HKSAR v. WEN ZHENCONG AND ANOTHER

DCCC 283/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 283 OF 2017

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REASONS FOR SENTENCE

1.  Both defendants pleaded guilty to an offence of "Conspiracy to steal". They stole wood chips and bark of Aquilaria sinensis (commonly known as "incense tree").

Summary of Facts

2.  About 5:50 p.m. on 9 December 2016, police officers stopped a taxi at a roadblock set up in Sai Kung.  D1 and D2 were passengers on board.  Upon search, some tree-cutting tools were found in D1's rucksack; whereas in D2's rucksack, 2.15 kg of wood chips and 0.04 kg bark of incense tree.

3.  Immigration records revealed that D1 and D2 entered Hong Kong through Shenzhen Bay 3 minutes apart on 8 December 2016.  The travelling records on their respective Octopus cards on 8 and 9 December 2016 are almost identical.  The last record showed that they boarded a minibus from Choi Hung to Sai Kung pier around 9:30 a.m. on 9 December 2016 (with only 12 seconds apart).

4.  D2's mobile phone numbers appeared on the phone book of D1's mobile phone, which also contained call records with D2.

5.  In his video recorded interview, D1 claimed that he went to High Island Reservoir for sightseeing on 9 December 2016.  He also claimed that he found the rucksack and cutting tools having been abandoned near High Island Reservoir, so he picked them up.

6.  D2 admitted in his video recorded interview that he and D1 came to Hong Kong from Dongguan for the purpose of cutting incense trees for profit.  He also admitted that the wood chips and bark found his rucksack were cut by him and D1, using the tools found in D1's rucksack.

7.  Mr. PANG, a Conservation Officer (Flora) of the Agriculture, Fisheries and Conservation Department confirmed that the wood chips and bark found were of incense trees.  The estimated value of the wood chips was about $107,500; and the bark, about $400.

Mitigation & Sentence

8.  D1 is now 27 and has a clear record.  He began to reside and work in Dongguan in July 2016.  He was a warehouse attendant earning RMB2,000 per month.  He contributed almost half of his salary to support his retired parents.  His lawyer Ms. WAN submitted that D1's mother was suffering from kidney stones and has borrowed money from friends and relatives to fund her medical expenses.  D1 therefore came to Hong Kong together with D2 to cut incense trees for a reward of a few thousand dollars.  D1 is truly remorseful for what he has done.

9.  D2 is almost 25 and has a clear record.  He resides with his parents in the mainland and worked as a stock keeper at a shoes warehouse earning about RMB1,200 per month.  He needs to give financial support to his retired parents.  His lawyer Mr. KAM submitted that D2 committed the present offence for a reward of a few thousand dollars only.

10.  The Prosecution has applied for enhanced sentence pursuant to section 27(2)(d) of the Organized and Serious Crimes Ordinance (Cap.455) on the basis of the nature and extent of harm caused to the community by recent occurrences of illegal harvesting of wild local incense trees.  A witness statement dated 17 October 2017 given by Conservation Officer Mr. PANG Kuen-shum of the Agriculture, Fisheries and Conversation Department was placed before me.  Mr. PANG is an expert in Botany.

11.  Both defence solicitors did not oppose the Prosecution's application for enhancement.

12.  Regarding the situation of Aquilaria sinensis in Hong Kong, Botany expert Mr. PANG commented that there is an increasing trend reflected by numerous recent reports that the species has been illegally exploited.  The trunks, branches and roots of many large and old trees are being cut or felled for extraction of agarwood to the extent that such trees are damaged and unlikely to recover.  In recent cases, smaller but mature trees were also subject to illegal harvesting.  Most illegal exploitations of the species involved the use of unsustainable method of harvesting, which caused undesirable impact on the survival of this native plant in the natural environment in Hong Kong.

13.  There is clear and cogent evidence before me that the unsustainable felling of incense trees has caused irreplaceable damage to the general natural feature and ecology of the natural forests in Hong Kong. Thus, I am satisfied that the nature and extent of harm caused to the community by illegal exploitations and unsustainable uses of Aquilaria sinensis warrant an enhanced sentence in the present case.  I grant the Prosecution's application for enhancement.  Given the fact that wood chips and tools were found on the defendants, I will enhance the sentence by 25%.

14.  Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) or having a sick family member is no mitigating factor for committing a crime.  The incense tree is a vulnerable and protected endangered species.  A clear and firm message is required to deter mainlanders from coming to Hong Kong, legally or illegally, for the specific purpose of exploiting protected and endangered flora for profit.

15.  Although not meant to be a straitjacket, the Court of Appeal in HKSAR v Xie Jinbin [2011] 2 HKLRD 631 held that a starting point of 3 years' imprisonment for the extraction of wood from incense trees by mainlanders could not be faulted.  Furthermore, the Court of Appeal held that the prime considerations in sentencing are protection and deterrence.  The evil which the law sought to prevent was not theft as such but injury to the protected flora, since restitution is impossible.  The focus, therefore, should be on the protection of the plant rather than the value of the plant or part stolen.  Weight is not the determining factor for sentencing nor is it a reliable indicator of the seriousness of the offence and the injury caused to the tree.  Other factors to be taken into consideration are injury done to the tree, profit motive, the manner of commission and the gravity of the offence.

16.  In the present case, I adopt a starting point of 3 years' imprisonment for each defendant. The usual one-third discount is given for the guilty plea, reducing the sentence to 2 years.  Apart from this, I see no other mitigating factors which warrant any further discount.  With the 25% enhancement, the sentence is therefore 30 months.  D1 and D2 are each sentenced to 30 months' imprisonment.