HKSAR v. Zhang Guangli
Read the full judgment text of DCCC 923/2016 on BabelCite. This District Court judgment.
1. The defendant pleads guilty to two counts on the indictment, Count 1 of theftcontrary to section 9 of the Theft Ordinance, Cap. 210, and Count 2 of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong contrary to section 38(1)(b) of the Immigration Ordinance, Cap. 115.
Cites 2 cases
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DCCC 923/2016 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 923 OF 2016 -----------------
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------------------------------------------- REASONS FOR SENTENCE ------------------------------------------- 1.The defendant pleads guilty to two counts on the indictment, Count 1 of theftcontrary to section 9 of the Theft Ordinance, Cap. 210, and Count 2 of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong contrary to section 38(1)(b) of the Immigration Ordinance, Cap. 115. 2.At about 3.40 a.m. on 9 July, 2016, a party of police officers conducting an anti-illegal immigrant operation at the hillside of Tai Lam Wu Road, Sai Kung in Kowloon saw a campsite, consisting of a tent built by wooden blocks as base and covered with plastic sheets, a cooking area covered by a plastic sheet and an open area with wooden sticks set up for hanging clothes. The defendant was seen sleeping on the ground inside the tent. When a police officer was about to approach, the defendant suddenly stood up and tried to run away. The police officer immediately declared ‘police’ to the defendant and caught the defendant’s left hand. The defendant struggled with the police officers but was eventually pushed to the ground. The defendant was asked in Cantonese why he wanted to run away and the defendant answered that he had entered Hong Kong illegally 3 days previously from Mainland China so he was scared when he saw other people coming around. 3.The police officers searched the tent and found 2 rucksacks lying next to where the defendant was sitting. The defendant said that the two rucksacks belonged to him, and there were ‘Chen Xiang’ wood chips cut by him in one, and the other contained a hoe, a knife and a sickle. 4.Upon checking the rucksacks, one was found to contain 4 kilogrammes of wood chips of Aquilaria sinensis wood, commonly known as ‘incense tree’, whilst the other contained a hoe, a knife and a sickle. The defendant said that the wood chips found in the rucksack were to be re-sold on Mainland China. 5.The defendant was arrested and cautioned and admitted under caution that he had come to Hong Kong illegally three days previously i.e. on 6 July, 2016, with the aim to cut down incense trees and to sell the wood chips on Mainland China. Another black bag carried by the defendant was searched and found to contain the defendant’s mainland identity card, cash ¥1,965 Renminbi, an octopus card, 2 mobile phones and a calling card. 6.Mr. K.S. Pang of the Agricultural, Fisheries and Conservation Department examined the wood chips seized from the defendant and opined that these were ‘Chen Xiang’ as they possessed the characteristic cut surfaces reflecting the mode of harvesting the wood chips, the characteristic dark resin resulting from infection in the wood and the occasional holes in the wood chips. Also, ten of the wood chips were with tree bark exhibiting the same characteristics and texture of that being found on the tree bark of the local species of Aquilaria sinensis wood, commonly known as ‘incense tree’. Mr. Pang estimated the value of the seized ‘Chen Xiang’ wood chips was around HK$200,000. Mr. Pang also opined that the tools seized were all suitable for harvesting ‘Chen Xiang’. In his report that was submitted, Mr. Pang also said that only the species Aquilaria sinensis (incense tree) is known to be able to produce ‘Chen Xiang’ and harvested in wood chips similar to those seized from the defendant. 7.At all material times, the 4 kilogrammes of wood chips of Aquilaria sinensis wood seized from the defendant were stolen in Hong Kong. At all material times, there was no immigration record of the defendant having entered into Hong Kong via any lawful channel authorized by the Director of Immigration. The defendant was neither a person having right of abode to remain in Hong Kong nor a person having been authorized by the Director of Immigration to remain in Hong Kong. 8.I was satisfied beyond all reasonable doubt that the facts admitted by the defendant supported the charges that he faced, and accordingly I convicted him of both charges. Enhancement of Sentence 9.Pursuant to Section 27(2)(d) of the Organized and Serious Crimes Ordinance, Cap. 455, the Prosecution applied to enhance the defendant’s sentence on the ground of the nature and extent of any harm, whether direct or indirect, caused to the community by recent occurrences of this specified offence of theft. Mr. Pang Kuen-shum’s report was submitted in support of the application. The Prosecution application to enhance sentence in respect of Charge 1 was not contested by the Defence and I granted the Prosecution application. 10.Mr. Pang in his report said that ‘the trunks of many large and old trees of Aguilaria sinensis have been illegally felled or cut in an unsustainable fashion (i.e. cannot ensure the long-term survival of the species) deliberately for mass extraction of timber to the extent that such trees are dead or damaged and unlikely to recover.’ His view is that ‘large and old individuals of Aquilaria sinensis have since become rare in Hong Kong. Getting worse is that in the recent cases relatively smaller but mature trees of such species were also subject to illegal harvesting. As Aquilaria sinensis is a dominant tree species in fung shui woods and other lowland forests, such deliberate felling and damage of large and smaller Aquilaria sinensis, by causing damages to the habitats of the organisms, have jeopardized the normal ecological relationships of the organisms in such woodlands.’ His view is that the ‘unsustainable felling of the species had caused irreplaceable damages to the general natural feature and ecology of the natural forests of Hong Kong. This in fact is also a great loss to our community’. It would also threaten the natural survival of this species. Previous convictions 11.The defendant has a clear record. Antecedent Statement and Mitigation 12.The Antecedent Statement was read into the record by the Prosecution. No issue was taken on the contents. The Antecedent Statement disclosed that the defendant is now aged 33 years. He was born in Mainland China, and educated to Primary 5 in Mainland China and he can read and write simple Chinese. He worked as a farmer in China. He is healthy. He is married and lives with his wife and 3 children. 13.Mr. Chow in mitigation submitted that after finishing Primary 5, the defendant had worked as a farmer, and sometimes worked as a construction site worker to supplement his income, which ranged from ¥2,000 to ¥3,000 Renminbi each month. He was the sole breadwinner of his family of 5, and he had aged parents as well. He could just make ends meet. He offended to earn some extra money. His elder daughter is due to start primary school. His second daughter should be in nursery, but because of the family finances, he has been unable to send her to nursery. The defendant was now very remorseful, as reflected by his plea. He had also immediately confessed to the police. Mitigation letters from the defendant, his wife, and the rural committee of his village were submitted, all seeking leniency for the defendant. Sentence 14.In sentencing, I have taken into account the background of the defendant, the mitigation put forward by Defence Counsel and the contents of the mitigation letters submitted and also past authorities on sentence. I have in particular referred to two Court of Appeal decisions, both leading authorities on sentence for the theft of incense trees in Hong Kong, namely HKSAR v. Wen Zelang, CACC 220/2006 and HKSAR v. Xie Jinbin, CACC 195/2010, which were also submitted by Defence Counsel. In both authorities, a starting point of 3 years’ imprisonment and an enhancement of 25% was considered appropriate by the Court of Appeal. 15.The Court of Appeal said in Xie Jinbin, supra,
16.In Wen Zelang, supra, the Court of Appeal said:
17.The illegal felling of incense trees in Hong Kong is a serious offence. In Wen Zelang, supra, Yeung JA said at paragraph 15:
18.In determining an appropriate starting point. I take into account the facts of the case and the weight and the value of the wood, which is not insignificant. I have also considered the defendant’s pleas, mitigation and background. I do sympathize with the defendant’s family, which is now without its sole breadwinner. But the risk of arrest and imprisonment is a matter that the defendant must have considered and nonetheless chose to take that risk. Financial pressure is no excuse for offending. I do not find this to be effective mitigation. 19.I find the proper starting point for Charge 1 of theft is that of 3 years’ imprisonment. The defendant has pleaded guilty and is entitled to a discount of one-third from this starting point. After the discount is applied, the sentence is reduced to 2 years’ imprisonment. The application for enhancement was not contested. I was satisfied that the Prosecution had made out its case under section 27(2) of the Organized and Serious Crimes Ordinance, Cap. 455, and I enhance the sentence by 25%. The defendant is therefore sentenced to 2 ½ years’ (30 months) imprisonment on Charge 1. 20.The Court of Appeal has laid down sentencing guidelines for offences of unlawful remaining in Hong Kong to be 15 months’ imprisonment for a first offender on a plea of guilty unless there are humanitarian considerations to warrant departing from this guideline. Counsel has not submitted that there are any humanitarian considerations, nor do I see any on the mitigation that has been put forward. The defendant is sentenced to 15 months’ imprisonment for Charge 2. 21.The defendant has admitted both charges on the indictment. I have considered whether a concurrent sentence would be appropriate as the defendant came to Hong Kong for the sole purpose of cutting wood from incense trees. In my view these are separate and distinct offences warranting consecutive sentences. However, I am satisfied that a sentence of 3 years’ imprisonment can reflect the total culpability of the defendant in this case. 22.I therefore order that 9 months of the sentence on Charge 2 be served concurrently with that on Charge 1, and 6 months be served consecutively. 23.The total sentence is 3 years’ imprisonment.
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