Read the full judgment text of CACC 46/2019 on BabelCite. This Court of Appeal judgment was delivered on 7 August 2019 before 彭偉昌.
Criminal law – sentencing – illegal export of agarwood – protection of endangered species – application of sentencing benchmark from agarwood theft case – whether 3-year starting point appropriate – 'levelling off' principle – whether arguable ground for leave to appeal – Criminal Procedure Ordinance s.83W warning on '扣時' risk. The applicant pleaded guilty to one count of illegal export of agarwood involving 2.596 kg of agarwood, a quantity described as extremely large, and was sentenced to 2 years' immediate imprisonment in the District Court. The sentencing judge, having no direct sentencing precedent for illegal export of agarwood, adopted the 3-year benchmark from HKSAR v Xie Jinbin [2011] 2 HKLRD 631, a classic case of theft of agarwood, and reduced the sentence by one-third for the guilty plea. The Court of Appeal upheld this approach, holding that the sentencing benchmark for theft of agarwood applies to illegal export of agarwood. The appellate court reasoned that the purpose of sentencing in agarwood-related offences is to protect this endangered plant, and that various criminal roles — theft, handling, and smuggling — all contribute to the species' endangerment, making meaningful distinctions in culpability difficult. This contrasts with ordinary theft and handling stolen goods cases, which involve diverse property and may differ in culpability. The 3-year starting point was found appropriate given the extremely large quantity of agarwood involved. The court further noted that HKSAR v Wen Zelang [2006] 4 HKLRD 460, which involved more offenders and even more agarwood, also used 3 years as the benchmark, illustrating the 'levelling off' principle that sentences should not rise indefinitely with quantity. The application for leave to appeal against sentence was dismissed as having no arguable ground. The applicant was warned in court about the risk of '扣時' under section 83W of the Criminal Procedure Ordinance.
Legal issues: Application of agarwood theft sentencing benchmark to illegal export of agarwood · Appropriateness of 3-year starting point given quantity of agarwood
Outcome: Application for leave to appeal against sentence dismissed; the applicant's sentence of 2 years' immediate imprisonment for illegal export of agarwood stands.
Cited by 5 cases