HKSAR v. TSOI KIN HUNG

DCCC855/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 855 OF 2012

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Reasons for Sentence

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1.  The defendant has pleaded guilty to one count of theft, contrary to section 9 of the Theft Ordinance, Cap.210. Particulars of that theft charge are that on 13 July 2012, at the hillside near Island Road in Deep Water Bay in Hong Kong, the defendant stole 0.23 kilogram of wood chips and wood dust of Aquilaria sinensis wood commonly known as Incense Tree, property of the Government of the Hong Kong SAR.

2.  The facts are important here.  A security guard of the Deep Water Bay Golf Club saw at 11 am in the morning two to three persons squatting on the hillside.  He could see their hands moving, and suspecting they were cutting trees so he called the police.

3.  At about 2 pm on the same day, a police officer arrived at that hillside.  There is no evidence of exactly where the security guard saw those two to three persons.  The police officer saw when he was on the hillside the defendant squatting in a hole.  There is no evidence whether the defendant was at the place where the security guard saw two to three persons.

4.  When the police officer arrived, the defendant stood up and picked up his rucksack.  The officer questioned the defendant and searched his rucksack.  In the rucksack was a white plastic bag containing a 15-inch machete and some wood chips as well as a pair of jeans and an upper garment.  The police officer asked the defendant where he had got the wood chips from, and the defendant’s first reaction and answer was that he had seen two persons cutting trees, and when they saw the defendant, they left.  He said he then went over to where the two men were and picked up the machete and the wood chips.  He put them all in his rucksack.  He was then arrested and cautioned and under caution gave the same explanation.

5.  Later on, whilst in custody, a video record of interview was conducted.  Defendant told the police that he lived in Sham Shui Po with two children.  On that day, he had taken public transport to Deep Water Bay to look for bees nest and honey.  When he saw the machete and the chips on the ground, he got out a plastic bag from his rucksack and picked them all up, then put them all in his rucksack.  He told the police that he knew what the wood was and that he knew that a kilogram of Incense Tree wood chips could be worth tens of thousands of dollars.

6.  It is an Agreed Fact that this amount of wood in this case is worth $9,200.

7.  The defendant also told the police that he kept the machete for himself to guard against snakes or wild boars whilst he was looking for bees nest.  I was told the police did search his home and found nothing suspicious.

8.  This particular tree commonly known as the Incense Tree is a protected endangered species in Hong Kong.  I have a statement from Mr Pang Kuen-shum, a conservation officer of the Agricultural, Fisheries and Conservation Department.  This goes into the characteristics, uses and value of this wood and also reflects that there has been increasing trend of this species being illegally exploited.  Such exploitation is threatening the natural survival of this plant.

9.  I also have before me a statement from a Miss Tsoi Ngan-ling who is from the Marine Regional Crime Department.  Sorry, I correct myself. She is actually a woman detective inspector in charge of the Regional Intelligence Unit of Marine Region of the Hong Kong Police Force.  She in her statement gives a list of the reported cases involving the exploitation of Aquilaria sinensis.

10.  The defendant himself is 59 years old.  I have heard in mitigation that he is the sole carer of two children aged 6 and 13. He lives in Hong Kong with his children whereas his wife, the children’s mother, lives in mainland China.  He is a CSSA recipient because from when the children came to live with him in Hong Kong a couple of years ago, he could no longer work because he was the sole carer of his children.  Their CSSA amounts to $6,400 per month for all three of them.  From this amount, he has to pay rent of $1,500 for a subdivided room in Sham Shui Po.

11.  The defendant does have one previous conviction but it was in year 2004, a theft which was dealt with by way of a suspended sentence in Eastern Magistracy. 

12.  Defence counsel in mitigation has urged me to believe the defendant found the wood chips and the machete and therefore not sentence on the basis that he was the one who chopped the chips off this endangered species of trees.  Defence counsel explained that when the defendant was 16 or 17 years old, he spent four to five years tending or raising bees in China.  He is very familiar with bees, their habits and their nests.  His plan that day was to walk in the hillsides until he found the nest, smoke it using cigarette smoke, and once the bees were subdued from the smoke or had left the nest, he would open it up and scoop out honey.  The honey would be semi-solid and he would put it in a plastic bag.  He could sell the honey for about HK$60 per 5 to 6 catties.  He had previously sold honey in this manner after he had harvested it himself to neighbours.  He gave defence counsel more information on how to rear bees in winter, for example, how to move them or feed them. 

13.  In the adjournment period, I did some research. I accept that even cigarette smoke can be used to smoke bee hives s.  Smoking bees subdues them to enable the keepers to work the hives.  Cigarette smoke is not a common form of smoke used, but in this case, the defendant is not tending his own hives as a bee-keeper.  He is hoping to stumble on a bees nest to take its honey.  So for him using cigarette smoke would be all that is required.

14.  There are other relevant factors that may support the defendant’s version of events.  There was a four-hour gap between PW1, the security guard, calling the police and the police officer getting to the defendant.  The police did not find at the scene the tree or the trunk that had been cut and woodchipped by a machete.  The security guard saw two to three persons and the defendant was alone, and he told the police that two men had left when they saw him.  There is no evidence the defendant is one of those two to three persons, and if he was, where were the other men?  Why would they leave or separate from the defendant and why would he be sitting by himself in the hillside?  If the defendant was one of a group cutting the tree for wood chips, he would be facing a term of imprisonment with a starting point of about 3 years and an enhancement of that sentence under the Organised and Serious Crimes Ordinance, Cap.455.

15.  Prosecution counsel has submitted an authority for my consideration, HKSAR v Xie Jinbin CACC195 of 2010.  In that case, three males or four previously seen on a hillside cutting a tree were arrested, with a total of 1.181 kilograms of Incense Tree wood chips.  The judge in that case took a 3-year starting point reduced to 2 years upon a plea and then enhanced it by 25 per cent to make a total term of imprisonment for each defendant of 2 years and 6 months.  That sentence was upheld by the Court of Appeal.  Those three men were legally in Hong Kong on two-way permits from mainland China. 

16.  In that authority, in particular paragraph 16, the Court of Appeal discusses why this particular offence is serious and grave.  I quote:

“Unlike theft of ordinary goods, restitution is impossible. The recovered wood could not be restored to the plant. The focus, therefore, should be on the 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.  Often, defendants arrested stealing this wood or wood from Buddhist Pine trees are illegal immigrants who come here specifically to cut those trees, or else they are mainland Chinese residents who have a two-way permit to come to Hong Kong for the same reason.  The wood from these trees can fetch huge amounts of money.  And in the authority I have just referred to, the message is that the courts must deter mainlanders coming to Hong Kong legally or illegally specifically for the purpose of exploiting our protected and endangered flora for profit.

18.  Here, in this case, I am not convinced that the defendant is not telling the truth as to why he was there and how he came to be in possession of the wood chips.  In other words, he is possibly telling the truth, and if that is the truth, his version of events would amount to a theft by finding.

19.  Where this mitigation is concerned, the difference is I do not find it sufficiently proved that it was the defendant that damaged the tree and cut the wood chips.  It is possible that it was not him that cut the wood, and that is the reason I will distinguish it from the usual scenario where a heavy deterrent sentence would be appropriate.

20.  As I have accepted the defendant’s mitigation, the first step I will take in deciding the sentence will be to call for a community service order report.  And in that adjournment period, I am going to for the time being extend bail. 

(Reasons for sentence stop at 10.25 am)

Court adjourns - 10.27 am

5 November 2012

21  November 2012

Court resumes - 9.42 am

Defendant present. Appearances as before.

(Reasons for sentence resume at 9.46 am)

21.   I gave my full reasons on the last occasion as to why I accepted your mitigation, and I also told you that if I did not accept your mitigation, you would have been facing a term of imprisonment of 3 years and 6 months where the sentence would have been enhanced. Do you understand how serious stealing this type of tree, this -- do you understand how serious the offence is?

DEFENDANT: Yes, I understand.

22.  And do you understand that if you are arrested again in possession of this type of wood, you would be looking at an immediate custodial sentence? 

DEFENDANT: I understand.

23.  And it is only because I give you the benefit of the doubt this time that you are not facing an immediate custodial sentence. You cannot use the same reason again. 

24.  There are differences between mitigation and what the probation officer tells me.  Your wife has now just been granted a one-way permit on the 1st of this month.  However, I cannot see it improving your family’s situation.  She is, unfortunately, a mental patient suffering from adjustment disorder.  You are still required day to day to take care of your children.  Your daughter is still very young.  Your son is a teenager who obviously is very sensible.  He has explained to the probation officer he can help look after his sister if you are given a chance to do community service. He also says you are drinking much less alcohol except for when you had an argument with your wife.

25.  Unfortunately, from what you have told the probation officer, it seems you do not have a calm marital relationship with your wife.  There are records that your wife has assaulted you.  You must be aware that you can approach the Social Welfare Department for social welfare to assist you in marital issues such as assault and violence.  Do you understand that?

DEFENDANT: I understand.

26.  I also see that your total CSSA is $1,400 higher than I was told.  It is now $7,800.  However, rent is still required to be paid from that sum which would still make your financial situation very tight. 

27.  The probation officer’s report is a borderline report.  She only just considers you suitable for community service.  She says that you have limited insight into this offence.  You should be aware now, having told you that a long term of imprisonment could be imposed, you should be aware now how serious it is. 

28.  So having read this report and considered mitigation, I will consider a community service order of 200 hours.  You must be aware that this is an exceptional approach to an offence of this nature. You also must be aware that if you do not complete this 200 hours’ community service to the satisfaction of the probation officer, the court can discharge the community service and re-sentence, and that would mean you have to be on time and perform community service as arranged. 

29.  In my experience, probation officers will, where a marginal case is concerned, be very quick to tell the court if you do not do this order satisfactorily.  And I can tell you that I will impose a custodial sentence if you come back before me for breach of your community service order.  Do you understand that?

DEFENDANT: I understand.

30.  You will be given details of the probation officer, her name or his name, when to see them and on what date and where. You have to attend that appointment.  Do you understand?

DEFENDANT: I understand.