HKSAR v. MOHAMMED ABDUL JALIL

DCCC 898/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 898 OF 2015

____________

____________

REASONS FOR SENTENCE

The defendant was convicted, after trial, of an offence of "Possession of offensive weapons in a public place" (Charge 2). He held 2 choppers in his hands on the streets in Sham Shui Po.

2.  Mr. Biplob (PW1), Mr. Bakkar (PW2) and the defendant all came from the same South Asian country. In early August 2015, after helping PW1 move into PW2's flat ("the Flat"), a dispute arose between the defendant and PW1 over a pair of missing sports shoes allegedly taken by the defendant from PW1.

3.  In the early hours on 16 August 2015, the defendant visited the Flat when PWs 1 and 2 were present.  PW1 and the defendant continued to argue over the missing pair of sports shoes, which later turned into a physical struggle.  PW2 ended up pushing the defendant out of the Flat.

4.  I have accepted PW2's evidence that in the same evening, some time after the defendant had left the Flat, PWs 1 and 2 went downstairs to go somewhere.  At the street, PW2 saw the defendant running towards PW1 with a chopper in each hand.  This is the basis of convicting the defendant of Charge 2.  The events which took place thereafter as well as PW1's injuries all occurred after Charge 2 was committed.

Mitigation & Sentence

5. The defendant is 35 and has 2 conviction records, both of which were drug-related offences. Defence counsel Mr. Andrews informed me that the defendant came to Hong Kong from Bangladesh in 2007 and is a Form 8 holder. He has a pending appeal in relation to his immigration status. The defendant's parents are deceased. He has a few brothers in his homeland but is not really in touch with them. The defendant is in a relationship with an Indonesian domestic helper working in Hong Kong. Mr. Andrews said they are committed to each other.

6. In mitigation, Mr. Andrews submitted that the defendant, PWs 1 and 2 have been friends for about 5-6 years. The offence arose out of the defendant helping PW1 move, which turned into a tragedy. Mr. Andrews also submitted that what the defendant did was completely out of character. Something must have happened that night which caused the defendant to lose his mind. Furthermore, whatever intention he had when holding the choppers in his hands on the street, the defendant demurred once PW2 told him not to fight. After PW1 was injured, the defendant immediately ran home. Despite having 2 choppers in his hands, the defendant was still chased by 2 unarmed men (PWs 1 and 2).

7. As I have stated in my Reasons for Verdict, after being pushed out of the Flat by PW2, the defendant went away, had ample time to cool off, and was not in any imminent danger (which could justify him carrying any weapons on the street in the slightest degree). Yet, he returned holding 1 chopper in each hand and ran towards PW1. None of the subsequent events would or could have happened if he had not brought the choppers with him.

8. Although intended for domestic use, choppers such as Exhibits P1 and P2 are no doubt lethal weapons. They are capable of easily causing severe injury or death. That is the reason why the law takes such a serious view of this type of criminal conduct, making it an offence for which immediate imprisonment is a mandatory punishment. When determining the appropriate starting point, I have considered The Queen v LI Chi-lung CACC 363/1995 and HKSAR v IP Chi-wang HCMA 377/2003.

9. The defendant is a Form 8 holder. On sentencing criminals with similar immigration status, the Court of Appeal in HKSAR v Norena Gutierrez Cristhian Andres CACC 319/2014 made the following comments :-

"23. Underlying the court's conclusion in Sandagdorj[1] 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. … 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. Analysed 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…"

10. Based on the facts of the present case, the offence seems to have been arising from a private dispute between 2 individual Form 8 holders. On the other hand, the defendant carrying 2 choppers in a public place in an agitated mood no doubt poses serious threats to the safety of passers-by in the vicinity.

11. In my view, the present offence, by its nature as well as the circumstances of its commission, does have a serious detrimental effect on the community at large. Hence, the defendant's immigration status constitutes an aggravating feature. Having considered all relevant factors, I adopt 12 months' imprisonment as the proper starting point. There is no mitigating factor which warrants any reduction. I sentence the defendant to 12 months' imprisonment.