HKSAR v. WANG HUASEN

DCCC 654/2021

[2022] HKDC 572

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 654 OF 2021

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REASONS FOR SENTENCE

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1.  Mr Wang pleaded guilty before me to two charges on a Charge Sheet as follows.

2.  Charge 1 is Conspiracy to export specimens of Appendix II species without a licence, contrary to section 13 of the Protection of Endangered Species of Animals and Plants Ordinance, Cap 586, and sections 159A and 159C of the Crimes Ordinance, Cap 200.

3.  Particulars of Charge 1 are that he, on or about 1 December 2020, in Hong Kong or elsewhere, conspired with a person known as “Ming Chai”, to export specimens of Appendix II species, namely 9.338 kilogrammes of wood chips and barks of Aquilaria sinensis wood commonly known as Incense Tree, without a licence issued in respect of that specimen under section 23(1)(c)  of the Protection of Endangered Species of Animals and Plants Ordinance, Cap 586, prior to the export.

4.  Charge 2 is Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, contrary to section38(1)(b)  of the Immigration Ordinance, Cap 115.

5.  Particulars of Charge 2 are that he, on 1 December 2020, having landed in Hong Kong unlawfully, remained in Hong Kong without the authority of the Director of Immigration.

Facts admitted by Mr Wang

6.  Mr Wang was a Mainland resident and a holder of a two-way permit. Travel movement record showed that he did not enter Hong Kong on the strength of his two-way permit through proper immigration channels at the material time.  He remained in Hong Kong as an illegal immigrant.

7.  On 1 December 2020, shortly after 12 noon, near Tsiu Hang Nature Trail in Sai Kung, Mr Wang was opening a big nylon bag behind some bushes with an unknown man.  Police took overt action and revealed their identity and asked what the duo were doing.  Both men fled leaving behind the big nylon bag.

8.  Mr Wang was subdued and arrested at a nearby lamppost whereas the unknown man successfully escaped.  In the waist bag carried by Mr Wang were found two pieces of suspected Incense Tree chips.  Under caution, Mr Wang said the wood chips were given to him by a friend.

9.  Mr Wang was escorted back to where the big nylon bag was.  Inside it, there were found two bags of rice, a few bottles of soft drinks, five packets of suspected Incense Tree chips and barks, a black backpack and a red backpack.

10.  In the black backpack, there were a chopper and four whetstones.  In the red backpack, there were a wooden stick and a saw blade knife.

11.  Mr Wang admitted at the scene that the black backpack belonged to him. Under caution, he stated that the chopper was given to him by a friend.

12.  Under caution in a later VRI, Mr Wang stated that the red backpack belonged to the unknown man who had made good the escape.  In addition, Mr Wang said:-

(a)  He sneaked into Hong Kong from Yantian, Shenzhen, by a speedboat around 0400 to 0500 hours on the subject day; he landed at an unknown shore within Hong Kong;

(b)  He met “Ming Chai” ie the unknown man near that shore; both of them came from the same village; Ming Chai recruited him to “move” Incense Trees at a daily wage of RMB400; he had already received RMB3,000 from Ming Chai;

(c)  He knew it was illegal to come to Hong Kong to “move things like that”; he had not used any of the tools seized;

(d)  He and Ming Chai had spent some time walking and eating on the hill before they found the nylon bag together with its contents on the hill; Ming Chai then gave him two pieces of wood chips taken from the nylon bag as rewards, which he put inside his waist bag; he and Ming Chai then carried the nylon bag with contents down the hill and took a taxi to Tsiu Hang, Sai Kung.

13.  The location in Tsiu Hang where Mr Wang was intercepted by the police was only 170 metres away from a shoreline where a boat may moor and passengers may embark.

14.  Conservation officer Dr Tsang of the Agriculture, Fisheries and Conservation Department (AFCD)  opined that:-

(a)  The wood chips and barks found in the present case were agarwood and barks respectively of Aquilaria sinensis, commonly known as “Incense Trees”; they were specimens of an Appendix II species protected under the Protection of Endangered Species of Animals and Plants Ordinance, Cap 586;

(b)  The specimens weighed 9.338 kg in total and were valued at over $1.99M; in particular, the two pieces of wood chips found in Mr Wang’s waist bag were agarwood valued at around $7,600;

(c)  The tools found were fit for cutting Incense Trees and harvesting agarwood; and

(d)  The illegal felling of Incense Trees and the illegal harvesting of agarwood in Hong Kong would cause irreparable damage to the species and threaten its natural survival.

15.  Based on the colour of the cut surfaces and the colour of the mosses attached to the agarwood and the Incense Tree barks, Dr Tsang took the view that they were freshly cut; but they were not freshly cut from the Incense Trees that grew in the vicinity of the arrest location.

16.  Mr Wang and Ming Chai were not exempted or licensed to export Incense Tree chips and barks and agarwood out of Hong Kong at the material time.

Criminal record

17.  Mr Wang has a clear record in Hong Kong.

Antecedents

18.  Mr Wang is aged 30 (28 at the time of the offence), a resident of the Mainland where he completed junior high education.  He was a farmer.  He was living with his wife and two children (both under 10 years old).

Mitigation

19.  Mr Roderick Wu of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Wang.  The following is a summary of the mitigation submissions.

20.  Mr Wang pleaded guilty showing remorse.  He made full and frank confession to the police.

21.  Mr Wang’s wife is a housewife.  His parents are farming workers.  Their income was unable to meet both ends.  Mr Wang used to be a part-time construction-site worker, earning RMB200 a day.

22.  Mr Wang committed the offence for economic reasons.

23.  One day at the end of November 2020, a friend called “Ming Chai” of the same village advised him to come to Hong Kong to export some expensive woods back to his native place for sale.  Mr Wang agreed and told his wife he would be home in a couple of days.

24.  Mr Wu asked the court to adopt a lower starting point of sentence and asked for the customary 1/3 discount.

25.  Mr Wu accepted that the nature of the two offences were quite different; yet he asked for concurrent sentences on the basis that the offences occurred on the same date and had a close relationship.

26.  In relation to the prosecution’s invitation to enhance the sentence on Charge 1, after hearing prosecution’s earlier submission, Mr Wu changed his position from “no observations to make” as appeared in his written mitigation to one of “should not be entertained” or “should not be necessary” because, as Mr Wu said, “Conspiracy to export [incense tree parts]” is not a fashionable crime.

27.  Mr Wu submitted the following sentencing cases to the court:-

(a)  HKSAR v Lau Chu Kam, CACC 114/2013;

(b)  HKSAR v Xie Jinbin, CACC 195/2010;

(c)  HKSAR v Yang Yamin (transliteration),
DCCC 185/2019 (Chinese Reasons for Sentence);

(d)  HKSAR v Tse Shing Yung (transliteration),
DCCC 955/2018 (Chinese Reasons for Sentence); and

(e)  HKSAR v Yeung Law Fai (transliteration),
DCCC 765/2018 (Chinese Reasons for Sentence).

28.  Mr Wu submitted a mitigation letter in Chinese (with English translation)  written by Mr Wang’s wife.  The contents are generally that Mr Wang was the sole bread winner; that because of what happened, she had to go out to work leaving the children home; she asked for a lenient sentence so that her husband may return home earlier.

29.  Today, Mr Wu handed up another letter purportedly written by Mr Wang himself in Chinese (without English translation). After the court has raised with Mr Wu certain irregularities on the face of and in the contents of the letter, Mr Wu asked the court to disregard the letter completely.

Sentence

30.  I have had regard to all the cases referred to by the prosecution and Mr Wu.

31.  I found Mr Wang knew all along what he came to do in Hong Kong was illegal.

32.  The maximum penalty for the offence subject of Charge 1 is a fine of $1M and imprisonment for 7 years.

33.  Prosecution sought to furnish information to the court under 27(2)(d)  of the Organized and Serious Crimes Ordinance, Cap 455, namely information regarding “the nature and extent of any harm, whether direct or indirect, caused to the community by recent occurrences of [the] specified offence”, the specified offence being the subject of Charge 1, namely Conspiracy to export specimens of Appendix II species without a licence.

34.  The information consisted of 3 witness statements of Dr Tsang Ho Leung, a Conservation Officer of AFCD, taken between February and June 2021, and a witness statement of Detective Inspector of Police Li Man Yau dated 22 January 2021.

35.  Mr Wang did not object to the reception of the information, nor did he seek to furnish information regarding the same matter.

36.  I received the prosecution’s information.

37.  Under section 27(11)  of Cap 455, where a court is satisfied beyond reasonable doubt as to the said information, the court shall have regard to the information when it passes a sentence for the relevant specified offence and may, if it thinks fit, pass a sentence on the defendant for that offence that is more severe.

38.  Having gone through all the witness statements, although I am satisfied to the required standard that some harm would have been caused, either directly or indirectly, to the Hong Kong community by occurrences of the particular specified offence in this case, namely, Conspiracy to export specimens of Appendix II species without a licence, the police statistics (which ran only up to the end of 2020)  do not show there have been recent occurrences of this particular specified offence.  Not only were there no statistics for 2021, what statistics there were did not show there was any occurrence of this specified offence in 2019 or 2020.

39.  As a result, even if I were to accept all of the information furnished by the prosecution, I would not have been able to enhance the sentence by reason of the “nature and extent of harm caused to the community by recent occurrences of the specified offence”.

40.  I therefore decline to enhance the sentence on Charge 1.

41.  According to HKSAR v Liao Youguang, CACC 46/2019, and HKSAR v Xie Jinbin, CACC 195/2010, the appropriate starting point for a case of unlawful exporting of incense wood without aggravating factors is 3 years’ imprisonment.  However, the present case involves a conspiracy and the actual part-execution of that conspiracy with the named co-conspirator.  This constitutes an aggravating factor.  Another aggravating factor is Mr Wang came to Hong Kong specifically to commit the offence of unlawful exporting.

42.  For these 2 aggravating factors, I take a starting point of 3 years 6 months for Charge 1.

43.  For Charge 2, according to R v So Man King & Ors [1989] 1 HKLR 142, the tariff sentence for Unlawful remaining is 15 months’ imprisonment after a plea of guilty.  In principle, subject only to totality, this sentence ought to be served consecutively.

44.  Mr Wang pleaded guilty in good time and so is entitled to the full 1/3 discount on Charge 1.  For his clear record, I shall take off an extra month from the sentence on Charge 1 after the 1/3 reduction.  I can see no other mitigating factors of weight to justify any further reduction.

45.  I pass the following sentences on Mr Wang.

(Mr Wang, please stand)

46.  The sentence on Charge 1 is 2 years 3 months’ imprisonment.

47.  The sentence on Charge 2 is 15 months’ imprisonment.

48.  On a consideration of totality, I order that 8 months of the sentence on Charge 2 to run consecutively to the sentence on Charge 1, making an aggregate sentence of 35 months’ imprisonment.