HKSAR v. CHEN YAWEI

DCCC 638/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 638 OF 2014

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Reasons for Sentence

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1. The defendant pleads guilty to one charge of theft　（Charge 1）, and one charge of unlawful remaining in Hong Kong　（Charge 2）.

2. At about 5 pm on 26 May 2014, the defendant was stopped and searched by a police constable.  Upon search, four wood chips of Aquilaria Sinensis, commonly known as “incense tree”, weighing 1.18 kilograms, and one 33 cm long machete were found in the defendant’s rucksack.

3. The defendant was arrested.  He said his wife was having a tumour, so he cut incense tree for sale to pay for her operation and medical expenses.

4. Under Caution, the defendant made further admissions that on 24 May 2014 he sneaked into Hong Kong by sampan from Shenzhen.  He has no authority to remain in Hong Kong.

5. He used the machete he brought from mainland to cut down four wood blocks from an incense tree which he claimed had already fallen down before his arrival.  He expected to sell them for $400 to $500.

6. Mr Pang Kuen-shum, an expert from the Agriculture, Fisheries and Conservation Department, confirmed that the four wood chips seized from the defendant were 1.18 kilograms of incense tree recently cut from the tree.  He said unsustainable felling of the species in Hong Kong had caused irreparable damage to the general natural feature and ecology of the natural forests.  The value of the incense wood seized from the defendant is about $82,600.

7. The prosecution applies for enhancement of sentence pursuant to section 27(2) of the Organised and Serious Crimes Ordinance, Cap 455, on the ground of the nature and extent of harm caused to the community.  The application was not contested.

8. The defendant is 26 years of age.  He has a clear record in Hong Kong.  His solicitor, Mr Yeung, says the defendant is married, with a daughter aged 1½ years.  He was a construction worker in the mainland earning about RMB300 a day.  In May this year his wife received an operation for a tumour in her neck.  The operation cost her RMB10,000.

9. The defendant was incited by a friend to come to Hong Kong to find incense tree for sale.  It is also said that the defendant deliberately chose the incense tree from which the defendant cut down the wood chips as it had already fallen down.

10. Upon my indication that words from counsel at the Bar table would not be accepted by the court, the defendant chose not to give evidence to further his claim.

11. Mr Yeung urges the court to pass a concurrent sentence as the defendant came to Hong Kong for the sole purpose of cutting wood from incense tree.  It is submitted that the theft charge and the unlawful remaining charge should be treated as the same series of acts.

12. Cutting and stealing of incense tree in Hong Kong is a serious offence.  In HKSAR v Wen Zelang [2006] 4 HKLRD 460, Yeung JA said, paragraph 15:

“In our opinion, the judge was right to have taken a serious view of the offence when the defendants have expressly come to Hong Kong for the purpose of cutting endangered trees for profit.”

Paragraph 16:

“A clear and strong message is needed to deter mainland people from coming to Hong Kong to cut endangered trees, be they Buddhist pines or incense trees. In our view, neither the 3‑year starting point nor the 25 per cent enhancement for prevalence of the offence under OSCO is manifestly excessive.”

13. In Xie Junbin [2011] 2 HKLRD 631, the defendant and three other mainlanders came to Hong Kong to steal wood blocks of incense tree weighing 1.18 kilograms.  A starting point of 3 years’ imprisonment was affirmed in the Court of Appeal, which also stated that weight of the wood block was not a determining factor for sentencing.  It was said that the sentence might be on the high side in view of the quantity of the wood stolen, but it was not regarded as manifestly excessive.

14. In the present case, having considered the small quantity of the wood block and that the defendant stole the wood on his own, I find the proper starting point is that of 2½ years’ imprisonment.

15. I do not accept the claim that the defendant chose the tree because it had fallen down.  The claim is totally unbelievable when he deliberately came to Hong Kong to cut incense tree for sale.

16. In recognition of his plea of guilty, I will reduce the sentence by one-third to 20 months’ imprisonment.  I do not find the defendant’s wife’s health condition and the defendant’s financial difficulty effective mitigation to reduce the sentence.

17. The application for enhancement of sentence is not contested.  I am satisfied that the prosecution has made out its case under section 27(2) of the Organised and Serious Crimes Ordinance, and enhance the sentence by 25 per cent.

18. The defendant is therefore sentenced to 25 months’ imprisonment on Charge 1.

19. Sentence for unlawful remaining in Hong Kong should be 15 months’ imprisonment for a first offender on a plea of guilty. That is the sentence I pass on the defendant for Charge 2.

20. The defendant came to Hong Kong with the intention to commit theft.  The sentences on the two charges should run consecutively.  However, I am satisfied that a sentence of 3 years’ imprisonment can reflect the total culpability of the defendant in this case.

21. I therefore order 4 months out of the sentence in Charge 2 to run concurrently with the sentence in Charge 1.

22. The total sentence is 3 years’ imprisonment.