HKSAR v. CHEN Xizhi AND 2 OTHERS

DCCC 436/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 436 OF 2011

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Reasons for Sentence

1.  D1-D3 appeared before me and pleaded guilty to a single charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210.  The subject matter of the charge are 22 pieces of Aquilaria Sinensis wood commonly known as “Incense tree”.

The facts

2.  The three Defendants are mainlanders who came to Hong Kong on two way permits on 26 February 2011 and were permitted to stay for 7 days.  On the next day of their arrival in Hong Kong, they were intercepted by two police officers outside Hung Shing Weh Police Post at Lamma Island.  Upon searching, 22 blocks of wood with the total weight of 300 grammes were found from D1’s rucksack.  A hoe, a chopper and a saw were found from D2’s rucksack.  Two v-hoes, two knife grindstones and a saw sharpener were found in D3’s rucksack.  Under caution, D1 admitted that the blocks of woods had been chopped down from an incense tree by a hillside at the Lamma Island.  D2 admitted that they had used the hoe, chopper and saw to cleave the trees while D3 admitted using the grindstones and sharpener to sharpen the tools.  The woodblocks were subsequently examined by Mr. Pang, a conservation officer of the Agriculture Fisheries and Conservation Department and found to have been taken from the species “Aquilaria  Sinensis”, also known as “incense tree”.  He opined that the natural survival of the incense tree would threaten the natural survival of the native plant.

The records and backgrounds of the Defendants

3.  In this case, all the three Defendants have clear records in Hong Kong.  They range in age from 47 to 58 and all three of them are farmers with primary education level only.  Through their lawyer, they have expressed their remorse and explained that they did not commit the offence for profits but for making pain killing medicine for self consumption.  They said they were not aware of the consequences of their acts and they had no idea that it was illegal for them to cut the endangered trees here in Hong Kong.  They recognized that an imprisonment term would be inevitable but asked the court to be lenient so they can have an earlier return to their family members in the Mainland.

Sentencing Consideration

4.  In sentencing, I have considered the recent case of HKSAR v. Xie Jinbin CACC 195/2010 which was relied by both prosecution and defence.  There, the Court of Appeal was dealing with appeal of sentence from a Mainlander, who together with two other counterparts, also two-way permit holders from the Mainland, stole wood blocks of incense tree of a total weight of 1.181 kilogram and they affirmed the decision of the lower court to adopt the 3 year as starting point and the 25 per cent enhancement for prevalence of the offence under the Organized and Serious Crimes Ordinance (“OSCO”).  In explaining this decision, the Court of Appeal has expressed in the following terms: 

23.     The learned judge was fully aware that the Applicant was found in possession of 0.677 kilogram of wood only. Though only 1.181 kilogram of wood was recovered from the Applicant and the co-defendants, the quantity does not reflect the actual injury caused to the tree and the seriousness of the offence. 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 came 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. Weight is therefore 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. Having regard to the purpose of the Ordinance and the need for deterrence, we consider the starting point appropriate. The sentence might be on the high side in view of the quantity of wood stolen, but is not one which may be regarded as manifestly excessive as to justify interference.” (Emphasis added)

5.  In HKSAR v. Wen Zelang [2006] 4 HKLRD 460, another case dealing with Mainlanders cutting incense trees, The Court of Appeal referred  to Hong Kong’s international obligation under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (the “Convention”).  In delivering the judgment, Yeung JA said:

“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.”

6.  It should be noted that in Wen Zelang (supra.), the appellant and three others were intercepted on a bus in Lantau Island during an identity card check.  They were found in possession of 5.6 kilogram of wood blocks from incense trees.

7.  In my view, the facts of the present case are exactly on all fours with the authorities cited above.  Over the past years, there had been numerous attempts by peoples from the Mainland who were driven by profits, came to Hong Kong, either legally or even illegally, cut the endangered wood blocks from our plants in the territory causing irreparable damages to our environment.  The Court of Appeal has clearly expressed its view that a deterrent sentence is necessary for this type of offence.  I reject the mitigation put forward on behalf of the defendants that they did not extract the woods for profits but for personal use.  In my view, these are only convenient excuses and should not be accepted lightly.  In any event, their ignorance of the laws in Hong Kong, even if it is true, cannot be an effective mitigation.  Powerful message must be sent to their friends and relatives in the Mainland that people like these three defendants would be dealt with severely by the court in Hong Kong. 

8.  My only concern is the relatively small quantity of wood found in the present case, only 300 grammes (i.e. 0.3 kilogram) as compared to 1.181 kilogram found in the Xie Jinbin case and even 5.6 kilogram found in Wen Zelang case.  As mentioned above , when I quoted the judgment in Xie Jinbin at para.23, the Court of Appeal clearly recognized however, that:-

“the sentence might be on the high side in view of the quantity of the wood stolen.”

9.  Mr. Mak, counsel of the three defendants also properly referred me to para.17 of the same judgment which says that:-

“A starting point of three years for case of extraction of wood from an incense tree by mainlanders could not be faulted. We do emphasis that the starting point is not meant to be a strait-jacket.”

10.  Having said that, I still have to bear in mind what the Court of Appeal had said in para.20 of the judgment that:-

“…… the prime considerations in this type of cases are protection of the endangered species and deterrence. The weight of the wood blocks stolen is not determinative of the sentence. The factors to be considered are the injury done to the tree, the profit motive, the manner of commission and the gravity of the offence.”

11.  Therefore, while there might be a need to reduce the starting point of the sentence in this case from the usual 3 years, the extent of the reduction on account of the relatively small quantity of the wood blocks should not be proportional to the deduction in weight when compared with the other two cases cited.  In my view, the starting point of the present case should still be at least 2½ years in any event in order to properly reflect the gravity of the case.  Otherwise, the sentence would lose its deterrent effect and the legislative intent to protect our endangered trees could not be achieved.

12.  There being no special circumstances, the only mitigation is their pleas of guilty for which they would receive the customary one-third discount.  The sentence is therefore reduced to 20 months.  Finally, upon the application of the prosecution pursuant to section 27(2) of the OSCO, Cap. 455 to enhance the sentence to which the defence has no objection, I decided to follow the authorities and enhance the sentence by 25%, making a total term of imprisonment of 25 months for each Defendant.