HKSAR v. LIAO MINGHUI AND ANOTHER

DCCC 806/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.806 OF 2013

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Reasons for Sentence

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1. The defendants pleaded guilty to one charge of conspiracy to steal, contrary to s.9 of the Theft Ordinance, Cap.210 and ss.159A and 159C of the Crimes Ordinance, Cap.200.

2. Particulars of the charge are that the defendants on 8^th July 2013 conspired to steal Aquilaria sinensis wood, commonly known as Incense Tree.

Summary of facts

3. At around 12:25pm on 8^th July 2013 patrolling Police officers stopped the defendants (two-way permit holders) who were acting suspiciously while walking near Ao Tou Village in Sai Kung.

4. A search was conducted. From the bag that D1 was carrying, Police found a 28cm long chopper, a saw with a 45cm long blade covered with a paper strip and 3 labour gloves. Under caution, D1 admitted that he had intended to use the tools found in his bag to cut incense trees and bring them back to mainland China to sell.

5. From the bag that D2 was carrying, Police found a 26cm long hoe blade, a 27cm long bending chisel and a pair of white labour gloves. Under caution, D2 remained silent.

6. Police arrested the defendants for going equipped to steal. Under caution, D2 remained silent, while D1 said they were going to find and chop some wood from incense trees to sell to make some money and asked for a chance.

7. In a subsequent cautioned interview on the same day, D1 stated that he and D2 formed a plan to come to Hong Kong on 4^th July 2013 to chop incense trees. D1 bought the tools in mainland China, entered Hong Kong together with D2 at about 10am on the day of the arrest, took a train to Shatin and then a bus to Sai Kung. They were stopped by the Police while looking for incense trees.

8. According to movement records, D1 and D2 entered Hong Kong as visitors at 09:38 on 8^th July via the Lo Wu Control Point.

9. The chopper, saw, hoe blade and chisel were inspected by Mr. Pang of the Agriculture, Fisheries and Conservation Department (“the AFCD”). He is of the opinion that they were tools suitable for use in the collection of tree specimens and harvesting of wood from incense trees. Mr. Pang also opined that the 27cm long bending chisel was tailor made for the harvesting of wood from incense trees.

10. Mr. Pang is also of the opinion that of all plants in Hong Kong, only the species Aquilaria sinensis is known to be able to produce “Chen Xiang 沈香” and harvested in wood blocks, wood chips and barks. The trunks of many large and old trees of Aquilaria sinensis have been illegally cut or felled in an unsustainable fashion deliberately for mass extraction of timber to the extent that such trees are dead or damaged and likely unable to recover. Large and old individuals of Aquilaria sinensis have become rare in Hong Kong. Mr. Pang saw that in recent cases, relatively smaller but mature trees were being illegally harvested. Aquilaria sinensis is a dominant tree species in Fung Shui woods and other lowland forests, such deliberate felling and damage of large and small Aquilaria sinensis, by way of damages to the habitats of the organisms, have jeopardized the normal ecological relationships of the organisms in such woodlands.

11. Aquilaria sinensis is a scheduled species protected under the Protection of Endangered Species of Animals and Plants Ordinance, Cap.586.

12. The expert report of Mr. Pang of the AFCD is produced as exhibit P-7 under s.65B of the Criminal Procedure Ordinance, Cap.221. Neither the expert status nor the contents of the report are disputed by the defendants.

Enhancement of sentence

13. Pursuant to s.27(2) of the Organized and Serious Crimes Ordinance, Cap.455, the prosecution applied to enhance the defendants’ sentences on the ground of ‘the nature and extent of any harm, whether direct or indirect, caused to the community by recent occurrences of this specified offence’.

Previous convictions

14. Both defendants are of clear record in Hong Kong.

Mitigation

D1’s mitigation

15. D1 is 42, was married for 18 years, his wife is now 36, he is living in Shenzhen with their 3 children. Their eldest son is 18, daughter 17 and younger son 15 year old. D1 and his wife also live with his mother who is 66.

16. Before this incident, D1 was working in a printing factory in Shenzhen earning RMB1,500 per month. D1’s wife earns about RMB1,600 per month.

17. The defendant has a clear record in Hong Kong and the mainland. He has been working very hard to support his family. He has 3 children to support, all doing very well at school. Eldest son is studying in a technical school, daughter in college on a logistic management course, and the 15 year old son is in F.2 in the Chinese education system. The family has to meet huge expenses every month, in particular school fees. D1 is remorseful and misses his children. He wants to get back to his family soon to continue to give them the support they need from him.

18. D1 committed offence out of stupidity and partly innocence, but most of all out of greed. He has been an honest person. D1 arrived in Hong Kong on 8^th July at about 09:38am, he got arrested at 12:35pm on the same day. It was first time ever that he came to Hong Kong. From the summary of facts, no stolen trees were found in D1’s possession. Although the Police managed to find some tools which according to the expert were tools that might be suitable for harvesting Chen Xiang, without D1’s own admission, the prosecution would not have been able to lay a charge of conspiracy to steal ‘cheng xiang’ easily.

19. D1 had no idea where he could find the cheng xiang. He just heard from his friends in mainland that there might be cheng xiang in Sai Kung. He did not have an exact idea about the price, he said he believed they could sell for $150 per catty. But according to the expert, cheng xiang was worth a lot more. D1 did not know what he was doing and was influenced by his friends, he wishes the court to take into account his family background and personality and pass a lenient sentence.

Whether the sentence should be enhanced

20. In response to the prosecution’s intended application to enhance the defendants’ sentences, Ms. Tsang for D1 observed that the court has a discretionary power to enhance if satisfied that information provided by the prosecution established the nature and extent of harm done to the Hong Kong community. It is Ms. Tsang’s submission that the prosecution did not furnish information to the standard which is required by the law.

21. Ms. Tsang argues that the report of Mr. Pang cannot show that there had been ‘recent occurrences’ of the offence. I disagree with this observation. I find that paragraph 23, when read in the context of Mr. Pang’s responsibility as stated in paragraphs 4 and 5 of his report, clearly supports the prosecution’s allegation that there had been numerous recent reports that the species Chen Xiang has been illegally exploited. This however does not automatically mean that there should be an enhancement of sentence. This will be dealt with later on.

D2’s mitigation

22. The defendant is married and his family is in China. He has 2 children, aged 9 and 4. The defendant used to work as a casual worker and salesman in China.

23. Ms. Lee submitted that the present case should be distinguished from the usual authorities on sentencing in relation to illegal harvesting of incense trees. The reason being that there was no wood being harvested and the main considerations common in those cases, which is the weight of wood stolen, simply cannot apply in our present case. Ms. Lee asked the court to consider that this is a different case and not to enhance the sentence. Ms. Lee also submitted that the defendant has a clear record and that the tools found were home made tools and that the two of them were not engaged in a large scale operation.

Sentencing cases

24. Ms. Lau for the prosecution referred me to the cases of HKSAR v Wen Zelang, CACC 220/2006; HKSAR v Xie Jinbin, CACC 195/2010; HKSAR v Lu Qifeng, CACC 42/2013 and HKSAR v Yang Guang Xiu, CACC 469/2012.

25. In the case of Xie Jinbin, the appellant and 3 other mainlanders came to Hong Kong on two-way permits and were seen by Police cutting the tree and packing wood blocks into their rucksacks. A total of 7 wood blocks weighing 1.181 kg, a saw, an iron hoe and a knife were found in their rucksacks. At trial, the learned District Judge adopted a starting point of 3 years’ imprisonment, reduced it for plea and then enhanced the sentence by 25% under s.27(2) of OSCO and sentenced the appellant to 2 years and 6 months’ imprisonment.

26. The appeal against sentence was dismissed. In their judgment, the Court of Appeal stated that,

“16. 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…… But where the stolen property involved is a protected endangered species, the considerations are wholly different. The end which the law seeks to achieve is protection of our endangered flora. Thus, the evil which the law seeks to prevent is not theft as such but injury to the protected flora. Unlike theft of ordinary goods, restitution is impossible. The recovered wood could not be restored to the plant. The focus, therefore, should be on protection of the plant rather than the value of the plant or part stolen. The factors to be taken into consideration are the injury done to the tree, profit-motive, the manner of commission and the gravity of the offence.

17. …a clear and firm message was needed to deter mainlanders from coming to Hong Kong, legally or illegally, for the specific purpose of exploiting protected and endangered flora for profit. A starting point of 3 years of the extraction of wood from an Incense Tree by mainlanders could not be faulted, although this was not meant to be a straitjacket.”

27. It was also held that,

“23. The learned judge was fully aware that the Applicant was found in possession of 0.677 kilogram of wood only. Though only 1.181 kilogram of wood was recovered from the Applicant and the co-defendants, the quantity does not reflect the actual injury caused to the tree and the seriousness of the offence. The Applicant is not to be punished only according to the weight of the wood block he has stolen, but according to the enterprise he and the other three offenders had collectively participated in and the seriousness of the offence. The Applicant and three others came to Hong Kong in a joint enterprise with the intention to exploit our endangered flora for profit. They equipped themselves with a knife, hoe and saw. They acted as a group. The offence was clearly premeditated…..The offence is one which calls for deterrence. Weight is therefore not the determining factor for sentencing nor is it a reliable indicator of the seriousness of the offence and the injury caused to the tree. Having regard to the purpose of the Ordinance and the need for deterrence, we consider the starting point appropriate. The sentence might be on the high side in view of the quantity of wood stolen, but is not one which may be regarded as manifestly excessive as to justify interference.”

28. It is clear that there is one distinct feature in the usual Incense Tree theft case lacking in our present case and that is the absence of actual injury to any tree, given that this is a charge of conspiracy, the offence would have been committed as soon as the defendants agreed to come to Hong Kong to commit the theft.

29. Nevertheless, I find that I can still take into consideration the sentence in the Court of Appeal case when arriving at the sentence. The tenor of the Court of Appeal’s judgment is ‘protection and deterrence’ and I find that these are the most important factors to consider when sentencing in a conspiracy to steal incense trees cases.

30. In the case of Lu Qi Feng (盧其風), the applicant was charged with the attempted theft of incense tree. The learned trial judge adopted a starting point of 3 years’ imprisonment, discounted one-third for the applicant’s guilty plea and then enhanced the sentence by 25% pursuant to s.27 of OSCO. There, only 0.01kg of wood chips of incense tree was found on the applicant. The Court of Appeal however considered the sentence proper. Although only very small amount of wood was found, there was some evidence, and the Court of Appeal found that it could be inferred, that the applicant did take part in the chopping of incense tree, thus causing injury to a tree.

31. In the case of Yang Guang Xiu (楊廣秀), the applicant was convicted after trial of one charge of attempted theft of incense tree. There the applicant was seen digging the soil next to an incense tree while another person was peeling off some bark from that tree with their bare hands. The Court of Appeal took into consideration that no tools were used to interfere with the tree, the fact that the tree was seen by Police officers to be already wilting and the opinion of the expert that the sample collected from the tree showed that the tree was already infected, and lowered the starting point to that of 2 and a half years’ imprisonment. The sentence was then enhanced under s.27(2)(d) of OSCO by 25%, resulting in the final sentence of 3 years’ imprisonment.

32. In relation to the 2 attempted theft of incense tree cases, I find that they support the Court of Appeal’s finding that the quantity of wood stolen is not the only factor to be considered. The cases are helpful in gauging the proper sentence even when there is no evidence as to the amount of wood stolen, nor as to the extent of injury or damage the incense tree in question might have suffered.

Sentence

33. I find that, rather than conducting the exercise of applying the theft or attempted theft cases to a conspiracy case, which I find is the equivalent of trying to fit a square peg into a round hole given that there were no wood stolen and no injury to trees proved, I should distinguish the cases and sentence the defendants on the factors relevant to a conspiracy to steal charge alone, while bearing in mind the final sentences imposed in those theft cases to ensure fairness.

34. Given that premise, I find that the relevant factors to be considered in a conspiracy to steal Aquilaria sinensis wood case include the scale of the conspiracy, the way the conspiracy was intended to be carried out, and the likely harm that the theft would cause should the conspiracy be successfully carried out.

35. In our present case, the conspiracy was formed when the defendants were still in mainland China. The defendants entered Hong Kong with the sole purpose of carrying out the conspiracy. Tools were brought into Hong Kong for that purpose. The conspiracy involved just the two defendants. The likely harm that the theft could cause are as set out in Mr. Pang’s expert report in exhibit P-7.

36. The commission of the offence was premeditated although the scale of the conspiracy was small. The theft was to be conducted with an accomplice. But for the proper deployment of Police officers, the defendants might very well have successfully carried out their conspiracy and cause the kind of harm to the Hong Kong community as described by Mr. Pang in his report.

37. Bearing in mind all the circumstances of the case and the need for protection and deterrence as mentioned above, I find that an appropriate starting point is that of 3 years’ imprisonment for each of the 2 defendants.

38. I grant them each the full one third discount for their guilty plea and sentence them to 2 years’ imprisonment.

Enhancement of sentence

39. The information furnished by the prosecution in support of their application under s.27(2) is the expert report of Mr. Pang.

40. According to s.27(2) and the interpretation section 2 of OSCO, the ‘specified offence’ in the present case can either be that of theft, or conspiracy to commit theft.

41. Under the section, it is for the prosecution to prove that “a person has been convicted of a specified offence” and then to prove “(d) the nature and extent of any harm, whether direct or indirect, caused to the community by recent occurrences of that specified offence”. It would therefore follow that there can only be one specified offence in relation to each application. In the present case, Ms. Lau for the prosecution had confirmed that the specified offence is that of ‘Conspiracy to Steal incense trees’.

42. With that in mind, when one reads the report of Mr. Pang, it is clear that the whole of the report is dedicated to the actual theft of incense trees, that is to say, to the commission of the offence of theft and not conspiracy to steal them. By reason of the nature of a conspiracy to steal charge, the offence can be committed without causing any damage at all to any incense tree. To enhance the sentence under s.27(2)(d) by interpreting the words of Mr. Pang in such a way in order for the prosecution to be able to say that such conspiracies would cause that sort of harm would be entirely artificial and against the spirit of the report.

43. Furthermore, given that one of the factors that was taken into consideration when arriving at the 3 year starting point for conspiracy to steal incense trees was the potential harm that could result if the conspiracy was successfully carried out, which was the harm as described by Mr. Pang in his report, to enhance the defendants’ sentences on that same basis again under s.27(2)(d) would be unfair.

44. For the reasons above, I refuse the prosecution’s application to enhance. The final sentence for the defendants is therefore that of 2 years’ imprisonment.