HKSAR v. WANG QUANWEN

CACC 263/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 263 OF 2014

(ON APPEAL FROM DCCC 472 OF 2014)

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J U D G M E N T

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Hon McWalters JA (giving the judgment of the court):

Introduction

1.  On 16 July 2014 the appellant appeared before District Judge A Kwok (“the judge”) and pleaded guilty to one charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210 and one charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, contrary to section 38(1)(b) of the Immigration Ordinance, Cap 115.

2.  The particulars of the theft charge asserted that the appellant, with three persons unknown, “stole 103.65 kilogrammes of wood blocks, wood chips and tree barks of Aquilaria Sinensis wood commonly known as Incense Tree”.  This wood was also referred to at trial as Agilawood.  In respect of this theft charge the appellant was sentenced to 3 years 4 months’ imprisonment and for the remaining in Hong Kong after having landed unlawfully charge he was sentenced to 15 months’ imprisonment.  The judge ordered the two sentences to be served consecutively making a total sentence of 4 years 7 months’ imprisonment. 

3.  The appellant applied for leave to appeal his sentence and on 14 January 2015 I granted him leave.

4.  At the hearing of his appeal we reserved our judgment which we said we would hand down at a later date.  This we now do.

The background of the offence

5.  In the Summary of Facts used at the sentencing hearing the appellant admitted that he had come to Hong Kong illegally to cut incense trees.  In his video recorded interview he said that he had entered Hong Kong with three other persons between 8 am and 9 am on 17 March 2014.  He and his companions had arrived at a location in the New Territories at Tung Sam Kei Shan, Sai Kung and there they set up camp. 

6.  The police became aware of the appellant and his companions operating in this area and waited in ambush for them.  At around 16:47 on 21 March 2014 the appellant and an unknown male approached the campsite and when the appellant reached one of the tents erected there he placed a rucksack on the ground and knelt down.  At this stage he was intercepted by the police and his male companion fled the area. 

7.  When the police examined the rucksack that was being carried by the appellant they found it contained a hoe, a saw and some wood chips.  The appellant admitted under caution that the wood chips were cut from trees on the hill nearby using the saw and hoe that had been found in the rucksack. 

8.  At their campsite the appellant and his accomplices had established two working areas, a cooking area and a shelter area.  The police seized from the working areas wood chips, nylon bags, rucksacks, pieces of nylon sheet and plastic sheet, a hoe, 2 saws, 12 knives, 3 pieces of whetstone, bedding, clothing and cooking utensils.

9.  In his video recorded interview the appellant said that they started looking for Agilawood in the morning of 19 March 2014.  If they saw wounds in the Agilawood, they would cut the wound and then bring the wood back to the location for processing and drying.[1] After collecting a sufficient amount of Agilawood they would return to the Mainland in order to sell it.  The appellant also admitted that between 18 and 21 March 2014 he and his companions would look for Agilawood every day and in this period they cut around 5 to 6 trees.  He said that the wood chips that had been found in the bags at the campsite had been cut from trees in this period. 

10.  The appellant claimed that the expedition had been arranged by one of his companions, none of whom were Hong Kong residents.  He said that he and his companions had come to Hong Kong solely for the purpose of finding Agilawood and they had brought with them from the Mainland the tools they needed for this illegal enterprise.

11.  The total weight of the wood blocks, wood chips and tree barks that had been seized from the appellant’s rucksack and from the campsite was 103.65 kilogrammes with an estimated total value of HKD10,003,720.  The seizures were sent to the Hong Kong Herbarium of the Agriculture, Fisheries and Conservation Department (“AFCD”) for examination.  The examination of the seizures was done by Mr Pang Kuen Shum, the Conservation Officer (Flora) of the AFCD.  It was his finding that the seizures were “Chen Xiang” produced by Aquilaria Sinensis and recently cut or peeled from the tree trunks or branches of this species. 

12.  In his expert report he stated that:

“The trunks of many large and old trees of Aquilaria Sinensis have been illegally felled or cut in an unsustainable fashion (i.e. cannot ensure the long-term survival of the species) deliberately for mass extraction of timber to the extent that such trees are dead or damaged and likely unable to recover... Large and old individuals of Aquilaria Sinensis have since become rare in Hong Kong. Getting worse is that in the recent cases relatively smaller but mature trees of such species were also subject to illegal harvesting. As Aquilaria Sinensis is a dominant tree species in fung shui woods and other lowland forests, such deliberate felling and damage of large and smaller Aquilaria Sinensis, by causing damages to the habitats of the organisms, have jeopardized the normal ecological relationships of the organisms in such woodlands … Hence, I am of the view that the unsustainable felling of the species has caused irreplaceable damages to the general natural feature and ecology of the natural forests of Hong Kong. This in fact is also a great loss to our community.”

13.  In respect of the immigration charge the appellant admitted that he had landed in Hong Kong unlawfully and remained in Hong Kong without the authority of the Director of Immigration. 

The sentencing hearing

14.  At the sentencing hearing of the appellant the prosecution applied under section 27(2)(d) of the Organized and Serious Crimes Ordinance (“OSCO”), Cap 455, to enhance the appellant’s theft sentence on the ground of “the nature and extent of any harm, whether direct or indirect, caused to the community by the recent occurrences” of this specified offence. For this purpose, the expert report of Mr Pang was relied upon.  Neither his status as an expert nor the content of his report was challenged or disputed by the appellant.  In fact counsel for the appellant informed the court that he had no objection to the application for enhancement of sentence but asked that any enhancement be the most lenient possible in this circumstances after having heard the mitigation that he was about to advance. 

15.  The appellant’s counsel then informed the court of the personal circumstances of the appellant who is a Mainland citizen aged 29 who comes from Maoming in Guangdong Province.  He is married and has three children the eldest of whom is 8 years of age, the second 6 years of age and the third is a baby of 5 months old.  He has elderly parents; his father is 60 years of age and his mother 59 years of age. 

16.  It was said that the appellant is the sole bread-winner of the family.  He used to work as a cook in Maoming but for two months prior to the commission of this offence he was unemployed and could only obtain casual work to earn his living.  He was driven into committing this offence by the need for money to support his family. 

17.  His counsel sought to play down the role of the appellant in this joint enterprise and to distinguish his involvement from that of his accomplices. Finally, it was submitted that the appellant genuinely feels remorse for his conduct and that was why he was pleading guilty to the two charges. 

18.  In view of all these circumstances it was submitted to the judge that a lenient sentence should be imposed on the appellant.  In respect of the sentence for the second offence it was submitted that the judge should order it to be served partly concurrently with the sentence for the first offence. 

The judge’s Reasons for Sentence

19.  In his Reasons for Sentence the judge set out the circumstances of the offence, the mitigation advanced on behalf of the appellant and the application of the prosecution for enhancement of sentence under OSCO. 

20.  The judge then referred to two Court of Appeal authorities which he said were relevant to his sentencing task.  They are HKSAR v Wen Zelang [2006] 4 HKLRD 460 and HKSAR v Xie Jinbin [2011] 2 HKLRD 631.  These two decisions of the Court of Appeal involved the theft of small amounts of incense tree wood and in both cases the Court of Appeal endorsed a starting point of 3 years’ imprisonment and an enhancement under section 27 of OSCO of 25%.  The judge quoted a passage from the judgment in the latter case where, in dismissing the appeal against sentence, the Court of Appeal emphasized the need for deterrent sentences for this particular form of theft, saying at page 639, paragraph 17 of the report:

“… a clear and firm message is needed to deter Mainlanders from coming to Hong Kong, legally or illegally, specifically for the purpose of exploiting our protected and endangered flora for profit. A starting point of three years for cases of extraction of wood from an incense tree by Mainlanders could not be faulted. We do emphasise that the starting point is not meant to be a straitjacket.”

21.  The judge then quoted from the report of the Conservation Officer, Mr Pang, which referred to the unsustainable methods employed in harvesting this wood and the damage those methods caused to the trees.  He accepted the comments of Mr Pang and said that they formed a firm basis for the enhancement of the sentence.

22.  The judge found that the appellant entered Hong Kong illegally from the Mainland as a participant in a criminal enterprise, the specific goal of which was to cut wood from incense trees so that it could be sold for profit back in the Mainland.  The judge said that this enterprise was more serious and larger in scale than other offences of a similar nature that the courts had encountered.  He described the appellant and his accomplices as engaging “… in a systematic and large-scale exploitation of cutting the incense wood trees in Hong Kong …, thereby causing irreplaceable damages to our environment.”  He concluded:

“Because of the large quantity of incense wood trees which have been damaged in this case, the damages are substantial and it is also on an unprecedented scale which is hitherto unseen in this court.”

23.  Noting that a deterrent sentence was necessary for this type of offence the judge said:

“… A powerful message must be sent to the defendant’s friend and their relatives in the mainland that people like them who come to Hong Kong to commit a crime like this will be dealt with severely by the court in Hong Kong.”

24.  The judge then went on to address the appropriate starting point for his sentence for this offence and referred to the comment of the Court of Appeal in the Xie Jinbin case where it had said that its suggested 3 years starting point was not intended to operate as a straitjacket upon judicial officers.  The judge said that for an offence as serious as this involving a much larger scale operation and much greater amount of wood with an estimated value in excess of $10,000,000, a starting point higher than 3 years’ imprisonment had to be adopted in order to reflect the gravity of the case. 

25.  In respect of the submission that the appellant’s participation in this joint enterprise was less than that of his accomplices the judge said that the appellant had assumed the role of cutting the trees and so his participation was a major one. 

26.  For these reasons the judge adopted a starting point of 4 years’ imprisonment which he then reduced to 32 months to allow for the plea of guilty.  He then enhanced this period by 25% pursuant to s 27(2)(d) of OSCO.  This brought him to a final sentence for the first charge of 3 years and 4 months’ imprisonment.  

27.  For charge 2, the immigration offence, he noted that this was the first time the appellant had been convicted of such an offence for which the usual tariff is 15 months’ imprisonment on a guilty plea.  This usual tariff he took from the decision of Court of Appeal in R v So Man King [1989] 1 HKLR 142.  This being the appropriate sentence for the appellant on this offence the only question that remained for him to decide was whether he should accede to the appellant’s counsel’s request to order part of this sentence to run concurrently with the sentence imposed on charge 1. 

28.  He said that the Court of Appeal had in other cases decided that where Mainlanders came to Hong Kong illegally for the purpose of committing burglary offences then the immigration and burglary offence sentences should be served wholly consecutively to each other.  In this respect he referred to a number of Court of Appeal authorities and in particular to HKSAR v Tong Fuk Sing [1999] 3 HKLRD 710 where the Court of Appeal said that unless there exists some compelling circumstances, such as strong humanitarian reasons, the sentence for the immigration offence should normally be imposed consecutively to the sentence for the offence which accompanies it.

29.  Noting that both burglary and theft are offences under the Theft Ordinance and are similar in nature the judge said he could see no reason, in light of the authorities cited, why he should deal with the appellant any differently from those offenders who had committed burglary as well as unlawfully remaining.  He concluded:

“Absent any strong humanitarian reason in the defendant’s case, it is only right and proper that the sentence on Charge 2 should be imposed wholly consecutively to the sentence imposed on Charge 1 according to the cited authorities.”

30.  He thereupon imposed a total of sentence for both charges of 55 months’ imprisonment.

The grounds of appeal

31.  The first ground of appeal complains that the total sentence of 55 months’ imprisonment imposed upon the appellant for both charges is manifestly excessive.  In support of this ground the appellant argues that the starting point of 4 years that was adopted by the judge was too high in the circumstances for this case.  It is also submitted that the judge, in adopting this starting point, placed too much emphasis on the weight and value of the property being stolen in assessing the gravity of the offence.  Rather, it is said, it is the number of trees being damaged and the profit motive that are determinative of this question. 

32.  The second ground of appeal complains that the sentence is manifestly excessive when one takes into consideration the principle of totality and here the appellant complains of the order of the judge to make the sentence for the immigration offence wholly consecutive to the sentence for the theft offence.  In support of this ground of appeal it is submitted that the main offence was the theft offence and that the immigration offence was merely incidental to the commission of the theft offence.  It is asserted that the judge erred in viewing humanitarian reasons as the only basis for imposing a concurrent of partly concurrent sentence.

Discussion

33.  In order to determine the appropriate starting point for the theft offence it was necessary for the judge to assess its gravity.  He was right to characterize it as a well planned and organized joint enterprise offence.  Four persons came from the Mainland, equipped with the necessary tools, and took their time to establish a proper campsite and working area from which they could operate.  Over the course of the two or three days that they went in search of incense tree wood they managed to harvest 103.65 kilogrammes of it which was admitted by the appellant to have an estimated value of $10,003,720.  As the judge noted, this quantity and value of wood is well beyond what is normally seen in our courts.  

34.  As a member of this joint enterprise whose role was to assist in the harvesting of the wood there was no reason to distinguish the appellant from any of the other members of it.  There was certainly no basis to conclude that he was any less culpable than his accomplices.  There is nothing in the Reasons for Sentence of the judge to indicate that in adopting the starting point of 4 years’ imprisonment he was doing so because the appellant was anything other than an ordinary member of the criminal enterprise as opposed to being one of its ringleaders.  

35.  The scale of this criminal enterprise not only helps in an assessment of the gravity of the offence but also in distinguishing it from other cases that are relied upon as comparables for sentencing purposes.  For the reality is that, thankfully, there are no other truly comparable cases.  In HKSAR v Cai Jinyou, CACC 161/2014, unreported 26 August 2014, Lunn VP was dealing with the theft of 21.88 kg of Aquilaria Sinensis.  In his judgment in that case he referred to other cases of theft of Aquilaria Sinensis wood and they ranged in quantity from 0.33 kg to 12.17 kg.  The two relevant Court of Appeal decisions to which the judge referred, namely HKSAR v Wen Zelang [2006] 4 HKLRD 460 and HKSAR v Xie Jinbin [2011] 2 HKLRD 631, involved quantities of only 5.6 kg and 1.858 kg respectively.

36.  These two Court of Appeal decisions provide guidance on the sentencing of offenders in this highly destructive trade; a trade that is destructive of the trees themselves, degrading of their surrounding habitats and eco‑systems and detrimental to the community’s enjoyment of Hong Kong’s natural forests and woodlands.  Incense trees have always been a part of Hong Kong’s landscape but their importance to the community goes well beyond being simply an arboreal feature of Hong Kong’s geography.  They are deeply embedded in the local Chinese culture with roots in the incense trade, early Hong Kong history, Fung Shui beliefs and Chinese traditional medicine.  It is hardly surprising therefore that the courts regard theft of this wood as a serious offence requiring deterrent sentences.

37.  The Wen Zelang and Xie Jinbin cases both endorsed a starting point of 3 years’ imprisonment as appropriate for this form of criminal activity and, if enhancement under section 27 of OSCO is appropriate, enhancement by 25%.

38.  The applicant relies upon the decision of HKSAR v Bu Hua Lai [2007] HKCLRT 688 to support a submission that a lower starting point of 2 years’ imprisonment is the norm for this type of offence.  However this case concerns the theft of Buddhist pine trees which is a different species from Aquilaria Sinensis and, more importantly, is not an endangered species.  This point was made by Anthony To J in giving the judgment of the Court of Appeal in the Xie Jinbin case.  In rejecting the argument that theft of Buddhist pine wood and theft of incense tree wood should be sentenced similarly he said at page 635, paragraph 9 of the report:

“In our view, counsel’s argument started on the false premise that Buddhist pine is an endangered species … Buddhist pine is therefore not a protected species for which special consideration applies. This explains the lower starting point adopted in the Buddhist pine cases.”

39.  It is this vulnerability of the tree which distinguishes it from Buddhist pine trees for the purpose of sentencing and mandates that a more serious view is taken of the theft of its wood.  As Anthony To J explained in Xie Jinbing at page 636, paragraph 13 of the report:

“The starting point of 3 years was upheld in the light of Hong Kong’s international obligation under the Convention [on International Trade in Endangered Species of Wild Fauna and Flora] and with reference to incense tree as a protected endangered species under Schedule 1 of the Protection of Endangered Species of Animals and Plants Ordinance.”

40.  The vulnerability of the tree provides the impetus for the courts to use their sentencing powers in a way which will protect the trees from the depredations of those wishing to illegally harvest their wood and thereby preserve the future of the species.  This is done through the imposition of deterrent sentences.[2]

41.  The submission of the appellant that a lower starting point, identical to that employed in respect of Buddhist pine trees, should have been adopted is, therefore, rejected.  Such a starting point would not contain a sufficiently strong element of deterrence that is needed in order to protect the species.

42.  The appellant also relies upon a comment made by Anthony To J in the Xie Jinbin case that:  

“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.”

43.  The appellant argues that the judge erroneously placed too great importance on the quantity and value of wood stolen rather than on the factors described by Anthony To J.

44.  However the comment by Anthony To J that the weight of the wood stolen is not determinative of sentence was made in response to a submission by the applicant’s counsel that only a small quantity of wood was stolen.  The point being made by the judge was that if the method of harvesting causes irreparable damage to the tree then the fact that only a small quantity is taken is not a true measure of the harm caused by the offender’s actions.  In that case, as in the present case, the sentencing judge had the benefit of an expert report prepared by Mr Pang of the AFCD.  He spoke of the methods used in harvesting incense tree wood and how those methods caused such extensive damage to the trees that they were unlikely to be able to recover. He said:

“… The threats owing to illegal exploitations and unsustainable uses have indeed surged, threatening the survival of such trees in the natural environment …

… Most illegal exploitations of the species involve the use of unsustainable method of harvesting, which caused undesirable impact to the survival of Aquilaria sinensis, particularly the larger individuals.”

45.  But even though the focus of the court is on harm to the tree rather than the quantity of wood stolen, the amount of wood taken will still be relevant to the court’s sentencing task if it can provide the court with an indication of the harm that has been caused to the trees and to the eco‑system generally.  It can do that when, as here, the quantity of wood taken would allow of an inference as to the extent of the harm caused, be it of the harm caused to individual trees or of the number of trees to which harm is caused. Clearly the greater the amount of wood taken the greater the impact upon the species and its surrounding eco-system. 

46.  We have had the benefit of seeing the police photographs that were placed before the judge.  They show a planned and well laid out encampment and they also show the large quantity of wood and woodchips that were seized. Many of the blocks of wood are substantial in size and the photos of them breathe life into the explanation of Mr Pang as to the unsustainable methods employed in the harvesting of the wood and the irreparable damage that such methods cause to the trees.

47.  The harm caused in this case is clearly significantly greater than in other cases and this should be reflected in the starting point for sentence.  The Court of Appeal in Xie Jinbin emphasized that its 3 years starting point is not meant to be a straightjacket and so it may and should be departed from when the circumstances of the offence or of the offender, in the interests of justice, dictate such a course.  Here, such a course is dictated by the circumstances of the offence.  Given those circumstances we can see nothing wrong in the judge adopting the starting point of 4 years’ imprisonment.

48.  No complaint is taken in respect of the judge acceding to the application of the prosecutor to enhance the sentence or in respect of the percentage of enhancement, 25%, that he decided was appropriate in this case.  But it is said that this enhancement becomes excessive when it is applied to a sentence which is already excessive.  To enhance the 32 month sentence by as much as 25% results, it is said in a manifestly excessive sentence. 

49.  The whole purpose of enhancement is to create a final sentence which contains additional elements of punishment and deterrence.  Here, the pre-enhancement sentence was correctly determined and the amount of enhancement was in line with established Court of Appeal authority.  There was no error by the judge and in our view the final sentence cannot be said to be manifestly excessive.  

50.  The only other ground of appeal relates to the judge’s decision in ordering the sentence for the immigration offence to be served wholly consecutively to the sentence for the theft offence.  In a nutshell the appellant’s complaint is that the judge did not apply the totality principle after concluding that, as a matter of law, consecutive sentences were appropriate.

51.  As a matter of legal principle the judge was right to conclude consecutive sentences were appropriate where a person enters Hong Kong illegally for the sole purpose of committing crime here.  That is not contested by counsel for the appellant.  What the appellant submits is that even if the law allows, or indeed mandates, the imposition of consecutive sentences that does not absolve the judge from still applying the totality principle.

52.  It is not disputed that it was incumbent upon the judge to apply the totality principle.  The operation of this principle has been part of Hong Kong sentencing law and practice for many years.[3] However in his Reasons for Sentence the judge did not in fact refer to the totality principle.  He said instead:

“Absent any strong humanitarian reason in the defendant’s case, it is only right and proper that the sentence on Charge 2 should be imposed wholly consecutively to the sentence imposed on Charge 1 according to the cited authorities.” [Emphasis added.]

53.  The words “Absent any strong humanitarian reason” are taken from one the authorities the judge cited, namely HKSAR v Tong Fuk Sing [1999] 3 HKLRD 710.  Of course, in applying the totality principle the court is standing back from the final sentence and determining whether it is a just sentence. In so doing the court takes account of, amongst other things, humanitarian considerations as they impact upon the offender.  Consequently, we do not for one moment think that the court in Tong Fuk Sing was disapplying the totality principle and replacing it with a narrower principle in which only humanitarian reasons would entitle it to order a less than wholly consecutive sentence.  Clearly the court was saying no more than that the legally correct order was for a wholly consecutive sentence and that should only be departed from if it led to the final sentence being an unjust sentence.  That is the way in which we believe the judge in this case was expressing himself.  We do not, therefore, see any error in the reasoning he employed in deciding to order wholly consecutive sentences.

54.  Nevertheless the complaint is that in the circumstances of this offence and of this offender the order that the sentence for the second offence be served wholly consecutively to the first offence resulted in a total sentence that is manifestly excessive.  The total sentence is 55 months and as counsel for the appellant, Ms A Lai, points out this is almost at the level of a one-third discounted sentence from the District Court’s sentencing jurisdiction of 7 years’ imprisonment.  She also submits that the appellant did not, and never intended, to illegally remain for very long in Hong Kong and his conduct here did not impact particularly adversely on the community.  In terms of humanitarian reasons she referred to the family circumstances of the appellant and of his motivation for the crime being a desperate need to support his family, especially his baby.  She also referred us to judgments in a number of magistracy appeals where, on appeal, a wholly consecutive sentence had been replaced with a partially consecutive sentence.

55.  These magistracy appeal cases are of no real assistance.  In illustrating the point that the totality principle can cause a sentencing court to not order sentences to be served wholly consecutively when legal principle would permit such an order, they are no more than examples of the obvious and do not contain any new legal proposition or provide any illuminating application of existing principle.

56.  We disagree that the circumstances of the immigration offence are not serious.  The appellant entered Hong Kong illegally because he was coming as part of a gang whose members were bringing with them all the tools and equipment needed for their criminal enterprise.  Contrary to what was submitted by Ms Lai we are of the view that their criminal activity did have a significant prejudicial impact on Hong Kong.  There is nothing about the circumstances of the offence that would militate against the imposition of a wholly consecutive sentence.

57.  Nor do we see that the personal hardship caused to the appellant’s family is of the kind or level that would justify the exceptional course of the court extending mercy to the appellant.  Hardship of the kind that is prayed in aid is common to almost every offender who stands in the position of breadwinner and supporter of a dependant family.

58.  When the 7-year sentencing jurisdiction of the District Court is reduced by one third it becomes 56 months.  Consequently the 55‑month sentence is almost equal, before discount, to the District Court’s sentencing limit.  Other than to emphasize that the sentence is a severe one we do not see the relevance of this point.  However, conscious that the sentence is a severe one we do recognize the need to stand back from it, place sufficient distance between us and the appellant’s case and determine objectively whether the total sentence is still a just sentence; one that is balanced by being proportionate to the appellant’s culpability whilst at the same time being fair to him.  But that it is not a principle which enures to the benefit only of an offender was a point made by Stock VP in HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690 when he said at page 699, paragraph 22:

“The importance of the totality principle cannot be overstated. It is there to ensure not only fairness to the offender, in the sense that he is not punished twice for the same offence and, further, that the sentence is not an unduly crushing punishment but it is also a tool by which to ensure that ‘the overall effect of the sentences is sufficient having regard to the usual principles of deterrence, rehabilitation and denunciation.’: R v K M [2004] NSWCCA 65 at para.55.”

59.  Applying the totality principle in the way explained by Stock VP above to the gravity of these crimes, the culpability of this appellant and the circumstances of himself and his family we are satisfied that by ordering the sentence for the immigration offence to be served wholly consecutively to the theft offence the judge did not end up imposing on this appellant a sentence that was manifestly excessive.

Conclusion

60.  For these reasons we dismiss the appeal against sentence.

[1] When an incense tree is injured or is infected with a fungus it responds to the injury or the fungal infection by generating a resin and this resin is used to produce a Chinese traditional medicine known as Chen Xiang.

[2] HKSAR v Xie Jinbin [2011] 2 HKLRD 631 at 640, paragraph 20.

[3] For a recent discussion of it see HKSAR Pau Kin Kong [2013] 3 HKLRD 676 at paragraphs 37-40.