HKSAR v. CAI KUANQING AND OTHERS

DCCC391/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 391 OF 2012

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.  D1 to D6 have pleaded guilty to one joint charge of theft of 10.32 kilogrammes of wood blocks and chips which had been taken from a species of plant, Aquilaria Sinensis, commonly known as incense tree.

The facts

2.  On 16 March 2012 D1 to D6 entered Hong Kong on the strength of two-way permits.  On 19 March 2012 police officers intercepted D1 to D6 near the public toilet of Sha Lo Tung, Tai Po, New Territories.  Each of them carried a rucksack.  On search of the rucksacks, some tools for cutting trees and the parts of incense trees particularised in the charge were found.

3.  Under arrest and caution, D1 to D6 admitted that they came together from the mainland on 16 March 2012.  An unknown person took them to Sham Shui Po to stay at an unknown place overnight.  On 17 March 2012 an unknown person took them to Sha Lo Tung.  Between 17 and 19 March 2012 they stayed at the hillside of Sha Lo Tung where they found, cut and collected incense trees.  They intended to take the wood pieces of incense trees back to the mainland for sale. 

4.  The estimated total value of the incense tree parts found in D1 to D6’s rucksacks is $493,700.

5.  The prosecution applies for enhancement of sentence pursuant to section 27(2)(d) of the Organized and Serious Crime Ordinance, Cap. 455.  A statement of Mr Pang Kuen-shum, a conservation officer of the Agriculture, Fisheries and Conservation Department, is submitted to this court in support of the application.

6.  Mr Au, solicitor for all the defendants, says he is not opposing the application though he submits that the court has a discretion not to enhance the sentence.  Mr Pang’s statement is not challenged.

7.  At the initial stage of mitigation, Mr Au makes some remarks which give the suggestion that the defendants do not know cutting trees in  Hong Kong is a criminal offence and that they do not know incense tree is an endangered and protected species of plant.  Now, when this court indicating the need for a hearing and upon taking further instructions from the defendants, Mr Au confirms that the defendants knew their conduct was a criminal offence in Hong Kong and they knew the trees they cut were a protected species. 

Background and mitigation

8.  All the defendants are mainland residents who came to Hong Kong on two-way permits and were granted leave to stay in Hong Kong for 7 days.  D1 to D6 are aged 22, 28, 44, 34 and 21 respectively.  Their family background are unremarkable.  Their family members are all in the mainland. They all say that they are the main breadwinners of their families.  They all earned a meagre income in the mainland.  D5 has a daughter who is 2 months old. 

9.  In mitigation, Mr Au says on the next day after the defendants’ arrival in Hong Kong, they met a friend who suggested that they could cut incense trees for sale.  The defendants only thought that the wood piece they cut could be sold at about 1,000 to 2,000 dollars for each of them. Mr Au asks the court to consider the defendants’ guilty pleas, their co-operation with the police and their clear record in Hong Kong. 

10.  Citing HKSAR v Xie Jinbin CACC195/2010, he says the starting point for this kind of offence should be 3 years’ imprisonment. 

Sentencing consideration

11.  In sentencing the defendants, I have considered everything said on behalf of the defendants.  I have considered not only the judgment cited by Mr Au but also the Court of Appeal’s judgment in HKSAR v Wen Zelang CACC220/2006 which was referred to in Xie’s case.

12.  Stealing wood pieces of incense trees in Hong Kong has been treated as a serious offence by Hong Kong courts.  In Wen Zelang, Mr Justice Yeung JA said:

“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 the 3-year starting point nor the 25 per cent enhancement for prevalence of the offence under OSCO is manifestly excessive.”

In Xie Jinbin, Mr Justice To said:

“We echo Yeung JA’s sentiment that a clear and firm message is needed to deter mainlanders from coming to Hong Kong , legally or illegally, specifically for the purpose of exploiting our protected and endangered flora for profit. A starting point of 3 years for case of extraction of wood from an incense three by mainlanders could not be faulted.”

13.  In both cases the Court of Appeal endorsed a basic starting point of 3 years.   It should be noted that at paragraph 17 of the judgment in Xie, the Court of Appeal emphasized that a starting point is not meant to be a straitjacket.  At paragraph 20 the Court of Appeal further says:

“...the prime considerations in this type of cases are protection of the endangered species and deterrence. The weight of the wood blocks stolen is not determinative of a sentence. The factors to be considered are the injury done to the tree, the profit motive, the manner of commission and the gravity of the offence.”

14.  A starting point of about 3 years has been adopted by judges in most of the cases in the District Court for this kind of offence.

15.  In the present case all the defendants came together on 16 March 2012 as visitors.  I do not accept that they only formed the idea of cutting incense trees when they met a friend on the next day.  According to their admissions to the police which they admit in court, upon their arrival they were immediately arranged by an unknown person to stay at an unknown place in Sham Shui Po overnight.  On the next day they were taken to Sha Lo Tung and started the illegal harvesting.  They knew that incense tree parts were valuables.  They intended to bring them back to the mainland for sale. The only inference is that they all came to Hong Kong in a joint enterprise with intention to exploit our protected and endangered flora for profit.  The total weight of the wood piece stolen in this case is 10.32 kilogrammes which is much more than the quantity of stolen wood piece in Wen Zelang (5.6 kilogrammes) and Xie Jinbin (1.181 kilogrammes).

16.  While weight of the wood piece is not determinative of sentence, the large quantity of stolen wood piece in this case reflects a particularly serious degree of damage to the ecology of the natural forests of Hong Kong and scale of illegal harvesting.  The present case was a premeditated joint enterprise where six people had been arranged as a group to come to Hong Kong for the purpose of exploiting our protected trees for profit.  It was a large scale illegal operation.

17.  At paragraph 23 of Xie’s case, the Court of Appeal says:

“The applicant is not to be punished only according to the weight of the wood block he has stolen, but according to the enterprise he and the other three offenders had collectively participated in and the seriousness of the offence.”

18.  In Xie and Wen four people were involved in the illegal tree cutting operation.  The scale of illegal operation in the present case must be reflected in the sentence.

19.  In my view, the facts of the present case justify a higher starting point so that a powerful message can be sent to the defendants’ friends and relatives in the mainland that Hong Kong courts will deal with this kind of illegal conduct severely.  I use 3 years 3 months as the starting point for each of the defendants. 

20.  I cannot see any special circumstances of the defendants that justify any reduction of sentence.  Indeed I do not see any remorse of the defendants.  They even attempted to put up unbelievable excuses that they did not know their conduct amount to an offence in Hong Kong and that they did not know the incense trees are protected plants in Hong Kong.  They only withdrew their unbelievable claims when the court raised the issue for hearing.  The value of the wood piece as they claimed to believe is irrelevant. 

21.  The only mitigation is their pleas of guilty for which they would receive full credit of one-third reduction.  The sentence is therefore reduced to 26 months.  They are in joint enterprise, each of them is equally culpable for the illegal conduct.

22.  In respect of the application for enhancement of sentence, I am satisfied that the prosecution has made out their case under section 27(2), I enhance the sentence to 32 months.  Each of the defendants is sentenced to 32 months’ imprisonment.