HKSAR v. YU GUANGPING AND OTHERS

DCCC590/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 590 OF 2012

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Reasons for Sentence

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1.  The three defendants in this case have pleaded guilty to a theft on 20 May 2012 and 21 May 2012 of 1.04 kilograms of incense tree.

2.  On 20 May, the three defendants entered Hong Kong using two-way permits.  They were spotted the following day by police officers at about 1610 hours in Sai Kung.  The 1st defendant was carrying a rucksack and the officers searched that and found a plastic bag containing wood chips and tree barks which they suspected were from the incense tree.  At the scene, he admitted that it was the incense tree and that he had cut the tree together with the other two defendants.  They planned to take the tree back to the mainland and split the proceeds of sale.  He said that he could not recall exactly where he cut the tree from.

3.  In the front left pocket of D2’s trousers, the officers found a plastic bag also containing wood chips from the incense tree, and he admitted having cut it from an unknown hillside in Sai Kung with his two co‑accused.

4.  The 3rd defendant was arrested and, under caution, he admitted having taken the tree for medical purposes.

5.  Video-recorded interviews were conducted and, inter alia, the 1st defendant admitted that he came to Hong Kong from Shenzhen with the two co-accused for the purpose of cutting the incense tree. He said that D2 led the group and he gave several hundred dollars to the 2nd defendant to cover the costs of the trip and for safekeeping.  He said a knife was used which they found at the hillside and that he cut three to four trees.

6.  The 2nd defendant in his record of interview said that he had arrived with his two co-accused the previous day and they had stayed the night at the hillside in Sai Kung.  He said he found the tree and picked it for medical purposes.  

7.  D3 said that he had come to Hong Kong with his two co‑accused.  They had taken a train to Shatin and then a bus to Sai Kung, and then they had taken a taxi and walked up an unknown hillside in Sai Kung in the New Territories.  They stayed there overnight.

8.  The quantity of the incense tree seized was 1.04 kilograms, and the estimated value is $47,920.  The tree is a protected endangered species and is the only species known to be able to produce Chen Xiang in Hong Kong.  Expert evidence established shows that the tree was illegally cut or felled in an unsustainable fashion for mass extraction of timber to the extent that the trees were dead or damaged and unable to recover, and long-term survival of the species could not be ensured. The deliberate felling and damage of the tree jeopardised the normal ecological relationship of the organisms in the woodlands.  Unsustainable felling of the species caused irreplaceable damage to the general natural feature and ecology of the natural forests.

9.  An application was made by the prosecution for the enhancement of any sentence imposed by the court pursuant to section 27(2) of the Organised and Serious Crimes Ordinance, Cap.455.  The application was made under paragraph (d) of (2), namely, that the nature and extent of any harm, whether direct or indirect, caused to the community by recent occurrences of this specified offence.

10.  This application was supported by a statement from a Mr Pang Kuen-shum, a conservation officer of the Agriculture, Fisheries and Conservation Department.  This statement states, inter alia, that the situation as regards these tress is getting worse and that mature trees of such species were subject to illegal harvesting.

11.  The application for enhancement was not opposed by counsel representing the defendant.  I agreed to the application and decided that any sentence should be enhanced by 25 per cent.

12.  The defendants all have clear records in Hong Kong.  They are all from the mainland.  The 1st defendant is 16.  He was born in China and educated to Secondary 2 standard.  He has worked in a shoe factory.  He is single.  He lives with his parents on the mainland.  His parents were farmers in China and he has an elder sister who works in a factory and an elder brother who is still in education.  And D2 is his cousin, and according to his mitigation, it was D2 that suggested the trip to Hong Kong.  He said that he did not know that the tree was so valuable.

13.  The 2nd defendant is aged 22, lives in Dongguan province.  He was born in China and completed primary education.  He has a wife and a one-year-old baby.  He is very co-operative with the police.

14.  The 3rd defendant is aged 17, born in China and completed the first year of secondary education.  He has worked as a decoration worker.  He is single and lives with his mother.

15.  As was pointed out in mitigation, D3 was not found in possession of any of the stolen items.  He found that he was short of money and he joined this enterprise in order to earn some money.

16.  Reference was been made by counsel for the defendant to the case of HKSAR v Xie Jinbin CACC195 of 2010.  That case is a similar case to the case before this court and it reinforced the position taken by the Court of Appeal in HKSAR v Wen Zelang [2006] 4 HKLRD 460 where the judge adopted a starting point of 3 years imprsionment.  That was reduced to 2 years because of the guilty plea entered, and an enhancement of 25 per cent was made on the application of the prosecution. 

17.  It was stated in that case at paragraph 23 that the applicant was not to be punished only according to the weight of the woodblock that was stolen but according to the enterprise that he and the other defendants had collectively participated in and the seriousness of the offence. The court went on to state that the applicant and the three other persons who came to Hong Kong with him participated in a joint enterprise with the intention of exploiting Hong Kong’s endangered flora for profit.  They acted as a group and the offence was clearly premeditated.  The court stated that 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.

18.  In this case, I have given anxious consideration to the fact that the 1st and 3rd defendants at the time of the offence were both aged 16.  Normally, with a 16-year-old defendant, the court is required to look at alternative sentences to imprisonment for young persons. Given the seriousness of the offence and the fact that the defendants are from the mainland, I see that prison is the only viable option in this case.

19.  I considered whether a lesser sentence should be imposed because of the ages of D1 and D3.  In my view, this would defeat the object of the Court of Appeal in saying that deterrent sentences should be imposed.  It would simply mean that those organising such criminal enterprises would select younger persons to accompany them to Hong Kong on the basis that if caught, they would get a lesser sentence.  I therefore take the view that no reduction of sentence should be imposed because of the age of the 1st and 3rd defendants.

20.  I propose to follow sentences imposed previously by the Court of Appeal and order that a starting point of 3 years be imposed for this offence, with a reduction to 2 years to account for the guilty pleas that have been entered.  I propose to enhance those sentences by 25 per cent and order that each of the defendants shall go to prison for 2 years and 6 months.