HKSAR v. Wong Kwok Hung Hardy

DCCC 38/2018

[2018] HKDC 1362

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 38 OF 2018

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REASONS FOR SENTENCE

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1.D1 is convicted on his own plea to a charge of conspiracy to steal, contrary to section 9 of the Theft Ordinance, Cap 210 and section 159A and 159C of the Crimes Ordinance, Cap 200.

Agreed summary of facts

2.According to the agreed summary of facts, at around 8 am on 31 July 2017, PW1, a volunteer staff of Tin Hau Temple, saw a light goods vehicle NV 8319 (“LGV”) parked at the entrance of the temple. 

3.PW1 saw D1 and D2 standing adjacent to the LGV and there was a mechanical saw on the ground next to the LGV. 

4.PW1 recognised D1 as a resident in the village. However, PW1 had not seen D2 before. 

5.PW1 proceeded to the temple.  Moments later, PW1 heard sawing sound and informed the village head accordingly.

6.At 8:17 am, PW2 saw D1 and D2 picking up wood log from the ground at the entrance of the temple.  The case was reported to the police and the vehicle was registered under the name of D2 since 12 June 2014.

7.D2 fled with the LGV.  D1 was left behind with the wood log which was found to be over 80 kilogrammes.

8.At 9 am, D1 was arrested at scene.  Under caution, he said that he cut the trees for research purpose.

9.In the video recorded interview, D1 stated as follows:-

(1) he was retired and currently resided in a flat in Wu Shek Kok Tsuen with his wife;

(2) in June 2017, he attended an arborist class for his personal interest and therefore acquainted with D2 who was the instructor;

(3) D1 still kept contact with D2 after he completed the course;

(4) a few days before the incident, D1 found two suspected incense tree at Wu Shek Kok Tsuen and therefore he approached D2 with a view to confirm whether his judgment was correct;

(5) in the morning of 31 July, D1 and D2 went to Wu Shek Kok Tsuen and wanted to saw them off for research purpose;

(6) D1 saw off the trees by himself whilst D2 helped in the logistics until they were intercepted by PW2;

(7) D1 did not want D2 to be implicated with police involvement and told D2 to leave first, so D2 left the scene.

10.D2 surrendered to the police with his hand held petrol-operated saw on 2 August 2017.

11.D2 was arrested.  In the video recorded interview, D2 stated as follows:-

(1) he knew D1 in his arborist class and they became friends;

(2) he owned the LGV and he neither lost his LGV nor lent his LGV to any other person on 31 July 2017;

(3) he owned the saw he brought along;

(4) he refused to answer other questions.

12.It was confirmed later that D2 was the class instructor when D1 was a trainee in the classes between May and July 2017.  In the classes, the relevant laws governing conservation of trees were covered and there was no exercise involving sawing off trees in rural area other than inside the site of “Tree Climbing Hong Kong” in Lau Fau Shan.  Trainees would also use dead tree logs to practise cutting tree logs with petrol-operated saw.

13.Mr Pang Kuen-shum, Botanical Expert of Agriculture, Fisheries and Conservation Department, has conducted examination on the bark samples/the wood blocks seized at scene.  The wood logs were identified as Aquilaria sinensis (土沉香).  They had the same characteristics and texture of those being found in the wood and on the bark of the local species Aquilaria sinensis.

14.Among all the wood blocks seized, a wood block of 2.1 kilogramme and two wood blocks of 0.617 kilogramme and 10.283 kilogramme were identified as “Chen Xiang” (沉香) as they possessed the characteristic cut surfaces reflecting the mode of harvesting the wood chips and the characteristic of dark resin resulting from infection in the wood.  The estimated market value was around HK$82,698.

15.The expert confirmed that the 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 jeopardised the normal ecological relationship of the organisms in such woodland.

Criminal record

16.D1 has a clear record.

Mitigation

17.D1 was aged 71 at the time of offence and is now aged 72. 

18.D1 had received education up to Form 5 and had attended a six-month arborist course in 2017.

19.He is retired since year 1998 and had lived with his wife and daughter in Wu Shek Kok Tsuen.  Before his retirement, he used to work in the property management industry.

20.Mr Luk, counsel for D1, submitted that D1 has a stable family and has led a law-abiding life in the last 71 years.

21.It is noted that, subsequent to his plea of guilt on 26 July 2018, D1 has offered to assist the police in reopening the case against D2 but such offer was not accepted by the prosecution, as they decided not to reopen the case against D2.

22.Mr Luk further said that D1 has pleaded guilty and that he is deeply remorseful as to what he has done and further that it is unlikely that he will reoffend.

23.Letters in mitigation were presented to this court for consideration, including those from his wife, his son, daughter, friend, Sha Tau Kok Rural Committee chairman and other residents from the same Wu Shek Kok Tsuen.

24.These letters all say that defendant is an honest, hardworking, loving and responsible father and husband and that after his retirement he became interested in trees, flowers, gardening, planting and arboricultural management and that he had taken a number of related courses in the area.

25.It is said also that due to carelessness and stupidity, D1 had unintentionally offended the law and that he is now deeply remorseful. 

26.The letters also say D1 had tried to help his tutor, D2, to get some teaching material and that there was no personal benefit for D1. 

27.The part that D1 had tried to help D2 to get some teaching material for research purpose or that D1 thought the trees were dead were withdrawn at the hearing, as the court indicated that it was not prepared at that stage to accept that submission.

28.It was also said D1 was ignorant of the seriousness of the offence and that he was misguided by D2, his tutor.

29.It was further submitted that it was D2 who held the electric saw and cut the trees and that D1 merely watched and therefore his role in the commission of the offence was minor.

30.This court was handed a certificate certifying D1 had completed courses in horticulture assistant training, turf maintenance, horticulture maintenance, machine operations, eco-gardening, arboricultural management and tree preservation and risk assessment.

31.WhatsApp messages exchanged between D1 and D2 on 27 July 2017 were shown to this court and defence counsel submitted that they show invitation by D2 sent to D1 for cutting trees and that on the day D1 did not do the actual cutting of the trees and that the role was minor, and that the idea of cutting the trees was not triggered by D1.

32.Defence counsel sought further to explain why D1 did not relate the truth to the police when arrested earlier, that it was D2 who had the idea and it was D2 who actually cut the trees was because D1 thought at the time that D2 was his tutor and therefore he did not want to implicate D2.

33.Mr Luk said D1 is of advanced age of 72 years old and although old age by itself cannot constitute mitigating ground, the fact that he has such unblemished record in the past is a material mitigating factor.  He told this court that the commission of the present offence by D1 is one that is really out of character.

34.He has supportive family, he urged this court to impose a short custodial sentence on 1st defendant and treat this as an exceptional case.

Reports from Conservation Officer dated 24 January 2018 and 10 August 2018

35.Pang Kuen Shum, Conservation Officer of the Agriculture, Fisheries and Conservation Department, and the incumbent curator of the Hong Kong Herbarium wrote that he had obtained previously a Bachelor of Science (Honours) degree in Environmental Biology; an International Diploma in Herbarium Techniques from the Royal Botanic Gardens, Kew, UK; a Certificate in Plant Taxonomy from the South China Agricultural University; and a Master of Science degree in Protected Landscape Management and he has practised botany for more than 24 years. 

36.Mr Pang said his major duty in the department is to oversee the operation of the Hong Kong Herbarium and he is also responsible for surveying the plants of Hong Kong.

37.He is also the officer in charge of the Incense Tree Patrol Team set up in 2016 for stepping up patrols at blackspots and conducting joint operations with the police to deter illegal tree felling of the Incense Trees.

38.He is familiar with the characteristic of Aquilaria sinensis and he had handled cases of illegal tree felling according to the Forests and Countryside Ordinance, Cap 96 and assisted in the examination of suspected scheduled plants seized during law enforcement of the Forests and Countryside Ordinance, Cap 96 and Animals and Plants (Protection of Endangered Species) Ordinance, Cap 187.

39.Mr Pang said he had appeared in District Court to give evidence for cases relating to illegal possession of wild orchids and theft and illegal felling of native tree species Podocarpus macrophyllus (common name: 羅漢松, Buddha pine or Buddhist pine) and Aquilaria sinensis (common name: 土沉香, incense tree).

40.In his report Mr Pang said he had been to the scene on 9 August 2017 and had found two incense trees cut, leaving only the stumps still attached to the ground. 

41.Mr Pang said that these tree stumps found were unlikely to survive and recover and that the wood blocks seized at the scene were dead. 

42.He spelt out that the ecological impact resulting from damage to those trees in his statement dated 24 January 2018 and reproduced in his statement 10 August 2018 as follows:-

“Aquilaria sinensis (土沉香) is common in Hong Kong and chiefly distributed in woodlands on hillsides and also in fung shui woods (風水林) alongside rural villages. From a conservation point of view, fung shui woods can be considered remnants of the Hong Kong’s native low-elevation, broad-leaved forest. Because of the belief in a connection between trees and good fortune, trees and the natural environment have been under the care and protection of villages, forests matured and flourished to form natural forests of great species diversity, so that in the rural parts of Hong Kong Mature and unique fung shui woods are with high ecological value, enjoy a sustainable existence.

The trunks of many large and old trees of Aquilaria sinensis have been illegally felled or cut in unsustainable fashion (ie 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 likely unable to recover. Trunks, branches and roots of trees have been cut and left deep wounds (or even upper trunk beheaded) for inducing fungal attack to the wood or being resulted from exploring/harvesting “Chen Xiang”. Large and old individuals of Aquilaria sinensis have since become rare in Hong Kong. Getting worse is that in 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 larger and smaller Aquilaria sinensis, by causing damages to the habitats of the organisms, have jeopardised the normal ecological relationships of the organisms in such woodlands. Some of adversely ecological impacts are listed as below:

(1) illegal cutting or felling of trees in fact is taking the home (sheltered ground) away from insects/animals. Also, the exposed woodland area may cause to the extinction of shade-loving plants and intrusion of invasive plant species. The result could be irreversible habitat degradation and extinction of native species;

(2) illegal cutting or felling of trees will cause to scarcity of food source for insects/animals as trees provide food (leaves, nectar and fruits) to them;

(3) when raining, trees hold the water and do not allow water to pass over soil, and which avoid soil erosion. Illegal tree cutting or felling at larger or accumulated extent, landslide might also happen and further cause to serious damage of natural habitat, ie tree uprooting and stream pollution owing to the influx of eroded mud.”

43.Hence Mr Pang said in his report that he is of the view that the unsustainable felling of the species has caused irreplaceable damage to the general natural feature and ecology of the natural forest of Hong Kong.

44.This is in fact also a great loss to our community.

Discussion

45.Defendant here is convicted of conspiring with D2 to steal Aquilaria sinensis wood, commonly known as Incense Tree, belonging to another.

46.In this case, according to reports of Mr Pang, the conservation officer, the two trees which were cut with only the stumps left behind were unlikely to recover.  The wood log at the scene, according to reports of Mr Pang, came from Aquilaria sinensis (Incense Tree) and they weighed over 80 kilogrammes. 

47.In the case of HKSAR v Wen Zelang, CACC 220/2006, where a defendant, a 17-year-old Mainlander, pleaded guilty to theft of incense tree wood blocks weighing 5.6 kilogrammes, the judge adopted 3 years’ imprisonment as a sentencing starting point, reduced it to 2 years’ imprisonment for guilty plea, and enhanced it under section 27 of the Organized and Serious Crimes Ordinance, Cap 455, by 25 per cent to 30 months’ imprisonment, on account of prevalence.

48.On appeal, the Court of Appeal held that the incense tree was under threat of extinction and a clear and strong message was needed to deter Mainland people from coming to Hong Kong to cut the endangered trees, be they Buddhist pines or incense trees.  Neither the 3-year starting point nor the 25% enhancement for prevalence was manifestly excessive. 

49.It was also held that a discount of one-third for those who pleaded guilty in an appropriate time was usually the full extent of the discount to be given, whether or not a defendant was able to claim previous good character in the sense of clear record.

50.In that case, the appeal was allowed only for the reason that the Court of Appeal held that the court was entitled to assume that the defendant in this case was under the considerable influence by his uncle and that therefore the defendant in that case was less than that of the other defendants and so, having regard to the circumstances of that case, the 2-year imprisonment starting point was adopted.

51.Again, in the case of HKSAR v Xie Jinbin, CACC 195/2010, the Court of Appeal, differently constituted, again confirmed 3 years’ imprisonment as starting point in the theft case of incense tree, where the defendant pleaded guilty to theft of wood block weighing 0.677 kilogramme. The case involved defendant, a visitor to Hong Kong on a two-way permit and three other males committing the theft.  In the rucksack of the two males, wood blocks weighing 1.181 kilogrammes, a saw, an iron hoe and a knife in rucksack were found. 

52.The expert opined that illegal exploitation of the incense tree threatened the natural environment of the natural survival of the native plant at large.  A large section of the tree trunk had been removed and the judge found that it had been indiscriminately cut.

53.The Court of Appeal also held that in sentencing of these sort of cases, the prime consideration were protection and deterrence: the evil which the law sought to prevent was not theft as such, but injury to the protected flora, since restitution was impossible. The focus should be on the protection of the plant rather than the value of the plant or the part stolen, taking into account the injury done to the tree, profit motive, the manner of commission and the gravity of the offence, and that weight was said to be not determinative of the sentence nor a reliable indicator of the seriousness of the offence and the injury caused to the tree.

54.In that case the quantity of wood recovered from the defendant and other males did not reflect the actual and substantial injuries to the tree.  Defendant was not to be punished only for the weight of the wood block he had stolen, but according to the enterprise he and the other males had collectively participated in and the seriousness of the offence which was premeditated.  These people came to Hong Kong in a joint enterprise with the intention to exploit the endangered flora for profit.  They equipped themselves with knife, hoe and saw, and acted as a group. 

55.Accordingly, having regard to the Protection of the Endangered Species of Animals and Plants Ordinance and need for deterrence, 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.

56.Coming back to our case here, the defendant is a Hong Kong-belonger who conspired with another in the commission of the offence.  The wood stolen is said to weigh over 80 kilogrammes of Aquilaria sinensis.  The commission of the offence was premeditated.  Electric saw was used in the actual cutting of the trees.  The light goods vehicle was to be used for transporting the wood blocks.

57.According to Mr Pang, two incense trees were, as a result of the offence, unlikely to survive and 80 kilogrammes of incense tree wood blocks were the subject matter of this charge.  D1 here had attended courses in trees preservation and risk assessment and should know the impact on those trees when they are cut to the stump.

58.The offence committed by D1, together with D2, had highly likely resulted in loss of the two incense trees.  This case is therefore much more serious than that of Wen Zelang case.

59.The court therefore considered the starting point of 3-year imprisonment in the circumstances, even considering D1 is himself a Hong Kong-belonger as opposed to the defendants in those two cases, Mainlanders coming to Hong Kong for that purpose, is appropriate.

60.No doubt D1 used to be a man of good character before commission of the present offence.  I accept that he was a law-abiding, responsible citizen and that the commission of the presence offence is really one that is out of character.

61.Having said this, however, the court noted that although D1 said that he is deeply remorseful as to what he has done, during the time when letters in mitigation were written by relatives and friends, they were still led to believe that he had committed the offence with a view to assist D2 to collect teaching material or for research purpose, and that he had pleaded guilty to the charge only after the short adjournment on 26 July 2018 hearing.

62.Further, though it was mitigated on D1’s behalf that he did not actually take part in the cutting of the trees and he was merely taking photographs at the time when D2 was using the saw cutting the trees, this Court does not accept and does not find the culpability of D1 in the circumstances is anything less than that of D2. 

63.From the WhatsApp messages disclosed, clearly D1 and D2 had intended and planned to have the sawing of the trees.  D1 lived in the vicinity of the cut trees; it is reasonable to suspect that D1 is the one who volunteered the existence and location of the trees to D2, as per his admission in the video recorded interview.  Although there is no evidence as to who first made the suggestion to cut the trees, with the WhatsApp messages, the photos, coupled with the admission of D1 in the video recorded interview, the fact that D1 did participate in this joint enterprise is evident.

64.The main valid mitigating factor is really those of his guilty plea, though it is not as timely as it could be.  Despite the foregoing, ie that it is not as timely, that he has caused these other people who wrote the mitigation letters under a mistaken belief, I am still willing to afford him the one-third sentencing discount.

65.The sentence is therefore reduced from 3 years’ starting point to 2 years.

66.And also, further, in view of his unblemished good record in the past and the fact of his old age and the fact that he has committed the present offence out of character, I am willing to further exercise my discretion and to further allow him sentencing discount of 4 months.

67.Accordingly, D1 is sentenced to 1 year and 8 months for this case.