HKSAR v. LIU MAOQIONG

DCCC 548/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 548 OF 2014

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Reasons for Sentence

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1.  The defendant has pleaded guilty to a charge of theft of 1.862 kilograms of woodchips commonly known as “incense tree”.

2.  Just before 1 pm on 6 May 2014, in response to an emergency 999 call, officers arrived outside house No 7 of San Fung Village, Lantau Island.  The defendant was intercepted.  He was carrying a rucksack containing woodchips.  There was also a knife 31.5 centimetres in length, a folding knife, two saws, two blades, a whetstone, a map and a torch inside the rucksack.

3.  The defendant was arrested and cautioned.  Under caution he remained silent.  In interview he admitted that he entered Hong Kong alone on 2 May holding a two‑way permit, and stayed in Tai O for a few days.  He said he came to Hong Kong for travel, and he cut the incense tree wood that was found in his rucksack in passing, intending to bring it back to the mainland to cure illness.  He said that he knew that there was “chen xiang” in Hong Kong as he was told by people who had visited Hong Kong.

4.  He confirmed that the rucksack belonged to him and he knew that there were woodchips in the rucksack.  He was aware that they had medical value.  He said that they were for self use and they were all cut from trees on the roadside whilst he was in Hong Kong.  He said he cut some every day, and the knives, saws and blades which were brought by the defendant from the mainland were used to cut the trees.  The whetstone was for sharpening the knives.

5.  The woodchips seized from the defendant’s rucksack were sent to the Hong Kong Herbarium of the Agricultural, Fisheries and Conservation Department, and it was found that they weighed 1.862 kilograms, and the species was “Aquilaria sinensis”, commonly known as the “incense tree”, and the opinion was that it had been recently cut from the tree trunk of the tree if not the branch.  The estimated value is $111,720.

6.  According to an expert on woodchips, K S Pang, who is a conservation officer at the Agricultural, Fisheries and Conservation Department, and also the incumbent curator of the Hong Kong Herbarium, she said that:

“The trunks of many large and old trees of Aquilaria sinensis have been illegally cut or felled in an unsustainable fashion. That is, it cannot ensure the long‑term survival of the species. Trees have been cut or felled deliberately for mass extraction of timber to the extent that trees are dead or damaged and likely unable to recover. Large and old individuals of these trees have since become rare in Hong Kong, and getting worse is that in recent cases, relatively smaller but mature trees of such species were also subject to illegal harvesting.”

The expert opined that:

“This is a dominant tree species in fung shui. In woods and other lowland forests, such deliberate felling and damage of large and smaller trees by causing damage to habitats of the organisms have jeopardised the normal ecological relationships of the organisms in such woodlands.”

The expert is of the view that:

“The unsustainable felling of the species has caused irreplaceable damage to general natural feature and ecology of the natural forests.”

7.  The prosecution has submitted an application for enhancement of sentence under section 27(2) of the Organised and Serious Crimes Ordinance, Cap 455.  In support of that application I have been supplied with a full statement by the expert I referred to previously, Pang Kuen-shum.

8.  The statement was submitted to the court under the provisions of section 65B of the Criminal Procedure Ordinance, Cap 221.  The statement deals in some length with the extent and the nature of the damage caused by the felling and taking of cuttings from such trees in Hong Kong.  It also points out that on the mainland, the species is listed as a Category 2 protected plant.

9.  I am satisfied that this statement adequately deals with the criteria required to support an application for enhancement of sentence.  The usual enhancement of sentence is 25 per cent.  Nothing has been said to the court which would indicate that that is not an appropriate enhancement to the starting point.

10.  The defendant has a clear record in Hong Kong.  He is about 68, and he is married on the mainland.  His wife is 62.  He has a son and four daughters who are all grown up.  I am told that he has never been to Hong Kong before.  I am told that he has a meagre existence from his livelihood as a farmer on the mainland, growing rice and looking after some domestic animals.  I am told that his income is negligible.  I am told that he does, however, have some knowledge in treatment of minor wounds and injuries and he has treated many of his neighbours, usually for just a few Renminbi.  Through this he came to know that the parts of the tree that he collected in Hong Kong have a medicinal value when mixed with Chinese herbs.

11.  It has been urged upon me that in this case, the defendant is not fully aware of the status of these trees in Hong Kong; the amount that he took was not excessive; and I am told that his family are very concerned about him.

12.  The defendant is 68 and has a clear record, and I will take that into account when considering the overall starting point.  The usual starting point for offences of this kind is a starting point of 3 years. In view of what I have been told in connection with this defendant, I propose to take a starting point of 2 years and 9 months’ imprisonment.  That will be reduced by one-third to reflect his guilty plea.

13.  So the sentence will be 22 months.  I am satisfied that the criteria under section 27(2) of the Organised and Serious Crimes Ordinance has been satisfied, and I therefore enhance that sentence by 25 per cent.

14.  The defendant will therefore go to prison for 27½ months.  That is 2 years 3½ months.