HKSAR v. Frank Azzem Hasso

DCCC 217/2018

[2018] HKDC 1194

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 217 OF 2018

-------------------------------------

-------------------------------------

--------------------------------------

REASONS FOR SENTENCE

--------------------------------------

1.The defendant has pleaded guilty to single charge of Arson contrary to s 60(1) and (3) and s 63(1) of the crimes ordinance, Cap 200.

Facts of the case

2.The defendant, who was a detainee at the Lai Chi Kok Reception Centre.  On 22 November 2017 at around 5:45 pm, smoke alarm went off and smoke was coming out of the cell that the defendant was in.

3.CSD officers proceeded to the cell and saw a bedsheet was burning inside a rubbish bin, where the bin was placed on top of a upside down table, smoke and sparks could also be seen from the burning.  CSD officers tried but could not put out the fire by stepping on it, fire was subsequently put out by using a fire hose.

4.The defendant was escorted out of the cell, no one was injured and evacuation was not required.  As a result of the fire, a bed sheet was damaged with burn marks and 2 big holes, the plastics rubbish bin was damaged with one big burnt hole.

5.Under caution, the defendant admitted he turned the table upside down, put the rubbish bin on it, and set fire to the bedsheet with 2 matches he got from CSD officers and put the bedsheet into the bin.  He did so because he missed his family and wanted to vent his anger.

Background

6.The defendant is now aged 25, a US national.  He was sentenced to 6 years and 7 months on 30 January 2018 in the Court of First instance for trafficking in a dangerous drug, he is currently serving his sentence.

Mitigation

7.I have considered everything that have been said on the defendant’s behalf by his counsel, and the mitigation letters submitted, in particular, his plead of guilty, and he has no similar conviction record, and that fact that the defendant is willing to compensate the Government for HK$47.85.

8.Counsel also pointed out that no injury was caused and the defendant was alone in the cell, it was an impulsive act, out of frustration that he lost his postage stamp so he could not write to his family overseas, and he fully cooperated with the authority and made a frank admission, and he has now learned his lesson and becoming a more mature person, these which I accept.

9.However, counsel also suggested that no realistic risk of damage to property other that the blanket and rubbish bin, with respect, I am unable to agree on this.  It was both fortunate and the quick response and training of the CSD officers that had kept the damage to the minimal, the risk is often real and substantial that fire could spread in an blink of an eye, resulting in serious damage to the cell and injury (including CSD officers and the defendant)

10.Counsel has submitted various authorities in respect of s 60(1) offence.

HKSAR v Cheng Cheung Lung DCCC 717 of 2014

11.The defendant set fire to his kitchen and a segment of the corridor outside his flat, fire was put out by his neighbor.  The defendant had been drinking and was very angry.  The defendant acted out of impulse and had no similar convictions, no fire accelerant was used.  HH Judge G Lam took 21 months as starting point reduced it to 14 months for plea of guilty.

HKSAR v Tsang Siu Wan, Winnie DCCC 325 of 2011

12.It happened in a residential unit sub-divided into cubicles for renting out, the defendant was seen squatting outside another tenant’s cubicle burning some newspaper and the tenant’s door mat.  The defendant had psychiatric problem.  HH Judge Yau noted it was a densely populated residential building and took 30 months as starting point and reduced to 20 months for plea of guilty.

HKSAR v Wong Tsz On DCCC 369 of 2010

13.It happened in a residential building, the defendant had an argument with his girl friend and he was denied access to the unit (it was their friend’s place and they were staying there temporarily), the defendant smashed a window and set fire to a curtain.  The fire was put out by him before the police arrived.  The defendant acted out of impulse and minimal damage was caused.  The defendant had 13 previous records.  HH Judge Browne took 3 years as the starting point for the arson charge and reduced it to 2 years for plea of guilty (another 4 months for criminal damage)

The Queen v Cheung Sun Wah HCMA 413 of 1997

14.A severely disabled defendant, was left alone in a police station, set fire to his own money which he obtained by begging which then caused a set of police forms to burn.  Keith J commented that this case could have been dealt with by imposing a fine.  Sentence was reduced to 1 month which enabled his immediate release.

15.This case is different from the present case, the defendant was severely disabled, the items that was set fire upon were 3 bank notes, the scale of which that mattered.  Besides, his Lordship thought the arson charge was heavy-handed.

16.Counsel has also submitted authorities in respect of s 60(2) offence[1], these authorities however relate to a more serious charge and the facts of those authorities involve serious personal injury and fire accelerant was used, far more serious than the present case, I find them not to be of direct relevancy in terms of sentence consideration.

17.There is no sentencing guidelines in respect of this charge, I have considered all the authorities submitted to this court, in particular, the above mentioned 3 authorities that provide a good yardstick for the sentence that I should pass on the defendant, in those 3 authorities, no injury was caused, nor fire accelerant was used, damage was minimal, the defendants acted out of impulse, as in the present case.

18.Moreover, one common feature I find in these 3 cases is that, it all happened in a populated residential area, the greater risk it is to cause serious damage to property and lives, people could have lost their home and greater numbers of people would have been affected.

19.I consider the starting point that I should adopt should reflect this common feature is lacking, and that the defendant was alone in the cell, given the nature and gravity of the offence, the only sentence that I could pass on the defendant is one of immediate custodial sentence, the starting point would be one of 15 months, on his plea of guilty, it is reduced to 10 months’ imprisonment.

20.I am aware the defendant is serving a prison sentence of 6 years and 7 months, bear in mind the totality principle, I shall order 7 months of the 10 months prison sentence to run consecutively to the current sentence the defendant is now serving.

21.A compensation order in the sum of HK$47.85 be imposed.