HKSAR v. GAO HUACHANG AND OTHERS

DCCC727/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.727 OF 2013

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Reasons for Sentence

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1.  The defendants were jointly charged with theft, contrary to section 9 of the Theft Ordinance, Cap.210 and each was charged with one count of illegal remaining contrary to section 38(1)(b) of the Immigration Ordinance Cap.115.

2.  The defendants pleaded guilty to their respective charges and admitted the facts, they are convicted accordingly.  

Facts

3.  At about 1817 hours on 29 May 2013, whilst conducting anti-crime patrol along the hillside of Tsim Kong Tung near Yung Shue Au, Sha Tau Kok, the police spotted 5 males including D1 to D3 walking into the area.  When the police approached the 5 males, they attempted to flee.  Eventually, the police managed to intercept D1 to D3 whilst the other 2 males had escaped.

Charge 1

4.  Upon search of the rucksacks carried by D1 to D3, the police had the following findings:

(1) Inside D1’s black rucksack were items including:

a)one chopper about 32 cm long;

b)one bending chisel/sickle about 17 cm long;

c)one hoe with 2 mental blades/fixers;

d)one green coloured bag containing one canvas; and

e)wood chips of incense tree weighed 9.7kg.

(2) Inside D2’s black rucksack were items including:

a)one whetstone about 17 cm long;

b)one chisel/plow about 30 cm long;and

c)wood chips of incense tree weighed 10.4kg.

Also, in the orange coloured bag of D2 further wood block of incense tree weighed 6.3kg was found.

(3) Inside D3’s green rucksack were items including:

a)one chopper about 32 cm long;

b)one whetstone about 19 cm long;

c)one chisel/plow about 30 cm long; and

d)wood chips of incense tree weighed 8.8kg.

5.  Further, in the green rucksack left behind by one of the escaped male, the police found:

a)two whetstones about 12 cm and 18 cm long respectively;

b)one chisel/plow about 30 cm long; and

c)wood chips of incense tree weighed 9.6kg.

Charge 2 to 4

6.  Each of the defendants entered Hong Kong unlawfully and remaining in Hong Kong without the authority of the Director of Immigration between 27 May 2013 and 29 May 2013.

7.  Upon examination, it is confirmed that all the wooden chips/blocks seized were Aquilaria sinensis (commonly known as Incense Tree), and they were recently cut from the tree trunks of Aquilaria sinensis if not the branches.  The value of the woods blocks/chips of Incense Tree estimated to be $3,863,000.

8.  The tools found were tools suitable or tailor-made for harvesting Incense Tree or fit for tool sharpening.

9.  The prosecution case is that the defendants shortly after they illegally entered Hong Kong, together with other persons unknown, stole the Incense Tree by cutting and the total Incense Tree involved being 44.8kg in weight.

10.  The populations of Aquilaria sinensis have reportedly been over-exploited or depleted in Hong Kong.  The illegal harvesting or unsustainable felling of species has caused irreplaceable damages to the general natural feature and ecology of the natural forests of Hong Kong.

Mitigation

11.  D1 aged 36, married with a son and 3 daughters aged from 17 to 10.  He is a Mainland resident and a farmer in home village. He has a clear record.

12.  D2 aged 20, single living with his parents and siblings.  He is a Mainland resident and a farmer in home village.  He received education up to Form 2, he has a clear record.    

13.  D3 aged 59, married with a son and a daughter aged 26 and 23 respectively.  He is a Mainland resident and a farmer in home village.  He has 1 previous conviction record for going equipped for stealing in 2004 of which he was sentenced for 4 weeks, this conviction is 9 years ago, I will treat him as of clear record.

14.  The defendants all from the same village, they came to Hong Kong with 2 other clansmen to steal the Incense Tree by cutting for profit to support their respective families, they thought the value of the woods in question would be about ¥20,000, they were not aware the value of the woods would be over $3.8 mils. Each of the defendants submitted a mitigation letter to court to show their remorse.

15.   The defence rely on the sentencing principle and reasoning in HKSAR v Xie Jinbin CACC 195/2010, and urged me to adopt the same starting point despite the quantity of Incense Trees involved is much more than that in the present case and that the defendant entered into Hong Kong illegally.  The defence submitted that the quantity found on the defendant is a matter of chance, what the law seeks to achieve is protection of our endangered flora, thus the quantity should not be the primary consideration. Further the defence urged the court to take into account of the totality principle and have the sentence of illegal remaining partly concurrent with the theft charge. 

Sentencing

16.  In HKSAR v Wen Zelang CACC 220/2006, the appellant together with three other defendants entered Hong Kong on 19 March 2006 as visitor.  They came with woodchoppers for the purpose of finding incense trees so that the wood they cut from such trees could be sold in the Mainland. On 24 March, they were discovered to be carrying wooden blocks weighing 5.6 kg., which had been cut from a large and mature incense tree on 20 March. The sentencing judge adopted a starting point of 3 years’ imprisonment for all of them, allowing all the usual 1/3 discount for their pleas, and then, upon the prosecution’s application, enhanced the sentence by 25% under section 27 of the Organized and Serious Crimes Ordinance, Cap.455 by reason of the prevalence of the offence to bring the sentence to 30 months’ imprisonment. The court of Appeal stated that

“ …. the judge was right to have taken a serious view of the offence when the defendants had expressly come to Hong Kong for the purpose of cutting endangered trees for profit.

A clear and strong message is needed to deter Mainland people from coming to Hong Kong to cut endangered trees, be they Buddist Pines or incense trees. In our view, neither the three-year starting point nor the 25% enhancement for prevalence of the offence under OSCO is manifestly excessive.”

The sentence of the appellant in that case was reduced because of his special circumstance being 17 years at time of offence and one of the defendant is his paternal uncle, who had assumed a de facto parental role towards the appellant from a time when he was very young and the court was entitled to assume the uncle may have exercised considerable influence over the appellant when the appellant decided to embark upon this criminal enterprise.

17.  In HKSAR v Xie Jinbin CACC 195/2010, on 29 March 2010 the appellant together with 3 other males was found cutting tree and packing the blocks into their rucksacks at a hillside.  When the police approached, all of them fled.  Later the appellant and other 2 were intercepted and arrested; tools and blocks of incense tree were found on all three.  The total of all blocks of incense tree was 1.181 kg.  All the three entered Hong Kong on 27 March 2010 with two way permits and were granted leave to stay for 7 days.  The conservation officer who examined the wood opined that illegal exploitations of incense tree would threaten the natural survival of the native plant.   The sentencing judge after considering HKSAR v Wen Zelang adopted a starting point of 3 years, reduced to 2 years on account of the guilty plea, then enhanced the sentence by 25% upon the application of the prosecution pursuant to section 27(2) of OSCO.  Though only 1.181 kg of wood was found, the sentence was approved by the court of appeal.  The court of appeal dismissing the appeal stated that:

“While the quantity of stolen goods in a case of theft is usually an important factor in determining the appropriate sentence, it is not necessarily the only and determinative factor. … where the stolen property involved is a protected endangered species, the considerations are wholly different. The end which the law seeks to achieve is protection of our endangered flora. Thus, the evil which the law seeks to prevent is not theft as such but injury to the protected flora.

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… 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. The Applicant and three others come to Hong Kong in a joint enterprise with the intention to exploit our endangered flora for profit. They equipped themselves with a knife, hoe and saw. They acted as a group. The offence was clearly premeditated. The four of them were seen cutting the tree and packing the blocks into their rucksacks, though only three of them were arrested. The offence is one which calls for deterrence.”

18.  In the present case, the defendants together with the other 2 escaped males equipped themselves with tools suitable or tailor-made for harvesting Incense Tree.  They came to Hong Kong in a joint enterprise with the intention to exploit our endangered flora for profit.  The offence was clearly premeditated. The total quantity involved is 44.8kg, which is exactly 8 times of that found in the case of Wen Zelang.  Althoughthe end which the law seeks to achieve is protection of our endangered flora, where the quantity involved is significant, proper consideration should be given to that.  I consider the appropriate starting point for the theft charge to be 3.5 years’ imprisonment.   

19.  The defendants entitled to 1/3 discount for their pleas respectively, the sentence is thus reduced to 28 months.  For D2 he is the youngest one, he was born on 15 July 1993, and was 19 at time of the offence, all the defendants come from the same village, I am entitle to assume the defendants may have exercised considerable influence over the D2, taking all these into account, I consider it is appropriate to reduce his sentence on the theft charge by 4 months down to 24 months.  For the other 2 defendants I do not consider there is any mitigating factor that called for further deduction.

20.  The prosecution applies for enhancement of sentence of the theft charge pursuant to section 27(2) of the Organized and Serious Crimes Ordinance, Cap.455 on the ground that the nature and extent of any harm, whether direct or indirect, caused to the community by recent occurrence of this specified offence.  The notice of the application was duly served to the defendants.

21.  In support of the application, the prosecution submits the statement of Mr Pang Kuen-shum, the conservation officer of the Agriculture Fisheries and Conservation Department dated 8 September 2013.  The defence did not object to the application and did not take issue of the content of the statement, and conceded the prosecution has made out her ground.

22.  Mr Pang stated that from the point of view of flora conservation in Hong Kong, as those populations in other parts of China are reportedly over-exploited and depleted, the local populations of Aquilaria sinensis represent likely some of the remaining healthy populations in China. The plant communities to which local populations of Aquilaria sinensis belong (lowland broadleaved forests and fung shui woods) have been well-preserved by both former villagers and local legislations, and are considered of conservation value. Most illegal exploitations of the species involve the use of unsustainable method of harvesting, which caused undesirable impact to the survival of Aquilaria sinensis, particularly the larger individuals.  And he is of the view that the illegal exploitations would threaten the natural survival of the native plant Aquilaria sinensis.

23.  After consideration, I am satisfied beyond reasonable doubt that the ground for enhancement is made out.

24.  Taking into account of all the circumstances, I considered that the sentence should be enhanced by 25%. Consequently, the sentence on the theft charge becomes 35 months for D1 and D3 and 30 months for D2. 

25.  For illegal remaining in Hong Kong, I refer to the tariff in So Man-king [1989] 1 HKLR 142, and I consider that nothing in their mitigation called for departure from the tariff. Upon their own plea they are sentenced to 15 months’ imprisonment for their respective illegal remaining charge. 

26.  The theft and the illegal remaining charges were separate offences, and part of the sentences should be served consecutively. Having considered the totality principle, I order 3 months of the sentence imposed on the illegal remaining charge to be served consecutively with that of the first charge, making a total sentence of 38 months’ imprisonment in case of D1 and D3 and 33 months’ imprisonment in case of D2.

Order

D1

Charge 1 sentenced to 35 months imprisonment;

Charge 2 sentenced to 15 months imprisonment, 3 months of which be served consecutively with charge 1;

making a total of 38 months imprisonment.

D2

Charge 1 sentenced to 30 months imprisonment;

Charge 3 sentenced to 15 months imprisonment, 3 months of which be served consecutively with charge 1;

making a total of 33 months imprisonment.

D3

Charge 1 sentenced to 35 months imprisonment;

Charge 4 sentenced to 15 months imprisonment, 3 months of which be served consecutively with charge 1;

making a total of 38 months imprisonment.