HKSAR v. ZHENG YAOHUI

DCCC 1/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1 OF 2013

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Reasons for Sentence

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1. The defendant appeared before me this afternoon and pleaded guilty to a single charge of theft, contrary to section 9 of the Theft Ordinance, Cap210. The subject matter of the charge is 5.33 kilograms of woodchips and wood pieces of Aquilaria sinensis wood commonly known as incense tree.

The Facts

2. This is a simple stop and search case.  The defendant is a visitor from the Mainland.  He entered Hong Kong on 18 November 2012 by way of a two-way permit.  In the afternoon of 22 November when uniformed police officers were patrolling in a police vehicle at Shau Tau Kok Road, New Territories, they spotted the defendant acting suspiciously.  When the defendant saw the presence of the police vehicle, he turned around and walked towards Sheung Shui direction.  As a result, a group of police officers proceeded to intercept the defendant and upon the search on his person incense tree chips (P1) were found inside his rucksack (P2).  The incense tree chips in question were at the time put inside a black non-transparent plastic bag.

3. Under caution, the defendant admitted that the rucksack belonged to him and it was his friend in the Mainland who asked him to pick up P1 and to bring it back to the Mainland.  He said that he picked up P1 at a distance of about 10 metres away near the road sign of Sheung Wo Hang.  He further admitted that he knew P1 was incense tree chips.  No tools were seized upon arrest.

4. The woodchips were subsequently examined by Dr K S Pang, an expert of the Agricultural, Fisheries and Conservation Department and he found it to have been taken from the species of Aquilaria sinensis, also known as incense tree.  Dr Pang opined that the chopping of the incense tree would threaten the natural survival of the native plant.  The total weight of the incense chips is of 5.33 kilograms and the estimated value is of HK$522,200. 

The background of the defendant

5. In this case, the defendant has a clear record in Hong Kong.  He is 35 years of age and he had received secondary education in China.  He was reported to be a taxi driver.  He is married with three children between the ages 2 to 10.  The wife is a housewife and his parents are both in their 60s.  The father was said to be suffering from heart disease and is now a retired farmer. 

6. Through his solicitor Mr Wong, the defendant had expressed his remorse.  Mr Wong also submitted to the court for consideration a letter of mitigation written by the defendant himself, and also a letter written by the defendant’s father.  There is also a medical certificate concerning the heart condition of the defendant’s father. 

7. I am not going to go into the details of these letters, suffice it to say that the defendant had expressed his remorse and explained that he did not commit the offence for profit but he said he was not aware of the consequences of his acts.  He asked the court to be as lenient to him as possible so that he can return to his family and to be a good husband and father.  He promised to abide by the laws in Hong Kong in future. His father, of course, is relying heavily for the support of his son and he asked the court to give his son a chance. 

8. Mr Wong has advised the defendant that an imprisonment term would be inevitable, but at the same time he asked the court to be lenient so that his client can have an early return to his family members in the Mainland, taking into account that the defendant had pleaded guilty in this case and saved the court’s time.

Sentencing considerations

9. The theft of incense trees in Hong Kong is becoming very prevalent in the recent years.  I need only to quote from the Court of Appeal in the case of HKSAR v Wen Zelang [2006] 4 HKLRD 460.  In the introductory paragraph,  the Court of Appeal said:

“1. Aquilaria Sinensis, a species of Aquileria, commonly known as “incense tree”, grows chiefly in South China, including parts of Hong Kong. It is also a fung shui tree and is therefore sometimes planted in fung shui woods in villages in the New Territories.

2. The fragrance of incense tree wood makes it an ideal material for the making of joss sticks and the resin it produces known as “Chen Xiang” is a valuable Chinese herbal medicine.

3. The heavy demand for incense tree wood leads to its over-exploitation and it is under the threat of extinction.

4. Since January 2005 the Convention on International Trade in Endangered Species of Wild Fauna and Flora has restricted the import and export of wood from incense trees.

5. In Hong Kong, the Protection of Endangered Species of Animals and Plants Ordinance, (Cap 586), gazetted on 10 March 2006, imposes a restriction on the export of all Aquileria species although the ordinance had not yet come into operation. The List of Wild Plants under State Protection in the Mainland also includes the incense tree in the categories listed for protection.

6. There have been many recent reported cases of illegal exportation of incense trees in Hong Kong. The trunks of many large and old trees were cut or felled, causing irreparable damage to those trees and threatening the natural survival of the species.”

10. In that case the subject matter of the wooden blocks is also weighin 5.6 kilograms, which is very similar to our case.

11. The Court of Appeal has also said in paragraph 16 of the same judgment that:

“A clear and strong message is needed to deter Mainland people from coming to Hong Kong to cut endangered trees, be they Buddhist pines or incense trees. In our view, neither three-year starting point nor the 25 % enhancement for prevalence of the offence under OSCO is manifestly excessive.”

12. Wen Zelang (supra.) is decided on 7 September 2006.  More than 6 years has elapsed since the case but in recent years we still witness the ever-increasing of this kind of theft of incense trees and thereby causing irreparable damages to the forest in our community.

13. According to a statement or report compiled by Woman Detective Inspector Choi of the police concerning Aquilaria sinensis-related cases, just in the year 2011 and 2012 the cases were reported to be 72 and 67 respectively, rising from only 15 in 2009 and 19 in 2010.  Thus one can see very clearly that over the last 2 years there has been an increasingly significant upward increase of these kinds of cases, and clearly the message is that crimes of this kind of nature has to be deterred.  The prosecution in this case has applied to the court to enhance the sentence under OSCO but they had made it clear that in so doing, they are relying not chiefly because of the prevalence of the offence, but rather on the nature and extent of any harm, whether direct or indirect, caused to the community by the recent occurrences of this specified offence under section 27(2)(d) of OSCO.

14. In my view, the role played by the defendant in this case is a courier.  Although there is no evidence to suggest he was the one responsible directly for the actual cutting of the chips from the trees, his role is as significant as those responsible for cutting the trees because without the assistance that he rendered, it is virtually impossible for these kind of incense trees to be exported illegally out of Hong Kong.

15. I have also made it clear and plain in court that I reject his explanations when he was arrested under caution that he just committed the crime because of his blind loyalty to his friend to carry those wooden chips for no reward.

16. For this reason, I have invited the defence to consider calling any evidence to support or substantiate this claim, but in the end, they decided not to call any evidence, and they also made it clear that they would not rely on this explanation or assertion any more in the mitigation. 

17. In my view, the facts of this present case is very serious.  Over past years, there have been numerous attempts by people like the defendant from the Mainland who came to Hong Kong, either legally or even illegally, cut the endangered wood blocks from our plants in the Territory causing irreparable damages to our environment.

18. As said, the Court of Appeal had clearly expressed its view that a deterrent sentence is necessary for this type of offence. 

19. I have already rejected the mitigation put forward on behalf of the defendant that he did not do it for personal gain.  In my view, those are only convenient excuses and should not be accepted lightly.  In any event, even if the defendant said in his letter that he was is in ignorance of the laws in Hong Kong, it cannot be an effective mitigation.  A powerful message must be sent to the defendant’s friends and relatives in the Mainland that people like him who come to Hong Kong to commit a crime like this will be dealt with severely by the court in Hong Kong.

20. I would use 3 years as a starting point.  The plea of guilty is the only mitigation.  The sentence is therefore reduced by one-third to 24 months.  Similarly there will be a 25 per cent enhancement of the sentence.  In the end, the sentence is increased to 30 months’ imprisonment.