HKSAR v. LI YAJIN

DCCC 840/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.840 OF 2011

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Reasons for Sentence

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1.  The defendant pleaded guilty to one charge of theft. Particulars of the fact are that, the defendant had on 19^th June 2011, at the hillside near Ping Che Kat Tin Children’s Playground in the New Territories, stole 0.74 kg of wood pieces and 0.07 kg of wood chips of Aquilaria sinensis wood commonly known as Incense Tree.

Facts

2.  The defendant is a mainland Chinese citizen who had entered Hong Kong on a 2-way permit on 15^th June 2011. He committed the offence on 19^th June He was allowed to stay for 7 days.

3.  After a complaint received, Police officers intercepted the defendant at Fanling MTR station for enquiries.

4.  Upon search of the shoulder bag that the defendant was carrying, 2 wood pieces of Incense Tree were found inside. Upon search of the waist bag that the defendant was carrying, 13 pieces of the same kind of wood was found inside.

5.  The defendant admitted to the Police officers that he had cut the wood from an Incense Tree on a hillside in Ta Kwu Ling area at around 5pm on the same day and he intended to bring them back to mainland China to sell them. The defendant was then brought back to the scene and he identified the Incense Tree from which he cut the wood pieces.

6.  The defendant was then arrested for the offence of theft and cautioned. The defendant admitted to the offence under caution.

7.  During the subsequent records of interview, the defendant stated under caution that he entered Hong Kong via Lo Wu Boundary Control Point on 15^th June 2011 and slept overnight at unknown hillsides. He bought a knife for $40 from a shop and used the knife to cut the wood. On the day in question, he took a mini bus in Fanling and reached the offence location where he found and cut the Incense Tree. The knife was later discarded.

Previous convictions

8.  The defendant has a clear record.

Mitigation

9.  The defendant is 40 years old and single. He was born in China and studied there up to primary 2 level. He lives in Mou Ming City of Guangdong Province. His parents had passed away, leaving the defendant together with his 3 siblings. The defendant worked in a shoe factory earning about RMB1,000 before coming to Hong Kong and committing the offence.

10.  I am told that the defendant is remorseful and promised never to transgress the law again. He is willing to offer to plant 300,000 Incense Trees free of charge for the Hong Kong government should he be allowed to do so.

11.  Ms. Tam for the defendant referred this court to the case of HKSAR v Xie Jinbin [2011] 2 HKLRD 631, CACC 195/2010, pointing out that the Incense Tree wood piece stolen in that case (0.677kg) was more than in our present case of 0.07 kg.  Ms. Tam however immediately very fairly pointed out the Court of Appeal found 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 starting point of 3 years’ imprisonment was adopted in that case and the sentence was enhanced by 25% to reflect the serious harm caused by the damaging of the Incense Trees.

Sentencing Cases

12.  As mentioned above, the Court of Appeal indicated that the theft of Incense Trees by mainlanders who entered Hong Kong either legally or illegally warrant a starting point of around 3 years’ imprisonment, as well as an enhancement of that sentence by 25%.

13.  I find that there is a slight difference between our case and that of Xie Jinbin in that the Incense Tree wood piece in our case is less than the amount involved in the case of Xie.

14.  Another difference between the 2 cases is that, in Xie, the appellant operated with accomplices to steal the trees while the defendant in our present case stole the wood on his own.

15.  I also note that Mr. Pang of the Agriculture, Fisheries and Conservation Department had the opportunity to examine the cut pieces and a piece of the tree bark sample and 2 small branches with green leaves seized from the tree that the defendant said he cut the wood from. While Mr. Pang could not be specific as to whether the pieces were cut from the trunk or the branches, the cutting of the wood must have damaged the tree one way or another.

16.  Bearing in mind the findings of the Court of Appeal in Xie, I find that a proper starting point in our present case is that of 2 and a half years’ imprisonment. I have a adopted a lower starting point because although there is premeditation on the defendant’s part of the theft, he did not act with accomplices.

17.  I will reduce this sentence by one third in recognition of the defendant’s guilty plea, bringing the sentence down to that of 20 months’ imprisonment.

18.  I am satisfied that the prosecution had made out their case under s.27(2) of the Organized and Serious Crimes Ordinance, Cap.455 and enhance the sentence by 25%. The defendant is therefore sentenced to a total of 25 months’ imprisonment.