HKSAR v. Xie Shouzhi

DCCC 900/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 900 OF 2016

-------------------------

-------------------------

------------------------------------------

REASONS FOR SENTENCE

------------------------------------------

Charge and facts

1.The defendant pleaded guilty to a count of Theft concerning 3.44 kilograms of wood chips and barks of Aquilaria sinensis wood, commonly known as incense tree.

2.The facts revealed that at around 2:45 am on 29 July 2016, a police party including PC 7009 and PC 50435 saw the defendant sleeping alone in a tent near Tai No Sheung Yeung, Sai Kung, New Territories.

3.Upon searching the defendant, the police discovered incense tree wood chips weighing 3.44 kilograms in a purple rucksack.  Tools fit for cutting wood, including two saws, two rasps, one machete, one file and four whetstones, were found at the scene.

4.Upon arrest, the defendant said he came to Hong Kong to do grave maintenance work and that he had not cut down any incense trees.

5.In a subsequent video recorded interview, the defendant stated, under caution, that:-

(a) He came to Hong Kong with his brother Xie Shouxuan on 25 July 2016 as a two way permit holder with a view to looking for some grave maintenance work;

(b) He knew it was illegal to work in Hong Kong but he needed to do so due to financial difficulty;

(c) Although it was the fourth time he came to Hong Kong, he did not know the place well and claimed to have followed his brother only;

(d) He and his brother bought some food in Choi Hung which could last for a few days and then stayed at the hillside of Sai kung in the following 4 days waiting for orders to work. It was his brother to coordinate the whole matter for him.

(e) He admitted the green and purple rucksacks belonged to his brother and him respectively and he had no idea why the incense tree was found inside his rucksack. The tools were present at the scene when he was arrested and he had used the machete for cutting the firewood and cooking.

6.Dr Pang Kuen Shum, expert from the Agriculture, Fisheries and Conservation Department, opined that the incense tree wood chips had been illegally cut or fell in an unsustainable fashion and as such has jeopardized the ecology of such woodlands, causing irreplaceable damages to the general natural feature and ecology of the natural forest.  He further confirmed that the incense tree wood chips and barks seized from the defendant were valued at about HK$ 121,860.

7.The defendant entered Hong Kong via Lo Wu Terminal on 25 July 2016 as a two-way-permit holder.

Background and mitigation

8.Defendant is 33 years old and has a clear record in Hong Kong.  He is married with 3 young children in mainland.  He was working as a farmer in mainland earning several hundred to a thousand dollars per month. His elderly mother is seriously ill with her kidney and needs money for operation.  The defendant’s wife is present in court today and there are two mitigation letters written by the defendant and his neighbor respectively submitted to the court.  The defendant is deeply remorseful now and admitted he had done the misdeed out of greed and in need of money.

9.The prosecution seeks to enhance the sentence of the defendants pursuant to section 27(2) of the Organised and Serious Crimes Ordinance based on “the nature and extent of any harm, whether direct or indirect, caused to the community by recent occurrences of this specified offence”.  In support of the application, the prosecution submits a statement of Dr Pang.  Miss Lee for defence does not take issue with the enhancement application. 

Consideration of Sentence

10.I have considered the following cases before coming up with an appropriate starting point and the extent of enhancement of sentences:-

(1) In HKSAR v Wen Zelang （溫澤浪） CACC 220/2006, the defendant came to Hong Kong with 3 others. They cut down wood chips from an Incense Tree. The total weight was 5.6 kg. The judge took 3 years as the starting point and a 25% enhancement based on the same ground as our present case. The Court of Appeal reduced the eventual sentence from 30 months to 20 months since the defendant was aged 17 only and he was obviously influenced by the other 3 defendants, who were in their thirties or forties and one of them had brought up the defendant since childhood.

(2) In HKSAR v Xie Jinbin （謝錦彬）CACC 195/2010, the defendant together with 3 others cut down wood chips from an incense tree. The total weight was 1.181kg. They had a saw, a hoe and a knife. The judge took 3 years as the starting point and a 25% enhancement based on the same ground as our present case. The Court of Appeal made observations that: “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. …“the focus (of sentencing) 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.”

(3) In HKSAR v Fok Kong-fung & 2 Others DCCC 475/2011, the 3 defendants were carrying 10 blocks of wood of Incense Tree with a total weight of 0.38 kg. A starting point of 2 years was taken and she adopted a 25% enhancement based on the same ground as our present case.

(4) In HKSAR v Tang Longzhou DCCC 505/2014, the defendant was found to have 4.95 kg of Incense Tree wood chips, a machete, a saw and a hoe were also seized. The judge took a starting point of 2 years and 9 months and a 25% enhancement based on the same ground as our present case.

(5) In HKSAR v Wen Zhenhui DCCC 850/2012, the defendant was found to have 5.81 kg of Incense Tree wood chips, a handsaw, 2 hoes, and 2 shovels in the hillside. The judge took a starting point of 3 years and a 25% enhancement based on the same ground as our present case.

11.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 species for profit.  Having considered all the circumstances and the authorities above, I take a starting point of 2 years and 9 months’ imprisonment.

12.After a one-third discount for his plea of guilty, the sentence is reduced to 22 months’ imprisonment.  There are no other mitigating factors warranting further reduction.

13.It is an appropriate case where an enhancement of sentence should be made.  I attach full weight to the statement prepared by Dr Pang for the prosecution.  Bearing in mind the nature and extent of the indirect and direct harm caused to the community by the exploitations of the endangered incense wood tree, an enhancement of 25% is called for.  The final sentence after enhancement is therefore 27 months’ imprisonment.