HKSAR v. LU XIANFENG AND OTHERS

DCCC 193/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 193 OF 2014

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Reasons for Sentence

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1.  The four defendants have pleaded guilty to one charge of theft, alleging the theft of 21.88 kilos of wood blocks of Aquilaria Sinensis wood.

2.  The defendants have agreed the facts of the case and I have convicted them.

3.  The charges arise out of the fact that the defendants were apprehended on 24 January this year in the early hours of the morning by police in the area of Tai Po Hui.  Three of them were carrying rucksacks, and the rucksacks were examined by the police.  In the rucksacks there were totally nine pieces of the wood weighing some 21.88 kilos.

4.  The defendants were arrested and later interviewed.  The 1st defendant had originally said under caution he had come to Hong Kong with friends, and he had found a black plastic bag with chips in the hills, together with the 2nd to 4th defendants, and they had put the incense tree wood chips in his rucksack, intending to sell the chips in the mainland.  The 3rd defendant admitted somebody had paid him $1,000 to pick up incense tree wood chips in Hong Kong.

5.  There were subsequent video-recorded interviews with the defendants; in fact, the 1st, 2nd and 3rd defendants.  The 1st defendant went on to make further admissions that he had gone into the wood area and found three rucksacks near a big tree.  The wood had then been deployed into his and other defendants’ rucksacks.  The 2nd defendant admitted he was to receive a $1,000 reward, as did the 3rd defendant.

6.  All the defendants entered Hong Kong on 19 January.  The wood had been found in the rucksacks of the 1st, 2nd and 4th defendants.  There was a total of 21.88 kilos with a value of HK$1,156,400.

7.  There was evidence against all the defendants of their involvement in this theft, and I convicted them accordingly.

8.  The defendants’ antecedents were produced in court.  They were all visiting Hong Kong.  They were all of clear record in Hong Kong, although they had not been in the territory very long.  The defendants are all, as I say, of clear record.  They range in age between 25 years and 37 years. Their backgrounds are similar.  They all had some form of employment and family members in the People’s Republic of China.  They are all remorseful, and I accept that they were on an expedition to collect this wood and take it back to China for reward.

9.  I have to of course determine a starting point for sentence in this case.  There is a guideline case in respect of the theft of this particular form of wood, and beyond that there is also an application for enhancement of sentence by the prosecution in this case.  The guideline case is HKSAR v Wen Zelang CACC 220/2006, where in respect of a total of 5.6 kilos of this particular wood, Aquilaria Sinensis, a starting point for sentence of 3 years’ imprisonment was determined to be correct.  I have also been referred to another case, HKSAR v Xie Jinbin CACC 195/2010, and that case takes the position that while the quantity of stolen goods in a case of theft is usually an important factor in determining the appropriate sentence, it is not necessarily the only and determinative factor.

10.  I have to consider whether the starting point of 3 years’ imprisonment in Wen Zelang is the appropriate starting point.  In this case, it is said that the defendants can only be proved to be people who were collecting the wood from a certain location.  They were not themselves the harvesters.  They did not have any equipment on them for damaging the tree or taking the bark or wood.  Nevertheless, they were in possession of quite a large quantity of wood, over 20 kilos, and they were in an organised group which had allowed them to carry out more of the wood, and the quantity of wood we are concerned with here is considerably larger than that in the guideline case.

11.  I consider that having regard to the fairly large quantity involved here, that the appropriate starting point for sentence should be one of 3 years 6 months’ imprisonment; that is, 42 months. After deduction for a plea of guilty, that would leave a sentence of 28 months’ imprisonment, subject to enhancement.

12.  The prosecution apply for enhancement on the basis of section 27D of the ordinance, having regard to the nature and extent of any harm, whether direct or indirect, caused to the community by the recent occurrence of the specified offence. 

13.  This is a specified offence.  I have evidence from Mr Pang, a conservation officer of the Agricultural, Fisheries and Conservation Department, and he is of the view that the unsustainable felling of Aquilaria Sinensis has caused irreplaceable damage to the general natural features and ecology of the natural forests of Hong Kong, which is a great loss to our community.  He is of the view the illegal exploitations threaten the natural survival of the native plant Aquilaria Sinensis, and that view is not challenged.

14.  This is an appropriate case for enhancement of sentence.  I will enhance the sentence of 28 months’ imprisonment in respect of each defendant by 25 per cent.

15.  This leaves a final sentence in respect of the 1st, 2nd, 3rd and 4th defendants each of 35 months’ imprisonment.