HKSAR v. KYAMA SHIFA

DCCC 970/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 970 OF 2014

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REASONS FOR SENTENCE
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1. The defendant, a CAT claimant, pleads guilty to a charge of wounding with intent. She admits using a 30 cm long chopper to attack the victim, a Pakistani male who is also a CAT claimant like the defendant, causing a cut wound on his left elbow and fracture of his left ulna bone.

Summary of facts

2. The facts admitted by the defendant revealed that on 23 September 2014 morning the victim and the defendant had a verbal dispute under the flyover of West Kowloon Corridor, where they both lived as street sleepers.  The defendant became emotional and she later attacked the victim with a 30-cm long chopper. The victim tried to fend off the attack with his left arm, so the chop landed on his left elbow.  His left elbow bled profusely as a result.  After the attack the defendant fled the scene immediately. 

3. The victim was rushed to hospital for treatment.  He was found to have sustained the following injuries: abrasion to right forehead, large cut wound on left elbow and fracture of left ulna bone.  Emergency operation on the wound appeared to be successful, with the victim himself saying that the wound has fully recovered, save and except that he still feels some pain and restriction of arm movement. 

4. The course of arrest of the defendant can be briefly described as this: about half an hour after the attack, the defendant was found inside a public phone booth near Mongkok Police Station.  According to the defendant she was there making call to Father Francesco Mella, hoping that he would come to accompany her to surrender herself to the police.  Since Father Mella was unavailable at that time, the defendant became emotional again and she even smashed the telephone handset.  At that juncture 2 police officers came by and intervened, and they managed to subdue the defendant after a brief struggle. 

5. Initially the defendant remained silent under caution.  Subsequently upon the arrival of Father Mella, she made full confession to the offence.  She said that in the course of the heated dispute, the victim grabbed her neck and tried to kill her.  She then chopped him in return.  Later she felt scared and ran away.  Not long after she decided to surrender herself to the authority. However, since Father Mella could not come over right away, she became emotional again and damaged the telephone handset.

Mitigation

6. In mitigation, defence counsel Mr. Kwan told the court more of the defendant’s personal background.  She has a tragic family history in that her father was killed by poisoning in Uganda.  Later she came to Hong Kong in June 2009 and lodged a claim under the Convention Against Torture Scheme there and then.  In April 2010 the defendant gave birth to her daughter Kelly here in Hong Kong, but unfortunately she had lost contact with Kelly’s father prior to delivery. In the process the defendant was discovered to have HIV in her body. 

7. The defendant was later found not suitable to take care of Kelly properly so a care and protection order was made in November 2010.  Feeling extremely upset about the situation, the defendant began to abuse drugs in December 2010.  The defendant’s hallucinations and delusions were exacerbated by substance abuse, and she had attempted suicide.

8. Apart from mental issues the defendant’s physical health is also not very good.  First of all, the HIV has weakened her immune system and she was diagnosed to be suffering tuberculosis.  She is on constant medication. Secondly, her cervix also has problem and if the situation worsens she may have cervical cancer.   

9. The Director of Social Welfare became Kelly’s legal guardian in November 2010.  In December 2013, the Director has obtained an order from the Court of First Instance which effectively took Kelly away from the defendant permanently. The defendant is very concerned about it and she is now appealing against that decision.  She very much hopes that she could be released soon so that she could take care of Kelly again as a mother.

10. Mr Kwan urges the court to be as lenient as possible.  The defendant pleads guilty to the charge, and she actually surrendered herself to the police shortly after the incident.  The attack is just a single blow and luckily the victim suffered no permanent impairment.    

Sentence

11. I have carefully considered the facts of the case and everything that could be said on the defendant’s behalf by Mr Kwan.  I have also read the three medical reports in respect of the defendant, as well as the mitigation letter written by Father Mella.

12. The defendant has 15 previous convictions, 7 of which relate to violence.  In this regard, she cannot expect the same treatment as a person with no prior criminal record. 

13. This court is sympathetic to some of the defendant’s personal circumstances – I emphasise the word “some” because certain matters are clearly her own makings.  Abusing drugs under whatever pretexts or excuses is totally unacceptable, which does nothing good either to her or her daughter.  If she really cares about Kelly, she must think twice before taking another shot upon release from prison. 

14. After careful consideration, it seems that the only mitigating factor is the defendant’s plea of guilty which entitles her the usual full one-third discount in sentence.

15. There is no sentencing guideline for wounding with intent.  As Mr Kwan has fairly conceded, deterrent sentence is called for in this case.  I would take a starting point of 3 years’ imprisonment, reduce it to 2 years for the defendant’s plea.

16. The defendant is hereby sentenced to 2 years’ imprisonment.