DCCC811/2020 HKSAR v. HUSSEINI YAWUZA (also known as HUSSEINI YAWUZA FUSSEINI YAHUZA and YAWUZA HUSSEINI) - LawHero
DCCC811/2020
HKSAR v. HUSSEINI YAWUZA (also known as HUSSEINI YAWUZA FUSSEINI YAHUZA and YAWUZA HUSSEINI)
區域法院（刑事）HH Judge Dufton25/2/2021[2021] HKDC 222
DCCC811/2020
A A
B B
DCCC 811/2020
[2021] HKDC 222
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 811 OF 2020
E ____________ E
HKSAR
F v F
HUSSEINI YAWUZA
G G
(also known as HUSSEINI YAWUZA FUSSEINI YAHUZA
H and YAWUZA HUSSEINI) H
____________
I I
Before: HH Judge Dufton
J Date: 26 February 2021 J
Present: Ms Kitty Tsang, counsel on fiat, for HKSAR
K Ms Nisha Mohamed instructed by Jal N. Karbhari & Co, K
assigned by the Director of Legal Aid, for the defendant
L Offence: Arson（縱火） L
M REASONS FOR SENTENCE M
N N
1. The defendant pleads guilty to one charge of arson, contrary
O to sections 60(1) and (3) and 63(1) of the Crimes Ordinance1. O
P P
2. Full particulars of the offence are set out in the facts admitted
Q
by the defendant on 23 February 20212. In summary on 5 June 2020 the Q
defendant, a Form 8 Recognizance holder, was arrested for failing to report
R R
on bail to the Immigration Department. Thereafter the defendant was
S
detained in the Castle Peak Immigration Centre in Tuen Mun. S
T 1
T
Cap 200.
2
§5 of the summary of facts was amended in court.
U U
V V
-2-
A A
B B
3. The defendant was detained in Room E on the 6th floor
C (“Room 6E”). Room 6E is approximately 100 square feet and comprises C
of four bunk beds with a maximum capacity of eight persons. At the time
D D
apart from the defendant there was four other detainees in Room 6E.
E E
4. In the evening of 25 June 2020 the defendant stuck notices on
F the iron railings of Room 6E demanding his release and that he was going F
to go on a hunger strike.
G G
H 5. The next morning, 26 June 2020, the notices were still stuck H
on the railings and food, waste and soap were discarded in the corridor
I I
outside Room 6E. Acting Chief Immigration Assistant Wu interviewed the
J defendant outside Room 6E. The defendant requested to be released on J
bail in order to take care of his family. The request was refused.
K K
L
6. Senior Immigration Assistant So came to assist and took L
photographs of the scene. On finding the photographs were blurred Senior
M M
Immigration Assistant So returned to Room 6E to re-take the photographs.
N On entering the corridor Senior Immigration Assistant So saw a bed sheet N
burning outside Room 6E.
O O
7. Senior Immigration Assistant So called for assistance and re-
P P
took the photographs, including photographs of the fire. The fire lasted for
Q around ten seconds before it was put out by a fire extinguisher. Q
R R
8. The defendant, who was observed to be emotionally unstable
S and crying inside Room 6E, was taken to see a doctor. S
T 9. CCTV installed in the Centre captured, inter alia, the T
defendant hanging the bed sheet on the railings, lighting the bed sheet with
U U
V V
-3-
A A
B B
matches and once the bed sheet was set on fire throwing the bed sheet into
C the corridor through the gap in the railings. I have viewed the CCTV C
footage and looked at the photographs taken by Senior Immigration
D D
Assistant So. Photographs of Room 6E and the 6th floor have also been
E submitted to court. E
F Mitigation F
G G
10. In passing sentence, I have carefully considered the oral and
H written submissions of Ms Mohamed, including that the defendant, aged H
34, came to Hong Kong from Ghana in 2009 when he applied for non-
I I
refoulement protection3. That application was rejected and the defendant
J is now waiting for a date to be fixed for Judicial Review. J
K K
11. I take into account the defendant has no previous convictions
L
for arson and that he was last before the court in March 2015 when he was L
sentenced to 2 years’ imprisonment for wounding. Ms Mohamed explains
M M
that ever since the defendant has led a law abiding life and that his life has
N changed for the better. The defendant married a Hong Kong resident in N
4
2015 and now has three children .
O O
12. I have read the defendant’s mitigation letters in which he
P P
describes that his actions were a cry for help. I have also read the letter
Q written by the defendant’s wife who describes how the defendant has tried Q
to be a better citizen, father and husband and that she believes he acted out
R R
of stress and frustration over not being able to take care of the family.
S S
T 3
T
See §2 i-iv & vii of the written mitigation.
4
See §§2 v, vi & viii, 17 & 20 of the written mitigation.
U U
V V
-4-
A A
B B
13. The defendant’s wife also details the complications during her
C pregnancy and the birth of the baby which has been made all the more C
difficult without the defendant at home to take care of her and the children.
D D
The defendant’s wife, who is in court today to support her husband, hopes
E to return to work at the end of March when her maternity leave ends but E
without the defendant at home this may not be possible.
F F
14. I have read the psychiatric reports prepared in August last year
G G
as to the defendant’s fitness to be tried. The defendant told both
H psychiatrists the fire was an accident. Ms Mohamed informs the court the H
defendant accepts his actions were deliberate but asks the court to accept
I I
that the defendant acted in a highly emotional state.
J J
15. Having viewed the CCTV footage, the actions of the
K K
defendant were clearly deliberate. Fortunately, with Senior Immigration
L Assistant So returning to retake photographs the fire was discovered and L
put out quickly.
M M
N Guidelines N
O 16. Offences of arson are to be treated by the court as very serious. O
The facts of cases varying so much there are no guidelines. Each case
P P
depends on its own facts and circumstances.
Q Q
17. In HKSAR v Kung Pak-fu,, the Court of Appeal, after
R R
reviewing a number of cases, said5:
S S
T T
5
[2008] 2 HKCLRT 240 at §23. Also cited by Ms Mohamed.
U U
V V
-5-
A A
B “……arson is an extremely serious offence. That said, we do not B
consider it appropriate to lay down sentencing guidelines for this
C C
offence because its gravity differs from case to case, particularly
D in cases involving family disputes or souring of relationships. The D
court must impose a sentence which properly reflects the gravity
E of the particular case.” E
F F
18. In HKSAR v Law Chun Man the Court of Appeal set out
G
factors to be considered in arson cases, including the motivation of the G
defendant, the actual damage done, the potential damage to life and
H H
property and whether the arson was an isolated incident6.
I I
19. Ms Mohamed refers the court to two sentence cases in the
J District Court7. I have considered these cases. In HKSAR v Frank Azzem J
Hasso the defendant set fire to a bedsheet in his cell in Lai Chi Kok
K K
Reception Centre. The court adopted a starting point of 15 months’
L imprisonment. L
M M
20. Ms Mohamed also refers the court to HKSAR v Hung Pang
N Chi where I adopted a starting point of 12 months’ imprisonment for arson N
with intent to endanger life8. The facts and circumstances of that case are
O O
very different to the present case, not least that the defendant put out the
P fires that he started. P
Q Q
21. I accept that the defendant acted in a highly emotional state
R
because he wanted to take care of his family. The defendant must however R
understand that setting fire in a confined space is a serious offence. I note
S S
6
[2012] 4 HKLRD 320 at §§34-38. Also cited by Ms Mohamed.
T 7
T
HKSAR v Chan Chi Cheung DCCC 82/2011 and HKSAR v Frank Azzem Hasso DCCC 217/2018.
8
See §19 of the written mitigation.
U U
V V
-6-
A A
B B
from the CCTV footage that there were at least three other persons inside
C Room 6E when the defendant set light to the bed sheet. Whilst the lives of C
other detainees and the staff at the Centre were not affected the fire having
D D
been put out quickly, setting fire in an immigration detention centre must
E in my view attract an element of deterrence. E
F 22. Taking into account all the circumstances of the case, I am F
satisfied a starting point of 15 months’ imprisonment is appropriate.
G G
H 23. The commission of offences by refugees or torture claimants H
is capable of aggravating sentence where the offence affects the
I I
community at large and has a significant impact on Hong Kong’s
J reputation for order and security9. J
K K
24. Ms Mohamed submits this is not a case where enhancement is
L
appropriate because the defendant acted in an emotional state10. In HKSAR L
v Godhaniya Haja Samat, a case of arson with intent to endanger life,
M M
which took place on the staircase of a residential building, I decided the
N case was not an appropriate case for enhancement. The Court of Appeal N
disagreed with this view and said that the applicant was fortunate that the
O O
judge did not enhance the sentence11.
P P
25. I am satisfied in the circumstances of the case, in particular
Q that the fire was started in a confined setting in an immigration detention Q
centre where the safety and security of all detainees and staff is paramount,
R R
S S
9
See HKSAR v Sandagdorj Altankhuyag & another CACC 45/2013 as applied in HKSAR v Norena
Gutierrez Cristhian Andres CACC 319/2014.
T 10
T
See §§14-16 of the written mitigation.
11
CACC 264/2017.
U U
V V
-7-
A A
B B
that enhancement is appropriate. I enhance the starting point by 3 months
C to 18 months’ imprisonment. C
D 26. Giving the defendant full credit for his plea of guilty reduces D
the sentence to 12 months’ imprisonment.
E E
F Detention in Castle Peak Immigration Centre F
G 27. The defendant was arrested on 7 July 2020. Thereafter the G
defendant was not detained by the police but remained in detention at the
H H
Castle Peak Immigration Centre until he appeared in court on 23 July.
I I
28. Section 67A (1A) of the Criminal Procedure Ordinance
J J
provides that the length of any sentence of imprisonment imposed on a
K person by a court shall be treated as reduced by any period during which K
he was, immediately prior to his first appearance in court in connection
L L
with any proceeding relating to the offence for which the sentence of
M imprisonment was imposed, in custody under Part VII of the Immigration M
Ordinance in connection with that offence12.
N N
O 29. Ms Tsang informs the court that the defendant’s detention was O
13
pursuant to section 32 (3A) of the Immigration Ordinance . Section 32
P P
(3A) of the Immigration Ordinance, which is under Part VII of the
Q Immigration Ordinance, provides for detention pending removal from Q
Hong Kong. The continued detention of the defendant would therefore
R R
appear to have no connection to the arson offence14.
S S
12
Cap 221.
T 13
T
Cap 115.
14
See HKSAR v Eftakhar Beg HCMA 262/2015 at §32.
U U
V V
-8-
A A
B B
30. If the defendant had been detained by the police after arrest
C section 67A (1A) of the Criminal Procedure Ordinance would apply. In C
the circumstances I exercise my discretion and reduce the sentence by 16
D D
days to 11 months and 14 days’ imprisonment.
E E
31. The defendant is convicted and sentenced to 11 months and
F 14 days’ imprisonment. F
G G
H H
I
(D. J. DUFTON) I
District Judge
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 811/2020
[2021] HKDC 222
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 811 OF 2020
E ____________ E
HKSAR
F v F
HUSSEINI YAWUZA
G G
(also known as HUSSEINI YAWUZA FUSSEINI YAHUZA
H and YAWUZA HUSSEINI) H
____________
I I
Before: HH Judge Dufton
J Date: 26 February 2021 J
Present: Ms Kitty Tsang, counsel on fiat, for HKSAR
K Ms Nisha Mohamed instructed by Jal N. Karbhari & Co, K
assigned by the Director of Legal Aid, for the defendant
L Offence: Arson（縱火） L
M REASONS FOR SENTENCE M
N N
1. The defendant pleads guilty to one charge of arson, contrary
O to sections 60(1) and (3) and 63(1) of the Crimes Ordinance1. O
P P
2. Full particulars of the offence are set out in the facts admitted
Q
by the defendant on 23 February 20212. In summary on 5 June 2020 the Q
defendant, a Form 8 Recognizance holder, was arrested for failing to report
R R
on bail to the Immigration Department. Thereafter the defendant was
S
detained in the Castle Peak Immigration Centre in Tuen Mun. S
T 1
T
Cap 200.
2
§5 of the summary of facts was amended in court.
U U
V V
-2-
A A
B B
3. The defendant was detained in Room E on the 6th floor
C (“Room 6E”). Room 6E is approximately 100 square feet and comprises C
of four bunk beds with a maximum capacity of eight persons. At the time
D D
apart from the defendant there was four other detainees in Room 6E.
E E
4. In the evening of 25 June 2020 the defendant stuck notices on
F the iron railings of Room 6E demanding his release and that he was going F
to go on a hunger strike.
G G
H 5. The next morning, 26 June 2020, the notices were still stuck H
on the railings and food, waste and soap were discarded in the corridor
I I
outside Room 6E. Acting Chief Immigration Assistant Wu interviewed the
J defendant outside Room 6E. The defendant requested to be released on J
bail in order to take care of his family. The request was refused.
K K
L
6. Senior Immigration Assistant So came to assist and took L
photographs of the scene. On finding the photographs were blurred Senior
M M
Immigration Assistant So returned to Room 6E to re-take the photographs.
N On entering the corridor Senior Immigration Assistant So saw a bed sheet N
burning outside Room 6E.
O O
7. Senior Immigration Assistant So called for assistance and re-
P P
took the photographs, including photographs of the fire. The fire lasted for
Q around ten seconds before it was put out by a fire extinguisher. Q
R R
8. The defendant, who was observed to be emotionally unstable
S and crying inside Room 6E, was taken to see a doctor. S
T 9. CCTV installed in the Centre captured, inter alia, the T
defendant hanging the bed sheet on the railings, lighting the bed sheet with
U U
V V
-3-
A A
B B
matches and once the bed sheet was set on fire throwing the bed sheet into
C the corridor through the gap in the railings. I have viewed the CCTV C
footage and looked at the photographs taken by Senior Immigration
D D
Assistant So. Photographs of Room 6E and the 6th floor have also been
E submitted to court. E
F Mitigation F
G G
10. In passing sentence, I have carefully considered the oral and
H written submissions of Ms Mohamed, including that the defendant, aged H
34, came to Hong Kong from Ghana in 2009 when he applied for non-
I I
refoulement protection3. That application was rejected and the defendant
J is now waiting for a date to be fixed for Judicial Review. J
K K
11. I take into account the defendant has no previous convictions
L
for arson and that he was last before the court in March 2015 when he was L
sentenced to 2 years’ imprisonment for wounding. Ms Mohamed explains
M M
that ever since the defendant has led a law abiding life and that his life has
N changed for the better. The defendant married a Hong Kong resident in N
4
2015 and now has three children .
O O
12. I have read the defendant’s mitigation letters in which he
P P
describes that his actions were a cry for help. I have also read the letter
Q written by the defendant’s wife who describes how the defendant has tried Q
to be a better citizen, father and husband and that she believes he acted out
R R
of stress and frustration over not being able to take care of the family.
S S
T 3
T
See §2 i-iv & vii of the written mitigation.
4
See §§2 v, vi & viii, 17 & 20 of the written mitigation.
U U
V V
-4-
A A
B B
13. The defendant’s wife also details the complications during her
C pregnancy and the birth of the baby which has been made all the more C
difficult without the defendant at home to take care of her and the children.
D D
The defendant’s wife, who is in court today to support her husband, hopes
E to return to work at the end of March when her maternity leave ends but E
without the defendant at home this may not be possible.
F F
14. I have read the psychiatric reports prepared in August last year
G G
as to the defendant’s fitness to be tried. The defendant told both
H psychiatrists the fire was an accident. Ms Mohamed informs the court the H
defendant accepts his actions were deliberate but asks the court to accept
I I
that the defendant acted in a highly emotional state.
J J
15. Having viewed the CCTV footage, the actions of the
K K
defendant were clearly deliberate. Fortunately, with Senior Immigration
L Assistant So returning to retake photographs the fire was discovered and L
put out quickly.
M M
N Guidelines N
O 16. Offences of arson are to be treated by the court as very serious. O
The facts of cases varying so much there are no guidelines. Each case
P P
depends on its own facts and circumstances.
Q Q
17. In HKSAR v Kung Pak-fu,, the Court of Appeal, after
R R
reviewing a number of cases, said5:
S S
T T
5
[2008] 2 HKCLRT 240 at §23. Also cited by Ms Mohamed.
U U
V V
-5-
A A
B “……arson is an extremely serious offence. That said, we do not B
consider it appropriate to lay down sentencing guidelines for this
C C
offence because its gravity differs from case to case, particularly
D in cases involving family disputes or souring of relationships. The D
court must impose a sentence which properly reflects the gravity
E of the particular case.” E
F F
18. In HKSAR v Law Chun Man the Court of Appeal set out
G
factors to be considered in arson cases, including the motivation of the G
defendant, the actual damage done, the potential damage to life and
H H
property and whether the arson was an isolated incident6.
I I
19. Ms Mohamed refers the court to two sentence cases in the
J District Court7. I have considered these cases. In HKSAR v Frank Azzem J
Hasso the defendant set fire to a bedsheet in his cell in Lai Chi Kok
K K
Reception Centre. The court adopted a starting point of 15 months’
L imprisonment. L
M M
20. Ms Mohamed also refers the court to HKSAR v Hung Pang
N Chi where I adopted a starting point of 12 months’ imprisonment for arson N
with intent to endanger life8. The facts and circumstances of that case are
O O
very different to the present case, not least that the defendant put out the
P fires that he started. P
Q Q
21. I accept that the defendant acted in a highly emotional state
R
because he wanted to take care of his family. The defendant must however R
understand that setting fire in a confined space is a serious offence. I note
S S
6
[2012] 4 HKLRD 320 at §§34-38. Also cited by Ms Mohamed.
T 7
T
HKSAR v Chan Chi Cheung DCCC 82/2011 and HKSAR v Frank Azzem Hasso DCCC 217/2018.
8
See §19 of the written mitigation.
U U
V V
-6-
A A
B B
from the CCTV footage that there were at least three other persons inside
C Room 6E when the defendant set light to the bed sheet. Whilst the lives of C
other detainees and the staff at the Centre were not affected the fire having
D D
been put out quickly, setting fire in an immigration detention centre must
E in my view attract an element of deterrence. E
F 22. Taking into account all the circumstances of the case, I am F
satisfied a starting point of 15 months’ imprisonment is appropriate.
G G
H 23. The commission of offences by refugees or torture claimants H
is capable of aggravating sentence where the offence affects the
I I
community at large and has a significant impact on Hong Kong’s
J reputation for order and security9. J
K K
24. Ms Mohamed submits this is not a case where enhancement is
L
appropriate because the defendant acted in an emotional state10. In HKSAR L
v Godhaniya Haja Samat, a case of arson with intent to endanger life,
M M
which took place on the staircase of a residential building, I decided the
N case was not an appropriate case for enhancement. The Court of Appeal N
disagreed with this view and said that the applicant was fortunate that the
O O
judge did not enhance the sentence11.
P P
25. I am satisfied in the circumstances of the case, in particular
Q that the fire was started in a confined setting in an immigration detention Q
centre where the safety and security of all detainees and staff is paramount,
R R
S S
9
See HKSAR v Sandagdorj Altankhuyag & another CACC 45/2013 as applied in HKSAR v Norena
Gutierrez Cristhian Andres CACC 319/2014.
T 10
T
See §§14-16 of the written mitigation.
11
CACC 264/2017.
U U
V V
-7-
A A
B B
that enhancement is appropriate. I enhance the starting point by 3 months
C to 18 months’ imprisonment. C
D 26. Giving the defendant full credit for his plea of guilty reduces D
the sentence to 12 months’ imprisonment.
E E
F Detention in Castle Peak Immigration Centre F
G 27. The defendant was arrested on 7 July 2020. Thereafter the G
defendant was not detained by the police but remained in detention at the
H H
Castle Peak Immigration Centre until he appeared in court on 23 July.
I I
28. Section 67A (1A) of the Criminal Procedure Ordinance
J J
provides that the length of any sentence of imprisonment imposed on a
K person by a court shall be treated as reduced by any period during which K
he was, immediately prior to his first appearance in court in connection
L L
with any proceeding relating to the offence for which the sentence of
M imprisonment was imposed, in custody under Part VII of the Immigration M
Ordinance in connection with that offence12.
N N
O 29. Ms Tsang informs the court that the defendant’s detention was O
13
pursuant to section 32 (3A) of the Immigration Ordinance . Section 32
P P
(3A) of the Immigration Ordinance, which is under Part VII of the
Q Immigration Ordinance, provides for detention pending removal from Q
Hong Kong. The continued detention of the defendant would therefore
R R
appear to have no connection to the arson offence14.
S S
12
Cap 221.
T 13
T
Cap 115.
14
See HKSAR v Eftakhar Beg HCMA 262/2015 at §32.
U U
V V
-8-
A A
B B
30. If the defendant had been detained by the police after arrest
C section 67A (1A) of the Criminal Procedure Ordinance would apply. In C
the circumstances I exercise my discretion and reduce the sentence by 16
D D
days to 11 months and 14 days’ imprisonment.
E E
31. The defendant is convicted and sentenced to 11 months and
F 14 days’ imprisonment. F
G G
H H
I
(D. J. DUFTON) I
District Judge
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V