HKSAR v. HE FU AND ANOTHER

DCCC 183/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 183 OF 2014

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REASONS FOR SENTENCE

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1.  D1 and D2 appeared before me this afternoon and pleaded guilty to a single charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210. The particulars of the charge is that on the 1st day of January 2014, at Sha Lo Wan, Tung Chung, New Territories, they stole 3.23 kilograms of wood chips of Aquilaria sinensis wood commonly known as incense tree. Both defendants pleaded guilty and admitted to the Summary of Facts and were duly convicted.

Facts

2.  This is a simple stop-and-search case.  Both defendants are PRC two-way-permit holders.  They were intercepted by the police at around 1350 hours on 1 January 2014 when they walked past the bus terminus next to Tung Chung Town Centre.  At that time, they were acting suspiciously.  The police therefore decided to intercept them, and they were separated for further inquiry.

3.  Both defendants held a black rucksack on their persons and upon search of the rucksacks, the police found in each rucksack a red plastic bag.  In D1’s rucksack, it was found to contain 1.7 kilograms of suspected incense wood chips whereas in D2’s rucksack, it was found to contain 1.53 kilograms of suspected incense wood chips.  The total wood chips were therefore 3.23 kilograms with a total estimated value of HK$258,400.

4.  Both defendants were arrested.  Under caution, D1 claimed that he would boil the wood with water to make a drink for his daughter to cure her measles.

5.  Later, at the subsequent investigations, both defendants were further interviewed and cautioned, during which they all admitted cutting the wood chips from the trees.  The wood chips found in both the rucksacks of D1 and D2 were all later examined by the Agriculture, Fisheries and Conservation Department (AFCD).  The expert report of Mr Pang of the AFCD is now produced and neither the expert’s status or the content of the report were disputed by the defendants. 

Enhancement of sentence

6.  Pursuant to section 27(2)(d) of the Organised and Serious Crimes Ordinance, Cap 455, the prosecution applied to enhance the defendants’ sentences on the ground of the nature and extent of any harm, whether direct or indirect, caused to the community by recent occurrence of these specified offences. 

The background of the defendants

7.  D1 is aged 32.  He has a clear record.  He is a mainlander, a married man with three children.  He lives together with the parents.  The father is over 80 years of age and the mother is aged 70.  As to the children, the elder daughter is aged 8 years old whilst the younger son is only 2 years old. He has received a Primary 3 level education in the mainland and he is a farmer by occupation, earning a meagre income of only about RMB500 per month.

8.  D2 also has a clear record in Hong Kong.  He is 24 years old. In the mainland, he lives together with the parents and also his elder brother.  The father is a carpenter aged 55 and the mother is a housewife aged 48.  The wife, aged 22, is a housewife and they have no children.  D2 is reported to be a furniture carpenter earning an income of RMB2,000 per month. He is also said to have received a Form 3 level of education in the mainland.

Mitigation

9.  In D1’s case, Mr Tang, the solicitor for D1, had urged the court to consider the fact that the defendant had pleaded guilty and was remorseful.  Mr Tang told the court that D1 broke the law for financial gain but he did not realise that he had committed such a serious offence in Hong Kong.  Mr Tang said D1 did not oppose to the application for enhancement of sentence by the prosecution but he urged the court to take into all the mitigations into account and to be as lenient as possible.

10.  In D2’s case, Mr Li, the solicitor for D2, had submitted to court a handwritten letter of mitigation written by the 2nd defendant.  In it, D2 had expressed his remorse and said that he was willing to mend his mistake and he also stressed that it was his first offence in Hong Kong and he did not know the law and urged the court to be as lenient as possible so that he can reunite with his family members. 

11.  Mr Lialso said that D1 is the brother-in-law of D2, and their original purpose to come to Hong Kong was for sightseeing.  According to the instructions, D2 only found the wood which he believed to be “Lung Ma” woods discarded on the roadside.  As D2 thought that the wood was worth nothing, therefore he just put it in the rucksack and took them away. According to Mr Li, D2 told him that had he known that the woods were actually incense wood or he knew that the value of these woods was so expensive, he would not have stolen these woods.  Mr Li submitted that as there was no evidence to show that D2 had known the value of the wood and that he knew that those woods were indeed incense wood and therefore the court should consider not to enhance the sentence.

Sentencing consideration

12.  In sentencing, I took into account the background of the defendants, the mitigation put forward by the solicitors for the defendants and also the case authority.  During mitigation, Mr Li on behalf of D2 had referred to both Court of Appeal cases which are HKSAR v Wen Zelang CACC 220/2006 and HKSAR v Xie Jinbin（謝錦彬）CACC 195/2010.  Those two cases are indeed well-known cases and leading cases for sentencing of the theft of incense tree.

13.  In the case of Wen Zelang, the Court of Appeal stated that for the theft of 5.6 kilograms of wood from incense trees, a starting point of 3 years’ imprisonment and an enhancement of 25 per cent is entirely appropriate. 

14.  In the case of Xie Jinbin, the appellant and the three other mainlanders came to Hong Kong on two-way permits and were seen by police cutting the trees and packing woodblocks into their rucksacks.  A total of seven woodblocks weighing 1.181 kilograms, a saw, an iron hoe and a knife were found in their rucksacks.  At trial, the District Court adopted a starting point of 3 years’ imprisonment, reduced it for plea and then enhanced the sentence by 25 per cent under section 27(2) of the OSCO and sentenced the appellant to 2 years and 6 months’ imprisonment.  The Court of Appeal has said in that case that:-

“A clear and firm message was needed to deter mainlanders from coming to Hong Kong, legally or illegally, for the specific purpose of exploiting protected and endangered flora for profit. A starting point of 3 years of the extraction of wood from an incense tree by mainlanders could not be faulted although this was not meant to be a straitjacket.”

15.  It was also held by the Court of Appeal that:-

“Weight was not determinative of sentence nor a reliable indicator of the seriousness of the offence and the injury caused to the tree. The defendant was not to be punished only for the weight of the woodblock he had stolen but according to the enterprise he and the others had collectively participated in and the seriousness of the offence which was premeditated.”

16.  Lastly, the Court of Appeal observed that:-

“The men came to Hong Kong in a joint enterprise with the intention to exploit endangered flora for profit. They equipped themselves with a knife, hoe and saw and acted as a group. Accordingly, having regard to the purpose of the Protection of Endangered Species of Animals and Plants Ordinance, Cap 586, and the need of deterrence, the starting point was appropriate. While the sentence might be on the high side, in view of the quantity of wood stolen, it was not manifestly excessive so as to justify interference.”

17.  And in HKSAR v Wen Zelang, the Court of Appeal also said that:-

“A clear and strong message is needed to deter mainland people from coming to Hong Kong to cut endangered trees, be they Buddhist Pine or incense trees. In our view, neither 3‑year starting point nor the 25 per cent enhancement for the prevalence of offence under OSCO is manifestly excessive.”

The effect of unsustainable felling

18.  In his report, the conservation officer, Mr Pang, the expert who had examined the wood chips and the blocks in the present case, had found that the chunks of many large and old trees of Aquilaria sinensis had been illegally felled or cut in an unsustainable fashion.  He also added that large and old individuals of Aquilaria sinensis had since become rare in Hong Kong, and getting worse is that in the recent cases, relatively smaller but mature trees of such species were also subject to illegal harvesting.  Mr Pang concluded by saying that the unsustainable felling of the species has caused irreplaceable damages to the general natural feature and ecology of the natural forests in Hong Kong.  This is in fact also a great loss to the community.

Sentencing consideration

19.  The total quantity of stolen wood in the present case is 3.23 kilograms.  Both defendants had expressed remorse and pleaded guilty to the case and they had family members in the mainland China who needed their support.  It was clear to me that both defendants came to Hong Kong from the mainland China with the specific purpose of looking for and cutting off wood chips from an incense tree so that they can sell them for a profit in the mainland China. 

20.  D2 had through his solicitor, Mr Li, urged the court to consider the fact that he did not know the nature of the woods and also the value of the wood.  I have made it clear and plain in court to Mr Li that I reject these explanations.  I took the view that it was inconceivable and unthinkable that those who originally cut the incense wood, which is valued to more than about a quarter million of Hong Kong dollars, would just leave it on the roadside to be picked up by D2. 

21.  For this reason, I have in fact invited Mr Li to consider calling any further evidence to support or substantiate D2’s claim but in the end, they decided not to call any evidence nor call D2 to testify in the witness‑box.  It is clear to me that both D1 and D2 had come to Hong Kong with the specific purpose to commit the present offence and they were acting in concert.

22.  In my view, the facts of this present case are indeed very similar to other similar cases which I have dealt with in the past.  Over the past years, there have been numerous attempts by people like the defendants from the mainland who came to Hong Kong either legally or illegally, cut the endangered woodblocks from our plants in the territory, causing irreplaceable damages to our environment. 

23.  As said, the Court of Appeal has clearly expressed its view that a deterrent sentence is necessary for this type of sentence.  A powerful message must be sent to the defendants’ friends and relatives in the mainland that people like them who come to Hong Kong to commit a crime like this will be dealt with severely by the court in Hong Kong.

24.  I have of course sympathy for the family members of both defendants in the mainland who had looked upon them for support, but they should really think about them before they decided to embark to come to Hong Kong to commit a crime like this.

25.  The quantity involved by each defendant in this case is more or less the same.  It is a joint charge and that they committed the crime together.  Therefore the criminality I judge is the same.  I therefore in each defendant’s case use 3 years as a starting point.  The plea of guilty is the only effective mitigation.  The sentence is therefore reduced by one‑third to 24 months.  In each defendant’s case, similarly, there will be a 25 per cent enhancement of the sentence, applying the cited Court of Appeal cases. 

26.  In the end, in each defendant’s case, the sentence is increased to 30 months’ which is 2 years and 6 months’ imprisonment.