HKSAR v. LIU HUANLAN AND ANOTHER

DCCC 644/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO 644 OF 2013

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REASONS FOR SENTENCE

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1. D1 and D2 are convicted on their own pleas for a joint charge of Theft, contrary to section 9 of the Theft Ordinance, Cap 210.

2. The subject matter of the charge is 1.68 kilogrammes wood chips of Aquilaria Sinensis wood, commonly known as Incense Tree.

Admitted facts

3. On 7 May 2013, D1 and D2 were stopped and searched by police officers in Aberdeen.  They were found to be carrying incense tree wood chips weighing 1.68 kilogrammes in their rucksacks.  They were eventually arrested for Theft.

4. Under caution, D1 admitted that he picked up those wood chips and intended to sell them whilst D2 alleged that he was asked by someone via a PRC internet chat room to pick up some wood with a reward of RMB 400.

5. Both of them were two-way permit visitors who entered into the territory on 5 May 2013.

Application under OSCO

6. Upon conviction, the prosecution applied for an enhanced sentence under Organized and Serious Crimes Ordinance, Cap 455 (“OSCO”).  A statement by Mr Pang Kuen Shum (“Mr Pang”) was adduced pursuant to section 27(2)(d) of OSCO.  D1 and D2 did not seek to oppose the application.

Mitigation

7. D1, aged 24, is a married man with 2 children.  His son is now 3years of age and his daughter is one month old.  He worked as a farmer in the mainland earning about RMB 400 each month.

8. D2 is 26 years of age.  He is the father of a 3-year-old girl and 3-month twins.  He worked as a farmer in the mainland.  He committed the offence due to financial difficulties.

9. Both of them are first offender.  They wish to return to their homeland as soon as possible. The contents of their mitigation letters are duly noted.

Sentence

10. Aquilaria sinensis is world-widely categorized as a vulnerable and endangered species. Due to over-exploitation, whether by illegal felling or indiscriminate collection, incense tree is under the threat of extinction.  Import and export of all incense trees has been regulated internationally by international trade convention and locally by the Protection of Endangered Species of Animals and Plants Ordinance, Cap 586.

11. In HKSAR v Wen Zelang [2006] 4 HKLRD 460, the Court of Appeal articulated that:-

“A clear and strong message is needed to deter Mainland people from coming to Hong Kong to cut endangered tress, be they Buddhist Pines or incense trees. In our view, neither the three year starting point nor the 25% enhancement for prevalence of the offence under OSCO is manifestly excessive.”

12. In Wen’s case, the appellant, together with three others, were found to have 5.6 kilogrammes of wooden blocks taken from an incense tree.

13. In HKSAR v Xie Jinbin CACC 195/ 2010, the starting point of 3 years and the 25% enhancement was approved by the Court of Appeal.  In that case, the applicant and three others were found to possess 1.181 kilogrammes of wooden blocks.  The Court of Appeal, when upholding the sentence, however stressed that a 3-year starting point “is not meant to be a strait-jacket”.

14. In our present case, the quantity involved was 1.68 kilogrammes.  Both defendants alleged under caution that they picked up the wood chips in question.  I note that there were no tools for trees extraction or cutting found on them at the time of arrest and there was no evidence to prove that they were involved in the actual extraction and cutting activities.  However, as pointed out by the Court of Appeal in Xie’s case, the gravamen of this offence lies in the illegal exploitation of incense trees, albeit no actual cutting or killing of trees was involved.  In my view, the culpability of those who participated in commercial exploitation, by whatever means, for profit or reward should not differ.

15. Having considered all the circumstances and mitigation advanced, I adopt a starting point of 3 years’ imprisonment.  To reflect their pleas, the sentence is therefore reduced to 2 years.  Apart from their pleas, I see no other mitigating factors which warrant any further reduction.

Enhancement

16. In his expert report, Mr Pang opined 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” and “a great loss to our community”.  The value of the wood chips in question is estimated to be HK$131,400.  Furthermore, by recent reported cases, there is an increasing trend in illegal exploitation and harvesting involving old and/or mature trees.

17. Having considered the unchallenged evidence adduced by Mr Pang, I am satisfied that an application under OSCO is made out.  The appropriate magnitude of enhancement is one of 25%.

Conclusion

18. In the result, D1 and D2 are sentenced to 2 years and 6 months respectively.