HKSAR v. HUSSEINI YAWUZA (also known as HUSSEINI YAWUZA FUSSEINI YAHUZA and YAWUZA HUSSEINI)

DCCC 811/2020

[2021] HKDC 222

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 811 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to one charge of arson, contrary to sections 60(1) and (3) and 63(1) of the Crimes Ordinance[1].

2.  Full particulars of the offence are set out in the facts admitted by the defendant on 23 February 2021[2]. In summary on 5 June 2020 the defendant, a Form 8 Recognizance holder, was arrested for failing to report on bail to the Immigration Department.  Thereafter the defendant was detained in the Castle Peak Immigration Centre in Tuen Mun.

3.  The defendant was detained in Room E on the 6th floor (“Room 6E”).  Room 6E is approximately 100 square feet and comprises of four bunk beds with a maximum capacity of eight persons.  At the time apart from the defendant there was four other detainees in Room 6E. 

4.  In the evening of 25 June 2020 the defendant stuck notices on the iron railings of Room 6E demanding his release and that he was going to go on a hunger strike.

5.  The next morning, 26 June 2020, the notices were still stuck on the railings and food, waste and soap were discarded in the corridor outside Room 6E.  Acting Chief Immigration Assistant Wu interviewed the defendant outside Room 6E.  The defendant requested to be released on bail in order to take care of his family.  The request was refused. 

6.  Senior Immigration Assistant So came to assist and took photographs of the scene.  On finding the photographs were blurred Senior Immigration Assistant So returned to Room 6E to re-take the photographs.  On entering the corridor Senior Immigration Assistant So saw a bed sheet burning outside Room 6E. 

7.  Senior Immigration Assistant So called for assistance and re-took the photographs, including photographs of the fire.  The fire lasted for around ten seconds before it was put out by a fire extinguisher.

8.  The defendant, who was observed to be emotionally unstable and crying inside Room 6E, was taken to see a doctor. 

9.  CCTV installed in the Centre captured, inter alia, the defendant hanging the bed sheet on the railings, lighting the bed sheet with matches and once the bed sheet was set on fire throwing the bed sheet into the corridor through the gap in the railings.  I have viewed the CCTV footage and looked at the photographs taken by Senior Immigration Assistant So.  Photographs of Room 6E and the 6th floor have also been submitted to court. 

Mitigation

10.  In passing sentence, I have carefully considered the oral and written submissions of Ms Mohamed, including that the defendant, aged 34, came to Hong Kong from Ghana in 2009 when he applied for non-refoulement protection[3]. That application was rejected and the defendant is now waiting for a date to be fixed for Judicial Review. 

11.  I take into account the defendant has no previous convictions for arson and that he was last before the court in March 2015 when he was sentenced to 2 years’ imprisonment for wounding.  Ms Mohamed explains that ever since the defendant has led a law abiding life and that his life has changed for the better.  The defendant married a Hong Kong resident in 2015 and now has three children[4].   

12.  I have read the defendant’s mitigation letters in which he describes that his actions were a cry for help.  I have also read the letter written by the defendant’s wife who describes how the defendant has tried to be a better citizen, father and husband and that she believes he acted out of stress and frustration over not being able to take care of the family. 

13.  The defendant’s wife also details the complications during her pregnancy and the birth of the baby which has been made all the more difficult without the defendant at home to take care of her and the children.   The defendant’s wife, who is in court today to support her husband, hopes to return to work at the end of March when her maternity leave ends but without the defendant at home this may not be possible.  

14.  I have read the psychiatric reports prepared in August last year as to the defendant’s fitness to be tried.  The defendant told both psychiatrists the fire was an accident.  Ms Mohamed informs the court the defendant accepts his actions were deliberate but asks the court to accept that the defendant acted in a highly emotional state.

15.  Having viewed the CCTV footage, the actions of the defendant were clearly deliberate. Fortunately, with Senior Immigration Assistant So returning to retake photographs the fire was discovered and put out quickly.

Guidelines

16.  Offences of arson are to be treated by the court as very serious.  The facts of cases varying so much there are no guidelines.  Each case depends on its own facts and circumstances. 

17.  In HKSAR v Kung Pak-fu,,the Court of Appeal, after reviewing a number of cases, said[5]:

“……arson is an extremely serious offence. That said, we do not consider it appropriate to lay down sentencing guidelines for this offence because its gravity differs from case to case, particularly in cases involving family disputes or souring of relationships. The court must impose a sentence which properly reflects the gravity of the particular case.”

18.  In HKSAR v Law Chun Man the Court of Appeal set out factors to be considered in arson cases, including the motivation of the defendant, the actual damage done, the potential damage to life and property and whether the arson was an isolated incident[6].

19.  Ms Mohamed refers the court to two sentence cases in the District Court[7].  I have considered these cases.  In HKSAR v Frank Azzem Hasso the defendant set fire to a bedsheet in his cell in Lai Chi Kok Reception Centre.  The court adopted a starting point of 15 months’ imprisonment.

20.  Ms Mohamed also refers the court to HKSAR v Hung Pang Chi where I adopted a starting point of 12 months’ imprisonment for arson with intent to endanger life[8].  The facts and circumstances of that case are very different to the present case, not least that the defendant put out the fires that he started.

21.  I accept that the defendant acted in a highly emotional state because he wanted to take care of his family.   The defendant must however understand that setting fire in a confined space is a serious offence.  I note from the CCTV footage that there were at least three other persons inside Room 6E when the defendant set light to the bed sheet.  Whilst the lives of other detainees and the staff at the Centre were not affected the fire having been put out quickly, setting fire in an immigration detention centre must in my view attract an element of deterrence. 

22.  Taking into account all the circumstances of the case, I am satisfied a starting point of 15 months’ imprisonment is appropriate. 

23.  The commission of offences by refugees or torture claimants is capable of aggravating sentence where the offence affects the community at large and has a significant impact on Hong Kong’s reputation for order and security[9]. 

24.  Ms Mohamed submits this is not a case where enhancement is appropriate because the defendant acted in an emotional state[10]. In HKSAR v Godhaniya Haja Samat, a case of arson with intent to endanger life, which took place on the staircase of a residential building, I decided the case was not an appropriate case for enhancement.  The Court of Appeal disagreed with this view and said that the applicant was fortunate that the judge did not enhance the sentence[11].

25.  I am satisfied in the circumstances of the case, in particular that the fire was started in a confined setting in an immigration detention centre where the safety and security of all detainees and staff is paramount, that enhancement is appropriate.  I enhance the starting point by 3 months to 18 months’ imprisonment.

26.  Giving the defendant full credit for his plea of guilty reduces the sentence to 12 months’ imprisonment.

Detention in Castle Peak Immigration Centre

27.  The defendant was arrested on 7 July 2020.  Thereafter the defendant was not detained by the police but remained in detention at the Castle Peak Immigration Centre until he appeared in court on 23 July. 

28.  Section 67A (1A) of the Criminal Procedure Ordinance provides that the length of any sentence of imprisonment imposed on a person by a court shall be treated as reduced by any period during which he was, immediately prior to his first appearance in court in connection with any proceeding relating to the offence for which the sentence of imprisonment was imposed, in custody under Part VII of the Immigration Ordinance in connection with that offence[12].

29.  Ms Tsang informs the court that the defendant’s detention was pursuant to section 32 (3A) of the Immigration Ordinance[13]. Section 32 (3A) of the Immigration Ordinance, which is under Part VII of the Immigration Ordinance, provides for detention pending removal from Hong Kong. The continued detention of the defendant would therefore appear to have no connection to the arson offence[14].

30.  If the defendant had been detained by the police after arrest section 67A (1A) of the Criminal Procedure Ordinance would apply.  In the circumstances I exercise my discretion and reduce the sentence by 16 days to 11 months and 14 days’ imprisonment.  

31.  The defendant is convicted and sentenced to 11 months and 14 days’ imprisonment.