HKSAR v. SU HEGUI

DCCC33/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 33 OF 2012

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to two offences. The first offence is one of theft, contrary to section 9 of the Theft Ordinance, and the other is unlawful remaining in Hong Kong, contrary to section 38(1)(b) of the Immigration Ordinance.

2.  You admitted that on 22 November 2011, at the hillside at Yung Shue Au Tsuen, Sha Tau Kok, New Territories in Hong Kong, together with a person unknown, stole 1.56 kilograms of wood pieces, tree bark, branch with green leaves of Aquilaria Sinensis wood commonly known as Incense Tree, the property belonging to the Government of the HKSAR.  On the same day, you admitted to remaining unlawfully in Hong Kong. 

3.  On 22 November 2011, at about 10.40 am, field assistants of the Agriculture, Fisheries and Conservation Department (AFCD) were patrolling at the Yung Shue Au, Sha Tau Kok when they heard sounds of trees being chopped and conversations between different people emitting from a nearby hillside.  Feeling suspicious, they made a report to police.  Police officers later arrived at the location.  They immediately rushed forward when they saw you and other wanted persons in the vicinity in the bushes.  The other wanted persons escaped, but you had slipped off the slope and you were subsequently subdued by the police officers.  They found a hoe, a machete, blue gloves and 22 Incense Tree wood blocks and pieces inside a white nylon bag.          

4.  Under caution, you admitted you came to Hong Kong and you were taken up a hill and the Incense Tree pieces found in the white nylon bag were cut down by your boss at the hillside just prior to your arrest.  You were to take the bag with the wood Incense Tree away that evening.  In your cautioned statement, you had admitted that the bag was brought along to the hillside to put the pieces of cut wood inside to be taken away.   

5.  You further admitted that the equipment found, such as the hoe and machete, were brought along to cut the trees.  There was a 210 centimetre Incense Tree which was sawn off and found near the area you were arrested.  You were asked who had cut this section of the trunk and you said under interview it was cut off by that man who was with you.  You said in your record of interview that the trunk had been cut off right before the coppers nabbed you.  You knew they were Incense Trees.         

6.  Mr Y C Yeung has mitigated fully and thoroughly on your behalf and I have taken into account all that he has had to say.

7.  You are 56 years of age and of clear record.  You are married and have two children aged 17 and 20.  You are from Maoming Province in China and your occupation is that of a farmer farming Lychee trees.  Last year, in November 2011, your harvest was not good and therefore you went to Shenzhen to look for employment.  You had been offered ¥100 renminbi a day originally to pick shells, but then the man who employed you had taken you off in a small boat and went off for about an hour and arrived at Hong Kong, and there you were told about the cutting of the Incense Trees.       

8.  Mr Yeung has submitted in mitigation that it was the young buds or wood at the joints of the tree to which your boss had cut and to which you were stealing.  You believed that if the buds were cut they would grow back after two years.  You admit that those buds were wrongly cut off.  However, you were not doing it for a huge profit but a mere ¥100 renbinmi a day. 

9.  The actual tree that was cut down of which your counsel Mr Yeung accepts the evidence of the expert, that the stump would not be able to survive and therefore as the tree had been cut, it was killed. 

10.  Mr Yueng has mitigated that you are remorseful for your misdeeds and you wish to go back to Maoming as soon as possible to reunite with your family members.     

11.  In this case, the prosecution has asked for an enhancement of sentence under section 27(2) of the Organized and Serious Crimes Ordinance, namely that the nature and extent of any harm, whether direct or indirect, caused to the community by recent occurrences of this specified offence.     

12.  The Court of Appeal on 28 January 2011 in CACC195/2010, HKSAR v Xie Jinbin, has laid down some guidelines, not tariffs, on cases of stealing Incense Trees.  The Court of Appeal in that case did not seek to say as excessive a starting point of 3 years for extraction of wood from Incense Trees by Mainlanders could be faulted.  It also endorsed in that case the enhancement taken by the trial judge of 25 per cent.  The court there held that the prime considerations in this type of case is the protection of the endangered species and deterrence.  The weight of the wood blocks stolen is not determinative of the sentence. 

13.  The factors to be considered are the injury done to the tree, the profit-motive and the manner of commission and the gravity of the offence.    

14.  In the case before me, as was the same in Xie Jinbin, an expert, Mr Pang Kuen-shum, gave evidence and a report was submitted.  Mr Pang made similar observations as set out at paragraph 14 in the Court of Appeal decision.  Paragraph 10 is reflected similarly in paragraph 11, paragraph 22 in paragraph 24, paragraph 23 in paragraph 25 and paragraph 24 in paragraph 26 in the report before me.   

15.  In summary, he said at paragraph 11 of the report before me that the trunks of many large and old trees of Aquilaria Sinensis have been illegally cut or felled in an unsustainable fashion deliberately for mass extraction of timber to the extent that such trees are dead or damaged and likely unable to recover.  Large and old individual Aquilaria Sinensis have since become rare in Hong Kong. 

16.  There is, as I see it, an addition in his report further than that stated in the Court of Appeal case of Xie Jinbin of the cases “getting worse”, I quote,

“is that in the recent cases, relatively smaller but mature trees of such species were also subject to illegal harvesting. These Incense Trees produce a valuable fragrant wood which is used for incense and for production of a valuable Chinese medicine called Chen Xiang.”

17.  In view of the seriousness of the offence and following the factors and matters stated in the case of Xie Jinbin, I consider that in this case a starting point of 3 years’ imprisonment is appropriate for Charge 1. 

18.  It is clear that the property stolen in this type of theft is a protected endangered species.  The profit-motive in this case as estimated by the expert Mr Pang for these wood pieces was estimated at a total value of HK$102,300. The defendant had gone along with other wanted persons who were there chopping down trees and, as can be seen, one tree was sawn just before the officers arrived and that tree was killed.  That tree can be seen in the photographs in photo album P8, Photos 11, 12, 13 and 14.         

19.  Taking a starting point of 3 years’ imprisonment, I give you full credit for your plea of guilty and reduce that term to one of 2 years’ imprisonment.  I accept that this sentence should be enhanced and I take a 20 per cent enhancement and that shall take your sentence to 2 years and 4 months’ imprisonment. 

20.  You have also pleaded guilty to the illegal remaining in Hong Kong. There is a very plain long standing tariff for that offence and you shall be sentenced to 15 months’ imprisonment for that offence, Charge 2. 

21.  There is a clear authority from the Court of Appeal that sentences involving unlawful remaining offences together with other offences, that the other offence should run consecutive to the unlawful remaining offence.  In those circumstances, those sentences shall run consecutive to each other, making a total term of 3 years and 7 months’ imprisonment.