HKSAR v. Wang Liangming

DCCC 349/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 349 OF 2017

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Reasons for Sentence

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1.The defendant has pleaded guilty to one offence of a conspiracy to steal. The particulars of the offence show that the item that the defendant conspired to steal was a wood known as Aquilaria sinensis which is commonly known as the incense tree in Hong Kong.

2.The facts of the case show that the offence occurred sometime around 8 and 9 January.  On 9 January, two police officers were patrolling near a columbarium on Lamma Island where they saw the defendant and three other Chinese males, each carrying a rucksack.  After some inquiries, they fled but the defendant had been subdued by police.

3.Inside the defendant’s rucksack was found a saw with a cover, a machete, a pair of labour gloves, a torch and some wood chips of the incense tree which were produced as Exhibit E1 and I have inspected them.

4.The defendant under caution said that he was searching for incense trees for logging.  It was found that he had entered Hong Kong via the Lowu Control Point on 8 January at 10.42 am.  The defendant made further admissions under a video-recorded interview, saying he had come to Hong Kong to look for the wood, entering on 8 January with other people he described as townsmen.  They had travelled to Lamma Island by ferry and then gone to look for incense trees in different areas.  They had the tree-cutting tools for the purpose of cutting the trees and intended to sell for profit.  The defendant himself had a machete and a saw and labour gloves, and he intended to use that to collect the resin of the incense tree.

5.As far as the wood chips found in his rucksack were concerned, the defendant said he had picked them up from dead wood on the ground and placed them in a black plastic bag.

6.The value of the incense tree found on the defendant was $1,800. 

7.There is a summary of the evidence of a Mr Pang who is a conservation officer of Agricultural and Fisheries Department which was admitted into evidence, and there is some further detail within the report that is relevant to the process of sentencing today. 

8.Mr Pang is a botanist and conservation officer working for the Hong Kong Herbarium, and he gives expert evidence on the nature of the Aquilaria sinensis incense tree in Hong Kong and the threat that that particular species of tree is under.  He was shown various items that relate to this case which were the wood chips which were found on the defendant.  He said that they possessed the characteristic cut surfaces, reflected the mode of harvesting wood chips and characteristic dark resin resulting from infection in the wood.  Also, the items such as the saw and handsaw were used for the harvesting of the incense tree.

9.As far as the Aquilaria sinensis that was found on the defendant, he said the cutting surfaces of the wood chips, he said they were recently cut from the trunk of an Aquilaria sinensis, if not the branch, and the non-cutting surfaces of the wood chips were mostly wounded openings.  

10.As far as the tree is concerned, he says that the unsustainable felling of the species has caused irreplaceable damage to the general natural feature and ecology of the natural forests in Hong Kong, and that constitutes a great loss to the community of Hong Kong.

11.The defendant’s antecedents are as follows.  He is aged 26, born in mainland China.  He has no convictions in Hong Kong and works as a factory worker and construction site worker and waiter.  He is single and lives with his parents.

12.Another matter of relevance in this case is that by a notice dated 24 April 2017, the prosecution gave notice of intention to furnish information pursuant to section 27(2) of the Organised and Serious Crime Ordinance while seeking to enhance the sentence on the defendant, and the information brought before the court pursuant to section 27(2) was related to section 27(2)(d) which is the nature and extent of any harm, direct or indirect, caused to community by recent occurrences of the specified offence.  And I have dealt with the evidence of Mr Pang that illustrates that.

13.Also submitted to the court was a record of related cases for the harvesting of Aquilaria sinensis from 2012 to 2017 and which was prepared by a Woman Senior Inspector Liu.  The statistics that are produced show that within 2017, a total of 42 cases involving 77 trunks of trees in the first six months of this year.

14.Dealing with the appropriate sentence, I note at this stage the defence has no objection to the application under 27(2) of the Organised and Serious Crime Ordinance by the prosecution.  That is a sensible approach because, clearly, this section is applicable in these circumstances based on the evidence that I have.

15.The defendant in mitigation puts forward his plea of guilty and his remorse and the assistance that he provided to the prosecution at the time of his arrest, that he has a clear record and then he has consistently indicated his plea in this case.

16.Turning to the approach to sentencing, there are a large number of cases that have dealt with the approach to be taken to sentencing in cases where the harvesting of the incense tree is the subject of the charge.  Here, I deal with the inchoate offence of an agreement to do that but, in summary, I will just briefly say in summary it would appear the guideline approach is to take a starting point of 3 years’ imprisonment for a person of clear record after a plea of not guilty, and that would lead to a sentence of 2 years’ imprisonment after a plea of guilty.  I see no reason to depart from that guideline sentence in this case.

17.As far as the enhancement of sentence is concerned, I have borne in mind that this is an inchoate offence.  However, there is evidence in the report of Mr Pang that some of the incense tree found in the defendant’s possession had been harvested by way of cutting.  So it appeared that there is and can be an irresistible inference to be drawn that the defendant had in fact in this case gone beyond mere agreement but had actually involved himself in the cutting of the tree and causing the damage to that tree.   

18.Given these findings, it seems appropriate that this sentence on the defendant be enhanced, and the enhancement normally in a case such as this is one of 25 per cent.  Taking a starting point of 3 years’ imprisonment, reducing that to 2 years’ imprisonment for the defendant’s plea of guilty, then adding 25 per cent in for the enhancement of sentence will lead to a final sentence of 30 months’ imprisonment in respect of this defendant.  That is the sentence I will impose.