HKSAR v. Chen Xiyou and Others
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DCCC430/2010 IN THE DISTRICT COURT OF THE HONG KONGSPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 430 OF 2010 ----------------------
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--------------------- Reasons for Sentence --------------------- 1.All defendants have pleaded guilty to theft in that they stole seven pieces of Aquilaria sinensis wood, commonly known as incense tree. The total weight of the wood amounts to about 1.181 kilograms. 2.The facts are that on the morning of 29 March this year, four males were seen acting suspiciously next to a tree, three of them subsequently identified as these three defendants. At 10.30 am, they started to cut the tree by using tools. The police officer who kept them under observation then informed other police officers by walkie-talkie. At 1040 hours, these four males - three of them, the defendants - were seen packing up their rucksacks, and when police officers came to reveal their identity, four of them ran away in different directions. 3.Subsequently, at 1255 hours on the same day, these three defendants were seen at a ferry at the Sok Kwu Wan Public Pier at Lamma Island. They were intercepted. The 1st defendant started to flee but was subdued after a short chase. Each of these three defendants were carrying a rucksack. In the rucksack of the 1st defendant were found two pieces of the wood blocks and an iron hoe. In the rucksack carried by the 2nd defendant, the police seized four pieces of these wood blocks and a knife of about 11 inches in length. In the 3rd defendant’s rucksack was found a piece of wood and a metal saw. All three were arrested. All three were subsequently identified by the first police officer who had kept them under observation. 4.The wood blocks were subsequently examined and weighed, and they were sent to the Agriculture, Fisheries and Conservation Department for examination. Mr Pang Kuen-shum, the conservations officer for flora, examined these pieces of wood blocks and certified them to be agarwood which is from a species of Aquilaria sinensis commonly known as incense tree. Mr Pang’s conclusion is that the illegal exploitation of this wood would threaten the natural survival of this native plant. 5.These three defendants came to Hong Kong two days prior to the theft on a two-way permit. 6.I have seen photographs of the tree from which this wood was extracted by the three defendants. This wood was taken from the trunk of the tree, and as can be seen from the photographs, were indiscriminately cut from the trunk of the tree. 7.Mr Pang’s report very clearly indicates that these trees, the large and old individual trees have become rare in Hong Kong and that the unsustainable felling of the species has caused irreplaceable damages to the general natural features and ecology of the natural forests. And as far as the worldwide status is concerned, this tree is listed as a threatened plant and the threat status is that it is vulnerable. And according to Mr Pang, it is only recently that these trees have been illegally exploited, and he says the trunks of many large and old trees are being cut or felled for extraction of agarwood to the extent that such trees are damaged and likely unable to recover. The threats owing to illegal exploitations and unsustainable uses have indeed surged, threatening the survival of such trees in the natural environment. 8.Mr Pang goes on to say that according to Chinese medicine literature, agarwood can be harvested from this species all year round. Therefore, the threat posed by illegal exploitation for agarwood is not seasonal. And this is a real threat to the environment of Hong Kong, a threat which is growing in importance as that to the Buddhist pines. So the court has to look at this type of offences seriously, and it is without doubt that a deterrent sentence is necessary. 9.The Court of Appeal in the case of HKSAR v Wen Zelang [2006] CA220 of 2006 dealt with an offence of a similar nature. The Court of Appeal recognised in their judgment paragraph 3:
10.The Court of Appeal there in that case, because of special circumstance, then had reduced the sentence of that particular appellant. But what is clear from the Court of Appeal’s judgment is this that at paragraph 16, Yeung J said:
11.In this case, all the defendants are middle-aged. They range in age from 48 to 57. They have clear records in Hong Kong and all three are farmers. All three in mitigation say that they are remorseful and they have family at home whom they need to support, aged parents and children and wives. 12.But that pales into comparison with the damage that they are doing to the environment of Hong Kong. Although Mr Wong in mitigation pointed out that these wooden blocks were only taken from one tree, but that is not the issue. The issue is that Hong Kong cannot afford to lose even one tree. And as farmers, all three defendants should have realised that. The message has to be sent to everybody in mainland China that they cannot come to Hong Kong to exploit our environment and steal the wood from our environment. 13.So I consider that having looked at the facts in this case that a proper starting point for these three defendants would be one of 3 years’ imprisonment for each of them. Because they have pleaded guilty, they are entitled to one-third discount. So that sentence is reduced to 2 years. 14.It is without a doubt that the sentences should be enhanced under OSCO and that the sentence should be enhanced by 25 per cent. So each of the defendants will go to prison for 2 years and 6 months.
Appeal against sentence by D3 dismissed by Court of Appeal. Please refer to CACC195/2010 dated 28 January 2011 |