HKSAR v. Ling Ruiyong and Another

DCCC 368/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 368 OF 2015

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Reasons for Sentence

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1.Both defendants have pleaded guilty to one count of conspiracy to steal, contrary to section 9 of the Theft Ordinance, Cap 210.

2.The particulars of the case are that on 21 January 2016 on Lamma Island, both defendants conspired together to steal 119.3 kilogrammes of wood blocks, commonly known as incense tree.

3.The facts are straightforward.  On that morning, at about 11 am, police officers on patrol found three incense tree logs on the ground with saw marks at either end near the Lamma Island Fire Station.  The police officers lay in wait.  Not long after, the officers saw both defendants walk uphill to the hillside near the station.  Both defendants dealt with the wood.  The 1st defendant took out a saw from his backpack and started to saw one of the logs.  The 2nd defendant did the same thing not long after.

4.At this point police officers revealed their identity and searched the defendants and their bags.  In a bag carried by the 1st defendant, police officers found a hoe and two machetes.  They also found in his backpack five pieces of incense tree.  In the 2nd defendant’s backpack, they found three small pieces of incense tree woodchips.

5.Both defendants were arrested.  Under caution, they both denied the offence.  They denied dealing with the tree trunks nor had any knowledge of the woodchips or tools in their possession. Both defendants even denied knowing each other.  However, the police investigation showed them both at the Central Pier together, but from CCTV footage, it can be seen they split up when they arrived at the Lamma Ferry Pier. 

6.Further investigation with the Immigration Department shows them entering Hong Kong on 19 January several minutes apart.  Furthermore, since October 2015, the immigration records show them both arriving on the same date at about the same time on six other occasions.

7.Mr K S Pang from the Agricultural, Fisheries and Conservation Department examined the three trunks and the chips found in the defendants’ bags.  He estimated the value to be over $1.6 million.  He examined the wood and believed most of the trunks and the woodchips had been recently cut from tree trunks. 

8.I have been told both defendants have a clear record in Hong Kong.  However, both defendants are mainland residents, not Hong Kong residents.  Their best mitigation today is their plea of guilty.

9.I have heard all that can be said on their behalf in mitigation.  Both defendants are married with young families. Both were until recently employed and working in factories.  Both were made redundant when their factories closed down.  They had been unemployed since and have committed these offences out of financial necessity or desperation.  Both ask for leniency and promise they will not reoffend in Hong Kong. 

10.The prosecution has applied to enhance the sentences of both defendants pursuant to section 27(2)(d) of the Organized and Serious Crimes Ordinance, Cap 455.  Mr Pang’s report is submitted to support this application.  This application to enhance is not challenged by defence. 

11.In considering sentence, I refer myself to two Court of Appeal cases.  They are both leading cases for sentencing the theft of incense trees in Hong Kong, HKSAR v Wen Zelang CACC 220/2006 and HKSAR v Xie Jinbin CACC 195/2010.  In both authorities, a starting point of 3 years’ imprisonment and an enhancement of 25 per cent was considered appropriate by the Court of Appeal.  The Court of Appeal was of the view that a strong and clear message was needed to deter mainland people from coming to Hong Kong to cut endangered trees.  There is a devastating effect of this unsustainable felling of these trees.

12.Mr Pang’s view in his report is that many of the large and old trees have now been illegally cut.  They have become rare in Hong Kong.  His view is that these offences have caused irreplaceable damage to the general natural feature and ecology of the natural forests in Hong Kong.

13.Defendants, please stand up.

14.In coming to an appropriate starting point, I take into account the facts of the case, the weight and value of the wood; the value is not insignificant.  I take into account the defendant’s plea, mitigation and background.  I do sympathise with the defendants’ families who now are without the support of the defendants.  But the risk of arrest and imprisonment was something both defendants must have considered and nonetheless gone on to take that risk. 

15.After considering all those above factors, I will take a starting point for this offence of 3 years’ imprisonment.  Both defendants have pleaded guilty and are entitled to a discount of one-third from that starting point.  After that discount is applied, the sentence is reduced to one of 2 years’ imprisonment.  However, I will allow the prosecution’s application to enhance the sentence and apply to that 2-year sentence a 25 per cent enhancement.  Therefore, both 1st and 2nd defendant are sentenced to a term of imprisonment of 2 years and 6 months for this offence.   Do you understand the sentence?

INTERPRETER: “Yes.”