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DCCC1007/2012
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1007 OF 2012
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HKSAR |
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v. |
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Yang Yaying |
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| Before: |
District Judge Tallentire |
| Date: |
6 December 2012 at 10.55 am |
| Present: |
Mr Wong Kwok-choi, PP, of the Department of Justice, for HKSAR
Mr Yaddy Cheung, of Yaddy Cheung & 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 one offence of theft, contrary to section 9 of the Theft Ordinance, Cap.210.
2. You admitted the brief facts, in fact you added to the brief facts and I convicted you thereon.
3. The facts put forward by the prosecution were as follows.
4. At about 5.20 pm, PC8626, PW1, and Sergeant 47525, PW2, saw three persons including you at the hillside near “The Wonderland”, Tai Po Tau Drive, Tai Po. The three of you were acting suspiciously. The two officers approached and saw you using a saw to a cut a tree which was surrounded by a protective iron fence. The other two males were holding a piece of wood and collecting bark from the ground. All three of you fled. PW1 and PW2 gave chase and PW1 intercepted you whilst the other two escaped.
5. You claimed to be collecting mushrooms and had just arrived with your friends. You were taken back to the scene and PW1 and PW2 found three rucksacks on the ground - one brown, one blue and black. You claimed they belonged to the other two persons. A search revealed two black plastic bags of woodchips from the brown one. The other two rucksacks contained personal items such as clothing and food. However, inside the black one was a folding knife. By the tree they found a saw which was about 60 centimetres in length and a white plastic bag containing woodchips and bark, Exhibit 1. This was on the ground.
6. At about 5.20 pm you were arrested and cautioned. You told the police that your friends who had come from the same village had asked you to help them collect mushrooms.
7. Later, in a video recorded interview under caution you said you came to Hong Kong on a two-way permit the day before. You called your two friends who were also in Hong Kong. These were Cheung Oi-kwok and Yeung Siu-tai. They too came from the Mainland. They took you to collect mushrooms. You found some mushrooms near a dead tree. Cheung took out the saw from his black rucksack and Yeung started digging. You said that you watched what took place from about 3 metres and you did nothing. When the police arrived the other two left the scene.
8. You said you had come to Hong Kong to purchase medicine oil. The saw, incense tree chips inside the black rucksack and the folding knife belonged to Cheung and the blue rucksack to Yeung. You said you did not know they were going to cut incense trees and did not know what incense trees were.
9. An expert from the Department of Agriculture and Fisheries identified Exhibit 1 as Aquilaria Sinensis. The wood weighed 1.03 kilograms and was worth about $37,980. He spoke of the environmental damage that was done by the harvesting of these trees in this way.
10. You admitted the facts. However, I was concerned that the facts themselves on your version seemed not to reveal an offence. You had claimed merely to be present and done nothing. In fairness, it was somewhat ambiguous because you did admit that the police officer had seen you holding a saw.
11. Mr Cheung informed me that in fact his instructions from you were that you were indeed involved in the latter stages and you knew that the wood was incense wood. You confirmed this yourself for the record and therefore I convicted you.
12. You are a man of hitherto clear record. Mr Wong for the prosecution provided me with two sentencing precedents, those cases being HKSAR v Xie Jinbin, CACC195/2011. In that case the court approved of a starting point of 3 years reduced to 2, with a 25 per cent enhancement. Also the case of HKSAR v Wen Zelang, CACC220/2006. That latter case was of lesser relevance involving as it did a 17-year-old defendant who had acted, as the court found, under the influence of his elder uncle.
13. The prosecution made an application for enhancement of sentence in accordance with the provisions of section 27(2)(d) of the Organised and Serious Crimes Ordinance, Cap.455. Very fairly, Mr Cheung indicated from the outset that this was not opposed by defence and that the witness statement of the expert was accepted and admitted. That witness statement was read into evidence and admitted under section 65C of the Criminal Procedure Ordinance, Cap.221. On the basis of that statement I was satisfied:
(1) That this is a specified offence.
(2) That the grounds referred to under sections 27(2)(d) of the Organised and Serious Crimes Ordinance had been made out and that enhancement was therefore justified.
14. Mr Cheung entered mitigation on your behalf. He suggested a starting point of between 2 and 3 years should be adopted in this case as this was a joint venture. He submitted that the case of HKSAR v Xie Jinbin showed very similar facts. He emphasised your plea of guilty and your hitherto clear record in Hong Kong.
15. He told me that you are 36 years of age, married with a daughter of 7; that your purpose in coming to Hong Kong was to make money towards your father’s medical expenses and your daughter’s education; you had been lured here with the promise of $500 a day, which you believed was to help your friends collect mushrooms. However, at a later stage you found that they were harvesting the timber of the incense tree and you took part in that.
16. I turn now to the sentence.
17. I do accept that your involvement was at a later stage and I will accept that you believed that you were to collect mushrooms when you came here initially. However, this was a joint enterprise and you did continue to take part in the illegal act, even once you realised what you were doing. I do note that your reasons for coming to Hong Kong were to look after your family, and I also note that, though it is of little relevance, that you are of clear record here. I therefore resolved to take a slightly reduced starting point.
18. The starting point I take is 33 months’ imprisonment. This is reduced to 22 months for your plea of guilty. It will be enhanced by 25 per cent on the basis to which I have already referred.
19. You will therefore go to prison for a period of 27 months and 2 weeks.
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Tallentire |
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District Judge |
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