HKSAR v. Wong Kwong Man and Another

CACC 342/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 342OF 2006

(ON APPEAL FROM DCCC NO. 295 of 2006)

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BETWEEN

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Before: Hon Stuart-Moore VP, Stock JA and McMahon J

Date of Hearing: 21 June 2007

Date of Judgment: 21 June 2007

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J U D G M E N T

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Stuart-Moore, (giving the judgment of the Court):

1.The applicants, D1 and D4, were convicted after trial by Deputy District Judge C P Pang on charges of conspiracy to steal Buddhist pine trees (1^st charge) and remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong (3^rd and 6^th charges respectively).  Each of them was sentenced to 30 months’ imprisonment on the 1^st charge and to 22 months’ imprisonment on the immigration offence of which 6 months was to be served concurrently.  This left each of them with a sentence of 3 years and 10 months’ imprisonment.

2.D1’s application for leave to appeal against conviction and sentence was abandoned on 8 November 2006 but he now seeks to have his abandonment treated as a nullity.  D4 seeks leave to appeal against conviction and sentence.

3.Dealing with D1’s application first, he stated in his affirmation dated 11 December 2006 that he was “manipulated by others last time without knowing it and withdrew the (application) to appeal”.  He went on to state that it later “came” to him that he should make a fresh application.

4.There is nothing in D1’s application or in anything he stated during these proceedings to suggest that he had misunderstood what he was doing when he abandoned his earlier application.  In such circumstances, the court is functus officio and this court is not empowered to reopen his application (see: HKSAR v Lai Siu-cheung [2005] 1 HKLRD 1, following R v Medway [1976] 62 Cr App R 85).

5.Accordingly, D1’s application is dismissed.

6.Turning next to D4, aged seventeen, the judge provided a summary of the prosecution’s case against him and the three other defendants (D1 – D3) who pleaded not guilty to the 1^st charge.  This was in the following terms: -

“4.  At about 4.30 am on 5 January 2006, a team of police officers conducted an investigation at a remote hill area in Sai Wan Shan, Sai Kung, New Territories (‘the campsite’). The campsite where the officers performed their duty is uninhabited, access to which was difficult. Sai Wan Shan is a well-known place where Buddhist pine trees grow naturally.

5.  There is a stream in that place. The stream goes all the way down to a rocky seashore. Upstream in the area, the officers found an open space for cooking (‘the open space kitchen’). Near the open space kitchen and along the stream towards the sea, three tents, namely Tent No. 1, Tent No. 2 and Tent No. 3, were found. (See Exhibit P6, a sketch drawn by the Exhibits Officer, PC33904). Tent No. 1 was a tent large enough for three persons; Tent No. 2 and Tent No. 3 were smaller.

6.  D1 to D4 were found either inside or near the tents, and D5 later surrendered himself to the police. Either inside or near the tents were found some tools, P4, namely, three crowbars, two folding saws, two pairs of pruning shears, four torches and one walkie-talkie. Moreover, six uprooted Buddhist pine trees were found in the vicinity.

7.  D1 to D5 are residents in the mainland. They could not produce any Hong Kong ID card. They came from the mainland by boat, entering into and remaining in Hong Kong without the authority of the Director of Immigration.” (Appeal bundle pp. 14-15)

7.In equally concise terms, the judge summarised D4’s defence, saying:

“29.  D4 was born in Sichuan Province of the mainland. Since 2005 he had worked in a factory in Bao’an District of Shenzhen. On 4 January 2006, which was a factory holiday, he and his friend went to the seashore for fun. A stranger offered him a job. He did not tell what job it was. He took D4 to a boat, saying that he would take D4 to see the boss who lived by the seaside. There was a few people already in the boat. D3 thought they were also going to see the boss. It was dark. The weather was bad. The sea was rough. After a voyage for about one to two hours, the boat arrived at a strange place.

30.  D4 refused to leave the boat but the person steering the boat forced him to go with other people. They were brought up the hill to the campsite. He did not know other people who came by the same boat and he did not speak to them. The person steering the boat asked him to sleep in a tent but D4 refused. D4 just stayed outside the tent by the stream. D4 did not know he had come to Hong Kong. He had not seen the tools. He did not damage any trees. In the early morning when the police came he was outside the tent and he did not escape.” (Appeal bundle pp. 20-21)

8.In simple terms, as the judge remarked, D4’s case and the defence presented by D1, D2 and D3 was that they had been deceived into coming to Hong Kong and had no knowledge either that they had landed in Hong Kong or that trees were to be stolen.  They denied having anything to do with the uprooted trees, the tools and the tents found in the immediate vicinity where they were arrested.  The judge described the defendants’ evidence as evasive, “entirely unreasonable and against commonsense” and, in D4’s case, the judge rejected the explanation that he was “forced to follow the people when no violence was threatened” as being “ridiculous”.  By way of contrast, the judge accepted the evidence given by police officers and, where this conflicted with the accounts given by the defendants, including D4, he accepted the police version.  The judge provided cogent reasons for finding D4 and his accomplices guilty.

9.In a relatively lengthy written account given to us for the purpose of the present proceedings, D4 more or less reiterated the defence he presented in the court below.  This, as we have said, was considered before being rejected by the judge.

10.There is no merit in D4’s application for leave to appeal against conviction and it is dismissed.

11.Turning to sentence, D4 dealt in his grounds of appeal with what appears, at least on his account, to have been his excellent work record whilst he has been in prison.  He also set out his family circumstances which he has explained in greater detail in these proceedings.  Whilst we can sympathise with D4 for the concern he feels for his family, these are not matters which can affect sentence.

12.When sentencing, the judge observed that the stealing of Buddhist pines (podocarpus macrophyllus) was, in the light of statistics presented to him, “extremely prevalent”.  He was also satisfied that the exploitation of these slow-growing trees caused serious damage to the natural environment and that an enhanced sentence to deter others was required.  The judge took all relevant factors into account including the letters in mitigation, D4’s comparative youthfulness and his previous clear record.

13.The judge took a starting point of 20 months’ imprisonment on the 1^st charge having been referred to HKSAR v Yeung Wui and Ors, CACC 415/2004, which had a similar factual background.  He then enhanced the starting point by fifty percent to 30 months.  On the 6^th charge, the judge recognized that the “usual sentence” was 15 months’ imprisonment and that this was reserved for those who had admitted the charge.  As this charge had been contested, the judge adopted a starting point of 22 months.  Taking totality into account, the applicant was sentenced in total to 3 years and 10 months’ imprisonment after 6 months of the sentence on the 6^th charge had been ordered to run concurrently.  We are satisfied that the sentence, in its totality, was entirely appropriate.

14.There being no merit in the application concerning sentence, it is dismissed.

Mr Vincent Wong, SGC, of the Department of Justice, for the Respondent.

The 1^st and 2^nd Applicants, both acting in person.