HKSAR v. XIE WEIXIN AND OTHERS

DCCC 283/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 283 OF 2014

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Reasons for Sentence

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1.  This case concerns the theft of 10.89 kilograms of wood chips of Aquilaria sinensis wood, commonly known as incense tree, by four two-way-permit holders, D1 to D4.

2.  The facts reveal that at around 12.05 pm on 11 January 2014, a police party including WPC10686, PW3, spotted the four defendants acting in a suspicious manner near a bus stop in Keung Shan Road, Lantau Island.  The four defendants boarded a bus but they were all stopped by the police. 

3.  Upon searching D1, the police discovered incense tree wood chips weighing 2.81 kilograms in D1’s backpack.  2.81 kilograms of incense tree wood chips were found in D2’s backpack.  Incense tree wood chips weighing 2.45 kilograms were found in D3’s backpack.  As for D4, he had 2.82 kilograms of incense tree wood chips in his backpack.  The police also found two 22-cm long knives in the backpack of D4.

4.  D1 then led the police to the location near an inlet channel on Lantau Island where D1 cut the incense tree wood chips.

5.  All four defendants admitted under caution that they chopped incense tree wood for reselling at their hometown.  They admitted under caution that they came to Hong Kong on 7 January 2014 to look for incense tree wood.  They went to Tai O and cut the incense tree wood that they found.  They shared the wood chips. 

6.  On aggregate, a total of 10.89 kilograms of incense tree wood chips were seized from D1 to D4.

7.  Mr Pang Kuen-shum, PW16, expert from the Agriculture, Fisheries and Conservation Department, confirmed that the incense tree wood chips seized from the defendants were recently cut from the tree trunk of Aquilaria sinensis if not the branch.  He also confirmed the unsustainable felling of the species had caused irreplaceable damages to the general natural feature and ecology of the natural forest.  He further confirmed that the incense tree wood chips seized from the four defendants were valued at $252,900, $309,100, $294,000 and $253,800 respectively.  On aggregate, the incense tree wood chips seized from D1 to D4 had an estimated total value of $1,109,800.

8.  The four defendants entered Hong Kong via Lowu Terminal on 7 January 2014 as two-way-permit holders.

9.  Each of the defendants has a clear record in Hong Kong.  The prosecution seeks to enhance the sentence of the defendants pursuant to section 27(2) of the Organised and Serious Crimes Ordinance.  In support of the application, the prosecution submits a statement by Mr Pang.  Mr Wong for D1 and D2 and Mr Fung for D3 and D4 do not take issue with the enhancement application.  Both submit that a 25 per cent enhancement is appropriate in the present case. Both Mr Wong and Mr Fung refer me to the authority HKSAR v Xie Jinbin CACC 195 of 2010.  Both counsel submit that in the present case, a starting point of 3 years is appropriate.  I once considered taking a higher starting point, bearing in mind the weight of the incense wood chips involved in the present case.  The four defendants have stolen a total of 10.89 kilograms of incense wood chips.  In paragraph 23 of Xie’s case, the Court of Appeal observed that 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.  However, at the end, Mr Wong successfully persuaded me a starting point of 3 years’ imprisonment is appropriate.

10.  The four defendants in the present case acted in a joint enterprise.  They came to Hong Kong together with the intention to exploit our endangered incense tree wood.  Not only did the defendants act as a group.  The offence was clearly premeditated.

11.  Taking into consideration the total aggregate of the incense wood chips stolen by the defendants and the facts of this case, I take a starting point of 3 years’ imprisonment.  Each of the defendants is entitled to one-third reduction for their clear record and guilty plea. 

12.  It is an appropriate case where an enhancement should be made.  I attach full weight to the statement prepared by Mr Pang Kuen-shum.  I agree with Mr Pang’s observation at the concluding paragraph of his statement that the illegal exploitations would threaten the natural survival of the native plant Aquilaria sinensis.  Bearing in mind the nature and extent of the indirect and direct harm caused to the community by the exploitations of incense wood tree, an enhancement of 25 per cent is called for.

13.  For the reasons given, for the offence in question, I sentence D1 to D4 to 30 months’ imprisonment.