HKSAR v. WANG QUANWEN

DCCC 472/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 472 OF 2014

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REASONS FOR SENTENCE

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1. The defendant appeared before me this morning facing one charge of theft and another charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong.  He pleaded guilty to both charges and admitted the Summary of Facts and was duly convicted.

Facts

2. According to the Summary of Facts which has been admitted by the defendant, on 21 March 2014 the police found two working areas set up at Tung Sam Kei Shan, Sai Kung, New Territories (“the location”).  Within the working areas, they also found tents, wood chips and tools for tree cutting such as hoes, saws and knives.  A cooking area with cooking utensils and also a sheltered area with clothings, blankets and quilts were also set up nearby.

3. A team of police officers therefore laid in ambush at the location and at around 16:47, the defendant and an unknown male approached the location. When the defendant finally reached one of the tents, a police officer dashed out and intercepted the defendant.  At the same time, the unknown male fled from the location.  The defendant had a rucksack on his person and upon search of the rucksack, the police found many woodchips.

4. Under caution, the defendant admitted that the rucksack belonged to him and contained Aquilaria sinensis.  He further told the police that the wood chips were cut from the hills nearby using a saw and hoe in the rucksack and he intended to sell them in the mainland.  The defendant also admitted under caution that he came to Hong Kong illegally.

5. At around 17:00, the police declared arrest on the defendant.  Under caution, the defendant said that this was his first time to come to Hong Kong illegally to cut trees.

6. On the next day, 22 March 2014, the police officers seized more wood chips from the two working areas.  There they found two more rucksacks, six nylon bags, one hoe, two saws, 12 knives and three pieces of whetstone.

7. At the subsequent video interview the defendant admitted under caution that:-

(1) He entered Hong Kong with three other persons illegally between 8:00 am and 9:00 am on 17 March 2014 by boat.

(2) He and his companions arrived at the location at around 7:00 am on 18 March 2014.

(3) They started out looking for Aquila wood in the morning of 19 March 2014. If they saw wounds in the Aquila wood they would cut the wound and then bring the wood back to the location for processing and drying.

(4) After collecting a sufficient amount of Aquila wood they would bring them back to the mainland to sell.

(5) Between 18 and 21 March 2014 the defendants went with one of his accomplices to look for Aquila wood every day. During this period, they cut around five to six trees. The wood chips found in the bags in the location were cut from trees by the defendant and his companions during this period.

(6) The whole expedition was arranged by one of his companions (the unknown male who returned to the location with the defendant and managed to escape). They had no accomplice in Hong Kong. They came to Hong Kong for the purpose of finding Aquila wood. The tools (including saws and hoes) were brought by this said unknown male in the mainland.

(7) The defendant had not been to Hong Kong illegally before. He had been to Hong Kong legally before (for a few times) for the purpose of finding Aquila wood.

8. The wood blocks, wood chips and the tree bark seized from the defendant’s rucksack and also the location had later been sent to the Hong Kong Herbarium of the Agricultural, Fisheries & Conservation Department (“AFCD”) for examination and were found to be “Chen Xiang” produced by the species of Aquilaria sinensis (incense tree) recently cut/peeled from the tree trunk of Aquilaria sinensis if not the branch.  The total weight of the incense trees lots seized from the defendant’s rucksack and also from the two working areas in the locations is 103.65 kilogrammes and the estimated value is HK$10,003,720.

9. The Immigration Department had confirmed that the defendant was an authorised entrant from the mainland.

Enhancement of Sentence

10. Pursuant to section 27(2)(d) of the Organised and Serious Crimes Ordinance, Cap 455, the prosecution applied to enhance the defendant’s sentences on the ground that the nature and extent of any harm, whether direct or indirect caused to the community by recent occurrence of these specified offences.  For this purpose, the expert report of Mr Pang of the AFCD is produced.  Neither the expert’s status nor the content of the report was challenged or disputed by the defendant.

The background of the defendant

11. The defendant is aged 29.  He has a clear record in Hong Kong.  He is a mainlander coming from Guangdong Province and he is a married man with three young children, aged eight years, six years and five months old respectively. His father is 60 years old and the mother 59.  They all live together.  He only received primary level education in the mainland and he used to be a cook by occupation earning an income of about RMB 2,000 monthly.  He is the sole breadwinner of the family but he lost his job about two years ago and since then he became an odd-job worker earning an unstable income.

Mitigation

12. Mr Tong, the solicitor for the defendant, urged the court to consider the fact that the defendant had pleaded guilty and was very remorseful.  Mr Tong told the court that the defendant broke the law due to economic pressure especially after the young baby was born recently. 

13. Mr Tong properly acknowledged and considered that the present case is indeed very serious, concerning as it were, a substantial quantity of incense tree blocks and also with a staggering estimated value which is said to be over HK$10 million but he still urged the court to take into account all the mitigation and to be as lenient as possible.

14. In relation to the unlawful remaining offence, Mr Tong asked the court to consider perhaps imposing a partly concurrent sentence with the sentence on the theft charge.

Sentencing Considerations

15. In sentencing, I took into account the background of the defendant, the mitigation put forward by the solicitor for the defendant, the salient features of this case and also the case authorities.  I have in particular referred myself to two Court of Appeal cases which are HKSAR v Wen Zelang, CACC 220/2006 and HKSAR v Xie Jinbin, CACC 195/2010.  Those two cases are indeed well-known and leading cases for sentencing of the theft of incense trees here in Hong Kong.

16. In the case of Wen Zelang, the Court of Appeal stated that for the theft of 5.6 kilogrammes of wood from incense trees a starting point of 3 years’ imprisonment and an enhancement of 25 per cent is entirely appropriate.

17. In the case of Xie Jinbin, the appellant and the three other mainlanders came to Hong Kong on two-week permits and were seen by police cutting the trees and packing wood blocks into their rucksacks.  A total of seven wood blocks weighing 1.181 kilogrammes, a saw, an iron hoe and a knife were found in their rucksacks.  At trial, the District Court adopted a starting point of 3 years’ imprisonment, reduced it for plea and then enhanced the sentence by 25 per cent under section 27(2) of the OSCO and sentenced the appellant to 2 years and 6 months’ imprisonment.  On appeal, the Court of Appeal dismissed the appeal for sentence and said in that case:-

“A clear and firm message was needed to deter mainlanders from coming to Hong Kong legally or illegally for the specific purpose of exploiting protected and endangered flora for profit. A starting point of 3 years for the extraction of wood from an incense tree by mainlanders could not be faulted although this was not meant to be a straitjacket.”

18. The Court of Appeal also observed in the appeal that:-

“A man came to Hong Kong in a joint enterprise with the intention to exploit an endangered flora for profit. They equipped themselves with a knife, hoe and saw and acted as a group. Accordingly, having regard to the purpose of the Protection of Endangered Species of Animals and Plants Ordinance, Cap 586, and the need for deterrence, the starting point was appropriate. While the sentence may be on the high side, in view of the quantity of the wood stolen it was not manifestly excessive so as to justify interference.”

19. In Wen Zelang, the Court of Appeal had also expressed a similar view on passing a deferent sentence:-

“A clear and strong message is needed to deter mainland people from coming to Hong Kong to cut endangered trees be they Buddhist pine or incense trees. In our view, neither 3 years’ starting point nor the 25 per cent enhancement for the prevalence of offence under OSCO is manifestly excessive.”

The effect of unsustainable felling

20. In his report the Conservation Officer Mr Pang, the expert, who had examined the wood chips and the blocks in the present case had found that:-

“...the trunks of many large and old trees of Aquilaria sinensis have been illegally cut or felled in an unsustainable fashion...”

21. He also added that:-

“Large and old individuals of Aquilaria sinensis have since become rare in Hong Kong. Getting worse is that in the recent cases relatively smaller but mature trees of such species were also subject to illegal harvesting.”

22. Mr Pang concluded by saying that:-

“...the unsustainable felling of the species has caused irreplaceable damages to the general natural feature and ecology of the natural forests in Hong Kong.”

23. This is in fact also a great loss to the community.  I accept those comments from Mr Pang in its entirety.  It also formed a firm basis for the enhancement of the sentence.

24. In this case, the defendant had expressed remorse and pleaded guilty to the case and he has family members in mainland China who needed his support. However, it was clear to me that the defendant came to Hong Kong illegally from the mainland China with the specific purpose of looking for and cutting off wood chips from incense trees so that he can sell them for profit in mainland China.

25. In my view, the enterprise of the defendant and the plan that he had engaged in with the three other accomplices was very similar to the other cases which I have dealt with in the past.  If anything, it is only more serious and larger its scale.  It is also premeditated and this group of the defendant and his accomplices had purposely carried heavy tools for cutting incense trees all the way from the mainland.  Over a period of three to four days the defendant, together with his companions, had engaged in a systematic and large-scale exploitation of cutting the incense wood trees in Hong Kong.  Through their acts, they have endangered wood blocks from our plants in the territory, thereby causing irreplaceable damages to our environment.  Because of the large quantity of incense wood trees which have been damaged in this case, the damages are substantial and it is also on an unprecedented scale which is hitherto unseen in this court.

26. As said, the Court of Appeal has clearly expressed its view that a deterrent sentence is necessary for this type of offence.  A powerful message must be sent to the defendant’s friend and their relatives in the mainland that people like them who come to Hong Kong to commit a crime like this will be dealt with severely by the court in Hong Kong.

27. In both cases which I have cited, Wen Zelang and Xie Jinbin, the Court of Appeal was asked to deal with the quantity of wood which was in the sum of 5.6 kilogrammes and 1.181 kilogrammes only.  In both cases, a starting point of 3 years was adopted.  In Xie Jinbin it was expressly noted that the Court of Appeal had said that the starting point was not meant to be straitjacket. 

28. Although in Xie Jinbin, the Court of Appeal had expressed the view that the weight was not determinative of sentence, however in that case, the court was dealing with a submission by the appellant that the court should perhaps consider a lower sentence in view of a relatively lower quantity of the wood blocks.  In my judgment, is not to be thought that in cases such as the present one, where the quantity of the wood blocks involved was so large, the court should still consider adopting the same level of starting point such as 3 years imprisonment.  I considered that a higher starting point must be adopted in order to reflect the gravity of this case.  That should properly reflect the enterprise the defendant and the others had collectively participated in and the seriousness of the offence which was premeditated.

29. I have of course sympathy for the family members of the defendant in the mainland who had looked upon him for support.  However, the defendant should have thought about his family members before he decided to embark to come to Hong Kong to commit a serious crime like this.  The Court of Appeal has said in many authorities that family circumstances virtually pay no part in a serious crime when it comes to sentencing. 

30. As said, the quantity involved in the defendant’s case is substantial and the estimated value is said to be over HK$10 million.  I judge that it is by far the most serious case of this offence ever dealt with in the District Court.  It is a joint charge and that the defendant and his accomplices committed the crime together and the defendant had assumed the role of cutting the trees and his role is a major one. 

31. In the end, I held that in the defendant’s case, I shall adopt 4 years as the starting point instead of the usual 3 years.  The plea of guilty is the only effective mitigation and the sentence is therefore reduced by one-third to 32 months.  There will be a similar 25 per cent enhancement of the sentence applying the cited Court of Appeal cases.

32. For Charge 1, the theft offence, the sentence is therefore 40 months, which is 3 years and 4 months’ imprisonment.

33. For Charge 2, the unlawfully remaining offence, this is the firs time the defendant is convicted of the offence and the usual tariff is 15 months on a guilty plea.  (See R v So Man King [1989] 1 HKLR 142).  The only question remaining is whether I should accede to the request by the defence to allow part of the sentence for the Charge 2 to run concurrently with the Charge 1. 

34. As I have said earlier, the defendant in this case, a mainlander, had come to Hong Kong illegally with the specific purpose of committing a serious crime such as Charge 1 in the present case, together with three other accomplices.  In the past, the Court of Appeal had decided that the sentences for burglary should be wholly consecutive to the sentence for unlawful remaining in Hong Kong.  (See HKSAR v Kei San Man & Anor (unreported) CACC 246/1999 and HKSAR v Lau Pang [2004] 3 HKLRD 565)  In another case of HKSAR v Tong Fuk Sing (unreported) CACC 216/1999, the Court of Appeal had this to say:-

“15. It is perfectly correct to say that 15 months was the appropriate sentence for an offence of the kind in Charge 2 after a plea of guilty has been entered. (See R v So Man King [1989] 1HKLRD 142).

16. Furthermore, unless, for example, there exists some compelling circumstances such as strong humanitarian reasons, this sentence should normally be imposed consecutively to the sentence imposed for the offence which accompanies it...”

35. Both burglary and theft are offences under the Theft Ordinance and the nature of both crimes are very similar.  Based on the authorities cited, I can see no reason why I should deal with the defendant any differently with those defendants who had committed burglary as well as unlawful remaining.

36. Absent any strong humanitarian reason in the defendant’s case, it is only right and proper that the sentence on Charge 2 should be imposed wholly consecutively to the sentence imposed on Charge 1 according to the cited authorities.

37. Accordingly, the total sentence for Charge 1 and Charge 2 is one of 55 months’ imprisonment.