HKSAR v. WAI CHAU AND OTHERS

CACC 255/2007
CACC 386/2007
(Heard Together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 255 OF 2007

(On Appeal From District Court Criminal Case No. 135 of 2007)

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J U D G M E N T

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Hon Cheung JA (delivering judgment of this court) :

1. We heard these two appeals together.

CACC 255/2006

2. In this appeal, the three applicants whom I will refer to as D2, D3 and D4 were convicted after trial on 28 June 2007 by H H Judge Yau in the District Court of one charge of conspiracy to steal Buddhist pines.  The plants are well known ‘Fung Shui’ plants and are very popular in the Mainland.  The applicants were residents of the Mainland and came to Hong Kong to steal the plants.

3. The Judge adopted a starting point of two and a half years against D2 and D3 in respect of their age (D2 was 18 and D3 was 17) enhanced it by 40% in view of the prevalence of the offence and arrived at a sentence of three and a half years’ imprisonment.

4. The Judge adopted a higher starting point of three years’ imprisonment against D4.  He enhanced it by 40% and arrived at a sentence of four years and two months’ imprisonment.

5. D2 applied for extension of time to appeal against conviction.

6. D3 applied for leave to appeal against sentence.

7. D4 applied for leave to appeal against conviction and sentence but withdrew his application on conviction at the hearing and his application on conviction is dismissed. 

8. The facts showed that on 27 December 2006 at about 10 p.m. the police after a chase intercepted two vessels in Hong Kong waters which were traveling towards the Mainland.

9. There were four persons on the first vessel namely D2, D3, D4 and another defendant in that case, namely D1.  D1 was steering the first vessel and during the chase D2 and D4 were seen throwing more than 10 trees into the sea.  Only three Buddhist pines were later retrieved from the sea.

10. In the second vessel, D5, D6 and D7 were found on board.  17 Buddhist pines were found on that vessel.

CACC 386/2007

11. The applicant in CACC 386/2007 whom I will refer to as D2 pleaded guilty before Deputy District Judge Mackintosh on 25 June 2006 to two charges namely, first, conspiracy to assist the passage within Hong Kong of an unauthorized entrant and theft of 15 Buddhist pines.

12. The facts showed that on 13 April 2006 D2 was on board a ship with another defendant in the case i.e. D1.  The boat was stopped by the Hong Kong Police after a chase.  15 Buddhist pines which were stolen from Hong Kong were found on board.  The two offenders were also Mainlanders.

13. Judge Mackintosh used a starting point of four years’ imprisonment for the first offence of conspiracy, reduced it by one third because of the guilty plea and arrived at a sentence of two years and eight months.  For the second offence, the Judge adopted a starting point of two years, reduced it by one third because of the guilty plea and enhanced it by 50% because of prevalence and arrived at a sentence of two years’ imprisonment.  The Judge ordered 16 months of the second sentence to be served consecutively to the first and arrived at a total sentence of four years’ imprisonment.

14. D2 applies for extension of time to appeal against sentence.

CACC 255/2007

Conviction of D2

15. D2 challenged his conviction.  He appeared in person.  He, however, advanced no grounds in support of his application.  D2 was on board the first vessel when it was intercepted by the police after giving chase.  D2 and D4 were seen to be throwing plants overboard during the chase.  The defence that was put forward was that the defendants were told by their boss to look for a vessel that had broken down.

16. Considering that the episode took place in the dark and the only lighting equipment on the first vessel was a small torch, Judge Yau was clearly entitled to reject this defence.

17. Judge Yau had carefully considered the following issues :

1)   identification of the various persons on board the first vessel.

2)   the vessels were intercepted in Hong Kong waters (in fact D2 had so admitted).

3)   the Buddhist pines were stolen from Hong Kong by the defendants and they were not engaged merely to transport the stolen plants back to the Mainland.

18. No merits had been shown on the application for leave to appeal against conviction by D2 and his application is dismissed.

Appropriate sentence

19. In HKSAR v. Po Wah Loi (CACC 380/2006) a decision of this Court (Cheung, Yeung JJA and Barnes J) on 12 October 2007, the defendants were convicted with, among other charges, handling stolen goods, namely Buddhist pines.  The offence took place on 14 January 2006.  This Court after reviewing cases of similar nature stated that the usual range of sentence for stealing or handling Buddhist pines was about two years’ imprisonment.  The Court adopted a starting point of 27 months’ imprisonment in that case.  The trial judge adopted an enhancement of 35% due to prevalence of the offence which was not challenged by the parties.  The figure was also adopted by the Court.

20. A case that was not referred to in Po Wah Loi was HKSAR v. Wong Kwong Man and Another (CACC 342/2006, decision dated 21 June 2007) where the offence also took place in January 2006.  This Court (Stuart-Moore VP, Stock JA and McMahon J) accepted the trial judges’ decision to use a starting point of 20 months’ imprisonment and enhanced it by 50% for the charge of conspiracy to steal Buddhist pines.

21. Subsequently this Court (Yeung, Yuen JJA and Beeson J) in HKSAR v. Yeung Lap (CACC 385/2007, decision dated 9 April 2008) commented on the increasing number of cases that dealt with the stealing of the Buddhist pines by Mainland offenders and suggested that the starting point should be increased to deter offences of this type to be committed.

22. In Yeung Lap, the offence took place in January 2007, this Court did not disturb the starting point of three years’ imprisonment for handling 26 Buddhist pines and an enhancement of 33% due to prevalence. 

Statistics

23. From the evidence presented in these two appeals, the statistics on the offence are :

2002	9 cases
2003	7 cases	(25 trees seized)
2004	5 cases	(38 trees)
2005	12 cases	(190 trees)
2006 (first four months)	21 cases	(241 trees)
2006 (year end)	32 cases	(369 trees)
2007 (first five months)	19 cases	(389 trees)

Ms Agnes Chan, Ag SADPP, counsel for the respondent, informed the Court that for the year ending 2007, there were 24 cases and 461 trees were involved.

The complaint

24. The applicants complained that the starting point adopted by Judge Yau was higher than the one adopted in Po Wah Loi.

25. In our view it is important to bear in mind that Po Wah Loi was an offence that took place in January 2006.  Although it was at the beginning of the upward trend of stealing of Buddhist pines which was later shown to be taken place this was not so readily apparent then.  This being the case the 27 months starting point adopted in that case was appropriate.

26. It is, of course, true that in HKSAR v. Wen Zelang [2006] 4 HKLRD 460, this Court also approved a starting point of three years on a charge of theft of incense tree wood blocks.  Incense tree is also a protected plant.  The offence took place in March 2006.  There is no need to reconcile the sentence of that case with other usual sentence imposed on offences relating to Buddhist pines committed during the same period which was about two years’ imprisonment because as repeatedly said the starting point is not meant to be strait jacket.  The decision to accept a higher starting point may well be due to the fact that in that case the incense trees were actually cut down into blocks of woods which weighed 5.6 kg.

CACC 255/2007

27. The offence took place on 27 December 2006 when the upward trend of such an offence was clearly confirmed.

28. In our view a starting point of between two and a half years and three years’ imprisonment is appropriate for offences committed during that period of time.

29. Judge Yau’s starting point of two and a half years imprisonment for D3, who was of relatively young age at the time of the offence, was therefore entirely appropriate.  A 40% enhancement instead of the usual 35% cannot be regarded as unduly high.  The sentence of three and a half years’ imprisonment is appropriate.

30. We therefore will dismiss D3’s application.

31. Judge Yau was further correct to adopt for D4 who was an adult a starting point of three years’ imprisonment and enhance it by 40%.  The sentence of four years and two months’ imprisonment is appropriate.  The application by D4 is also dismissed.

CACC 386/2007

32. The only thing that can be said about this case is that Judge Mackintosh adopted a 50% enhancement when the courts at that time usually adopted a lower figure.  It is not necessary for us to address this issue in detail because the real question is whether the sentence of two years’ imprisonment for the theft of the Buddhist pines and the total sentence of four years’ imprisonment for the two offences are appropriate.  A sentence of two years’ imprisonment for the theft was clearly unobjectionable.  The Judge was further right to order 16 months of this sentence to be served consecutively to the first offence.  A total sentence of four years’ imprisonment for the two offences could not be regarded as excessive.

33. The application is also refused.