HKSAR v. FOK KONG FUNG AND OTHERS

DCCC475/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 475 OF 2011

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Reasons for Sentence

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The Charge and the Facts

1.  The Defendants pleaded guilty before me to one charge of theft, contrary to section 9 of the Theft Ordinance, Cap. 210. The property stolen were ten blocks of “Chen Xiang” wood, that is, Aquilaria Sinensis, commonly known as “Incense Tree”.

2.  The 1st Defendant is a Hong Kong resident. The 2nd and the 3rd Defendants are Mainland residents. They entered Hong Kong on 11 March 2011 on the strength of Two-way Permits and they were allowed to say in Hong Kong for 7 days. Yet, on the following day after their arrival in Hong Kong, the 2nd and the 3rd Defendants were found on the hillside at Ap Tsai Shan, Po Lam, Tseung Kwan O, together with the 1st Defendant.

3.  When the police intercepted the 1st Defendant, he was resting near a footpath. He had two rucksacks and a bag with him at the time. Upon search, 10 blocks of “Incense Tree” wood and a whetstone were found inside one of the rucksacks.

4.  Under caution, the 1st Defendant admitted that he had brought the 2nd and the 3rd Defendants to the hillside to chop incense trees for sale in the Mainland. The three would then share the proceeds of sale.

5.  Shortly after the arrest of the 1st, the 2nd and the 3rd Defendants were seen walking out from the bushes. The 2nd Defendant was carrying a chopping knife and a hoe at the time.

6.  Later, the 1st Defendant pointed out to the police the location of the incense tree(s) from which the 10 blocks of wood were chipped off. The 1st Defendant told the police that the chipping was done by the 2nd Defendant, and the 2nd Defendant’s son, that is, the 3rd Defendant. The wood was then handed over to the 1st Defendant for custody.

7.  Mr. K. S. Pang, an expert in the field, was shown the photos of an incense tree and the 10 blocks of wood. Mr. Pang opined that it was likely that the damage caused to the tree trunks was unable to recover, and that this form of harvesting “Chen Xiang” is “unsustainable felling of the species”, that is, not ensuring the long-term survival of the species. Mr. Pang was also of the opinion that such harvesting caused irreparable damages to the general natural feature and ecology of the natural forests.

8.  The total weight of the 10 blocks of wood stolen was 0.38 kg and the estimated value was HK$45,600.

Mitigation – the 1st Defendant

9.  The 1st Defendant is now aged 53. He is married and has three children. He was educated up to primary level. He used to be a cook, earning about HK$15,000 per month. However, owing to an injury, the 1st Defendant ceased employment sometime before his arrest.

10.  The 1st Defendant was once before the court in 1986 and was convicted of two offences of “possession for the purpose of trade goods to which a forged trade mark was applied”. He was fined on that occasion.

11.  Letters written by the 1st Defendant, his wife, his daughter, his son and his former employer were submitted to the court. In gist, the 1st Defendant was described as a responsible person who tried every means to support his family.

12.  It was said in mitigation that the 1st Defendant was not looking for huge profits and he had no idea of the seriousness of the offence. It was also said that there was no evidence as to what sort of damage was done to the tree or trees. While accepting that the Defendants must have chipped off the wood from a tree trunk, Mr. Davies said that there was no evidence that considerable damage was done to the tree or that the tree had died as a result.

13.  Mr. Davies also urged that a lenient sentence be passed as the 1st Defendant was fully co-operative and he made full admissions at the scene. It was further said that it is highly unlikely that the 1st Defendant would re-offend.

Mitigation – the 2nd Defendant

14.  The 2nd Defendant is aged 63 and is a Mainland resident. He worked as a farmer, earning about RMB 500 per month. He is married with three sons.

15.  Although the 2nd Defendant was found having a knife and a hoe with him at the time when he was arrested, Mr. Chong suggested that the offence was not premeditated as the 2nd Defendant did not bring the tools across the border.

Mitigation – the 3rd Defendant

16.  The 3rd Defendant is aged 33. He is the son of the 2nd Defendant. Again, he is a Mainland resident, earning RMB 500 as a farmer. The 3rd Defendant is married with 4 daughters.

17.  A letter written by the 3rd Defendant and another one written by a pastor who has visited the 3rd Defendant in the prison were given to the court. In gist, the 3rd Defendant indicated his remorse for having committed the offence.

Sentencing Considerations

18.  In HKSAR v Wen Zelang [2006] 4 HKLRD 460, the Court of Appeal, when approving a starting point of 3 years and an enhancement of sentence by 25% in respect of the theft of 5.6 kgs of wood taken from an incense tree, said,

“15. In our opinion, the judge was right to have taken a serious view of the offence when the defendants had expressly come to Hong Kong for the purpose of cutting endangered trees for profit.

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

19.  More recently, in HKSAR v Xie Jinbin [2011] 2 HKLRD 631, the Court of Appeal referred to Wen Zelang and pointed out that,

“13. … The starting point of three years was upheld in the light of Hong Kong’s international obligation under the Convention (the Convention on International Trade in Endangered Species of Wild Fauna and Flora) and with reference to incense tree as a protected endangered species under Schedule 1 of the Ordinance (the Protection of Endangered Species of Animals and Plants Ordinance, Cap. 586).”

20.  Further, the Court of Appeal observed there that,

“15. Wen Zelang is the only prosecuted case of theft of wood from incense trees. There are no prosecution statistics to support the suggestion that the offence is prevalent. However, according to Mr. Pang, there are numerous reports of illegal exploitation of the species. This suggests that the exploitation is difficult to police. The successful prosecution in Wen Zelang was just a matter of chance. In Lo Tai Hoi, there is evidence that theft of Buddhist Pines is prevalent. The nature of the offence is similar, i.e., mainlanders coming illegally or on two way permits to exploit our local flora. The offence could be committed with relative ease and with the least amount of equipment. All these considerations apply equally to illegal exploitation of incense trees. There is a need for protection and deterrence.

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. … 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.”

The Sentence in This Case

(1) The Joint Enterprise

21.  In the present case, I note that there were the three of them acting together. The 1st Defendant is a Hong Kong resident and he admitted getting to know the two other Defendants on the internet and deliberately bringing them to the site to get incense tree wood for profit.

22.  In mitigation, Mr. Davies told the court that the 1st Defendant indeed met the 2nd and the 3rd Defendants while he was seeking medical treatment in the Mainland. Mr. Davies further said that the 1st Defendant merely took the other two Defendants to the hillside because they had previously assisted the 1st Defendant. It was, however, accepted that the 1st Defendant also did that for profit, but he was not intending to get any large sum.

23.  Whatever the position, it was the 1st Defendant’s own admission that he was the one who brought the 2nd and the 3rd Defendants to the hillside for chipping the wood. No doubt, without the 1st Defendant leading the way, it might make the other two Defendants’ task more difficult. On the other hand, on the facts admitted, the 2nd and the 3rd Defendants were the ones who actually cut the wood from the tree. Since the two of them only came to Hong Kong on the day before they were arrested, I have no doubt that they deliberately came to Hong Kong to commit this offence for, otherwise, they would not be caught cutting the wood on the very following day after their arrival.

24.  I find that, in the round, the culpability of all three of them is more or less the same. In any event, they were acting together in a joint enterprise and, in this case, it really matters little who played which role in their criminal venture.

25.  Further, I note that when the 1st Defendant was arrested, he already had with him 10 blocks of incense tree wood. However, the other two Defendants were not around at that time. Later, the 2nd and the 3rd Defendants were seen walking out from the bushes. The 2nd Defendant was then still holding a hoe and a knife. On these facts, I have no doubt that the Defendants’ criminal enterprise on that day would have continued for some more time if they were not spotted and arrested by the police.

(2) The Sentences in Other Cases

26.  In mitigation, Mr. Davies referred the court to a number of other cases in respect of which a similar quantity of incense tree wood was stolen. In most of those cases, the defendants were sentenced to a term of 2-6 months’ imprisonment. Mr. Davies therefore asked the court to impose a similar term in this case if the court considered that imprisonment was inevitable.

27.  These cases covered the period between January 2007 and March 2011 and were summarized in a table attached to the statement of WDIP Choy Ngan-ling. WDIP Choy compiled the information from crime messages circulated within the Police Force and the tabularized information all involved incense trees, whether it was a theft case, a handling stolen goods case, a criminal damage case, etc., and whether an arrest was made or not.

28.  The court was told that WDIP Choy’s statement was originally served on the defence as the prosecution would be seeking an enhancement of sentence on the basis of “prevalence of the offence”. The figures showed 15 such cases in 2007, 20 in 2008, 15 in 2009, 19 in 2010, and 13 for the first quarter of 2011.

29.  For reasons not known to the court, the prosecution stated during the hearing that they were no longer seeking any enhancement on the basis of “prevalence”, but only on the basis of “the nature and extent of harm caused to the community by recent occurrences of the specified offence”.

30.  I should pause here and state that the sentences passed in the other cases were not of much, if any, assistance as the facts in each case would differ and the circumstances of two cases could never be identical. Secondly, it might be that these sentences were inadequate but that the appellate court has had no opportunity to review or comment on them. I should also add that where another defendant has received a light sentence which does not sit with the seriousness of the offence and the facts of the case, another defendant cannot ask for the same windfall.

31.  Therefore, whatever the sentences which have been imposed in the other cases were, what I am going to do is to impose an appropriate sentence in view of all the relevant facts of this case, the criminality involved, whether there are any aggravating factors, etc.

32.  As I have mentioned, not just one Defendant was involved. There were three Defendants acting in a joint enterprise in this case. The 1st Defendant admitted under caution that he was doing it for profit. No doubt, the other two were also doing it for profit. Although all indicated that the value of the wood should not be as high as HK$45,000, that is not material. The point is that these Defendants put their heads together and acted as a group to steal wood from this endangered and protected species and to exploit our environment. They brought with them a hoe, a wood-chopping knife, a whetstone, and a rucksack for carrying the wood. They were equipped for the commission of the offence. On the facts, the offence was clearly premeditated and it was a serious offence.

(3) Damage Done to the Tree

33.  Much was said by Mr. Davies that there was no evidence that the acts of these Defendants had caused any damage or injury to the tree.

34.  Firstly, Mr. Davies said that the 1st Defendant only pointed to the location in which they had the wood cut, not to any particular tree. Therefore, there was no evidence that the tree depicted in the photos which were sent to Mr. Pang for opinion was the tree from which the 10 blocks of wood were cut.

35.  Secondly, Mr. Davies commented that even if the tree depicted were the tree in question, it was clear that the injury caused to the top part of the tree was not done by these Defendants for the photos showed relatively cleanly sawn off tops which did not match with the small pieces of wood with rugged edges seized from the Defendants.

36.  My observations are these. Whether or not the tree depicted in the photos was the one from which the wood in question was taken, the Defendants admitted chipping the wood from an incense tree. It was also an admitted fact that the Defendants’ group had with them a knife, a hoe and a whetstone at the time.

37.  In my view, it is common sense that when a non-professional uses a knife and a hoe to indiscriminately chip away blocks of wood from a tree, such act would inevitably cause damage to the tree. I accept that whether the injury caused is irreparable or not may require an examination by the relevant expert, and I accept the following opinion of Mr. Pang which was set out in the Summary of Facts might not be applicable insofar as the acts of these Defendants are concerned,

“… the damage on the tree trunks as shown might be due to the harvesting of wood pieces for Chen Xiang and the trunks of such tree being top chopped and cut for Chen Xiang harvesting were damaged to the extent that it was likely that they were unable to recover; this form of harvesting Chen Xiang was unsustainable felling of the species (i.e. not ensuring the long-term survival of the species) and caused irreparable damages to the general natural feature and ecology of the natural forests.”

38.  It would appear from the above that Mr. Pang was focusing on the tree being “top chopped and cut” when commenting that it was likely that the tree was unable to recover. In fact, other than the top being chopped off, it was also clear from the photos that there was damage done near the base of the tree trunk but Mr. Pang did not seem to have commented on that specifically.

39.  On the facts of this case, I am sure that the tree from which the 10 blocks of wood were taken was damaged to some extent. I, however, accept that there was no evidence to suggest that the damage done was irreparable.

40.  Nevertheless, the Court of Appeal has repeatedly said that there is a need for protection and deterrence. If there had been evidence that the Defendants had caused irreparable damages to the tree, then it would have been an aggravating factor. However, the act of illegally and indiscriminately chipping wood from this endangered species is itself an act to be condemned and deterred.

(4) The Starting Point

41.  Having considered all the matters raised and the facts of this case, I find it appropriate to adopt a starting point of 2 years in this case.

42.  The Defendants pleaded guilty and each of them would be given a 1/3 reduction for their pleas. As I said, their culpability is similar.

43.  Insofar as the 2nd and the 3rd Defendants are concerned, although Mr. Chong submitted that they are of positive good character, the submission is misconceived. Both the 2nd and the 3rd Defendants are Mainlanders. On this occasion, they came to Hong Kong on the day before their arrest. Therefore, not much could be said about these Defendants not having had any criminal convictions in Hong Kong. Moreover, there was no evidence before the court about the alleged “positive good character”. All that Mr. Chong was able to say was that the Defendants worked as farmers in the Mainland and were decent people before their arrest. Clearly, such is not “positive good character” as we understand it in the legal sense.

(5) The Sentence Imposed

44.  For all three Defendants, other than their pleas, I do not see any other mitigating factors which would warrant any further reduction in sentence. Therefore, each of the Defendants is sentenced to a term of 16 months for the charge.

The Application for Enhancement

45.  Both Mr. Davies and Mr. Chong opposed the prosecution’s application for enhancement on the basis that there was no evidence to show that the acts of these Defendants had caused any or any irreparable damage to any incense tree. I reject these submissions.

46.  Mr. Pang clearly set out in his statement, which was used to support the prosecution’s application, that,

“22. … there are numerous recent reports that the species has been illegally exploited. The trunks of many large and old trees are being cut or felled for extraction of agarwood to the extent that such trees are damaged and likely unable to recover. The threats owing to illegal exploitations and unsustainable uses have indeed surged, threatening the survival of such trees in the natural environment. …

23. … Most illegal exploitations of the species involve the use of unsustainable method of harvesting, which caused undesirable impact to the survival of Aquilaria Sinensis, particularly the larger individuals.

24. …, the illegal exploitations would threaten the natural survival of the native plant Auqilaria Sinensis.”

47.  I accept Mr. Pang’s opinion.

48.  Although counsel suggested that no enhancement should be ordered in this case as there was no evidence about any damage, it should be noted that the Court of Appeal in Xie Jinbin observed that in Wen Zelang, there was also no finding by the court that the incense tree or trees died as a result.

49.  Further, section 27(2) of the Organized and Serious Crimes Ordinance, Cap. 455, reads,

“The prosecution may furnish information to the court regarding :

(d) the nature and extent of any harm, whether direct or indirect, caused to the community by recent occurrences of that specified offence;”

50.  Therefore, it is the nature and extent of harm caused to the community by recent occurrences of the specified offence that matters, not the particular harm caused in the case in question.

51.  On the evidence of Mr. Pang, I am satisfied that there have been numerous illegal exploitations of incense tree recently and such exploitations would threaten the natural survival of the plant and would cause harm to our ecological environment and our community.

52.  For these reasons, I would allow the prosecution’s application for enhancement and would order the sentence to be enhanced by 25%.

53.  16 months enhanced by 25% is 20 months. Each of the Defendants is therefore to serve a term of 20 months’ imprisonment for this offence.