HKSAR v. YIM YIU KWAI AND OTHERS

DCCC 840/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 840 OF 2014

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Reasons for Sentence

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1. The five defendants before me, D2 to D6 in this case, have pleaded guilty to two charges.

2. All five have pleaded guilty to a joint charge, Charge 2, of theft, contrary to Section 9 of the Theft Ordinance, Cap 210. They have pleaded guilty to stealing together 71.65 kilogrammes of woodchips and bark of Aquilaria sinensis wood, commonly known as incense tree.  This is an exceptionally large haul of wood.  The estimated value is HK$3.921 million. All the wood was found in bags belonging to the five defendants.

3. The defendants have also pleaded guilty to an individual 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.

4. The facts of the case are that on 20 June at about 7 pm, the Marine Police spotted a vessel acting suspiciously to the south of Lantau.  Not long after, the Marine Police intercepted a fishing vessel which was towing a boat. 

5. The 1st defendant of this case was driving the vessel.  He is jointly charged with the other defendants, but has pleaded not guilty.

6. The 2nd to the 6th defendant were also found on board the vessel near the 1st defendant. 

7. The police found five backpacks and a separate bag containing tools.  The five backpacks contained this quantity of woodchips and bark, a total of 71.65 kilogrammes.  I do not intend to specify what amount was in each bag, as the charge is a joint charge.  Each defendant claimed one backpack each as their own.  As this is a joint charge, all are equally culpable for the full amount stolen.

8. All defendants are Mainlanders, but hold a deckhand visa issued by the Immigration Department.  This visa has restrictions on where and what the defendants can do in Hong Kong.  They clearly were not working on board a fishing vessel, as required, nor travelling between a fishing vessel and two designated fish markets.  They were not working or present in Hong Kong according to the visa.  Hence, all were charged with unlawfully remaining in Hong Kong on the date of their arrest.

9. The defendants made admissions under caution. Most are mixed statements, in that they admit going to cut wood due to a lack of income, as there was a fishing moratorium in place between June and August, and yet, say they arrived on land to find tools and wood already chopped and abandoned.  They do not actually admit coming here with intent and tools to cut wood for sale or because they were paid to do it.  There are attempts to excuse or try to distance themselves from the actual act of cutting and damaging trees. 

10. I do not accept that line of explanation. 

11. They are clearly all five transported here from Mainland China, left here with food and tools.  I am sure they are picked up days later.  Being five in a party, they can cut a significant amount of wood. When done, they called the 1st defendant to pick them up.  This is an organised group with a plan.

12. As I have said, the amount of wood stolen is significant and the value enormous.  I do not believe they found by accident wood cut and left there, nor do I believe they cut the wood for curing family members’ itchy problems. 

13. They may not have been aware of the seriousness of the offence and sentences imposed in Hong Kong courts for this offence, but that, I am afraid, is not a mitigating factor I can take into account.

14. All five defendants’ best mitigation is their plea of guilty.

15. I have heard full mitigation put forward on behalf of all five.

16. The 2nd defendant is 68 years old, married and has been a fisherman all his life.  His income is $3,000 a month when there is fishing.  He has said when he does not fish, he has no income, which led to the commission of this offence.

17. The 3rd defendant is 47 years old, likewise, earns $3,000 a month as a fisherman.  To supplement his income, he also works as a part-time farmer.  He has a family to support, including three young children, who are unable to study because of a lack of finances.  His wife and his mother are of ill health.

18. The 4th defendant is 63 years old.  He too earns $3,000 a month fishing.  He too is a breadwinner of his family and has responsibilities for his wife, his father and a grandson left with him.

19. The 5th defendant is 47 years old, again earns $3,000 a month fishing.  He has four children and his son was originally able to attend a university, but unable ultimately to go because of financial difficulty.  His son has written a letter to the court explaining that he has had to give up his education to support his family.  The 5th defendant’s wife is also not of good health.  In addition, his two elderly parents live with them and his mother is wheelchair bound.

20. The 6th defendant is a 44-year-old fisherman earning $3,000 a month.  He too has three children to support and a wife.  His parents also rely on him, and not in great health.  On top of that, he has a younger sister, who is epileptic and dependent on him and her family.

21. I have had mitigation letters that include medical reports and photographs of dependent family members.  I have considered all their contents towards sentencing. 

22. As I have said, all five pleaded guilty and this indicates remorse. 

23. All, I am sure, are very worried for their family members at home, who are dependent on them.  I do sympathise for the plight of the defendants’ family members.  However, the defendants should have taken this into account  before taking the risk of coming to Hong Kong to commit an offence here.

24. The prosecution has applied, as is common with theft of this wood, to enhance the sentence pursuant to Section 27(2)(d) of the Organized and Serious Crimes Ordinance, Cap 455, on the grounds of “the nature and extent of any harm, whether direct or indirect, caused to the community by recent occurrences of” these specified offences. 

25. The defendants do not challenge this application nor oppose it.  They accept the prosecution has basis to make such application.

26. The prosecution rely on and I have seen the report of Mr Pang Kuen-shum, the Conservation Officer of the Agriculture, Fisheries and Conservation Department. 

27. He identified the wood and the bark and gave the estimated value.  He opines there is an increasing trend reflected by numerous recent reports of exploitation of incense trees.  He says, because of this, the survival of such trees are threatened in Hong Kong.  In cases of such an application, where this offence is concerned, 25 per cent increase is often imposed by the District Court. 

28. I have also considered two often cited authorities:  HKSAR v Xie Jinbin, CACC 195/2010, and the second authority of HKSAR v Wen Zelang, CACC 220/2006.  Both are well-known authorities for sentencing thefts of incense tree wood.

29. In the first authority, four Mainland Chinese were caught stealing 1.181 kilogrammes of wood and had tools in their possession.  The Court of Appeal upheld the sentencing court’s 3-year starting point.  The ultimate sentence was also enhanced by 25 per cent.  The Court of Appeal upheld that enhancement as well.

30. In the second authority, there was a theft of 5.6 kilogrammes of incense tree wood and the Court of Appeal there upheld the starting point of 3 years’ imprisonment, as well as the 25-per-cent enhancement imposed.

31. Mr Wong, for the 3rd, 5th and 6th defendant, referred me to a District Court authority, Gao Huachang & Ors, DCCC 727/2013, and specifically refers to a point made in the authority of Xie Jinbin, that quantity or the weight of the wood stolen should not be the primary consideration for sentencing.  It is not determinative of sentence. 

32. That is true, but it must be a relevant consideration, and here, the amount of wood chopped is very significant.

33. The prosecution relies on a very recent Court of Appeal decision, HKSAR v Cai Jinyou, CACC 161/2014.  Judgment was handed down on 26 August 2014.  There, the Court of Appeal upheld a sentencing point of 3 years and 6 months.  That was in a case where four Mainlanders acted together to steal 21.88 kilogrammes of incense tree wood. 

34. Here, the quantity of wood is over three times as much as that authority.

35. The Court of Appeal has often said deterrence sentences are required to deter this activity in Hong Kong.  We must send a strong message to deter Mainland people coming to Hong Kong to cut, damage and often kill endangered trees for profit.  These trees are precious and a natural resource of Hong Kong that requires protection.

36. I have considered all the mitigation and authorities referred to. 

37. I have considered the facts of this case.  I do find it particularly relevant that there were five defendants who came together to Hong Kong to commit this joint enterprise.  The whole of wood stolen is significant and worth nearly HK$4 million.

38. Defendants, please stand up.

39. I will take for Charge 2 a starting point of 3 years and 9 months. 

40. All defendants are entitled to a discount of one-third for their plea, which will reduce this sentence to 2 years and 6 months. 

41. There is no reason to reduce this any further, where D3, D5 and D6 is concerned. 

42. However, I will, for D2 and D4, as they are over 60 and 65 respectively, I reduce that sentence by a further 3 months.  That would reduce that sentence to 2 years and 3 months.

Enhancement

43. I will enhance the sentence imposed for Charge 2.

44. I accept prosecution have proved beyond reasonable doubt that there are grounds for enhancement.

45. I will enhance sentence by 25 per cent.

46. Consequently, D3, D5, D6’s sentence is enhanced by 7 months.  That is just under 25 per cent.  For D3, D5, D6, that means a sentence of 3 years and 1 month for Charge 2.

47. For the 2nd and 4th defendant, enhancement of 25 per cent would mean an additional 7 months.  That is, in fact, just over 25 per cent.  Therefore, they are sentenced for Charge 2 to 2 years and 10 months, 2nd and 4th defendant.

48. Each face an additional charge of illegally remaining in Hong Kong. 

49. I referred myself to the authority of So Man King [1989] 1 HKLR 142.  The Court of Appeal held that 15 months is appropriate for a plea of guilty for this offence.  There is no reason to depart from this authority.

50. Therefore, for 2nd defendant (Charge 3), 3rd defendant (Charge 4), 4th defendant (Charge 5), the 5th defendant (Charge 6) and the 6th defendant (Charge 7), I impose a term of 1 year and 3 months’ sentence.

51. I take into account and consider the totality principle.  I will make 5 months of that 1 year and 3 months’ sentence concurrent to Charge 2, the balance consecutive.

52. My order is as follows:

(1) the 2nd defendant:

    Charge 2, 2 years and 10 months;

    Charge 3, 1 year and 3 months.

5 months of Charge 3 will be concurrent to Charge 2. That is a total sentence of 3 years and 8 months;

(2) the 3rd defendant:

    Charge 2, you are sentenced to 3 years and 1 month;

    Charge 4, 1 year and 3 months.

    5 months of Charge 4 will be served concurrent to Charge 2. That is a total sentence of 3 years and 11 months;

(3) 4th defendant:

    Charge 2, you are sentenced to 2 years and 10 months;

    Charge 5, you are sentenced to 1 year and 3 months.

    5 months of Charge 5 will be concurrent to Charge 2. A total of 3 years and 8 months;

(4) for D5:

    for Charge 2, you are sentenced to 3 years and 1 month;

    for Charge 6, you are sentenced to 1 year and 3 months.

    5 months of Charge 6 will be concurrent to Charge 2. That is a total of 3 years and 11 months;

(5) the 6th defendant:

    Charge 2, you are sentenced to 3 years and 1 month;

    Charge 7, you are sentenced to 1 year and 3 months.

    5 months of Charge 7 will be served concurrently to Charge 2. That is a total of 3 years and 11 months.