HKSAR v. Yeung Lap

CACC 385/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL 

criminal APPEAL NO. 385 OF 2007 

(ON APPEAL FROM DCCC No. 130 of 2007) 

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Before: Hon Yeung JA,Yuen JA and Beeson J in Court

Date of Hearing:   9 April 2008

Date of Judgment:  9 April 2008

Date of Handing Down Reasons for Judgment:  21 April 2008

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REASONS FOR JUDGMENT

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Hon Yeung JA (giving the reasons for judgment of the Court):

Introduction

1.On 9 April 2008, we dismissed the application for leave to appeal against sentence out of time. These are the reasons.

2.On 12 January 2007, police speedboats chased a suspicious motorized sampan two nautical miles off the east coast of Tai Long Tsui in Sai Kung. Despite the flashing of blue lights, the discharge of pyrotechnic flares and the sounding of horns, the sampan did not stop and was only intercepted after a chase near the boundary of Hong Kong waters.

3.On board the sampan, which was unfit for navigation, the police found two illegal immigrants, the coxswain, Yeung Lap (the applicant) and the passenger, Wong Chung. There were also 26 recently uprooted Buddhist pine trees. The applicant claimed to have been employed to come to Hong Kong to deliver the Buddhist pine trees for a reward of RMB 1,000.

4.The applicant and Wong Chung were arrested and they subsequently, on 15 March 2007, appeared before District Court Judge Browne (“the judge”) on an indictment consisting of the 1^st charge of handling stolen goods, the 2^nd charge of assisting the passage within Hong Kong of an unauthorized entrant and the 3^rd charge of failing to stop the sampan despite the making of International Code Signal.

5.The applicant pleaded guilty to all three charges and was sentenced to a total of 52 months’ imprisonment.

6.Eight months after sentence, in early November 2007, the applicant sought leave to appeal against sentence out of time. The applicant claimed not to have been informed by his solicitor of the appeal period. He also said he did not know how heavier his sentence was than other similar cases although he felt it was very heavy.

The Judge’s Approach

7.The judge adopted a starting point of 3 years for the 1^st charge and reduced it to 2 years on account of the guilty plea. The judge, having been satisfied on prosecution evidence that the offence of handling of stolen Buddhist pine trees was prevalent and that it was an organized crime, enhanced the sentence by 8 months (about 33%) to 32 months’ imprisonment.

8.The judge adopted a starting point of 5 years for the 2^nd charge and reduced it by one-third to 40 months again on account of the guilty plea, with 20 months to run consecutively to the sentence on the 1^st charge.

9.The judge adopted a starting point of 3 months for the 3^rd charge and reduced it to 2 months. The judge ordered the 2-month sentence on the 3^rd charge to run concurrently to those on the 1^st and 2^nd charges. The total sentence was therefore 52 months’ imprisonment.

Grounds of Appeal

10.Mr Norton Pang, on behalf of the applicant, suggested that the 3-year starting point for the 1^st charge was manifestly excessive and that the overall sentence of 52 months’ imprisonment was also manifestly excessive.

11.Mr Pang referred to a number of similar cases, including HKSAR v Wong Chi Kin (unreported CACC 357/2004), HKSAR v Ko King Hung (unreported CACC 410/2004), HKSAR v Yeung Wui & Others [2005] 1 HKC 646 and HKSAR v Po Wah Loi & Others (unreported CACC 380/2006), to support his contention.

12.Mr Pang emphasized that in Po Wah Loi, (supra),the Court of Appeal opined that the usual starting point for the offence of handling stolen Buddhist pine trees was 2 years although when a large number of stolen trees was involved, there could be an upward adjustment.

13.Mr Pang accepted, however, that a 35% enhancement of sentence for prevalence under the Organised and Serious Crimes Ordinance Cap 455 was considered appropriate.

Discussion

14.Illegal exploitation of endangered trees in Hong Kong, be they incense trees or Buddhist pine trees, is a very serious offence as it causes irreparable damage to the environment and threatens the natural survival of those species.

15.In Wong Chi Kin (supra), a starting point of two years with a 35% enhancement was considered appropriate when the charge of handling stolen goods involved 4 Buddhist pine trees.

16.Po Wah Loi (supra) concerned 54 Buddhist pine trees and the Court of Appeal, having reviewed cases involving handling stolen Buddhist pine trees, adopted a starting point of 27 months’ imprisonment with a 35% enhancement, making a total sentence of 36 months’ imprisonment for the charge of handling stolen goods.

17.The 3-year starting point, adopted by the judge, when compared with the starting point adopted in Po Wah Loi, appears to be excessive.

18.However, we wish to emphasize that a starting point is not meant to be a strait-jacket. There are other cases in which the Court of Appeal approved a three-year starting point for a similar offence. (See e.g. HKSAR v Wen Zelang [2006] 4 HKLRD 460)

19.Despite the repeated emphasis of the seriousness of illegal exploitation of endangered trees in Hong Kong, very often by illegal immigrants from the Mainland, the offence remains prevalent.

20.Clearly the sentence imposed by the Court for such offence is not sufficient to deter and a higher starting point may be necessary to send out a clear and firm message to deter Mainland people from illegally entering Hong Kong for the purpose of cutting endangered trees for profit.

21.In any event, the more important issue is whether the total sentence imposed on the applicant is manifestly excessive.

22.The applicant was convicted of not just the 1^st charge of handling stolen goods, but also the 2^nd charge of assisting the passage of an unauthorized entrant and the 3^rd charge of failing to stop despite the making of International Code Signal.

23.Regarding the 2^nd charge, in Yeung Wui (supra), the Court of Appeal, confirming its earlier decision in Wong Chi Kin (supra), concluded: “where an accused was the captain of the vessel or the person in charge or assisting in the operation of the organisation of the venture, the appropriate starting point is 5 years’ imprisonment”.

24.The court further observed that the 5-year starting point could be increased if any of five aggravating circumstances existed, including, “the vessel concerned was unseaworthy by reason of poor maintenance or age, with the risk of endangering the passengers”.

25.In the present case, the motor sampan in question was found to be unfit for navigation. That being the case, the 5-year starting point adopted by the judge for the 2^nd charge could well be described as too lenient.

26.We cannot ignore the fact that the applicant’s sampan was only intercepted after a chase by police speedboats in the course of which the applicant had ignored the flashing of blue lights, the discharge of pyrotechnic flares and the sounding of horns.

27.Despite such aggravating features, the judge, having imposed a 2-month sentence on the 3^rd charge, ordered it to run concurrently.

28.Looking at the case from such a perspective, the total sentence of 52 months’ imprisonment imposed on the applicant could not be said to be manifestly excessive.

Conclusion

29.We therefore refused to grant the applicant an extension of time for leave to appeal against sentence.

Mr Norton Pang instructed by Messrs To Lam & Co for the Applicant.

Ms Mary Sin, SADPP of the Department of the Justice for the Respondent.