HKSAR v. Xie Jinbin

CACC 195/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 195 OF 2010

(ON APPEAL FROM DCCC NO. 430 OF 2010)

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Before: Hon Yuen JA and To J in Court

Date of Hearing: 19 January 2011

Date of Judgment: 19 January 2011

Date of Reasons for Judgment: 28 January 2011

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REASONS FOR JUDGMENT

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Hon To J (giving the reasons for judgment of the Court):

Introduction

1.On 19 January 2011, we dismissed the Applicant’s appeal against sentence.  Hereunder are the reasons for our decision.

The facts

2.On 29 March 2010, police conducted an operation against illegal tree-cutting in Lamma Island.  At 10:25 hours, a police officer saw four males, including the Applicant, acting suspiciously next to a tree at the hillside near Mo Tat Wan Old Village.  Soon the four males started cutting the tree using tools.  The officer summonsed his colleagues who arrived and laid in ambush.  At 10:40 hours, the four males were seen packing up their respective rucksacks.  The police officers rushed out.  The four males fled in different directions and disappeared.  At 12:55 hours, the police officers saw three of the four males at Sok Kwu Wan Public Pier at Lamma Island.  They intercepted and arrested the three males.  They found a saw and a wood block of about 8 inches in length in the rucksack carried by the Applicant.  They also found in the rucksacks carried by the other two males an iron hoe of about 12.5 inches in length, a knife of about 11 inches in length and six wood blocks of about 4 to 7 inches in length.  The wood block found in the Applicant’s possession weighed 0.677 kilogram and the total weight of all the wood blocks was 1.181 kilograms.  The wood blocks were examined by Mr Pang, a conservation officer of the Agriculture, Fisheries and Conservation Department and found to have been taken from the species Aquilaria sinensis, commonly known as “incense tree”.  Mr Pang opined that illegal exploitations of incense tree would threaten the natural survival of the native plant.

3.The Applicant and the other two males are mainland residents who came to Hong Kong on two way permits on 27 March 2010 and were granted leave to stay for seven days.

4.The Applicant and the other two males pleaded guilty to theft before HH Judge E. Toh in the District Court on 28 May 2010.  After considering HKSAR v Wen Zelang [2006] 4 HKLRD 460 the judge adopted a starting point of 3 years, reduced to 2 years on account of the guilty plea.  She then enhanced the sentence by 25% upon the application of the prosecution pursuant to section 27(2) of the Organized and Serious Crimes Ordinance, Cap. 455, making a total term of imprisonment of two years and six months.  The Applicant now appeals against that sentence.

Grounds of Appeal

5.The first ground of appeal is that the learned judge erred in omitting or failing to consider or give any or any sufficient weight to the following facts:

(a) the Applicant’s act had not caused or contributed to the death of the incense tree;

(b) the total weight of wood cut by the Applicant was just over one-eighth of that in Wen Zelang;

(c) this Court’s comment in HKSAR v Lo Tai Hoi CACC 386/2007 that the starting point in Wen Zelang was justified by reason of the quantity of wood extracted and the fact that the incense tree involved was cut down; and

(d) the decision of HKSAR v Bu Hua Lai CACC 380/2006 in which a starting point of three years was reduced to two years for handling stolen Buddhist pines of a greater weight and volume of protected flora than that involved in Wen Zelang.

6.The second ground of appeal is that the learned judge, not being aware of Bu Hua Lai, erroneously applied Wen Zelang in isolation and failed:

(a) to distinguish and make allowance for the lesser amount of wood involved in this case as opposed to that in Wen Zelang;

(b) to adopt a starting point of two years, which would have been appropriate;

(c) to recognize that Yeung JA, who had been a member of the court in the Court of Appeal’s decision in Bu Hua Lai and Wen Zelang, accepted that two years was an appropriate starting point for small quantities of stolen Buddhist pines; and

(d) to recognize that Buddhist pines and incense trees are to be treated similarly under the law of Hong Kong.

7.In essence, the grounds of appeal are that the learned judge erred in picking three years as the starting point in relying on Wen Zelang and that the sentence was manifestly excessive having regard to Bu Hua Lai and Lo Tai Hoi and the quantity of wood extracted.  Two years would have been an appropriate starting point.

The starting point

8.Mr Allman-Brown, counsel for the Applicant, referred to seven authorities involving nine cases of theft of wood.  Wen Zelang is the only case of theft of wood cut from an incense tree.  The other cases involved theft or handling of stolen goods, the stolen goods being Buddhist pines.  The thrust of his argument is that based on these authorities, two years is the appropriate starting point for quite a substantial quantity of Buddhist pines stolen.  Hence, the learned judge must have erred in picking a starting point of three years following Wen Zelang or perhaps Wen Zelang was out of line.

9.In our view, counsel’s argument started on the false premise that Buddhist pine is an endangered species.  He rightly pointed out that Buddhist pine is a member of the Podocarpaceae family, but failed to appreciate that not all members of the family are protected. According to Schedule 1 of the Protection of Endangered Species of Animals and Plants Ordinance, Cap. 586 (the “Ordinance”) only two members of the family are protected: namely, Podocarpus neriifolius and Podocarpus parlatorei. According to Mr Pang, the scientific name of Buddhist pine is Podocarpus macrophyllus.  Buddhist pine is therefore not a protected species for which special consideration applies.  This explains the lower starting point adopted in the Buddhist pine cases.

10.The Buddhist pine cases referred to by Mr Allman-Brown were launched by the prosecution as ordinary cases of theft, albeit of some peculiar property, rather than as cases of protection of endangered flora.  The focal point in those authorities was on illegal immigrants crossing Hong Kong waters for the purpose of stealing trees and the quantity of trees thus stolen, rather than on protection of endangered flora. Having had his attention drawn to Schedule 1 of the Ordinance, Mr Allman-Brown properly conceded that his reliance on the authorities involving theft of Buddhist pines, including Bu Hua Lai and Lo Tai Hoi, was misplaced.  He then sought to argue on the basis that on the facts of the present case, the starting point chosen by the learned judge was too high even when compared with the facts in Wen Zelang.    

11.Mr Allman-Brown argues by reference to the following comments of Cheung JA on Wen Zelang in Lo Tai Hoi that the three years starting point was only justified by reason of the quantity of wood extracted and the fact that the tree was actually cut down or killed:

“The decision [HKSAR and Wen Zelang] to accept a higher starting point may well be due to the fact that in that case the incense trees were actually cut down into blocks of woods which weighed 5.6 kg.”

12.In Wen Zelang, the appellant and three others were intercepted on a bus in Lantau Island during an identity card check.  They were found in possession of 5.6 kilograms of wood blocks from incense tree(s).  There was no finding by the court that the incense tree or trees died as a result.  We do not agree that it could be inferred from Cheung JA’s dicta that the starting point in Wen Zelang was determined on the basis that the incense tree was actually killed.   

13.The defendants in Wen Zelang pleaded guilty and were sentenced to 30 months’ imprisonment.  On appeal, the starting point of three years was upheld.  In delivering the judgment of the Court of Appeal, Yeung JA gave a description of the use of incense tree and referred to its scientific name, Aquilaria sinensis.  He then referred to Hong Kong’s international obligation under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (the “Convention”) and the Ordinance.  He said:

“15. In our opinion, the judge was right to have taken a serious view of the offence when the defendants had expressly come to Hong Kong for the purpose of cutting endangered trees for profit.

16. A clear and strong message is needed to deter Mainland people from coming to Hong Kong to cut endangered trees, be they Buddhist Pines or incense trees.  In our view, neither the three-year starting point nor the 25% enhancement for prevalence of the offence under SOCO is manifestly excessive.”

The starting point of three years was upheld in the light of Hong Kong’s international obligation under the Convention and with reference to incense tree as a protected endangered species under Schedule 1 of the Ordinance.   

14.We agree with the serious view taken by Yeung JA.  In addition, we have the benefit of the expert evidence of Mr Pang.  The incense tree produces a valuable fragrant wood which is used for incense and for production of a valuable Chinese medicine called “Chen Xiang”.  Due to the high demand for Chen Xiang and over-exploitation, all species of Aquilaria are endangered.  According to Mr Pang, the 2009 IUCN Red List of Threatened Plants managed by the World Conservation Union listed the threat status of Aquilaria sinensis as vulnerable.  In the mainland, the species is listed as a category II protected plant in the List of Wild Plants Under State Protection.  Thus, the incense tree is clearly vulnerable and in danger.  The situation of the species in Hong Kong is summarised by Mr Pang in his expert statement as follows:

“10. Recently, the trunks of many large and old trees are being illegally cut or felled in an unsustainable fashion (i.e. 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. Large and old individuals of Aquilaria sinensis have since become rare in Hong Kong. As Aquilaria sinensis is a dominant tree species in fung shui woods and other lowland forests, such deliberate felling and damage of large Aquilaria sinensis, by causing damages to the habitats of the organisms, have jeopardized the normal ecological relationships of the organisms in such woodlands. I am of the view that the unsustainable felling of the species has caused irreplaceable damages to the general natural feature and ecology of the natural forests.

…

22. Exploitation of this plant species for agarwood such as Aquilaria sinensis was uncommon in Hong Kong for the last few decades. However, there are numerous recent reports that the species has been illegally exploited. 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 (Figures 4 & 5). The threats owing to illegal exploitations and unsustainable uses have indeed surged, threatening the survival of such trees in the natural environment. Aquilaria sinensis is an evergreen tree, with no dormant period throughout the year. According to Chinese medicine literature, agarwood can be harvested from this species all year round. Therefore, the threat posed by illegal exploitations of Aquilaria sinensis for agarwood is not seasonal.

23. From the point of view of flora conservation in Hong Kong, as those populations in other parts of China are reportedly over-exploited and depleted, the local populations of Aquilaria sinensis represent likely some of the remaining healthy populations in China. The plant communities to which local populations of Aquilaria sinensis belong (lowland broadleaved forests and fung shui woods) have been well-preserved by both former villagers and local legislations, and are considered of conservation value. Most illegal exploitations of the species involve the use of unsustainable method of harvesting, which caused undesirable impact to the survival of Aquilaria sinensis, particularly the larger individuals.

24. Based on the above facts and observations, I am of the view that the illegal exploitations would threaten the natural survival of the native plant Aquilaria sinensis.

15.Wen Zelang is the only prosecuted case of theft of wood from incense trees.  There are no prosecution statistics to support the suggestion that the offence is prevalent.  However, according to Mr Pang, there are numerous reports of illegal exploitation of the species.  This suggests that the exploitation is difficult to police.  The successful prosecution in Wen Zelang was just a matter of chance.  In Lo Tai Hoi, there is evidence that theft of Buddhist pines is prevalent.  The nature of the offence is similar, i.e. mainlanders coming illegally or on two way permits to exploit our local flora. The offence could be committed with relative ease and with the least amount of equipment.  All these considerations apply equally to illegal exploitation of incense trees.  There is a need for protection and deterrence.

16.While the quantity of stolen goods in a case of theft is usually an important factor in determining the appropriate sentence, it is not necessarily the only and determinative factor.  In the ordinary cases of theft from supermarket, or theft of ordinary goods, even of trees which do not fall within the category of protected endangered species, value or quantity or weight may be the only consideration.  The same is true of trafficking in dangerous drugs.  But where the stolen property involved is a protected endangered species, the considerations are wholly different.  The end which the law seeks to achieve is protection of our endangered flora.  Thus, the evil which the law seeks to prevent is not theft as such but injury to the protected flora.  Unlike theft of ordinary goods, restitution is impossible.  The recovered wood could not be restored to the plant.  The focus, therefore, should be on protection of the plant rather than the value of the plant or part stolen.  The factors to be taken into consideration are the injury done to the tree, profit-motive, the manner of commission and the gravity of the offence. 

17.We echo Yeung JA’s sentiment that a clear and firm message is needed to deter mainlanders from coming to Hong Kong, legally or illegally, specifically for the purpose of exploiting our protected and endangered flora for profit.  A starting point of three years for case of extraction of wood from an incense tree by mainlanders could not be faulted. We do emphasise that the starting point is not meant to be a strait-jacket. 

Determining the starting point before hearing expert evidence

18.Mr Allman-Brown said that he was instructed that the learned judge chose the starting point and sentenced the Applicant to two years’ imprisonment without hearing the expert evidence of Mr Pang, which was only admitted by consent of the defendants’ solicitor after the prosecution applied for enhancement of the sentence.  He submits it was wrong for the learned judge to roll up the expert evidence to support the starting point and sentence she had imposed before having actually received the expert evidence. 

19.We have reviewed the record of the court below. The endorsement showed the following chronology of events:

2:42 pm:	Charge put to the defendants in Hakka;
	Defendants pleaded guilty;
2:44 pm:	Prosecutor read out the amended summary of facts;
	Facts admitted by the defendants;
2:50 pm:	All three defendants were convicted on their pleas;
	Prosecutor submitted expert’s report and applied for enhancement of sentence;
2:53 pm:	Mitigation;
3:12 pm:	Reasons for sentence delivered and interpreted.

Mr Allman-Brown admits that he is bound by the court’s record.  There is no factual basis for this ground of appeal.  In any event, there is no merit either.  If the learned judge arrived at proper starting point after referring to the appropriate authority, it matters not that she sought to reinforce the appropriateness of the starting point with expert evidence which she received subsequently.

Whether the sentence was manifestly excessive

20.The remaining thrust of Mr Allman-Brown’s argument is that in view of the small quantity of wood found in the Applicant’s possession, the sentence was manifestly excessive even when compared with that received by the appellant in Wen Zelang.  As already mentioned above, the prime considerations in this type of cases are protection of the endangered species and deterrence.  The weight of the wood blocks stolen is not determinative of the sentence.  The factors to be considered are the injury done to the tree, the profit motive, the manner of commission and the gravity of the offence. 

21.The learned judge viewed the photographs of the tree from which the wood blocks were extracted and formed the view that the tree was indiscriminately cut from the trunk.  She then referred to Wen Zelang and said:

“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:

‘The heavy demand for incense tree wood leads to its overexploitation and it is under the threat of extinction.’

And the court there, although dealing with wooden blocks weighing a total of 5.6 kilograms, had indicated that they did not think that a starting point of 3 years was at all unreasonable, and they also agreed with the lower court’s enhancement of sentence by 25 per cent.

10. The Court of Appeal there in that case, because of special circumstances, 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:

‘A clear and strong message is needed to deter mainland people from coming to Hong Kong to cut endangered trees, be they Buddhist pines or incense trees. In our view, neither the 3-year starting point nor the 25 per cent enhancement for prevalence of the offence under OSCO is manifestly excessive.’

11. In this case, all the defendants are middle-ages. 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.”

22.It is true as submitted by Mr Allman-Brown that there was no evidence that the tree died as a result of the cutting.  He argues that the Applicant and the co-defendants only took one layer off the trunk of the tree and had taken care to cut only on one side of the tree leaving the other side untouched.  He argues that the tree was not in danger of falling. However, looking at the photographs of the tree, we agree with the observation of the learned judge that the tree had been indiscriminately cut from the trunk.  The photographs show that the tree had previously been cut immediately above the position where the Applicant extracted the wood.  The fresh cut indicates that a large section of the trunk had been removed.  The injury was substantial.

23.The learned judge was fully aware that the Applicant was found in possession of 0.677 kilogram of wood only.  Though only 1.181 kilogram of wood was recovered from the Applicant and the co-defendants, the quantity does not reflect the actual injury caused to the tree and the seriousness of the offence.  The Applicant is not to be punished only according to the weight of the wood block he has stolen, but according to the enterprise he and the other three offenders had collectively participated in and the seriousness of the offence.  The Applicant and three others came to Hong Kong in a joint enterprise with the intention to exploit our endangered flora for profit.  They equipped themselves with a knife, hoe and saw.  They acted as a group.  The offence was clearly premeditated.  The four of them were seen cutting the tree and packing the blocks into their rucksacks, though only three of them were arrested.  The offence is one which calls for deterrence.  Weight is therefore not the determining factor for sentencing nor is it a reliable indicator of the seriousness of the offence and the injury caused to the tree. Having regard to the purpose of the Ordinance and the need for deterrence, we consider the starting point appropriate.  The sentence might be on the high side in view of the quantity of wood stolen, but is not one which may be regarded as manifestly excessive as to justify interference.   

Conclusion

24.In our view, the learned judge has chosen the correct authority and adopted the correct starting point of three years.  She has applied her mind properly to the facts of the case and has addressed all the issues raised in this appeal.  There are no mitigating factors, apart from the guilty plea for which the learned judge has given the proper discount.  The sentence is not manifestly excessive.  The appeal is therefore dismissed.

25.We would wish to make the following observation.  The expert was not invited to examine the tree or shown the photographs so that he may comment on the extent of the injury caused to the tree and the prospect of its recovery.  Such evidence would have been of assistance to the learned judge.

Mr Andrew Cheng, Public Prosecutor, of the Department of Justice, for the Respondent

Mr Andrew Allman-Brown, assigned by the Legal Aid Department, for the Applicant