HKSAR v. Yang Jue and Others
Read the full judgment text of DCCC 519/2011 on BabelCite. This District Court judgment.
1. The three Defendants pleaded guilty to a charge of theft in that they stole 1.97 kilograms of wood pieces and tree barks of a Aquilaria Sinensis commonly known as Incense tree.
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DCCC 519/2011 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL ACTION NO. 519 OF 2011 ---------------------
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Reasons for Sentence 1.The three Defendants pleaded guilty to a charge of theft in that they stole 1.97 kilograms of wood pieces and tree barks of a Aquilaria Sinensis commonly known as Incense tree. 2.On 2 April 2011, at about 6 p.m., the police stopped all the three defendants near the Nam Chung Country trail of the Nam Chung Water service reservoir. 3.In their respective rucksacks, wood chips or pieces of Aquilaria Sinensis and Chen Xiang were found. 4.Under caution, they all said that they cut the incense tree for selling in China. 5.The total weight is about 1.97 kilograms. The estimated value is about $118,200. 6.They are all Mainlanders, entered into Hong Kong on 2-way permits on 30.3.2011 for a period of 7 days stay in Hong Kong. 7.The prosecution also applied for enhancement of the sentence under s. 27(2) the OSCO. 8.According to the expert report prepared by Mr. Pang Kwan-Shum, this type of flora is listed as a category II protected plant in the ‘list of wild plant under state protection’ in China. 9.As a rare endemic plant in China, it is considered vulnerable as it ‘has become depleted due and severe damage of trees caused by discriminate collection of the balm used: Chinese Medicine.’ 10.As in Hong Kong, Mr. Pang said that there is an increasing trend reflected by numerous recent reports that the species has been illegally exploited. Many large/old trees are being cut or felled to the extent that such trees are damaged and likely unable to recover. That threaten the survival of such tress in the natural environment. 11.In his opinion, Mr. Pang concluded that most illegal exploitation of the species involve the use of unsustainable method of harvesting, which caused undesirable impact to the survival of Aquilarin Sinensis. 12.The defendants all admitted to the content of the summary of facts which included the last paragraph:-
13.The 3 defendants are farmers in China, they should have known the extent of the damage to this type of flora and the ecology of the natural forests. 14.That also explained the facts that for such a small quantity of 1.97 kilograms, the value is about $118,200. 15.Counsel for the Defendants said that there is no evidence to suggest that the trees were being damaged by the defendant’s illegal acts. There is also no figure to suggest that the offense is prevalent in nature. 16.However, as said by the Court of Appeal in HKSAR v Xie Jin Bin [CACC 195/2010]:-
17.In the present case, the three defendants came to Hong Kong, with clear purpose to cut the Aquilaria Sinensis for selling in China. Their intent was to exploit our endangered flora for profit. The offence was clearly premeditated. The offence is one which calls for deterrence. 18.The Court of Appeal in Wen Zelang CACC 220/2006 also said that:-
19.In mitigating, all the three defendants are all in their mid-20’s, farmers in China, married with children. In their joint letter, they are all remorseful and asked for a lenient sentence. 20.To this end, having considered the authorities before me and the mitigating factors, including their guilty plea and clear record, I adopt a starting point of 3 years reduce to 2 years. 21.I also accept that the sentence should be enhanced by 25% under S. 27(2) of OSCO. 22.All the 3 defendants be sentence to 2 years 6 months.
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