HKSAR v. Gao Weixi and Another

DCCC551/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 551 OF 2011

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Reasons for Sentence

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1.Both defendants have pleaded guilty to one single charge of theft, contrary to section 9 of the Theft Ordinance, Cap.210.

2.The particulars of the offence are that both defendants did, on 31 March this year, at the hillside of Tseng Lan Shue Village, Clear Water Bay, Sai Kung, New Territories, steal 1.75 kilogrammes of woodblocks and woodchips of the Aquilaria sinensis wood, commonly known as the Incense Tree.

3.The facts on which I have convicted both defendants are as follows.

4.It was the afternoon of 31 March 2011, and D1 and D2, who had entered Hong Kong just three days earlier on two-way permits from Mainland China, were seen acting furtively in the area of Tseung Kwan O Village by police officers who thus intercepted them.  The police then searched both defendants and found a knife, a hoe and other implements in the 1st defendant’s rucksack, and the police found woodblocks and woodchips in the 2nd defendant’s rucksack.

5.The 1st defendant was cautioned and, under caution, he stated that he and the 2nd defendant had used the knife to cut the wood from a tree known as the Incense Tree or Aquilaria sinensis and he had done so from a hillside in Sai Kung with a view to selling the wood in Mainland China.

6.The 2nd defendant was also cautioned and, under caution, he stated that he and the 1st defendant had cut wood from the Incense Tree in Sai Kung and also that he had done so with a view to selling the wood in Mainland China.

7.Included in the admitted facts, to which the defendants agreed, were the following matters.

8.One, that the Agriculture, Fisheries and Conservation Department had confirmed the following:

(a) The wood recovered from D2’s or the 2nd defendant’s rucksack was 1.75 kilogrammes of Chen Xiang or wood from the tree Aquilaria sinensis that had been harvested locally;

(b) Aquilaria sinensis was commonly known as the Incense Tree and is considered an important source of medicine;

(c) the established value of 1.75 kilogrammes of wood recovered from the 2nd defendant’s rucksack is $140,000;

(d) illegal exploitation would threaten the natural survival of the native plant Aquilaria sinensis. Unsustainable felling of the species caused irreparable damage to the general natural features and to the ecology of natural forests.

9.It was also noted that large and aged individual examples of the tree Aquilaria sinensis have become rare in Hong Kong.

10.Aquilaria sinensis is listed under the heading “Threat status” as vulnerable, according to the 2010 International Union for the Conservation of Nature Red List of Threatened Plants.

11.Aquilaria sinensis is also listed as a Category II Protected Plant in the List of Wild Plants under State Protection 1999 in the Chinese Legislation promulgated by the State Council.

12.The species is also a scheduled species protected under the Protection of Endangered Species of Animals and Plants Ordinance, Cap.586.

13.Those were the facts upon which I convicted the defendants.

14.Let me turn to the defendants’ background and their mitigation.

15.Mr Li, who appears for both the 1st and the 2nd defendant told me, and I accepted, that the defendants were cooperative when they were stopped by the police.  They both admitted the offences once they had been cautioned and that both of them have clear records.

16.Let me turn to the 1st defendant.  The best mitigation that he has is his plea of guilty.  He is a 41-year-old farmer from the Mainland who has two sons aged 14 and 12.  He pleads poverty as the reason for coming to Hong Kong and carrying out these acts.

17.Mr Li told me that there was a letter that had been written by the 1st defendant and he read out part of that letter to me in court.  Besides stating that he regretted his actions and praying for leniency, it was also revealed that the 1st defendant had discovered on the Mainland that there were valuable trees in Hong Kong and it appears that he came to Hong Kong specifically for the purpose of harvesting those trees.

18.Let me turn to the 2nd defendant.  The 2nd defendant is also from the Mainland.  He is 28 years old and has an 11-month-old son.  Once again, the main point in mitigation for him is his plea of guilty.

19.Mr Li read me a letter from the 2nd defendant in which he states his regret for being involved in these acts and in which he claims that he did not understand that these trees were, in fact, protected.  The 2nd defendant is also concerned about his aged parents who are not well and I am quite sure that, naturally, both defendants are anxious to be returned to the families as soon as possible.

20.Let me turn to the authorities.  There is a good deal of very recent authority in respect of cases of this type.

21.The Court of Appeal handed down judgment in a very similar case on 28 January this year.  That case, HKSAR v Xie Jinbin, CACC 195/2010, now reported at [2011] 2 HKLRD 631.  That case sets out facts which are very similar to those of this case that is now before me.  In HKSAR v Xie Jinbin, four males were seen cutting trees on Lamma Island.  Three of them were subsequently caught, arrested, prosecuted and convicted on their own plea to theft of a total of 1.181 kilogrammes of Aquilaria sinensis.

22.One of those three defendants appealed his sentence of 2 years and 6 months, a sentence which had been arrived at by taking a starting point of 3 years, reducing that by one-third for his plea of guilty and then enhancing that sentence by 25 per cent pursuant to an application under the Organised and Serious Crimes Ordinance.

23.That sentence of 2½ years was upheld on appeal, notwithstanding the court’s acceptance of the fact that the applicant in that case had only 0.677 kilogrammes of woodblocks in his bag out of a total weight of between all of the defendants of 1.181 kilogrammes.

24.The Court of Appeal made a number of observations including the following four:

(a) the end which the law seeks to achieve is the protection of our endangered flora;

(b) thus, the evil which the law seeks to address or prevent is not the theft as such, but the injury to the protected flora;

(c) unlike the theft of ordinary goods, in cases of the theft of trees or parts of trees, restitution is impossible; and

(d) the factors to be taken into consideration when sentencing are, or include, the injury to the tree or trees, the profit motive, the manner of the commission of the offence and the gravity of the offence.

25.I also note the Court of Appeal’s comment that a clear and firm message is needed to deter the exploitation of protected and endangered flora for profit.

26.I also note two other cases that have been heard in this building, the District Court, within the past six weeks.

27.First is DCCC 436/2011, heard before HH DDJ A Kwok.  In that case, a sentence of 25 months was handed down on facts very similar to these before me.  That case involved 300 grammes of Aquilaria sinensis wood.

28.The second case is DCCC 475/2011, heard before HHJ Anthea Pang.  In that case, a sentence of 20 months was handed down, again, based on facts very similar to these. In that case, the Aquilaria sinensis wood was estimated to be worth some $45,000.

29.Let me turn then to the appropriate sentence that I should impose in this case.  I bear in mind all that has been said by your solicitor on behalf of both of you, D1 and D2.  I also bear in mind the authorities to which I have referred and I am also aware of the authority, HKSAR v Wen Zelang, reported in the HKLRD 2006.

30.In this case, I see no difference in the criminality as between the defendants and you shall both receive the same sentence.

31.The proper starting point in this case is 3 years and I take that as a starting point despite the quantity and the estimated value of the wood being larger and higher than that in HKSAR v Xie Jinbin.

32.I take account of your pleas of guilty. That starting point of 3 years is thus reduced by one-third to 2 years.

33.The prosecution have applied in this case under the Organised and Serious Crimes Ordinance, section 27(2), to enhance the sentence.  That application for enhancement was initially opposed by your counsel.

34.However, having considered the matter and being given time to reflect on the objections that were raised, Mr Li, who appears for both of you, has now conceded that application.

35.In my view, this is an appropriate case for the application for an enhancement and I grant the application and I enhance the sentence.  I enhance the sentence by one-quarter or 25 per cent; 25 per cent of 2 years is 6 months.

36.The sentence thus imposed upon each of you is 2 years and 6 months’ immediate imprisonment.