HKSAR v. HE FUXIN AND OTHERS

DCCC 1089/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1089 OF 2013

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REASONS FOR SENTENCE

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1.  All 3 defendants pleaded guilty to an offence of "Theft". They stole Aquilaria sinensis wood (commonly known as "incense tree").

Summary of Facts

2.  D1 entered Hong Kong on 3 October 2013.  D2 and D3 entered Hong Kong via Lo Wu Terminal on 4 October only 4 minutes apart.

3.  About 11:45 am on 7 October, police officers saw D1 to D3 near a slope at Fung Yuen Lo Wai in Tai Po.  They turned around and ran away when they noticed the police officers.  The officers gave chase and intercepted them for enquiries.  D1 to D3 each carried a rucksack.

4.  A plastic bag containing 4 pieces of woodchips and some wood dust (collectively E3) was found in D1's rucksack.  Under caution, D1 claimed that he picked up the woodchips and tried to burn them.  A pleasant smell was emitted.

5.  A machete (31 cm long) and 1 hoe (39 cm long) were found in D2's rucksack.  Under caution, D2 claimed that he was there hiking.  He remained silent when asked about the machete and the hoe.

6.  A hoe (38 cm long) was found in D3's rucksack.  Under caution, he claimed that he was there hiking and the items found did not belong to him.  He remained silent when asked about the hoe.

7.  E3 was divided into E3A (1 woodchip) and E3B (3 woodchips and some wood dust) by Mr. PANG, a Conservation Officer (Flora) of the Agriculture, Fisheries and Conservation Department.  Mr. PANG confirmed E3A to be of the species of Aquilaria sinensis.  E3B, on the other hand, could not be identified.  The weight of E3A was 0.23 kg and the estimated value was $9,200.

Mitigation & Sentence

8.  D1 is now 39 and has a clear record.  He comes from a farming family in the mainland.  He resides with his wife, 2 children (aged 11 and 5) and aged parents (who still work as farmers raising pigs and cows).  His counsel Ms. CHEUNG informed me that D1 left school at the age of 15 after completing Secondary 3.  He then started working as a cook.  D1 lost his job last year and has been unemployed since.  The budget is therefore very tight for his family.  D1's letter was placed before me; its contents are duly noted.

9.  D2 is now 44 and has a clear record.  He is married with 2 children (aged 12 and 8).  He also has an aged mother.  Both of his children are in school and his wife stays home.  His counsel Mr. FUNG informed me that D2 used to be a rice farmer but later switched to fish.  He is the sole bread winner of his family.  D2's letter was placed before me; its contents are duly noted.

10.  D3 is now 20 and has a clear record.  He is single but his fiancée is pregnant with an expected due date in April.  D3 resides with his grandparents, parents, 2 younger brothers (1 working and 1 in high school) and 1 younger sister (aged 7).  His counsel Mr. WONG informed me that D3 did not finish primary school and is virtually illiterate.  He worked as an electrician earning RMB700 per month.  D3's mother and grandmother both have health problems.  D3 came to Hong Kong to earn some money to fund their medical expenses and to purchase some things for his wedding.  Mr. WONG submitted that all 3 defendants are clansmen.  D3, being at a considerably younger age, he was influenced by D1 and D2 to commit the present offence. 

11.  The Prosecution has applied for enhanced sentence pursuant to section 27(2)(d) of the Organized and Serious Crimes Ordinance (Cap.455) on the basis of the nature and extent of harm caused to the community by recent occurrences of illegal harvesting of wild local incense trees.  A witness statement dated 20 November 2013 given by Conservation Officer Mr. PANG Kuen-shum of the Agriculture, Fisheries and Conversation Department was placed before me.  Mr. PANG is an expert in botany.

12.  All 3 defence counsel did not oppose the Prosecution's application for enhancement.

13.  Regarding the situation of Aquilaria sinensis in Hong Kong, Botany expert Mr. PANG commented that there is an increasing trend reflected by numerous recent reports that the species has been illegally exploited.  The trunks of many large and old trees are being cut or felled for extraction of agarwood to the extent that such trees are damaged and unlikely to recover.  In recent cases, smaller but mature trees were also subject to illegal harvesting.  Most illegal exploitations of the species involved the use of unsustainable method of harvesting, which caused undesirable impact on the survival of this native plant in the natural environment in Hong Kong.

14.  There is clear and cogent evidence before me that the unsustainable felling of incense trees has caused irreplaceable damage to the general natural feature and ecology of the natural forests in Hong Kong. Thus, I am satisfied that the nature and extent of harm caused to the community by illegal exploitations and unsustainable uses of Aquilaria sinensis warrant an enhanced sentence in the present case.  I grant the Prosecution's application for enhancement.  Given the fact that woodchips and tools were found on the defendants, I will enhance the sentence by 25%.

15.  Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) or having a sick family member is no mitigating factor for committing a crime.  The incense tree is a vulnerable and protected endangered species.  A clear and firm message is required to deter mainlanders from coming to Hong Kong, legally or illegally, for the specific purpose of exploiting protected and endangered flora for profit.

16.  Although not meant to be a straitjacket, the Court of Appeal in HKSAR v Xie Jinbin [2011] 2 HKLRD 631 held that a starting point of 3 years' imprisonment for the extraction of wood from incense trees by mainlanders could not be faulted.  Furthermore, the Court of Appeal held that the prime considerations in sentencing are protection and deterrence.  The evil which the law sought to prevent was not theft as such but injury to the protected flora, since restitution is impossible.  The focus, therefore, should be on the protection of the plant rather than the value of the plant or part stolen.  Weight is not the determining factor for sentencing nor is it a reliable indicator of the seriousness of the offence and the injury caused to the tree.  Other factors to be taken into consideration are injury done to the tree, profit motive, the manner of commission and the gravity of the offence.

17.  Regarding D3, I do not accept Mr. WONG's submission that he might have been lured into committing the offence.  D1 and D2 are only D3's clansmen.  I do not see how D1 and D2 would have had any authority or parental influence over D3 simply because he is younger than them.  In my view, the culpability of all 3 defendants is equal.

18.  In the present case, I will adopt a starting point of 3 years' imprisonment for each defendant. The usual one-third discount is given for the guilty plea, reducing the sentence to 2 years.  Apart from this, I see no other mitigating factors which warrant any further discount. With the 25% enhancement, the sentence is therefore 30 months.  D1 to D3 are each sentenced to 30 months' imprisonment.