HKSAR v. HE ZHAOWEN

DCCC 516/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 516 OF 2012

____________________

____________________

Reasons for Sentence

____________________

Introduction

1. The defendant is convicted on his own plea of the charge of theft of 0.07 kilogramme of wood chips of Aquilaria Sinensis wood commonly known as Incense Tree, contrary to section 9 of the Theft Ordinance, Cap.210.

Facts

2. At about 10:37 am on 24 April 2012, PC 50064 saw the defendant and three other men walking one after another at Clear Water Bay Road near Tai Au Mun Road. The defendant was carrying a rucksack. The defendant and the three men were stopped for investigation. It was found that the defendant was a two-way permit holder and he came to Hong Kong on 23 April 2012.

3. Upon search, the following items were found from the rucksack carried by the defendant:

· a hoe;

· a saw;

· a firewood chopper;

· a triangular file;

· a knife sharpening stone of about 20 cm long; and

· a plastic bag containing 3 pieces of Aquilaria Sinensis wood chips totally weighed 0.07 kg.

4. In subsequent cautioned interviews, the defendant said:

· All the items found from his rucksack belonged to him;

· The saw found inside the other man’s rucksack also belonged to the defendant, but he did not know why it was in the other man’s rucksack;

· He came to Hong Kong on 23 April 2012 with the intention to cut trees;

· He brought the tools with him, as he intended to take some incense tree barks from Hong Kong;

· The wood barks found on him were cut by him from an unknown hillside in Hong Kong; and

· He had knowledge about incense tree as he planted them at home.

5. The 3 pieces of wood chips found from the defendant’s rucksack were sent to the Agriculture, Fisheries and Conservation Department (“AFCD”) for examination. Dr Pang Kuen-shum (“Dr Pang”) of AFCD found that the wood chips were Aquilaria Sinensis (incense tree). He opined that they were recently cut from the tree trunks or the branches, that the total weight was 0.07 kg and that their estimated value was about HK$700. He took the view that the unsustainable felling of the species has caused irreplaceable damage to the general natural feature and ecology of the natural forests of Hong Kong.

The defendant’s previous records and antecedents

6. The defendant has no previous criminal conviction record in Hong Kong.

7. The defendant was born in the Mainland in December 1985 and is now 26. He has received education up to Primary 3 level in the Mainland. He used to be a carpenter.

Application for enhancement of sentence

8. The prosecution applied for enhancement of sentence pursuant to section 27(2)(d) of the Organized and Serious Crimes Ordinance, Cap.455. A statement of Dr. Pang dated 22 June 2012 was submitted to this court in support of the application. The defence had no objection to the application. I allowed that application.

Mitigation

9. It was submitted by Mr Kwok on behalf of the defendant that the defendant pleaded guilty to the charge thus showing his remorse. Mr Kwok also asked this court to adopt a lower starting point since small quantity of incense tree wood chips was involved and it was not a case of joint enterprise.

10. Mr Kwok also submitted that the defendant committed the present offence in order to bring home the wood chips to cure his daughter’s disease, and that the defendant’s wife was pregnant and the baby was due this month. A letter dated 11 July 2012 from the defendant was submitted to this court asking for leniency. In this connection, I am of the view that no matter whether the defendant cut the incense tree wood chips for monetary reward or for curing his daughter, it was a selfish act at the expense of damaging the general natural feature and ecology of the natural forests of Hong Kong. Further, the defendant admitted under caution that he planted incense trees at home. I do not see any reason he needed to come to Hong Kong to cut incense trees to cure his daughter when he planted incense trees at home. I do not accept it as a mitigating feature. Neither do I consider the pregnancy of the defendant’s wife a mitigating feature, as the defendant should have known that his baby is due this month when he committed the present offence in April this year.

Sentencing authorities

11. In HKSAR v WEN Zelang CACC220/2006, Mr Justice Yeung, JA (as he then was), said:

“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 three-year starting point nor the 25% enhancement for prevalence of the offence under OSCO is manifestly excessive.”

12. In HKSAR v XIE Jinbin CACC 195/2010, the Court of Appeal confirmed the starting point of 3 years’ imprisonment and an enhancement of sentence by 25%. In XIE Jinbin, Mr Justice To said:

“16. While the quantity of stolen goods in a case of theft is usually an important factor in determining the appropriate sentence, it is not necessarily the only and determinative factor. In the ordinary cases of theft from supermarket, or theft of ordinary goods, even of trees which do not fall within the category of protected endangered species, value or quantity or weight may be the only consideration. The same is true of trafficking in dangerous drugs. But where the stolen property involved is a protected endangered species, the considerations are wholly different. The end which the law seeks to achieve is protection of our endangered flora. Thus, the evil which the law seeks to prevent is not theft as such but injury to the protected flora. Unlike theft of ordinary goods, restitution is impossible. The recovered wood could not be restored to the plant. The focus, therefore, should be on protection of the plant rather than the value of the plant or part stolen. The 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.

17. We echo Yeung JA’s sentiment that 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 case of extraction of wood from an incense tree by mainlanders could not be faulted. We do emphasise that the starting point is not meant to be a strait-jacket.

…

20. The remaining thrust of Mr Allman-Brown’s argument is that in view of the small quantity of wood found in the Applicant’s possession, the sentence was manifestly excessive even when compared with that received by the appellant in Wen Zelang. As already mentioned above, the prime considerations in this type of cases are protection of the endangered species and deterrence. 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 the gravity of the offence.

…

23. …the quantity does not reflect the actual injury caused to the tree and the seriousness of the offence…They equipped themselves with a knife, hoe and saw. …The offence was clearly premeditated… The offence is one which calls for deterrence. 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. Having regard to the purpose of the Ordinance and the need for deterrence, we consider the starting point appropriate. The sentence might be on the high side in view of the quantity of wood stolen, but is not one which may be regarded as manifestly excessive as to justify interference.”

Sentence

13. The usual starting point for theft of incense tree wood chips/blocks is 3 years’ imprisonment. However, in light of the small quantity of incense tree wood chips involved in this case, and since the defendant is individually charged in the present case without involving other known or unknown party/parties, I am prepared to adopt a lower starting point. On the other hand, the prosecution showed me the hoe, saw and firewood chopper this morning. They were all heavy tools capable of felling tree trunks and causing irreplaceable damage to the trees. Having taken into account all the circumstances, I adopt a starting point of 27 months’ imprisonment.

14. One-third discount is given to the defendant for his guilty plea, thus reducing the sentence to 18 months’ imprisonment. I do not consider there being any other valid mitigating features justifying further reduction in sentence.

15. I enhance the sentence by 25% by virtue of section 27(2)(d) of the Organized and Serious Crimes Ordinance. As such, the defendant is sentenced to 22 months and 2 weeks’ imprisonment.