HKSAR v. HE SONGLI AND OTHERS

DCCC 604/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 604 OF 2012

____________

________________________

REASONS FOR SENTENCE

________________________

1.  The defendants plead guilty to one charge of handling stolen goods, contrary to section 24(1)of the Theft Ordinance, Chapter 210.

2.  In summary on the 15th May this year the three defendants boarded a taxi in Shek Mun Kap village, Tung Chung and requested to go to Tung Chung MTR station.  The activities of two of the defendants attracted the attention of the village head, who called the police.

3.  The police intercepted the taxi and searched the rucksacks of each of the defendants. Inside each rucksack were woodchips of varying quantities, later found on examination to be “Chen Xiang” which is found on “Aquilaria sinensis” trees, better known as incense trees. 

4.  D1 admitted the woodchips came from incense trees and that he was just helping his two friends, whilst D2 and D3 both admitted the woodchips came from incense trees, which they had picked up nearby and would take back to the Mainland for medicinal purposes. 

5.  In passing sentence I have carefully considered everything said on behalf of the defendants by Mr Tang together with the mitigation letters of each defendant.  In mitigation Mr Tang said that the defendants did not come to Hong Kong for the specific purpose of committing crime, rather they came as tourists and whilst here were asked to collect the woodchips. 

6.  I do not accept D2 was only telephoned to collect the woodchips after he arrived in Hong Kong.  In a video interview D2 admitted that before coming to Hong Kong he was asked by a friend in Shenzen to go to Shek Mun Kap village and pick up a bag containing some woodchips from incense trees and bring the bag back to Shenzen in return for a $1,000 reward (see paragraph 10 of the admitted facts).

7.  D2 says he did not tell the truth to the police.  Before coming to Hong Kong D2 says he only knew he was to pick up something and learnt of the details of what to pick up after arriving in Hong Kong.  D2 having chosen not to give evidence to support this contention, I therefore proceed to sentence D2 on the basis he came to Hong Kong to commit the crime.

8.  The position is different for D1 and D3.  In their video interviews D1 and D3 say they were asked to help D2 on the day of arrest.  Whilst suspicious they knew from the outset there is no evidence before the court D1 and D3 did in fact know of the criminal enterprise prior to coming to Hong Kong.  I therefore proceed to sentence D1 and D3 on the basis they learnt of the criminal enterprise only after arriving in Hong Kong.

Endangered species

9.  Due to the fact that the trunks of many large and old trees of “Aquilaria sinensis” have been illegally cut or felled in an unsustainable fashion whereby the long-term survival of the species cannot be ensured, the trees have become rare in Hong Kong.  More recently relative smaller but mature trees have also been subject to illegal harvesting.  The “Aquilaria sinensis” being the dominant tree species in fung shui woods and other lowland forests, such deliberate felling and damage to the trees has caused irreplaceable damage to the general natural feature and ecology of the natural forests of Hong Kong (see paragraph 12 of the admitted facts as read with paragraph 3 of the statement of K.S. Pang, dated the 28th May 2012).  

10.  “Aquilaria sinensis” is a protected species.  The 2012 International Union for Conservation of Nature Red List of Threatened Plants lists the status of “Aquilaria sinensis” as vulnerable. In the Mainland the “Aquilaria sinensis” is a category II protected plant in the List of Wild Plants under State Protection.  Over exploitation in Guandong province has resulted in the species being a rare and threatened one (see paragraph 3 of the statement of K.S. Pang, dated the 13th August 2012).

11.  “Aquilaria” are also protected species in Hong Kong, listed as Appendix II species to Schedule 1 of the Protection of Endangered Species Ordinance, Chapter 586.  The ordinance was enacted to give effect in Hong Kong to the Convention on International Trade in Endangered Species of Wild Fauna and Flora.  The recent surge in illegal exploitation and unsustainable uses has threatened the survival of the trees in Hong Kong (again see paragraph 3 of the statement of K.S. Pang, dated the 13th August 2012).

12.  By reason of the endangered nature of “Aquilaria sinensis” the courts have repeatedly said that a clear and strong message is needed to deter Mainland people from coming to Hong Kong to cut or remove incense trees (see for example HKSAR v Xie Jinbin [2011] 2 HKLRD 631 and HKSAR v Wen Zelang [2006] 4 HKLRD 460).  In both these cases the Court of Appeal held that a 3 year starting point was appropriate for this type of offence, although in HKSAR v Wen Zelang a starting point of 2 years imprisonment was taken because of the special circumstances in the case, namely the defendant, who was only 17, acted under the influence of his uncle.

13.  Whilst accepting a 3 year starting point has been taken in other similar cases Mr Tang seeks to submit there are special circumstances in the present case to depart from a 3 year starting point.  The basis of this submission is that the defendants are all charged with handling stolen goods and not theft as in HKSAR v Xie Jinbin and HKSAR v Wen Zelang.  Further Mr Tang seeks to emphasise the defendants not only did not themselves cut the trees but were also not found with any equipment suggesting they were involved in the cutting of the trees.

14.  I am not aware of any cases where consideration has been given to the appropriate sentence for handling the wood of “Aquilaria sinensis”.  There are however cases in which starting points of 2 years imprisonment have said to be appropriate for handling Buddhist pines (see for example HKSAR v Wong Chi-kin CACC 357/2004; HKSAR v Ko King-hung CACC 410/2004 and HKSAR v Yeung Wui & others CACC 415/2004).  In HKSAR v Bu Hua Lai [2007] HKCLRT 688 (CACC 380/2006) a starting point of 2 years and 3 months imprisonment was held appropriate for handling 54 Buddhist pine trees. 

15.  All these cases were considered in HKSAR v Yeung Lap          CACC 385/2007 where the Court of Appeal said that whilst the 3 year starting point adopted by the trial judge, for handling 26 Buddhist pine trees, appeared to be excessive, emphasized that the starting point is not meant to be a strait jacket.  The Court of Appeal in considering totality of sentence by the defendant dismissed the appeal against sentence.

16.  Mr Tang submits the roles of the handlers in these cases are substantially different to the present case and thus the gravity of the offence committed by the defendants is far less serious (see paragraph 4 of Mr Tang’s written submission).  I disagree.  Whilst the cited cases involved uprooted trees taken to China on a boat, the intention in each case is to take the stolen trees or woodchips out of Hong Kong.  In my view the culpability of the handlers, in particular D2, is the same.  

17.  A distinction has however been drawn between Buddhist pines and incense trees, Buddhist pines not being a protected species under the Protection of Endangered Species Ordinance.  In HKSAR v Xie Jinbin the Court of Appeal said this explained the lower starting points adopted in Buddhist pine cases. 

18.  A 3 year starting point was approved in HKSAR v Xie Jinbin for theft of an incense tree wood block weighing 0.677 kg.  I note a total of 1.181 kg of wood blocks was seized in that case and that the trial judge had taken the same starting point in respect of all defendants.  The Court of Appeal however emphasised that the weight of the wood was not determinative of sentence but the focus should be on the protection of endangered flora (see paragraph 16).

19.  The total amount of woodchips in the present case is 2.10kg, with varying weights found in the rucksack of each defendant.  In my view there being no evidence that the defendants were the ones who actually cut the trees and no equipment was found in their possession suitable for cutting trees, a distinction should be drawn between the thief and the handler, albeit both play essential roles in the criminal enterprise of taking the trees or wood from the trees out of Hong Kong.

20.  A slightly lower starting point is therefore appropriate and in the case of D1 and D3 a slightly lower starting point than D2 is appropriate to reflect they did not come to Hong Kong with prior knowledge of the criminal enterprise.  I am satisfied in the case of D2 the appropriate starting point is one of 2 years and 9 months imprisonment and in the case of D1 and D3 a starting point of 2 years and 6 months imprisonment.  Giving the defendants full credit for their pleas of guilty reduces the sentences to 1 year and 10 months and 1 year and 8 months respectively.

21.  Mr Tang also submits further credit should be given to the defendants for admitting the trees came from the Hong Kong wild and that they knew they were stolen goods (see paragraph 13 of the admitted facts).  Without these admissions Mr Tang says the prosecution could not have proved the woodchips were property belonging to another and were stolen goods.  This submission is also repeated today in Mr Tang’s written submission (see paragraph 7).

22.  I disagree.  Similar arguments were rejected in HKSAR v Bu Hua Lai.  In my view the woodchips being woodchips exhibiting the same characteristics and texture of that being found on the bark of local species (see paragraph 2 of the statement of K.S. Pang, dated the 28th May 2012) the only inference to draw is they were from Hong Kong trees and therefore property belonging to another, whether the Hong Kong Government or a private owner.  The alternative that the woodchips had been brought into Hong Kong and left for someone to collect was inherently improbable.   

23.  Albeit day time, the defendants were asked to collect woodchips from incense trees.  As was said in HKSAR v Bu Hua Lai, in respect of Buddhist pines, it is widely known that there is a huge demand for the wood of these trees in the Mainland and that a lot of Mainlanders have illegally come to Hong Kong to cut the trees.  The same observations equally apply to incense trees. 

24.  All the defendants knew what they were collecting came from incense trees and were doing this for reward, albeit a small reward.  This coupled with the fact the woodchips were found hidden at a gap in some rocks in Shek Mun Kap, the only inference to draw is the defendants each knew the woodchips were stolen property.

25.  I am satisfied even without the admission in paragraph 23 the only inference to draw is that the woodchips were property belonging to another and were stolen property and therefore the defendants are not entitled to further discount over and above the usual one-third for pleading guilty.  Further I do not accept the defendants were in pleading guilty willing to admit elements of the offence which the prosecution could not otherwise prove.

Enhancement of sentence

26.  The prosecution apply for enhancement of sentence pursuant to section 27(2) of the Organized and Serious Crimes Ordinance by reason of the nature and extent of any harm, whether direct or indirect, caused to the community by recent occurrences of the offence.

27.  In support of the application the prosecution submit the two statements of K.S. Pang, dated the 28th May and the 13th August 2012. The statements clearly show, as noted earlier, that the recent surge in illegal exploitation and unsustainable uses has threatened the survival of the trees in Hong Kong.

28.  There has been no objection to the admission in evidence of these statements or the conclusions of K.S. Pang.  Mr Tang, however, objects to enhancement on the sole ground that the defendants were not the ones who cut down the trees and therefore caused any harm. 

29.  A similar argument that enhancement should apply to the thief who causes the actual damage to the environment and not an intermediate handler was made in HKSAR v Wong Chi-kin CACC 357/2004.  The Court of Appeal in upholding enhancement of 35% said that the importance of the deliveryman in the chain cannot be overlooked, for without him, the receiver would not be able to receive the stolen goods. 

30.  Whilst I have drawn a distinction in their roles with that of the thief, the fact remains that without the assistance of the defendants the criminal enterprise may not have been realised. On the evidence of       K.S. Pang, which I accept, I am satisfied beyond reasonable doubt the application for enhancement is made out.

31.  Whilst the Buddhist pine cases have upheld enhancement of 35% it can be seen from the recent cases of theft of incense trees enhancement of only 25% has been made (see HKSAR v Xie Jinbin and HKSAR v Wen Zelang).  In the circumstances of the present case I am satisfied that an enhancement of 5 months imprisonment is appropriate, which in the case of D2 is just less than 25%.

32.  D2 is convicted and sentenced to 2 years and 3 months imprisonment and D1 and D3 are each convicted and sentenced to 2 years and 1 month imprisonment.