HKSAR v. CUI CHELONG

DCCC 826/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 826 OF 2014

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REASONS FOR SENTENCE

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1. Defendant appeared before me facing a single charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210.

2. The subject matter of the charge is 1.17 kilograms of woodchips of Aquilaria sinensis wood, commonly known as incense tree.  As a result of discussion between the parties, the prosecution saw fit to amend the charge to one of handling stolen goods, contrary to section 24 of the Theft Ordinance. Defendant pleaded guilty to the amended charge and was duly convicted.

Facts

3. This is a simple stop-and-search case.  Defendant is a mainlander and he came to Hong Kong on the strength of a two‑way permit.  He came to Hong Kong on 5 July 2014 and he was intercepted by the police at around 1230 hours on 10 July 2014 when he and another male were found acting suspiciously in Sham Shui Po area.  Both turned away from uniformed police officers upon seeing them on the street.

4. At the material time, defendant was carrying a black shoulder bag with him and upon search of the bag, the police found the following items:-

(1) a red plastic bag containing 49 woodchips of incense trees weighing 1.17 kg;

(2) a plastic bag containing a chopper, a handsaw and a hoe blade; and

(3) two pairs of gloves.

5. Upon inquiry, defendant indicated that the woodchips were passed to him by a person nickname Ah Fai who asked him to bring the woodchips to the mainland.  As regards the tools found in the shoulder bag, defendant indicated that he knew nothing about them.

6. Defendant was then arrested and cautioned.  Under caution and in a subsequent video-recorded interview, he basically repeated the version that the woodchips were passed to him by Ah Fai and he was asked to deliver the woodchips to a hotel in Lo Wu, Shenzhen for a reward of RMB500. 

7. The woodchips found in the shoulder bag carried by the defendant were later examined by the Agriculture, Fisheries and Conservation Department (AFCD).  The expert report of the conservation officer, Mr Pang of AFCD was produced and neither his expert’s status nor the content of the report was disputed by the defendant.

Enhancement of sentence

8. Pursuant to section 27(2) and (d) of the Organised and Serious Crimes Ordinance, Cap 455, the prosecution applied to enhance the defendant’s sentence on the ground of the nature and extent of any harm, whether direct or indirect, caused to the community by recent occurrence of these specified offences.

The background of the defendant

9. The defendant is aged 30.  He has a clear record.  He is a married man with three very young children aged 6, 4 and 3 respectively.  The wife is a housewife and she is taking care of the family and the children.  The parents of the defendant are not working.  Furthermore, defendant’s mother was reported to have receiving psychiatric treatment.  Both the defendant’s elder brother and the sister-in-law are handicapped and receiving psychiatric treatment as well.  The defendant is therefore the sole-breadwinner of the family.  He is a construction worker by occupation, earning a monthly income of only RMB2,000.

Mitigation

10. Mr Andrew Kan, counsel for the defendant, had urged the court to consider the sole mitigating factor in this case, and it is that the defendant had pleaded guilty and was remorseful.  Mr Kan told the court that the defendant broke the law in this occasion for pure financial gain.  Mr Kan said the defendant did not oppose the application for enhancement of sentence by the prosecution but he urged the court to take into account especially the family circumstances of the defendant and to be as lenient as possible.

11. Mr Kan also told the court that in this occasion, the original purpose for the defendant to come to Hong Kong was to purchase some blood pressure medicine for his mother.  The defendant, however, bumped into Ah Fai who was a fellow construction worker of the defendant and offered him a reward for him to carry and convey the woodblocks back to China.

Sentencing considerations

12. In sentencing, I took into account the background of the defendant, the mitigation put forward by the defence counsel and also the past case authorities.  I have in particular referred myself to two Court of Appeal cases which are HKSAR v Wen Zelang CACC 220/2006 and HKSAR v Xie Jinbin CACC 195/2010.  These two cases are particularly useful as they are indeed well‑known and leading cases for sentencing of the theft of incense tree.

13. In the case of Wen Zelang, the Court of Appeal stated that for the theft of 5.6 kilograms of wood from incense trees, a starting point of 3 years’ imprisonment and an enhancement of 25% is entirely appropriate.

14. In the case of Xie Jinbin, the applicant and three other mainlanders came to Hong Kong on two-way permits and were seen by police cutting the trees and packing the woodblocks into their rucksacks.  A total of seven woodblocks weighing 1.181 kilograms, a saw, an iron hoe and a knife were found in their rucksacks.  At trial, the District Court adopted a starting point of 3 years’ imprisonment, reduced it for plea and then enhanced the sentence by 25% under section 27(2) of the OSCO and sentenced the appellant to 2 years and 6 months’ imprisonment.  In that case, the Court of Appeal commented that:-

“A clear and firm message is needed to deter mainlanders from coming to Hong Kong, legally or illegally, specifically for the purpose of exploiting our protected and endangered flora for profit. A starting point of three years for case of extraction of wood from an incense tree by mainlanders could not be faulted. We do emphasise that the starting point is not meant to be a strait-jacket.”

15. It was also held by the Court of Appeal in the same case that:-

“Weight was not determinative of sentence nor a reliable indicator of the seriousness of the offence and the injury caused to the tree. The defendant was not to be punished only for the weight of the woodblock he had stolen but according to the enterprise he and the others had collectively participated in and the seriousness of the offence which was premeditated.”

16. Lastly, the Court of Appeal observed that:-

“The men came to Hong Kong in a joint enterprise with the intention to exploit endangered flora for profit. They equipped themselves with a knife, hoe and saw and acted as a group. Accordingly, having regard to the purpose of the Protection of Endangered Species of Animals and Plants Ordinance, Cap 586, and the need of deterrence, the starting point was appropriate. While the sentence might be on the high side, in view of the quantity of the wood stolen, it was not manifestly excessive so as to justify interference.”

17. In Wen Zelang, the Court of Appeal also said that:-

“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 three-year starting point nor the 25% enhancement for prevalence of the offence under OSCO is manifestly excessive.”

The effect of unsustainable felling

18. In his report, the conservation officer, Mr Pang, who had examined the woodchips in the present case, had found that the chunks of many large and old trees of Aquilaria sinensis had been illegally felled or cut in an unsustainable fashion.  He also added that large and old individuals of Aquilaria sinensis had since become rare in Hong Kong, and getting worse is that in recent years or in recent cases, relatively smaller but mature trees of such species were also subject to illegal harvesting. 

19. Mr Pang concluded by saying that the unsustainable felling of the species has caused irreplaceable damages to the general natural feature and ecology of the natural forests in Hong Kong.  This is in fact also a great loss to the community. 

20. The total quantity of stolen wood in the present case is 1.17 kilograms.  The defendant pleaded guilty to the handling of the woodchips but denied participating jointly with those who directly cut the woodchips from the trees within Hong Kong. 

21. In my mind, it makes no difference.  The seriousness of the handling offence lies in the fact that the defendant knew or believed that the woodchips he was receiving from Ah Fai were valuable incense trees which were stolen in the territory.  In so doing, the defendant has lent himself to the crime and indirectly promoted or encouraged the commission of the theft of the incense trees by carrying or conveying the same out of the territory to the mainland which is most of the time difficult to be detected, and in so doing, he did not only carry those incense tree woodblocks but also the tools for cutting those trees.  By agreeing to deliver the stolen property to the mainland for a reward, the defendant had made himself available to the other criminals as willing to handle the proceeds of the theft.

22. The handling offence is ancillary to or secondary to the primary offence of theft, but the conduct underlying the handling offence provides encouragement and nourishment to the crime.  Without people like defendant, it would become more difficult for the other criminals to commit the offence and convey the woodchips out of Hong Kong.  As a consequence, the dominant sentencing consideration both in respect of theft or handling offence must be the same, and that is to be of deterrence.

23. In the past few years, there have been numerous attempts by people from the mainland who came to Hong Kong either legally or illegally, cut the endangered woodblock from our plants in the territory, causing irreplaceable damages to our environment.  As said, the Court of Appeal has clearly expressed its view that a deterrent sentence is necessary for this type of offence, be it theft or handling stolen goods.  A clear and powerful message must be sent to the defendant’s friends and relatives in the mainland that people like them who are involved in stealing or handling incense trees will be dealt with severely by the court in Hong Kong.

24. I have of course sympathy for the family members of the defendant in the mainland who had looked upon him for support but the defendant should really think of them before he decided to accept the offer and reward and to handle the stolen property in this case.  The court in Hong Kong can never accept economic reasons for committing an offence, and as said in many Court of Appeal cases, family circumstances virtually play no part in mitigation especially in serious offence such as the present.

25. The quantity of incense woodchips involved in this case is found to be more or less the same as the case in Xie Jinbin.  As said, the handling offence is just as serious as the theft offence.  While there may be no direct evidence to show that the defendant was part of the original criminal group to steal the incense tree, the defendant can nevertheless be shown to be closely linked to those involved in the primary offence.  The value of the incense trees also is by no means small.  It was estimated to be HK$70,200. 

26. For the reasons given, I decided that I shall adopt a similar starting point of 3 years in the case of the defendant.  The defendant pleaded guilty for which he is entitled to the usual one-third discount which is his only effective mitigation.  The sentence therefore is reduced by one-third to 24 months imprisonment.

27. Having accepted the content and the opinion of the expert report and there being no objection from the defence, I conclude that this is a suitable case for enhancement of the sentence.  There will also be a 25% enhancement of the sentence, applying the above two Court of Appeal cases.  In the end, the sentence of the defendant is increased by 6 months to 30 months which is 2 years and 6 months’ imprisonment.