HKSAR v. CAI RISHENG AND ANOTHER

DCCC1285/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1285 OF 2011

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Reasons for Sentence

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1.  The two defendants enter a plea of guilty to a joint charge of theft, laid against them under section 9 of the Theft Ordinance, Cap.210.

Facts

2.  The facts to which they agree are as follows. 

3.  On 21 October 2011, the defendants entered Hong Kong on the strength of a two-way permit and were allowed to stay for seven days. 

4.  The police intercepted them in Sha Tau Kok Road on 25 October 2011 and found in their possession barks, blocks, and chips of Aquilaria sinensis (commonly known as Incense Tree), weighing a total of 4.944 kilogrammes.

5.  Under caution, the defendants admitted having cut the barks, blocks, and chips at a hill in Nam Chung that morning, intending to have them sold on the Mainland for about RMB¥200 a catty. 

6.  The 2nd defendant led the police to a hillside facing Kang Yung Study Hall, Sheung Wo Hang, Sha Tau Kok, and pointed out the two trees from which the barks, blocks, and chips were cut.

7.  Aquilaria sinensis is an endangered species which is protected under the law, and is the only species in Hong Kong known to be able to produce Chen Xiang.  The amount of wood seized in this case is estimated to be worth $196,140.  Illegal exploitation threatens the natural survival of this native plant. Unsustainable felling of the trees causes irreparable damage to the general natural feature and ecology of the forests.

Conviction

8.  The court finds the two defendants guilty as charged. 

9.  The defendants have had a clear record prior to their current conviction.

Application for enhanced sentence

10.  The prosecution have served on the defendants a Notice of Intention to Furnish Information Pursuant to section 27(2) of the Organized and Serious Crimes Ordinance, Cap.455, and make an application for enhanced sentence on the ground of the serious nature and significant extent of the harm caused to the community by the recent occurrences of the offence.

11.  In support of their application, the prosecution submit to court, without objection from the defence, the witness statements of Pang Kuen-shum, in which Mr Pang said:

“The trunks of many large and old trees of Aquilaria sinensis have been illegally cut or felled in an unsustainable fashion (i.e. cannot ensure the long-term survival of the species) deliberately for mass extraction of timber to the extent that such trees are dead or damaged and likely unable to recover. Large and old individuals of Aquilaria sinensis have since become rare in Hong Kong. Getting worse is that in the recent cases relatively smaller but mature trees of such species were also subject to illegal harvesting. As Aquilaria sinensis is a dominant tree species in fung shui woods and other lowland forests, such deliberate felling and damage of large and smaller Aquilaria sinensis, by causing damages to the habitats of the organisms, have jeopardized the normal ecological relationships of the organisms in such woodlands. I am of the view that the unsustainable felling of the species has caused irreplaceable damages to the general natural feature and ecology of the natural forests.”

Mitigation

12.  In mitigation, the defence puts forward the following matters for the court’s consideration.

(1)The 1st defendant

13.  The defendant, 23, was born in China, and has received Upper Form education.

14.  Single, he has been unemployed for some two years.  He lives with his parents, a brother and two sisters. 

15.  The defendant enters a plea of guilty to express remorse, having co-operated fully with the police at the time of his arrest.  He has committed the offence for financial gains.

16.  Counsel for the defence urges the court to be as lenient as possible in sentencing him.

(2)The 2nd defendant

17.  The defendant is now 41 years old.  He has received primary three education on the Mainland.

18.  Married with three children aged between five and 11, he works as a farmer to support his family.  He has likewise co-operated fully with the police upon arrest. 

19.  He has committed this offence for financial reason, and urges the court to pass a lenient sentence on him.

Discussion

20.  Aquilaria sinensis is an endangered species.  That it has become such is directly linked to irresponsible human exploitation.  Hong Kong has an international obligation under the Convention on International Trade in Endangered Species of Wild Fauna and Flora to protect it. 

21.  In HKSAR v Wen Zelang [2006] 4 HKLRD 460, the Court of Appeal said:

“16. A clear and strong message is needed to deter Mainland people from coming to Hong Kong to cut endangered trees, be they Buddhist Pines or incense trees. In our view, neither the 3-year starting point nor the 25% enhancement for prevalence of the offence under OSCO is manifestly excessive.”

22.  The call for a stiff sentence with sufficient deterrent effect was echoed in HKSAR v Xie Jinbin CACC195/2010 in which the Court of Appeal approved a three-year starting point for a like offence involving merely 1.181 kilogrammes of Aquilaria sinensis.  The sentence in that case was enhanced by 25 per cent under OSCO as the sentencing court was satisfied that the kind of offences in question had resulted in serious and significant harm to the community.

23.  The defendants in the instant case came into Hong Kong not as bona fide tourists but in a joint enterprise to exploit our endangered flora.  Together they had extracted a substantial amount of Aquilaria sinensis of value.  There is no justification not to adopt a starting point of three years’ imprisonment. 

24.  Every population has its share of under privileged members; this is a fact of life.  Therefore, except in the most exceptional circumstances, this does not constitute mitigation; and neither is financial hardship. 

25.  Apart from their guilty plea and their clear record, nothing in the defendants’ personal and family background would warrant any further discount.

26.  On the basis of the expert’s statements, the court finds beyond all reasonable doubt that the recent occurrences of this offence have caused and are continuing to cause that degree of irreparable harm to the general nature ecology of our forests, and thus the community, as would call for an enhancement of the sentence by 25 per cent.  

Conclusion

27.  A starting point of three years is adopted, which is reduced by one-third on account of the defendants’ guilty plea and clear record to one of two years’ imprisonment.  

28.  The sentence is enhanced under OSCO by 25 per cent, resulting in a final sentence of 30 months’ imprisonment.

Order

29.  The 1st and 2nd defendants are each sentenced to serve a term of imprisonment of 30 months.