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DCCC 56/2013
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 56 OF 2013
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| Before: |
HH Judge Tallentire |
| Date: |
25 February 2013 at 3.04 pm |
| Present: |
Mr Gary Leung, PP of the Department of Justice, for HKSAR |
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Ms Wong Yin-yee, Lisa, of Eli K K Tsui & Co, assigned by the Director of Legal Aid, for the defendant |
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Reasons for Sentence
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1. Defendant, you have pleaded guilty to a single offence of theft contrary to section 9 of the Theft Ordinance Cap.210. You admitted the Facts and I convicted you.
2. Briefly what happened is this. At 7.51 pm on 18 November of last, PC51191, PW1, with other officers spotted you and another male acting suspiciously as they patrolled the Ho Chung New Village, Sai Kung. You and the other male ran off but the officer caught you. Unfortunately the other male made good his escape, your rucksack was searched a piece of Incense tree wood was found also a file, a metal tool and a whetstone.
3. At about 8 pm PW1 arrested you. Under caution you said your friend cut the wood and gave it to you. It would seem to have been your joint intention to sell it. The following day you gave a video recorded interview under caution and you admitted coming to Hong Kong on 17 November via Lo Wu. That day you met the other man. He said he would take you to see if there were any Incense trees. The next day he gave you the rucksack and together you took the MTR to Choi Hung and then a minibus to an unknown place.
4. Shortly after alighting you were arrested. You said that the new that the wood was Incest tree. Expert opinion showed the wood to be Aquilaria Sinensis weighing 0.074 kilogrammes. The estimated value was $2,200. It is a prohibited species. Illegal cutting in an unsustainable fashion meant trees would not be able to recover. The long-term survival of the species could not be ensured; it is ecologically harmful for the relationship and organisation of the woodland.
5. I am told that you are of hitherto clear record in Hong Kong. Mr Leung, on behalf of the prosecution submitted two sentencing authorities. Those sentencing authorities are well known to the court. Together what they establish is that the normal starting point is one of three years’ imprisonment with a 25 per cent enhancement under OSCO.
6. There was also an application under section 27 condition (d) of the Organised & Serious Crimes Ordinance. Evidence was produced by way of a statement to the show the nature and extent of any harm whether direct or indirect caused to community by recent occurrence of this specified offence. On your behalf and as decided in many previous similar cases the court held that the condition was fulfilled. There being no objection by your counsel, Miss Wong, I directed that enhancement should apply.
7. On your behalf Miss Wong entered mitigation. She told me that mitigation was limited. She told me that in the Mainland you are married with three young children; that you work there as a construction worker earning $100 a day approximately. You are the sole bread winner. She told me that you had been tricked to coming to Hong Kong to assist a countryman; that you are very remorseful and upset by what has taken place; that you had not appreciated how serious the offence was. On proper correction of the fact by Mr Leung she also went on to submit that the amount wood involved in this case is very small indeed, that is 0.074 kilogrammes.
8. I turn now to the sentence. As I said I have already found that the conditions under the Organised & Serious Crimes Ordinance do apply and therefore enhancement is appropriate in this case. There are three points in your favour the principle one being that the amount of timber, it may be purely fortuitous but it was a very small amount. Of much less importance but worthy of note is the fact that you are of hitherto clear record in Hong Kong and that on arrest and caution you were entirely cooperative with the police. You have pleaded guilty at the first available opportunity also.
9. I therefore deem that a slightly lower starting point should be taken, that starting point will be one of 30 months, the sentence is then reduced to 20 months for your plea of guilty. There will be an enhancement of 25 per cent, you will therefore go to prison for 25 months which is 2 years and one month.
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