HKSAR v. ZHANG YANXIONG AND ANOTHER

DCCC707/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 707 OF 2011

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Reasons for Sentence

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1.  Each of the defendants pleaded guilty to one offence of theft. They have agreed the facts and I have convicted them of that offence.

2.  The particulars of the offence show that on 1 June 2011, in Sai Kung, the defendants stole about a third of a kilo of wood pieces and tree bark of Aquilaria Sinensis.  Aquilaria Sinensis is the incense tree.  Understandably the prosecution have asked that the sentence be enhanced.   

3.  The defendants have agreed the facts.  These show that each of the defendants, or both defendants entered Hong Kong under two-way permits on 1 June 2011.  In the early evening of that day, at 1825 hours, they were intercepted by police officers in Sai Kung. 

4.  They were searched, and in the rucksack of the 1st defendant some wood pieces and tree bark of Aquilaria Sinensis were found, and something described as “Chen Xiang”, which is a form of resin used for medicinal purposes. The quantity was 0.33 kilos of wood pieces and tree bark. In the 2nd defendant’s rucksack was found a hoe, a handsaw, a knife, triangular file and a grindstone. 

5.  The 1st defendant immediately admitted that the tree bark was from the Aquilaria Sinensis, that he and the 2nd defendant had cut it with the items found in the rucksack, and that they were going to take this back to the mainland, and because it was valuable they were going to sell it.  At first the 2nd defendant admitted only that he had this for visual appreciation. 

6.  Subsequently there were further interviews, and in that the 1st defendant repeated his earlier admission he had entered Hong Kong, gone up to a hillside to find and cut the tree.  They plan to cut the bark they had obtained and sell it in Guangzhou.  The 2nd defendant also admitted that he had come in with the 1st defendant.  He knew that certain trees were valuable and they had come here to cut the trees and try and sell them on the mainland, and the tools they had were to cut the trees. 

7.  The exhibits were examined by Agriculture & Fisheries Department, and the exhibits were found to contain, as I have said, 0.33 kilos of wood pieces and tree bark harvested locally from Aquilaria Sinensis.  The total value of the exhibit would be about $16,500.  The Aquilaria Sinensis is known as an incense tree locally, and the Aquilaria Sinensis is a protected and endangered species, and that illegal exploitation has threatened the natural survival of the native plant.  Unsustainable felling of the species causes irreplaceable damage to general natural feature in ecology of natural forests. 

8.  The prosecution have given notice to the defendants they propose to furnish information pursuant to section 27(2) of the Organised and Serious Crime Ordinance.  The defendants have been convicted now of a specified offence within the meaning of that ordinance.  The prosecution indicated it wish to apply for an enhanced sentence, citing section 27(2)(d) that the nature and extent of any harm, whether direct or indirect, caused to the community by recent occurrences of this specified offence, namely the harvesting of Aquilaria Sinensis. 

9.  I had the assistance of a statement by Mr Pang Kiu-sung(?), who resides at the Hong Kong Herbarium.  He is a conservation officer specialising in flora, and he has been a practitioner of botany for more than 17 years.  And he was able to make an identification of the tree species in this case.  He was able to identify the ten pieces of woodchip specimens given to him from these exhibits, and identified it “Chen Xiang” harvested from Aquilaria Sinensis, the incense tree.

10.  He says that of that tree, large and old individuals of this tree has become rare in Hong Kong, and that the unsustainable felling of this species has caused irreplaceable damage to the natural species in the ecology of our natural forests.  And there is a ready market for the resin product “Chen Xiang” made from the resin of the tree.  He says that the situation in Hong Kong is there is an increasing trend reflected by numerous recent reports that the species has been illegally exploited.

11.  The trend is many large and old trees are cut and felled for extraction.  The threats owing to illegal exploitation and unsustainable use have surged.  The survival of this tree in the natural environment is threatened.  It is clear from the evidence of Mr Pang that the prosecution have made out, along with the facts they have proved, the nature of the harm caused to community by occurrences of this particular offence, and a clear basis exists for the court to enhance the sentences in respect of these particular offences committed by these defendants.

12.  As far as the defendants’ personal situation is concerned, they are both of clear record.  They are both here from Mainland China. 

13.  The 1st defendant is aged 40.  He was a hawker in China.  Certain personal information has been given by counsel.  I am told that his wife is pregnant.  He has a son.  His absence from them will cause extreme hardship if a prison sentence is imposed.  At present he and his wife live with his elderly parents. 

14.  The 2nd defendant also has aged parents.  His father has heart disease.  He was described as a worker since 1998 in China.  He has a young son.

15.  They were both on their first visit to Hong Kong.  As far as the kind of sentence that should be imposed, very helpfully there is a judgment of the Court of Appeal in January of this year dealing specifically with this form of theft, the court discussing the appropriate approach to sentence.  In that case the two defendants concerned pleaded guilty to theft, and there was an enhancement of sentence by 25 per cent, and that case also dealing with the theft of Aquilaria Sinensis.

16.  In that case there is a difference in that in the case, the instant case before the Court of Appeal, as has been pointed out to me by counsel, it was a larger quantity of Aquilaria Sinensis than in this case.  The wood blocks in the possession of the particular defendant who appealed were 0.6 of a kilo.  The total weight of all the wood blocks is 1.18 kilos.  Counsel points out to me that it is a larger quantity than in the instant case. 

17.  In the appeal case of Xie Jinbin the judge adopted a starting point of 3 years' imprisonment.  There was a general discussion of the appropriate approach to sentencing in these cases by the court.  It notes that the end of the law, in this particular case, is to achieve protection of endangered flora, so the law is seeking to prevent injury to protective flora.

18.  They point out that the restitution is impossible.  The recovered woods cannot be restored to the plant, and said the focus therefore should be on protection of the plant rather than value of the plant or the part stolen.  Factors to be taken into consideration are the injury done to the tree, profit- motive, the manner of commission and the gravity of the offence.

19.  The court said, at paragraph 17:

“...a clear and firm message is needed to deter mainlanders from coming to Hong Kong, legally or illegally, specifically for the purpose of exploiting our protected and endangered flora for profit. A starting point of three years for cases of extraction of wood from an incense tree by mainlanders could not be faulted.”

It says:

“We do emphasise that the starting point is not meant to be a strait-jacket.”

20.  There was some further discussion of that starting point of three years later in the judgment.  In particular, at paragraph 20, it said:

“The weight of the wood blocks stolen is not determinative of the sentence. The factors to be considered are the injury done to the tree, the profit motive, the manner of commission and gravity of the offence.”

21.  Now, it is noteworthy in this case that the judge have the opportunity of viewing photographs of the tree from which the wood blocks were extracted and formed the view the wood was indiscriminately cut from the trunk.  That is something I am not able to do in this case because I presume the tree from which this wood was extracted has not been located. 

22.  In paragraph 23 the court went on again to say:

“Weight is therefore 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.”

And they say:

“Having regard to the purpose of the Ordinance and the need for deterrence, we consider the starting point appropriate.”

They then went on to add:

“The sentence might be on the high side in view of the quantity of the wood stolen, but is not one which may be regarded as manifestly excessive.”

23.  So counsel rightly points out in this case I have a smaller quantity of wood, no positive evidence as to the actual damage caused to the tree.  And so, in those circumstances, adopting the starting point of 3 years, as suggested by the court, might again be seen as to be, as they described, on the high side.

24.  I do note the following factors.  As I say, there is a smaller quantity of the wood taken.  The defendants acted collectively.  Clearly it means that they would be capable of enhancing larger quantities were they able to find it.  They were in possession of handsaw triangular file and grindstone for the processing of the wood.  And also I note, to reduce the starting point excessively where smaller quantities are concerned may well encourage the harvesting of smaller amounts more frequently.  It also would appear to me that the harvesting of anything but negligible amounts of this wood will, of course, cause damage to the tree.  And the law is, to a certain extent, trying to prevent that. 

25.  Now, taking all these factors into account in this case I consider that the appropriate starting point for this case to be having regard to these defendants is one of 30 months' imprisonment.  That I will reduce by one-third to 20 months' imprisonment for each defendant. 

26.  It is at this point that the question of enhancement sentence arises, and the appeal courts have made it quite clear that this is the kind of offence where, and also I have evidence to support the proposition, that there should be an enhancement of the sentence.  I will enhance the sentence.  It would appear that the appropriate level of enhancement at this stage is 25 per cent.  That amounts to 5 months' imprisonment on this sentence for each defendant, leading to a final sentence of imprisonment for the 1st defendant and the 2nd defendant of 25 months' imprisonment.