HKSAR v. WEN ZELANG

CACC 220/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 220 OF 2006

(ON APPEAL FROM DCCC NO. 342 of 2006)

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REASONS  FOR  JUDGMENT

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Yeung JA (giving the reasons for judgment of the Court):

Introduction

1.  “Aquilaria Sinensis”, a species of “Aquilaria” commonly known as “incense tree”, grows chiefly in South China including parts of Hong Kong.  It is also a “fung shui” tree and is therefore sometimes planted in “fung shui” woods in villages in the New Territories.

2.  The fragrance of incense tree wood makes it an ideal material for the making of joss sticks and the resin it produces (known as “Chen Xiang”) is a valuable Chinese herbal medicine.

3.  The heavy demand for incense tree wood leads to its over-exploitation and it is under the threat of extinction.

4.  Since January 2005, the Convention on International Trade in Endangered Species of Wild Fauna and Flora has restricted the import and export of wood from incense trees.

5.  In Hong Kong, the Protection of Endangered Species of Animals and Plants Ordinance, Cap. 586, gazetted on 10 March 2006, imposes a restriction on the export of all “Aquilaria”species although the ordinance has not yet come into operation.  The “List of Wild Plants under State Protection” in the Mainland also includes the incense tree in the categories listed for protection.

6.  There have been many recent reported cases of illegal exploitation of incense trees in Hong Kong.  The trunks of many large and old trees were cut or felled, causing irreparable damage to those trees and threatening the natural survival of the species.

The Offence and Sentence

7.  On 24 March 2006, the appellant, Wen Zelang, together with three other defendants, including his uncle, Wen Yajia, were travelling on a bus on Lantau Island when an identity check was carried out.  It was then that they were discovered to be carrying wooden blocks weighing 5.6 kgs which had been taken from an incense tree.

8.  The appellant and the other defendants were two-way permit visitors.  They came to Hong Kong on 19 March 2006 with woodchoppers for the purpose of finding incense trees so that the wood they cut from such trees could be sold in the Mainland.  The blocks of wood found in the defendants’ possession had been cut from a large and mature incense tree on 20 March 2006.

9.  The defendants had intended to look for more incense trees, but were unsuccessful.  At the time of their arrest, they were about to return to the Mainland.

10.  The defendants were charged with theft of the incense tree wood blocks.  They pleaded guilty before Deputy Judge Wesley Wong in the District Court and each of them was sentenced to 30 months’ imprisonment.

11.  The judge did not distinguish the appellant from the other defendants and adopted a starting point of three years’ imprisonment for all of them.  The judge reduced the starting point by one-third to two years on account of their guilty pleas and then, on the prosecution’s application, enhanced the sentence by 25% under section 27 of the Organized and Serious Crimes Ordinance, Cap. 455 (“OSCO”) by reason of the prevalence of the offence to bring the sentence to 30 months’ imprisonment.

The Application

12.  The appellant applied for leave to appeal against sentence.  On 7 September 2006, we allowed his application.  Treating his application as the appeal proper, we allowed his appeal and reduced his sentence to 20 months’ imprisonment.  We indicated that we would hand down our reasons in writing and this we now do.

Grounds of Appeal

13.  Ms Munira Moosdeen, for the appellant, argued that both the starting point and the enhancement under OSCO were excessive.  Ms Moosdeen particularly emphasized that the appellant, who is 23 years younger than his uncle, must have been considerably influenced by Wen Yajia who had looked after him from an early stage in his life when his father died.

14.  Ms Moosdeen further suggested that the one-third discount was insufficient to reflect the appellant’s clear record.

Discussion

15.  In our opinion, 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.

16.  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 three-year starting point nor the 25% enhancement for prevalence of the offence under OSCO is manifestly excessive.

17.  Ms Moosdeen’s submission that because the appellant had “no previous conviction” the judge should not have taken the view that “no more than a one-third discount could be justified” was also, in our view, without merit.

18.  This court has said on numerous occasions that the discount of one-third for those who plead guilty at an appropriate time is usually the full extent of the discount to be given.  In HKSAR v Leung Shuk-man [2002] 3 HKC 424, it was stated (at pages 426 to 427):

“… the appellant was given a one-third discount which is normally to be regarded as the high watermark of the discount accorded to a defendant showing remorse by pleading guilty, whether or not a defendant is able to claim previous ‘good character’ in the sense of ‘clear record’.  Positive good character may well entitle a defendant to a slightly enhanced discount such as in the example of an offender who has worked without payment for a charitable cause within the community.  This appellant was entitled to no more than a one-third discount for her plea.”

Similar sentiments were expressed in HKSAR v Lee Kwok-chuen CACC 445/2000.

19.  The situations where positive good character may enable a defendant to receive a slightly higher discount are limited to situations of the kind we have set out in the passage cited from Leung Shuk-man.  There are, of course, other mitigating circumstances which will also lead to an increased discount.  These include, most notably, the voluntary repayment of ill-gotten gains in circumstances where these might not otherwise have been recovered and the provision by an offender of useful information to the authorities which may or may not include testifying against others, but this list is by no means exhaustive.

20.  We note that in two recent magistracy appeals the guidance we have given in earlier decisions in regard to the one-third discount has unfortunately not been followed.  The first of these cases was HKSAR v David Vilma V HCMA 11/2003 where the judge, when allowing the appeal on a number of grounds, said:

“14. In my view also the magistrate was entitled to allow a further small discount to reflect the fact that the appellant was of previous good character.  Accordingly the starting point of sentence of 12 months’ imprisonment in respect of each offence should be reduced to a sentence of seven months’ imprisonment.”

21.  In the second case, HKSAR v Wong Wai-man HCMA 615/2006, a different judge said:

“5. Additionally, there is another point on which I invited and have heard argument from both sides.  It is this.  In addition to saying that he took the Appellant’s guilty plea into account in his favour, the Magistrate said the same thing about the Appellant’s clear record and what he i.e. the Magistrate called the Appellant’s ‘honesty and co-operation upon being intercepted by police officers’.  But when giving the Appellant a reduction from the starting point of 9 months’ imprisonment which he adopted, the Magistrate only gave the one-third discount common for a guilty plea even on its own.  Indeed the Magistrate said in terms that the reduction was: ‘for the plea of guilty’.

6. The Appellant’s previous good character was not confined to a clear record.  On his behalf, it was said to the Magistrate without challenge by the prosecution, that the Appellant was in employment and had to look after his aged parents.

7. I am persuaded that the sentence must be reduced.  Indeed, Mr Cheng for the Respondent quite properly conceded that the sentence should be reduced on the ground that the Magistrate had failed to give a discount for the Appellant’s clear record.

8. All things considered, I adopt a starting point of 7 months’ imprisonment and give a reduction of 3 months to reflect not only the guilty plea but also the Appellant’s previous good character and immediate co-operation with the police.”

22.  The approach taken to ‘clear record’ in both these judgments was, with respect, erroneous.  The policy of giving the generous discount, set at one-third, to those who plead guilty, is designed to achieve equality in the approach taken by sentencers towards those who have to be punished by means of a custodial sentence for their crimes.  This applies as much to a person who has a clear record as to someone who has not, although an offender may receive an enhanced sentence (see: HKSAR v Chan Pui-chi [1999] 2 HKLRD 830) where an offence of the same or a similar kind has been repeated.  The fact that an offender has a clear record is in reality a neutral feature in the case.

23.  Some of the factors which may provide mitigation are set out in Sentencing in Hong Kong [4^th ed. at page 292].  Clearly, a judge or a magistrate does have, in appropriate circumstances, some discretion to increase the discount on a plea of guilty but there must be a solid foundation to justify this.

24.  In this case, our concern has been focused on the judge’s failure to differentiate between the appellant and the other defendants having regard to the particular situation in which he found himself.

25.  The appellant is seventeen years old whereas the other defendants are mature men in their thirties and forties.  This factor, in itself, is not a strong mitigating factor.  (See HKSAR v Yeung Wui and Ors [2005] 1 HKC 646 at p 660 F-G).  More importantly, Wen Yajia is the appellant’s paternal uncle.  He had assumed a de facto parental role towards the appellant from a time when he was very young.  We are, in these circumstances, entitled to assume that Wen Yajia may have exercised a considerable influence over the appellant when the appellant decided to embark upon this criminal enterprise.  For this reason, we were persuaded that the appellant’s culpability was less than that of the other defendants and, on this account, deserved a more lenient sentence.

26.  Mr Simon Tam, for the respondent, did not seek to argue otherwise.

27.  Accordingly, having regard to the special circumstances which prevailed in the appellant’s case, we considered that a starting point for him of two years’ imprisonment was appropriate.  The appellant’s guilty plea reduces the starting point by one-third to 16 months which we shall enhance for prevalence by 25%.  This additional four months, brings the sentence in the appellant’s case, to 20 months’ imprisonment.

Conclusion

28.  For the reasons we have given, the appellant’s sentence was reduced from 30 months to 20 months’ imprisonment.