HKSAR v. CAI JINYOU

CACC 161 /2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 161 OF 2014

(ON APPEAL FROM DCCC 193 OF 2014)

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J U D G M E N T

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1.  The applicant seeks leave to appeal against a sentence of 35 months’ imprisonment imposed on him by District Court Judge Casewell on 7 May 2014 on his plea of guilty to a single charge of theft, contrary to section 9 of the Theft Ordinance, Cap. 210.

2.  The applicant was one of four defendants who pleaded guilty to the theft of 21.88 kg of Aquilaria Sinensis wood (Incense Tree Wood).  Each of them was sentenced to 35 months’ imprisonment.  The applications for leave to appeal against sentence lodged by his co-defendants have all been dismissed on those defendants lodging notices of abandonment.

The facts

3.  The applicant and his co-defendants were arrested by police officers in the early hours of the morning of 24 January 2014 in Tai Po Market.  Three of them were carrying rucksacks in which were found the wood the subject of the charges.  The applicant was carrying 8.02 kg of the wood in his rucksack.  It was accepted that the value of the wood was $1,156,400.   In a video record of interview, the applicant claimed that whilst a visitor to Hong Kong from the Mainland, having arrived on 19 January 2014, he had been asked to participate in the enterprise for a reward of $1,000.

Reasons for sentence

4.  In his reasons for sentence, the judge said that he accepted that the applicant and his co-defendants were “on an expedition to collect this wood and take it back to China for reward”.^[1]

Starting point for sentence

5.  The judge noted that in the judgment in HKSAR v Wen Zelang^[2] this Court had given guidelines for sentencing in a case involving the theft of this very kind of wood.[3]  There, in a case involving 5.6 kg of this wood a starting point for sentence of 3 years’ imprisonment was determined to be correct.  However, the judge observed that the instant case involved over 20 kg of the wood stolen by “an organised group”.[4]  In those circumstances, he stipulated a starting point for sentence of 3 years and 6 months’ imprisonment.[5]

Discount

6.  Having regard to the applicant’s plea of guilty, the judge said that the sentence taken as the starting point for sentence would be reduced to 28 months’ imprisonment, subject to the issue of enhancement.

Enhancement

7.  The judge acceded to the application of the prosecution for an enhancement of sentence pursuant to section 27D of the Organized and Serious Crimes Ordinance, Cap. 455.  Having regard to the evidence that he had received from a Conservation Officer of the Agricultural, Fisheries and Conservation Department as to the “irreplaceable damage to the general natural features and ecology of the natural forests of Hong Kong” caused by unsustainable felling of the Aquilaria Sinensis, the judge enhanced sentence by 25% or 7 months’ imprisonment.[6]

Sentence

8.  Accordingly, the judge imposed sentence of 35 months’ imprisonment on the applicant.

Grounds of appeal against sentence

9.  In Form XI of the Criminal Appeal Rules, Cap. 221 in giving notice of his application for leave to appeal against sentence, the applicant asserted that in no case of a similar kind had a defendant been sentenced as severely as he had been sentenced.

10.  In two letters written to the court dated 13 and 15 August 2014, the applicant asked for a reduction of sentence for two reasons.  First, citing the Reasons for Sentence of the District Court in HKSAR v Zhang Yanxiong & Another [7], HKSAR v Liu Yawu [8] and HKSAR v Liu Huaxing & Another [9], he submitted that his sentence was too severe.  Secondly, he asked for mercy and compassion having regard to his family circumstances: his father aged 85 and his mother aged 78 years, were not in good health; and, his 3 children aged between 8 and 11 and a half years needed him to take care of them.  Finally, he claimed that he did not know what he was carrying.

A consideration of the submissions

11.  The applicant has provided the Court with no evidence to substantiate his claim as to his family circumstances.  In any event, given the relative seriousness of this offence, the applicant’s family circumstances are of little weight.

12.  The Reasons for Sentence to which the applicant has referred the Court are of no assistance to him.  The facts of those cases, as one might expect, are different from the facts of the applicant’s case.  None of them concerned as many as four defendants acting together.  All concerned a considerably lesser volume of the stolen wood.

13.  HKSAR v Zhang Yanxiong & Another concerned two defendants and 0.33 kg of the wood.  The judge took a starting point of 30 months’ imprisonment and, after a one-third discount and a 25% enhancement of the sentence, imposed a 25 months’ imprisonment.  In HKSAR v Liu Yawu, the defendant had attempted to steal 3.95 kg of the wood.  The judge took a starting point of 27 months’ imprisonment and, after a one-third discount and a 25% enhancement of the sentence, imposed a 22½ months’ imprisonment.  In Liu Huaxing & Another 12.17 kg of wood had been stolen by two defendants.  The judge took a starting point of three years’ imprisonment for one defendant and a lesser sentence for that defendant’s son.  After a one-third discount and a 25% enhancement of the sentence, the judge imposed sentences of 30 months’ imprisonment on the father and 27 months’ imprisonment on the son.

14.  It is clear from the Reasons for Sentence that judge approached the issue of the enhancement of sentence in the appropriate way.  The percentage enhancement of the sentence taken by the judge was consistent with the approach taken by the judges in the other cases to which the applicant referred.

15.  The sentence imposed on the applicant reflected the much larger volume of wood that was stolen and the organised nature of the crime reflected in the number of defendants involved in the enterprise.  The offence represented a serious attack on a precious natural resource of Hong Kong.  As Yeung  JA said in the judgment of the court in Wen Zelang “a clear and strong message is needed to deter Mainland people coming to Hong Kong to cut endangered trees”.[10]

Conclusion

16.  I am satisfied that there are no merits in the applicant’s grounds of appeal against sentence.  Accordingly, the application for leave to appeal against sentences is dismissed.

[1] Reasons for Verdict, paragraph 8.

[2] HKSAR v Wen Zelang [2006] 4 HKLRD 460.

[3] Reasons for Verdict, paragraph 9.

[4] Reasons for Verdict, paragraph 10.

[5] Reasons for Verdict, paragraph 11.

[6] Reasons for Verdict, paragraphs 12-14.

[7] HKSAR v Zhang Yanxiong & Another (Deputy District Judge Casewell (as he was then);DCCC 707/2011, 16 August 2011.)

[8] HKSAR v Liu Yawu (District Court Judge Tallentire; DCCC 854/2012, 26 October 2012).

[9] HKSAR v Liu Huaxing & Another (District Court Judge Stanley Chan; DCCC 692/2013, 18 September 2013).

[10] HKSAR v Wen Zelang, paragraph 16.