attracts the punishment, a punishment not lessened by virtue of damage to the perpetrator of that act while acting in its commission.

[30-201] in R v Lau Yun-fu (CACC 52/1986, 8 August 1986, unreported), the burglar who sought leniency in account of the severe disabilities he labored under in consequence of injuries sustained while escaping was given short shrift … If, however, the injury is so severe as to represent both a deterrent to future criminal participation as well as a personal punishment of great severity, it is open to the court to reflect this in its sentence: R v Chak Shui-chung [1989] 2 HKLR 81, 84”

63.  The Defendant’s medical report was produced for the Court’s consideration.  His injuries can hardly be described as so serious as to amount to personal punishment of great severity.  The Defendant was the author of his own wrong and does not amount to mitigation.

Risk of Re-offending

64.  Counsel submitted that PW1 is now unreachable.  This reduces the chances of the Defendant committing similar offences against PW1 in the future.  Therefore the risk of the Defendant offending is low.

65.  I disagree.  As explained above, the Defendant is clearly a violent man. He committed the same offence against another victim in 2021 (DCCC 839/2021).  Counsel in that case explained that the Defendant had a dispute with the victim’s family on the day of the offence. When he saw the victim, he stabbed the victim with a knife out of anger.  In other words, anyone who has a dispute with the Defendant is at risk of an attack with a knife.  The Defendant was sentenced to 28 months’ imprisonment. He committed the present offence within 9 months after he was released from prison.  I do not agree that the risk of offending is low. 

Conclusion

66.  Apart from his guilty plea, there are no mitigating factors in the present case.  Accordingly, I sentence the Defendant to 60 months’ imprisonment (i.e. 5 years).