HKSAR v. LEE CHUN YUK AND OTHERS

DCCC759/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 759 OF 2011

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Reasons for Sentence

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1.  There are seven defendants in this case. All have pleaded guilty today.

2.  The 1st defendant is a coxswain of the vessel found in Hong Kong waters in the early hours of 5 May this year.  This vessel was intercepted by the police with the 2nd to 7th defendant on board.  The 1st defendant had driven into Hong Kong waters from the Mainland to collect the six men from a beach of Fan Lau Tung Wan.  All men on board were unauthorised entrants in Hong Kong. 

3.  The 1st defendant has pleaded guilty to Charge 1, that is, assisting the passage within Hong Kong of a conveyance which carried unauthorised entrants.  That is a sampan with the other defendants on board.  He has also pleaded guilty to Charge 2, endangering the safety of others at sea in that, he being the coxswain of the said sampan failed to install lights as well as having sufficient life saving equipment and fire extinguishers on board. The vessel has been examined and found to be, according to the ship inspector, un-seaworthy, hence Charge 2.

4.  The 2nd to the 7th defendant have all pleaded guilty today to a joint charge 3, that is, having stolen in Hong Kong 44.45 kilograms of wood pieces of Aquilaria Sinensis wood, commonly known as incense tree.  The 2nd to the 7th defendant have also pleaded guilty to another single charge of remaining illegally in Hong Kong, hence charges 4 to 9.  According to their own admissions, the 2nd to the 7th defendant came to Hong Kong some two weeks before they were arrested.  They came for the specific purpose to cut and collect incense tree bark or wood.  This wood is very valuable and in great demand in Mainland China.

5.  Each defendant was carrying a rucksack containing these wood pieces all weighing a total of 44.45 kilogrammes.  Mr Pang Kuen-shum, the conservation officer of the Agriculture Fisheries and Conservation Department, having examined the exhibits, found them to be worth over HK$3.6 million.  A statement by this gentleman has been submitted into court for its consideration.

6.  As I have said, all defendants were arrested when the 1st Defendant’s boat was intercepted.  For all defendants the best mitigation today is their plea of guilty.  I have heard full mitigation on their behalves.  All have clear records in Hong Kong bar the 6th Defendant who was, in 2008, sentenced for going equipped for stealing by Fanling Magistracy. All have committed these offences because of financial difficulties.  All are Mainland residents with young children and families to support.  All work in labour intensive jobs that do not generate a lot of income.  All were looking to supplement their incomes by committing these offences.

7.  For the 2nd to the 7th defendant Charge 3 is a particularly serious offence that will attract an enhancement under the Organised and Serious Crimes Ordinance, Cap.455.  The prosecution relies on, and has furnished information pursuant to section 27(2)(d) of the Ordinance; (d) is:

“Where the nature and extent of any harm whether direct or indirect caused to the community by recent occurrences of this specified offence.”

The defence do not challenge this enhancement application.

8.  Mr Pang examined the wood and he is of the opinion - he is of the view that:

“The illegal exploitations would threaten the natural survival of the native plant Aquilaria Sinensis.”

In paragraph 10 of his statement he says:

“Recently the trunks of many large and old trees are being illegally cut or felled in an unsustainable fashion 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. 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 of Hong Kong.” This is a tree protected in Hong Kong as an endangered species. It is also protected in China. In fact, worldwide it is listed as vulnerable, a threatened plant.

9.  I have been referred to the authority of HKSAR v Xie Jin Bin, CACC195/2010.  In that authority the District Judge also considered the authority of HKSAR v Wen Zelang, 2006 for 4HKLRD, 460. That was a case of incense tree being stolen, not Buddhist Pine.  In that authority as in the authority of Xie Jin Bin a starting point of 3 years was taken for the theft and later enhanced by 25 per cent.  In the case of Xie Jin Bin four men were arrested with a total on 1.18 kilograms of wood block.

10.  In this case it is 44.45 kilogrammes; a lot more and a significant factor.  The Court of Appeal in that authority of Xie Jin Bin held that a 3 year starting point was appropriate, as was the enhancement, and I took into account what was said by the Court of Appeal at paragraph 16; 

“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 factors to be taken into consideration are the injury done to the tree, profit motive, the manor of commission and the gravity of the offence.”

11.  Where the 1st Defendant is concerned, and in relation to in particular Charge 1, I have looked at several authorities, including HKSAR v Yeung Wai & Others, CACC415/04, HKSAR v Sze Yu CACC143/03 and R v Wong Yin Lung, 1995, 1HKCLR 151.  Factors I do take into account are as follows; the defendant was the coxswain, the person in charge; the passengers, the other defendants, were not young, weak, vulnerable, injured or hidden in secret compartments; as well as the state of the vessel; it was not great but unlikely to sink that evening.  I find no particular aggravating factors.

12.  After considering mitigation and the facts, I find the following sentences appropriate.  For the 1st Defendant for Charge 1 I will take a starting point of 5 years’ imprisonment.  You are entitled to a discount of one-third for your plea.  I will, for Charge 1, impose a sentence of 3 years and four months.  For Charge 2, I take a starting point of 18 months.  You are entitled to a discount of one-third for your plea.  For Charge 2 you are sentenced to 12 months’ imprisonment.  I order Charges 1 and 2 to be served concurrently. 

13.  The 2nd to the 7th Defendants please stand up.  For Charge 3 I will take a starting point, having reflected the seriousness of the charge, the theft and the quantity of the wood you have cut away, I take a starting point of 3 years and six months.  I accept that the enhancement under section 27(2)(d) is justified and required and I accept Mr Pang’s expert opinion.  I will ultimately enhance the sentence by 25 per cent.  For Charge 3 after taking a 3½ year starting point you are entitled to a discount of one-third. After that discount the sentence is reduced to 2 years and four months.  As I have said, I will enhance that sentence by 25 per cent under the Organised and Serious Crimes Ordinance, that is, a seven month increase.  For Charge 3, the 2nd to the 7th Defendant is sentenced to 2 years and 11 months. 

14.  Each face another additional charge of illegally remaining in Hong Kong.  According to the authority of R v So Man King [1989] 1HKLR 142, that guideline says very clearly that after a plea of guilty a defendant should receive a 15 month sentence.  I see no reason to depart from this guideline.  2nd Defendant, Charge 4, sentenced to 15 months’ imprisonment.  3rd Defendant, Charge 5, 15 months’ imprisonment.  4th Defendant, Charge 6, 15 months’ imprisonment.  5th Defendant, Charge 7, 15 months’ imprisonment.  6th Defendant, Charge 8, 15 months’ imprisonment.  7th Defendant, Charge 9, 15 months’ imprisonment. 

15.  It has been said time and time again by the Court of Appeal that where there is this charge of illegally remaining, it should invariably run consecutive to any other offence committed.  I will order that these 15 months run consecutively to Charge 3.  For the 2nd to the 7th Defendant both charges will attract a sentence of 4 years and two months.