HKSAR v. XIE XIAOMING AND ANOTHER

DCCC 961/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASES NO. 961 OF 2012

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Reasons for Sentence

1.  The defendants pleaded guilty to one joint charge of theft, contrary to s.9 of the Theft Ordinance, Cap. 210. Particulars of the charge are that the defendants together stole 0.5kg of wood chips and tree barks of Aquilaria sinensis wood commonly known as Incense Tree.

Facts

2.  Upon a report made by a suspecting passerby, the Police went to the bus stop outside Mang Kung Uk Village at around 10:25am on 6^th September 2012 to investigate 2 males (later identified as the two defendants, D1 and D2) who were seen lingering at the bus stop but not getting on any public transport passing by.

3.  When 2 Police officers were approaching the 2 defendants, they threw the rucksacks that they were carrying into the bushes behind them. Police officers intercepted them and upon searching the 2 rucksacks, Incense Tree wood chips wrapped in a plastic bag were found. They also found one firewood knife, one grindstone, one pickaxe and one handsaw in one of the rucksacks.

4.  D1 was arrested and said he had nothing to say in Punti under caution. D2 was also arrested and said under caution that the rucksack and the things inside did not belong to him. Both defendants entered Hong Kong as visitors on two-way permits.

5.  Dr. Pang, an expert of the Agriculture, Fisheries and Conservation Department identified the wood chips as being of the species Aquilaria Sinensis. The wood chips weighted 0.5 kg with an estimated value of $26,880. The report of Dr. Pang is exhibited as P-1.

6.  According to Dr. Pang, Aquilaria Sinensis is more commonly known as “Incense Tree” and is a protected endangered species and the only species known to be able to produce chen xiang (“沉香”) in Hong Kong. Aquilaria Sinensis illegally cut or felled in an unsustainable fashion will damage the tree. Such damage to the trees “jeopardizes the normal ecological relationship of the organisms in the woodlands” and causes “irreplaceable damage to the general natural feature and ecology of the natural forests of Hong Kong, and… a great loss to the community.”

7.  Dr. Pang concluded that illegal exploitations of the Aquilaria sinensis species involve the use of unsustainable method of harvesting, which cause undesirable impact to the survival of the species.

Previous convictions

8.  Both the defendants are of previously clear record in Hong Kong.

Mitigation

D1

9.  D1 is 21 and lives in Guangdong with his father, mother and younger brother. His father is 45 and a construction site worker and his mother is also 45 and a housewife. The defendant’s younger brother is 20 years old and is still studying. The defendant has an elder sister who is 25 and a housewife.

10.  The defendant finished junior secondary school in China. He had worked as kitchen assistant, phone salesperson before and was last working as a construction site worker earning about RMB2,000 per month. The defendant would contribute about RMB1,000 to his family.

11.  D1’s girlfriend wrote a letter of mitigation. They had planned to get marry in October this year but was not able to do so because of financial difficulties, which also led to the defendant committing the present offence. Ms. Wang (汪) is 4 months pregnant with the defendant’s child and would like the court to be lenient with the defendant who cares deeply about her and their unborn child.

D2

12.  D2 is 30 years old and lives in Guandong with his wife, 2 daughters and parents. The defendant’s wife is 30, his daughters are 9 and 3. The defendant’s mother is 58 years old, a housewife and his father is 58 years old and a construction site worker.

13.  The defendant finished primary school and worked on a casual basis as a construction site worker, earning about RMB3,000 per month. The defendant would contribute RMB 1,000 per month to his family.

14.  D1 and D2 are friends. They live in nearby villages in Guandong. They heard from friends that Hong Kong has such a kind of incense tree that is worth some money. They thought it was a good idea to come to Hong Kong to steal some. They thought it was not a serious matter and treated the trip as a sort of pleasure trip. They would buy some medicine, take some wood and then go home. They did not know incense tree is a protected species in Hong Kong.

15.  D1 arrived on 3^rd September and D2 arrived the following day. The offence was committed on 6^th September.

16.  The 2 of them found a tree with pre-existing cuts. They followed the cuts to peel off some tree chips and barks. They stole from only one tree and since only 0.5kg of wood chips and bark had been taken from the tree, the injury to the tree and the gravity of the offence should not be regarded as serious.

Sentencing cases

17.  Parties referred me to the case of HKSAR v Xie Jinbin, CACC 195/2010.

18.  There the applicant and 3 other mainlanders came to Hong Kong on two-way permits and were seen by Police cutting the tree and packing wood blocks into their rucksacks. A total of 7 wood blocks weighing 1.181 kg, a saw, an iron hoe and a knife were found in their rucksacks. The learned trial judge adopted a starting point of 3 years’ imprisonment, reduced it for a guilty plea and then enhanced the sentence by 25% under s.27(2) of OSCO and sentenced the applicant to 2 years and 6 months’ imprisonment.

19.  The appeal against sentence was dismissed. It was held by the Court of Appeal that,

“A clear and firm message was needed to deter mainlanders from coming to Hong Kong, legally or illegally, for the specific purpose of exploiting protected and endangered flora for profit. A starting point of 3 years of the extraction of wood from an Incense Tree by mainlanders could not be faulted, although this was not meant to be a straitjacket.”

20.  The Court of Appeal also stated that,

“The focus should be on the protection of the plant rather than the value of the plant or part stolen, taking into account the injury done to the tree, profit motive, the manner of commission and the gravity of the offence.”

21.  In relation to the weight of the wood stolen, the Court of Appeal stated that,

“Weight was not determinative of sentence nor a reliable indicator of the seriousness of the offence and the injury caused to the tree….[a] defendant was not to be punished only for the weight of the wood block he had stolen, but according to the enterprise he and the others had collectively participated in and the seriousness of the offence, which was premeditated.”

22.  The Court of Appeal confirmed that the starting point of 3 years’ imprisonment was appropriate:

“The men came to Hong Kong in a joint enterprise with the intention to exploit endangered flora for profit. They equipped themselves with a knife, hoe and saw and acted as a group. Accordingly, having regard to the purpose of the Protection of Endangered Species of Animals and Plants Ordinance, Cap.586 and the need of deterrence, the starting point was appropriate. While the sentence might be on the high side in view of the quantity of wood stolen, it was not manifestly excessive so as to justify interference.”

Enhancement of sentence

23.  The prosecution applied to enhance the defendants’ sentences pursuant to s.27(2)(d) of the Organized and Serious Crimes Ordinance (hereinafter “OSCO”), Cap.455, on the ground of ‘the nature and extent of any harm, whether direct or indirect, caused to the community by recent occurrences of this specified offence.’

24.  Mr. Yeung for the defendants confirmed that his clients do not object to the application for enhancement. Mr. Yeung also did not wish to address the court on the percentage of the enhancement.

Sentence

25.  The maximum sentence for theft is that of 10 years’ imprisonment.

26.  According to the expert report of Dr. Pang, the wood chips found on the defendant were recently cut and peeled from either the tree trunks or branches of Aquilaria sinensis. As with most cases of this nature, the Police would have great difficulties in finding the actual tree that the wood had been taken from and it would in turn be impossible for the expert to decide on the extent of damage the removal of the wood had done to any particular tree.

27.  In our present case, I was told in mitigation that the defendants had chosen a tree that had already been cut. I find that this would not lessen the culpability of their action. On the contrary, any previous chance that the already damaged tree might have in recovering would have been further dented by the defendants’ action.  

28.  It is also clear that the defendants went prepared for the stealing, given that the tools of firewood knife, grindstone, pickaxe and handsaw were found in one of their rucksacks.  

29.  I find that the defendants had come to Hong Kong specifically to commit the theft and that the nature of the harm caused by the defendants’ cutting of the wood chips and barks are such as to harm Hong Kong’s environment and as such warrant an enhancement of sentence.

30.  Although the weight of the stolen wood is only 0.5 kg and less than in the case of Xie Jinbin, but as the Court of Appeal had stated, weight is not the only determinative factor in considering sentence. The harm that they had caused to the species, to the environment and to the community are also factors that must be considered when deciding on the sentence.

31.  Bearing in mind all the circumstances of the case, the slightly less amount of wood stolen, I will adopt a starting point of 33 months’ imprisonment in relation to each of the defendants, reduce it to 22 months imprisonment in recognition of their guilty plea and then enhance the sentence by 25%. Each of the 2 defendants is therefore sentenced to 27 months’ imprisonment.