HKSAR v. LIU HONGZAN AND OTHERS

DCCC 720/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 720 OF 2013

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REASONS FOR SENTENCE

1.  The defendants plead guilty to one charge of handling stolen goods, contrary to section 24(1)of the Theft Ordinance, Chapter 210.

2.  In summary at about 11:40 a.m. on the 21 May this year the police intercepted a taxi coming from a forest area known as “Keng Pang Ha” in Sai Kung.  The three defendants were on board the taxi.  The police searched the bags of the defendants and inside each bag found wood chips of varying quantities, later found on examination to have been recently cut from tree trunks or branches of “Aquilaria sinensis” trees, better known as incense trees.   The total weight of the wood chips was 12.19kg with the estimated value being HK$1,114,500.

3.  The defendants each admitted that they had entered Hong Kong together on the 16 May and at the request of a man called “Fei Jai” agreed to take to China for monetary reward of between RMB1000-2000 the bags of wood chips found by the police.     

4.  In passing sentence I have carefully considered everything said on behalf of the defendants by Mr Wong together with the mitigation letters from D1, D2 and D3’s wife.  I take into account the defendants have clear records.  This however carries little weight where the defendants come to Hong Kong specifically to commit crime.

Endangered species

5.  Due to the fact that the trunks of many large and old trees of “Aquilaria sinensis” have been illegally cut or felled in an unsustainable fashion the long-term survival of the species cannot be ensured.  As a result the large and old trees have become rare in Hong Kong.  More recently relatively smaller but mature trees have also been subject to illegal harvesting.  The “Aquilaria sinensis” being the dominant tree species in fung shui woods and other lowland forests, such deliberate felling and damage to the trees has caused irreplaceable damage to the general natural feature and ecology of the natural forests of Hong Kong (see paragraph 6 of the admitted facts as read withparagraph 11 of the statement of K.S. Pang, dated the 26 July 2013).  

6.  “Aquilaria sinensis” is a protected species.  The 2013 International Union for Conservation of Nature Red List of Threatened Plants lists the status of “Aquilaria sinensis” as vulnerable.  In the Mainland the “Aquilaria sinensis” is a category II protected plant in the List of Wild Plants under State Protection. Over exploitation in Guandong province has made the species a rare and threatened one (see paragraphs 20-22 of the statement of K.S. Pang, dated the 26 July 2013).

7.  “Aquilaria” are also protected species in Hong Kong, listed as Appendix II species to Schedule 1 of the Protection of Endangered Species Ordinance, Chapter 586.  The ordinance was enacted to give effect in Hong Kong to the Convention on International Trade in Endangered Species of Wild Fauna and Flora.  The recent surge in illegal exploitation and unsustainable uses has threatened the survival of the trees in Hong Kong in their natural environment (see paragraph 24 of the statement of K.S. Pang, dated the26 July 2013).

8.  By reason of the endangered nature of “Aquilaria sinensis” the courts have repeatedly said that a clear and strong message is needed to deter Mainland people from coming to Hong Kong to cut or remove incense trees (see for example HKSAR v Xie Jinbin [2011] 2 HKLRD 631 and HKSAR v Wen Zelang [2006] 4 HKLRD 460).  In both these cases the Court of Appeal held that a 3 year starting point was appropriate for theft of “Aquilaria sinensis”.  Mr Wong submits a lower starting point is appropriate because the defendants are charged with handling stolen goods and not theft, emphasising that the defendants were not found with any equipment suggesting they were involved in any way in the cutting of the trees.

9.  Mr Wong refers to an earlier decision of mine in DCCC 604/2012 where I drew a distinction between the thief and the handler.  The circumstances the defendants handled the wood in that case being similar to the present case, namely collecting the wood for taking to the Mainland, I am satisfied I should again draw the same distinction.  In DCCC 604/2012 I was satisfied to reflect this distinction a slightly lower starting point of 2 years and 9 months imprisonment was appropriate. 

10.  In respect of two defendants in that case who did not know of the criminal enterprise before coming to Hong Kong I took a starting point of 2 years and 6 months imprisonment.  Mr Wong submits a similar lower starting point is appropriate because the defendants although they came to Hong Kong to handle stolen goods did not know they were to handle endangered species.  In my view where defendants come to Hong Kong specifically to commit crime the fact they may not have known the exact nature of the stolen goods before they came affords them no mitigation.

11.  I am satisfied to reflect the distinction between thief and handler a starting point of 2 years and 9 months imprisonment is appropriate.  However in the present case the defendants handled a substantial quantity of wood, namely 12.19kg, valued at over HK$1 million.  This is substantially more than in Xie Jinbin and over double that in Wen Zelang. Whilst the Court of Appeal in Xie Jinbin emphasised the weight of the wood was not determinative of sentence I am satisfied by reason of the large quantity of wood chips a slightly higher starting point is appropriate.  

12.  In all the circumstances I am satisfied a starting point of 3 years imprisonment is appropriate.  Giving the defendants full credit for their pleas of guilty reduces the sentences to 2 years imprisonment. 

Enhancement of sentence

13.  The prosecution apply for enhancement of sentence pursuant to section 27(2) of the Organized and Serious Crimes Ordinance by reason of the nature and extent of any harm, whether direct or indirect, caused to the community by recent occurrences of the offence.

14.  In support of the application the prosecution rely on the statement of K.S. Pang, dated the 26 July 2013.  There has been no objection to the admission in evidence of this statement or the conclusions of K.S. Pang, Mr Wong accepting this is a proper case for enhancement. 

15.  The statement clearly shows, as noted earlier, that the recent surge in illegal exploitation and unsustainable uses has threatened the survival of the trees in Hong Kong.  On the evidence of K.S. Pang, which I accept, I am satisfied beyond reasonable doubt the application for enhancement is made out.  In both Xie Jinbin and Wen Zelang the Court of Appeal approved enhancement of 25%. 

16.  I am satisfied that an enhancement of 25%, namely 6 monthsimprisonment, is also appropriate. The defendants are convicted and sentenced to 2 years and 6 months imprisonment.