HKSAR v. HEUNG YIU SUM

DCCC 507/2024

[2024] HKDC 1944

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 507 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant is convicted of a charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210, on his own plea and agreement to the Summary of Facts.

Facts

2.  On 12 October 2023, an ambush operation was mounted near lamppost VA5489, Shan Ha Tsuen, Long Hon Road, Yuen Long, New Territories (“Location”)  under a search warrant. The defendant was located inside the Location.

3.  Incense tree wood logs, total weight of 81.2 kg, were seized from the Location.

4.  Two handsaws (around 86 cm and 68 cm in length respectively), two axes (around 38 cm and 40 cm in length respectively), and one padlock of a hut were seized from hut No 3 within the Location.

5.  The defendant’s mobile phone was also seized, and within which were photos of incense trees, some with the defendant.

6.  The defendant was arrested for the offence of “conspiracy to steal” (incense tree). Under caution, he admitted committing the offence himself and has nothing to do with his family. In the cautioned video-recorded interview conducted with the defendant:

(a)  The defendant stated that five metal huts in the Location were used for storage of tools and incense trees, and only he had the keys to the five metal huts.

(b)  He admitted he poached the incense trees alone in June 2023 as he knew those trees were valuable, and he carried the trees home. He said the purpose of poaching the incense trees was to make money, but he has not sold any until his arrest. He stored the trees in the Location until they could be sold, and during that time, he would process the trees when no one was at home.

(c)  He confirmed photos of the seized incense trees found in the Location were the incense trees poached by him in June 2023.

7.  According to Mr Tsang, Conservation Officer (Technical Services)  of Agriculture, Fisheries and Conservation Department (“AFCD”), the wood plates/‌wood blocks/‌wood chips with total weight of 81.2 kg seized from the Location were identified as Aquilaria sinensis. Total estimated value of the seized agarwood is HK$1,067,500.

Criminal record

8.  The defendant has a clear record.

Mitigation

9.  The defendant was born in Mainland. He is now aged 39. He studied up to Primary 6 in Mainland before he moved to Hong Kong in 2002, and since then he resided with his family in one of the huts at the Location. He had been working as a decoration worker/ contractor.

10.  He is married. His mother, his brother and sister-in-law all live in the Location. The defendant and his wife would take care of the daily needs of his mother. He also assisted in the farming conducted by his mother.

11.  It is said that financially, he has been adversely affected by COVID as there was little or no decoration works available. He knew incense trees were valuable and intended to sell them to ease the financial hardship of the family. He therefore took the tools kept for farming purpose to poach the incense trees.

12.  It is said that he committed the offence out of stupidity, and not only that he could not resolve the financial problems of his family, but he has caused his family to suffer. He felt so shameful. His wife has to go out and work to support the family.

13.  It is said that there is little or no sophisticated planning in the commission of the offence, and that the commission of offence was out of character of the defendant. It is said also that the defendant is genuinely remorseful for what he has done. He has learned a harsh lesson and he would not reoffend.

14.  Defence counsel submitted 3 letters in mitigation from district councillor, the defendant’s mother and his wife. They all said that the defendant had worked hard to support the family financially. He is a filial son and a responsible husband. They urged this court for leniency.

15.  As for the enhancement of sentence, defence counsel submitted that there is no evidence to satisfy the requirements as far as the prevalence of specified offence is concerned. He also referred this court to a case HKSAR v Xie Jiangwu (transliteration), DCCC 144/2024, where there was no application by prosecution to enhance the sentence.

16.  Defence counsel also referred this court to a number of cases, including:

(a)  HKSAR v Wen Zelang [2006] 4 HKLRD 460;

(b)  HKSAR v Xie Jinbin [2011] 2 HKLRD 631;

(c)  HKSAR v Wang Quanwen, CACC 263/2014;

(d)  HKSAR v Ling Ruiyong and Others, DCCC 368/2016;

(e)  HKSAR v Xie Zhiyang (transliteration), DCCC 708/2023; and

(f)  HKSAR v Ou Yawei and Another (transliteration), DCCC 906/2023.

17.  Defence counsel submitted that in the cases of Wen Zelang and Xie Jinbin, and the recent sentencing in District Court, those appellants or defendants facing similar charges were all two way permit holders committing the offence in Hong Kong with others in a joint enterprise, while the defendant here is a local resident acting on his own.

18.  Defence counsel urged this court to consider a starting point of less than 3 years. She also urged this court not to enhance the sentence of the defendant, and in any event, if the court is minded to enhance the sentence, the enhancement should be lower than 25%.

Discussion

19.  Any person convicted of this charge upon indictment is liable to 10 years’ imprisonment.

20.  Before sentencing, this court has carefully considered mitigation by defence counsel, authority cited, and mitigation letters lodged.

21.  In order to decide the appropriate sentence starting point for this theft offence, it is necessary for the court to assess its gravity.

22.  In this case, the theft item is 81.2 kg of wood plates/‌wood block/‌wood chips of Aquilaria sinensis. The quantity is substantial. This court noted also that the defendant set aside at least one hut and one storage room for the storage of tools used in cutting the trees from its habitat, processing the wood after he obtained it, and for storing them, awaiting disposal, probably sales. He had also taken photos of trees, not yet cut, possibly for display to prospective buyer.

23.  The estimated value of the wood in question is HK$1,067,500.

24.  All the above makes this case a more serious category of  Aquilaria sinensis case.

25.  The defendant is not a mainlander who visited Hong Kong to commit a crime. He is in fact more equipped and better facilitated to commit a crime. As what we see from the photos, he placed the wood in open courtyard, in storage room, and in at least one of the huts. The court consider the operation of the defendant a well-planned and more sizable one.

26.  Defence counsel submitted that the defendant committed offence alone and without knowledge of the others, including family members. This is difficult for one to accept that the defendant could cut the trees, transport them back to the hut on his own, placing them in open sight of others in the courtyard without the help and/or knowledge of the others. However, for the purpose of sentencing, the court will sentence him on the basis, in his benefit, as if he committed the offence on his own.

27.  As said in HKSAR v Wan Zelang, these incense trees were under threat of extinction, a clear and strong message was needed to deter mainland people from coming to Hong Kong to cut endangered trees. The Court of Appeal endorsed a 3-year sentencing starting point for the offence in that case. The defendant in that case was a two-way permit holder who committed the offence with three others, and the wooden blocks from the incense tree weighed 5.6 kg.

28.  In HKSAR v Xie Jinbin, the Court of Appeal took the view that in sentencing of these cases, the prime considerations were for the protection and deterrence. The evil which law sought to prevent was not theft as such, but injury to the protected flora, since restoration was impossible. The focus should be on the protection of the plant rather than the value of the plant or the parts stolen. The factors to be taken into consideration are the injury done to the tree, profit motive, the manner of commission, and the gravity of the offence.

29.  Defendant there, again, a two-way permit holder, and committed the offence with three others. They were found with wooden blocks weighing 1.181 kg, a saw, an iron hoe, and a knife. Sentencing starting point of 3 years’ imprisonment was adopted. The same was enhanced by 25% under section 27(2)  of the Organised and Serious Crimes Ordinance, Cap 455. Court of Appeal endorsed the sentence passed.

30.  In the present case, the court will adopt a sentencing starting point of 3 years and 3 months’ imprisonment.

31.  The defendant has pleaded guilty and is therefore entitled to full one-third sentencing discount. The fact that he has a clear record will not further warrant discount by reason that the same as been subsumed in the one-third sentencing discount.

Enhancement of sentence

32.  Prosecution applied for enhancement of sentence for this offence, being a specific offence within the meaning of the Organized and Serious Crimes Ordinance, Cap 455, and has must furnish information to this court pursuant to section 27(2)  of the ordinance, regarding the prevalence of this specified offence, and the nature and extent of any harm, whether direct or indirect, caused to the community by recent occurrences of this specific offence.

33.  In support of the application, prosecution tendered the statement from Detective Inspector Law Hong-yu dated 16 October 2024, and that of Conservation Officer (Technical Services)  of the AFCD, Tsang Ho-leung, dated 12 December 2023.

34.  Defence counsel objected to the application for enhancement, and in any event, she urged this court to enhance the sentence by less than the usual 25%.

35.  Mr Tsang in his report told of the impact of illegal harvesting of Aquilaria sinensis for agarwood in Hong Kong (paragraphs 26 to 29). He concluded in paragraph 31 of the report that the plant communities to which the local populations of Aquilaria sinensis belong are considered of conservation value, and that most illegal exploitation of the species involves the use of unsustainable methods of harvesting, which cause undesirable impact to the survival of the Aquilaria sinensis, particularly the larger individuals. He is of the view that the illegal exploitation would threaten the natural survival of the native plant Aquilaria sinensis.

36.  Then coming to the prevalence of the offence, this court considers the commission of the offence still prevalent. In reaching such conclusion, the court ignores the number of cases detected during the period when COVID measures affects the entry to Hong Kong by two-way permit holders (years 2020 to 2022)  for the obvious reasons that experience told us most offenders of this offence were two-way permit holders/‌visitors to Hong Kong. It is noted that cases picked up when travel restrictions was lifted after COVID. Although the figure for most part of year 2024 appears to be smaller compared to the previous years, one cannot say that there is a downward trend just by looking at this figure.

37.  The court is satisfied that the grounds for enhancement of sentence is made up by the prosecution on the two limbs.

38.  Defence counsel said there was the case of HKSAR v Xie Jiangwu where the prosecution did not make application for enhancement. This court would not speculate as to why prosecution failed to make such an application in that case. The court might have allowed the application had the application been made because in paragraph 15 of the judgment, the judge said, referring to the Court of Appeal case of Xie Jinbin, that enhancement of sentence by 25% was said to be appropriate. He went on to say in paragraph 16 of the judgment that the prosecution did not make the application for enhancement of sentence.

39.  Having reviewed the authorities in the area, the court will adopt the usual 25% in enhancement of the sentence of the defendant.

40.  Accordingly, the defendant is sentenced to 32 months and 15 days’ imprisonment in this case.