HKSAR v. HUANG YAMING AND ANOTHER

DCCC 113/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 113 OF 2013

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REASONS FOR SENTENCE

Both defendants pleaded guilty to an offence of "Conspiracy to steal". They intended to steal Aquilaria sinensis wood (commonly known as "incense tree").

Summary of Facts

2.  About 1:40 pm on 8 December 2012, police officers spotted D1, D2 and another male named WU Zhenjiang walking along the hillside of the service reservoir at Tai Po Tsai Village, Clearwater Bay Road, Tseung Kwan O.  They were stopped for enquiries.

3.  Upon search, the police found in D1's rucksack a saw, a wood-chopping knife, a hoe, 3 grindstones and a pair of gloves.  In D2's rucksack, a torch, a box of mosquito oil and a foldable knife were found.

4.  At the scene, D1 admitted under caution that he picked up the tools contained in his rucksack on the hillside.  He intended to use the tools to cut incense trees and sell them for money. Similarly, D2 admitted under caution that he wanted to cut the incense trees with D1 and WU and then sell the trees for money.

5.  D1 and D2 are two-way permit holders.  They and WU arrived at Hong Kong through Lok Ma Chau at 11:55 am, 11:56 am and 11:49 am respectively on 5 December 2012.

Mitigation & Sentence

6.  D1 is now 30 and has a clear record.  He comes from a farming family in the mainland.  He resides with his wife, daughter (aged 4) and parents (who are of poor health).  His counsel Mr. KWAN submitted that D1 came to Hong Kong to buy some medicine; he committed the offence due to financial reasons.  Mr. KWAN stressed that the case against D1 is purely based on his own admission.  No actual injury was caused to any trees.  D1's letter was placed before me; its contents are duly noted.

7.  D2 is now 32 and has a clear record.  He is married with 2 daughters (aged 2 and 4).  He works as a paper product craftsman in the mainland earning about RMB1,000 per month.  His counsel Mr. HUI submitted that D2 came to Hong Kong to look for opportunities to improve his living (i.e. to look for friends to explore prospects in the mainland).  He only met D1 when passing through the Control Point.  They then discussed the plan to cut trees.  D2 made full and frank admission to the Police.  D2's letter was placed before me; its contents are duly noted.

8.  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 22 January 2013 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.

9.  Defence counsel Mr. KWAN and Mr. HUI did not challenge Mr. PANG's expert opinion that the incense tree is vulnerable and in danger.  They, however, opposed the Prosecution's application for enhancement.  Both counsel submitted that in this case, no actual injury was caused to any incense tree.  In other words, no harm was done to the natural environment.  Furthermore, they submitted that based on the Court of Appeal's judgment in HKSAR v Xie Jinbin [2011] 2 HKLRD 631, the deterrent effect is adequately reflected in the high starting point of 3 years' imprisonment.  Hence, there is no need to enhance the sentence for either defendant.

10.  With due respect, I disagree with counsel's submission that the deterrent effect is adequately reflected in the high starting point for this type of offences.  The Court of Appeal's focus in Xie Jinbin was primarily on the propriety of the starting point of the offence.  In my view, Xie Jinbin cannot be regarded as an authority for whether or not a sentencing court should grant an enhancement application in cases of theft of incense trees.  An application for enhancement of a sentence is statutory based; it depends whether or not the court is satisfied with the evidence adduced by the Prosecution in support of its application.

11.  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.  Most illegal exploitations of the species involved the use of unsustainable method of harvesting, which threatened the survival of this native plant in the natural environment in Hong Kong. 

12.  There is clear and cogent evidence before me that incense trees in Hong Kong are vulnerable and in danger, and that the illegal exploitations of the species threaten the natural survival of this native plant in Hong Kong.  Thus, I am satisfied that 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 role played by the defendants and the fact that they were apprehended by the Police before any incense tree was injured, I will enhance the sentence by 20%.

13.  Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) 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.

14.  Although not meant to be a straitjacket, the Court of Appeal in Xie Jinbin 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 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.

15.  In the present case, I accept that there is no evidence of any injury caused to any incense tree.  Hence, I will adopt a slightly lower starting point of 2.5 years' imprisonment for each defendant.  The usual one-third discount is given for the guilty plea, reducing the sentence to 20 months.  Apart from this, I see no other mitigating factors which warrant any further discount.  With the 20% enhancement, the sentence is therefore 24 months.  D1 and D2 are each sentenced to 24 months' imprisonment.