|
DCCC1146/2010
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1146 OF 2010
----------------------
| |
HKSAR |
|
| |
v. |
|
| |
Mohammad Shahid |
|
| ---------------------- |
| Date: |
23 February 2011 at 10.28 am |
| Present: |
Mr Albert Poon, Counsel on fiat, for HKSAR
Mr Hanif Mohamed Mughal, instructed by Messrs Hau, Lau, Li & Yeung, for the Defendant |
| Offence: |
Arson with Intent (有意圖縱火) |
---------------------
Reasons for Sentence
---------------------
1. The defendant has pleaded guilty to a charge of Arson with Intent contrary to section 60(2) and (3) of the Crimes Ordinance Cap.200.
2. The particulars are that on 19 July 2010 at the lift lobby of the New Capital Hotel on Hennessy Road in Wanchai, without lawful excuse he damaged by fire, a fire of clothing, his own clothing - and he intended to damage that property - and was reckless as to whether the life of other persons would thereby be endangered.
3. The facts of the case are somewhat unusual. At just after 9 o’clock on the morning of 19 July the defendant went to the lift lobby of the New Capital Hotel. The hotel is situated on 2nd Floor of the Ying Lee Mansion Building, on the 1st Floor of the building is a bank whilst the 3rd to 19th Floors are residential units. At the time the defendant was carrying eight pieces of clothing, a piece of cloth towel, a towel, 4 T-shirts and 2 pairs of trousers.
4. When the defendant arrived at the reception area he went to speak to the receptionist. The defendant was speaking loudly in a language which the receptionist could not understand. He then told the receptionist in Punti that he was looking for a friend. There was further conversation but the receptionist was unable to understand what was being said. The defendant lost his temper and started to shout. He went then to the lift lobby outside the reception area and threw down his clothing on to the floor.
5. After witnessing what was going on the receptionist left the reception area to seek the assistance of the police. At this juncture a cleaner of the hotel heard the defendant shouting at the reception area and went to see what was going on. She then saw the defendant standing at the lift lobby and he used a lighter to start burning a piece of cloth and threw it into the other clothing which were already on the floor.
6. As a result a small fire broke out. The defendant then proceeded to remove the cover of a smoke detector installed above the reception area and the detector was activated and the fire alarm set off. The fire services personnel arrived promptly and put out the fire with a fire extinguisher. No evacuation of the occupants was required due to the small scale of the fire.
7. Police officers arrived at the scene. The defendant remained at the scene. He told the police that he wanted to find a friend of his called Mani - M-A-N-I, who lived at room 219 of the hotel. Inquiries were made and confirmed that no such person lived at the hotel and the defendant was subsequently arrested.
8. In a cautioned interview the defendant maintained what he said earlier that he had gone to the hotel to find his friend Mani in order to get back an identity document. As the hotel staff were unable to assist him he decided to start a fire in order to activate the fire alarm so that Mani would come out. No casualty or damage of the hotel’s property was caused by the fire and the only items damaged were the clothing brought to the hotel by the defendant.
9. The defendant has a clear record. He is 31 years of age. He was born in India and he came to Hong Kong in 2007. He was allowed to stay until November of that year and he over-stayed. I understand that the defendant was seeking asylum in Hong Kong and he was allowed to remain until that matter was decided upon but in May 2010 the defendant expressed his wish to the Immigration Department that he wished to return to India and, to facilitate his departure to India by flight a flight was arranged for the evening of 19 July which was the day on which the offence was committed and the defendant was to report to the reconnaissance office at Castle Peak Bay Immigration Centre at 11 o’clock on that morning.
10. The explanation given to the police by the defendant has been repeated to this court and expanded upon. I was told by counsel for the defence that this offence was committed as an expression of frustration and desperation on the part of the defendant in failing to find and locate his friend Mani. And the reason he wanted to get hold of Mani was that he was holding his Form 8 Identification document which he needed when he reported to the Immigration Department later that morning.
11. I was told that the defendant came from Calcutta in September 2007 and he made his application for asylum under the Torture Claims provisions and he was given this Form 8 Reconnaissance to enable him to remain in Hong Kong. He was able to stay in Hong Kong but he was not allowed to work and he was sustained by the Goodwill of his friends and various charitable organisations.
12. I am told that the defendant lived a nomadic existence staying with which ever friend would put him up. He met his friend Mani and they sometimes stayed at this hotel where the offence was committed. I am told that the hotel is flexible in its arrangements as regards its guests. They can either stay for a very short time or for a lengthy time depending on their needs. I am told that the defendant moved out of the hotel towards the end of June to stay with some friends in the Tsim Sha Tsui area and he remained in contact with his friend Mani through the mobile phone.
13. Prior to the day of the offence the defendant had contacted Mani and had arranged with him to collect back from Mani his identification document and, also, certain other belongings which he had left with Mani for safe keeping. When he arrived at the hotel he had difficulty in communicating with the receptionist. Mani was not answering his mobile phone and the defendant was starting to panic and believed that Mani was trying to impede his return to India by refusing to come out of the hotel and to return to him his Form 8 Immigration document. I was told that it was out of this frustration that the defendant set fire to his own clothing believing that the fire would trigger off the smoke alarm and this would force his friend, Mani, to come out of his room.
14. I am told that the defendant is a smoker. He had with him his lighter and when he ignited the fire the smoke detector was not activated so he removed the cover of the detector so as to set off the alarm. I was shown various photographs of the hotel and counsel for the defence pointed out that there was an altar in the reception area, and that the fire detector had been interfered with so that it would not so easily be triggered off when incense was burned at the altar.
15. The scene where the fire was started is also next to a door which leads to the rooms, one of which the defendant believed was occupied by his friend, Mani. And I am told that he and the cleaner of the premises banged on the door to try and get the attention of Mani and that those attempts were unsuccessful.
16. Counsel has told me that the fire that was started was a small scale fire and that is apparent from the photographs which have been produced. A few items of clothing were burnt and I am told that the defendant had with him a soft drink which he used to extinguish the fire, and that the fire which lasted for one minute, was effectively out when the fire services personnel arrived.
17. I am told that thereafter the defendant sat on a stool at the reception area and he, himself, telephoned the police and remained at the scene. The defendant was thinking that the police would help him to locate his friend Mani so that he could recover his Immigration form. It was only after his arrest that the defendant later learned that Mani had left the hotel in June 2010 and there had been a misunderstanding between them about the arrangements for meeting up on the morning of 19 July. I am told that it was Mani’s understanding that they would meet at the hotel lobby, whereas the defendant understood that Mani was still a guest at the hotel. I am told that the defendant has subsequently recovered his Form 8 from his friend, Mani.
18. As regards the offence, it was urged upon the court that the defendant had acted on impulse out of desperation. It was a very small scale fire and there was no evacuation from any of the premises. The defendant himself extinguished the fire and remained at the scene. The only damage that was caused was to the defendant’s clothing. There were no casualties and the defendant acted out of frustration and stupidity.
19. A number of cases have been put before me all of which involve circumstances which are far more serious than the case which I am dealing with now. One particular case I do intend to refer to is the case of HKSAR v Cheung Wing-siu, Criminal Appeal 76 of 1998. This involved a defendant who pleaded guilty to a similar offence of arson being reckless as to whether the life of another would be endangered. The judge in that case took a starting point of 4 years’ imprisonment.
20. This was a case where the offence was committed involving the defendant’s father and it was an offence which was committed as an expression of anger on the part of the defendant who had quarrelled with his father. Apparently, his father had been resting in a room at the time of the quarrel. What the defendant had done was that, in a moment of anger, he set fire to some furniture. He fled the premises and was not seen again until he was arrested some two months later. The judge took the view that a starting point of 4 years was appropriate. The Court of Appeal said that the trial judge had been right to choose the starting point he did.
21. In this case the circumstances are not as serious. The fire started in this case was a very small scale fire. It was extinguished by the defendant. He remained at the scene and so, in my view, the circumstances are less serious than in the case of Cheung Wing-siu.
22. Having said that, offences of this kind are always serious, particularly in a high rise building. This offence was committed in a lift lobby of a hotel and there are residential premises in the hotel. Fires are unpredictable and can get out of hand.
23. Having said that, I propose, in this case, to take a starting point of 3½ years imprisonment. The defendant will be given full credit for his guilty plea so that sentence will be reduced by one-third. The sentence served by the defendant will be therefore one of 2 years and 4 months’ imprisonment.
|