HKSAR v. GAO SHIFA AND ANOTHER

DCCC1360/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1360 OF 2011

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Reasons for Sentence

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1.  You two defendants have pleaded guilty to an offence of theft, contrary to section 9 of the Theft Ordinance, Cap.210, Laws of Hong Kong, the particulars being that you on 3 November of last year together on a hillside at Lai Chi Wo, Sha Tau Kok, New Territories, stole 0.434 kilograms of wood chips of Aquilaria Sinensis, otherwise known as Incense Tree.

2.  The brief facts which you have both agreed are quite straightforward and indicate that as a result of a report made to the police, you two were stopped and searched at a path between Sheung Miu Tin and Ha Miu Tin when the wood chips were found in your respective possession.

3.  You told the police that you were aware of what the wood chips were and you picked them up in Sam A Tsuen and intended to take them back to Mainland China to consume for your health.  You denied cutting the tree. 

4.  I have a report from Mr Pang Kuen-shum, a conservation officer from the Agriculture, Fisheries, and Conservation Department, who confirms, inter alia, that the Aquilaria Sinensis, which is commonly known as Incense Tree, is a protected endangered species and the only species known to be able to produce Chen Xiang in Hong Kong.  Further, illegal exploitation of this tree bark threatens its natural survival and can cause irreplaceable damage to the natural feature and ecology of the forests.  I accept this. 

5.  However, what is rather different in this case from other cases of this nature is that from the Facts of the case I find that I am unable to draw the irresistible inference that it was you two defendants who actually cut the trees and extracted the bark which was found on you.    

6.  You had no tools on you at the time, such as a saw or cutting implements, and there is a time gap of nearly two hours from where two unidentified males were seen near a felled tree and you two being arrested quite some distance away.  I therefore cannot discount the statements that you made to the police that you were not responsible for cutting the tree as being untrue.  The fact that a shirt in the possession of one of you and similar to the one seen on one of the men standing by the felled tree is not sufficient alone for me to draw this inference.  

7.  Accordingly, for this reason, I do not propose to enhance the sentence pursuant to the application under the provisions of the Organized and Serious Crimes Ordinance made by the prosecution.

8.  I take account of everything that has been said on your behalf by way of mitigation. 

9.  I adopt a starting point in each of your case of 2½ years’ imprisonment.  I will discount that sentence by one-third to take account of your respective pleas of guilty, arriving at a sentence of 20 months’ imprisonment in respect of both of you.