HKSAR v. LIU YAWU

DCCC854/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 854 OF 2012

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Reasons for Sentence

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1.  You have pleaded guilty to one offence of attempted theft, contrary to section 9 of the Theft Ordinance, Cap.210, and section 159G of the Crimes Ordinance, Cap.200.

2.  You admitted the brief facts and I convicted you.

3.  What happened is as follows.  PW1, a villager, saw two unknown males acting as if they were cutting trees with tools outside No. 47 Tan Chuk Hang Tsuen, Sha Tau Kok Road, Fanling, at about 11 am on 6 August of this year.  Acting very properly as a good citizen should he reported the matter to the police.  One male wore a white T-shirt and the other a green.

4.  PC6531, PW2, arrived at the scene at about 11.15 am.  PW1 led him to the vicinity of the scene to search but failed to locate anyone and then left.  Shortly afterwards PW1 saw them again, and again to his credit, he called the police.  PW2 attended with two other officers.

5.  At about 12.45 pm they located the males and PW2 intercepted you and you were wearing a green T-shirt.  Unfortunately, the other male in the white T-shirt escaped.  PW2 arrested you and, under caution, you said that you acted as a lookout for the other male who did the chopping of the trees. 

6.  You then took the officers to a tree which was surrounded by woodchips on the ground.  Fresh cuts could be seen to that tree and you confirmed it was the one.

7.  Interviewed later under caution you said, inter alia, the following:

(a) That you were from Maoming, Guangdong, and speak Cantonese.

(b) You came with the wanted person in the afternoon of 4 August 2012 to Hong Kong.

(c) You gave the wanted person’s name.

(d) That you came to travel and to look for incense trees, you acted together.

(e) you knew that you needed money for your family and you knew the tree could be resold.

(f) It was the wanted person who led you to the scene.

8.  Woodchips were seized from the tree, weighed and confirmed to be of the species Aquilaria Sinensis, that is Incense Tree.  Those chips weighed some 3.95 kilograms and the estimated value was in the order of $39,400.

9.  Aquilaria Sinensis, Incense Tree, is a protected endangered species.  It is the only species known to be able to produce Chen Xiang in Hong Kong.  Illegally cut or felled in an unsustainable fashion for mass extraction of timber the trees are dead or damaged and unable to recover. The long-term survival of the species cannot be ensured.  Deliberate felling and damage jeopardises the normal ecological relationship of the organisms in the woodlands.  The unsustainable felling of the species causes irreplaceable damage to the general natural features and ecology of the natural forest and great loss to our community.

10.  You are a man of clear record in Hong Kong. 

11.  Prior to mitigation, Miss Poon made an application for an enhancement of sentence under section 27(2) ground (d) of the Organised and Serious Crimes Ordinance, Cap.455.  This is a specified offence and the ground related to the extent of the harm and damage to the community by recent occurrences of this specified offence.

12.  At this point, Mr Tang very fairly on your behalf indicated that the defence did not oppose the application.  The defence neither opposed the fact of the specified offence nor the grounds for enhancement of sentence.

13.  The witness summons of Mr Pang Kuen-shun was read into evidence, and again it was indicated by Mr Tang that this was not opposed by the defence.  I accepted that statement as being true, correct and providing the grounds for enhancement.

14.  On your behalf, Mr Tang entered mitigation.  He told me that you are married and you now have two children, one recently born, that you accepted the contents of the antecedent statement.  That tells me that in the Mainland you are employed as a factory worker and driver.

15.  Turning to the offence itself, Mr Tang submitted that there was nothing to connect you to the almost 4 kilograms of woodchips seized from the scene; that you took no part in the chopping of the tree; also, that on arrest you were not in possession of either tools nor any timber. Further, that when one examined the evidence, it was very sparse against you in terms of identification, that at the time you were wearing a hood and the only distinguishing feature appears to have been your green T-shirt.  However, you had resolved this matter yourself by admitting to the police that you had taken part in the offence as a lookout.

16.  Mr Tang read out the gist of a letter written by you to court.  Whilst I do not intend to dwell on its contents, I have taken note of what you said.

17.  In terms of sentencing precedents, the prosecution provided me with three sentencing authorities and Mr Tang provided me with one, which was in fact a decision of myself.  That case had involved two offences and I had found an appropriate enhancement to be 25 per cent.  In the end, a total sentence of 20 months was imposed.  That was the case of HKSAR v Yang Jianzeng, Criminal Case No. 425 of 2011 in the District Court. However, one feature that I do note from that case is that in that case the defendant was alone.

18.  Finally, Mr Tang asked for leniency on your behalf and suggested that the tariff which is normally a starting point of 3 years would not be appropriate in this case given the particular facts.

19.  I turn now to the sentence.

20.  Whilst it is of little relevance or assistance I do note that you are of clear record in Hong Kong.  I do accept that it is difficult or even impossible to quantify the amount of timber involved in this case.  What is clear is that damage was done to the tree.  This is clear from the recent axe marks to the tree itself and woodchips were found in the vicinity of the tree. 

21.  It is also clear to me that an aggravating feature in this case is that you were acting in concert with another man. Also, that this is an attempted theft and the only reason it is incomplete is because of the vigilance and proper actions of PW1, who is to be commended for those acts.  In your favour, I do note your co-operation with the police upon arrest, your making full admissions and taking the police to the tree itself. Your admission was to the effect that you acted as a lookout for the wanted person who has never been arrested.  In that regard, in my opinion, the act of acting as lookout is just as serious as the person wielding the axe.  You played a full and integral part in this offence.

22.  I turn now to the sentence itself.

23.  Given the facts that I have found, I do find that a starting point of 27 months in this case is appropriate.  That will be reduced to 18 months for your plea of guilty. 

24.  I do find that the prosecution have established the grounds for enhancement under the OSCO, and that is not opposed by your counsel.  All essential elements have been established.  I intend to follow the precedents in this case.  The proper enhancement is, in my opinion, 25 per cent.  Therefore, you will go to prison for 22 and a half months.

25.  Finally, I would like to thank Miss Poon and Mr Tang for their assistance in this case.