HKSAR v. Yang Jianwei

DCCC998/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 998 OF 2011

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Reasons for Sentence

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1.The defendant pleaded guilty to a charge of theft, in that he stole 0.12 kilogramme of wood pieces and 0.02 kilogramme of bark of an Aquilaria sinensis, commonly known as “incense tree”.

2.On 29 July 2011 at about 4 pm, the police stopped the defendant and another male near Man Kung Uk Village at Clear Water Bay Road.  In the defendant’s rucksack, tools, woodchips and tree bark were found.

3.The defendant was arrested for the offence of theft.

4.Under caution, the defendant said that he brought the tools from China to cut the incense tree for selling in China.

5.The total weight is about 0.14 kilogramme.  The estimated value is about $3,800.

6.The defendant is a Mainlander.  He entered into Hong Kong on a two-way permit on 26 July 2011 for a period of seven days’ stay in Hong Kong.

7.In mitigation, I am told the defendant is 20 years old, clear record, come from Mainland.  He lives with his elderly parents and sister in China.  In his own letter, he said that he committed the present offence due to financial hardship at home.  He regretted for committing the present offence.

8.Pursuant to section 27(2)(d) of the OSCO, Cap.455, the prosecution applied to this court to enhance the sentence to be imposed upon the defendant on the ground that:-

“the nature and extent of any harm, whether direct or indirect, caused to the community by recent occurrences of this specified offence”.

9.The defence said that there was “ no evidence ” to support such an application.

10.The prosecution seeks to call a full report from the expert, Mr Pang, as the memo submitted to the court was only part of the report.

11.The defence said that to allow the prosecution’s application was unfair to the defendant.

12.I disagree.

13.The facts remained that the defendant had already committed the present offence and this court needed to understand to what extent that his illegal acts had caused any harm to the community.

14.The defence, in his submission, also refer this court to HKSAR v Xie Jinbin, CACC 195/2010, of which the applicant was sentenced to 2 years after plea, and sentence was enhanced by

15.The present application was based on the same section and subsection of the OSCO, Cap.455.

16.The Court of Appeal in CACC 195/2010 upheld the sentence and the 25-per-cent enhancement of sentence.

17.The defence argued that “might be the defence in CACC 195/201 did not take the point” as he did.

18.I totally disagree with the defence’s argument that the sentencing court and Court of Appeal would have overlooked such an important factor, i.e., that there must be sufficient information to support the application before the sentence could be enhanced.

19.Further, Mr Pang in CACC 195/2010 also furnished the similar content of report as in the present case.

20.In the present case, Mr Pang said that:

(1) Incense wood produces a valuable fragrant wood used for incense, medicine, artefacts and carving. It has a value ranging from average HK$10,000 to 140,000 per kilogramme, depending on the quality of the wood. The highest quality of incense wood can command a value of RMB1 million per kilogramme.

(2) That explains the fact that with as little as
0.14 kilogramme in the present case, the market value is $3,800.

(3) In the Mainland, this type of tree is listed as Category II Protected Plants in the List of Wild Plants under State Protection.

(4) In Hong Kong, this is a protected endangered species under schedule 1 of the Protection of Endangered Species of Animals and Plants Ordinance, Cap.586.

(5) As in worldwide status, the 2011 IUCN Red List of Threatened Plants managed by the World Conservation Union listed the threat status of Aquilaria Sinensis as vulnerable because there is a concern over the rate of exploitation and the damages to trees incurred during the harvesting of the medicinal balm. Habitat loss and clearance are frequent.

(6) Mature and unique fungshui woods are with high ecological value enjoy a sustainable existence.

(7) The unsustainable felling of the species has caused irreplaceable damages to the general natural feature and ecology of the natural forest.

21.In his report, Mr Pang told us the extent and nature of the harm cause by the illegal exploitation activities to the community.  As the large and old individuals of Aquilaria Sinensis have since become rare in Hong Kong, this is a great loss to the community as a whole, whether in Hong Kong or otherwise.

22.In section 27(2)(d), the wordings also include “direct or indirectly”.  Therefore, Mr Pang is not required to spell out all the effects, suffice to say that this kind of species is becoming rare in Hong Kong because of the illegal interference of the growing of this type of trees in natural environment.  If this type of trees can be cultivated in the nursery, there will not be so many illegal activities to cut the trees to such an extent that they are now becoming rare.

23.Having considered the content of the report, I accept the prosecution’s application.  The sentence should be enhanced by 25 per cent.

24.The defence said that there should be a reduction of percentage, as the prosecution has been allowed an adjournment for a few days to submit the full report of Mr Pang.

25.Again, I disagree, because it simply has no basis for such a justification.

26.As said by the court in CACC 195/2010, that

“A clear and firm message is needed to deter Mainlanders from coming to Hong Kong, legally or illegally, specifically for the purposes of exploiting our protected and endangered flora for profit.”

“The weight of the wood block stolen is not determinative of the sentence. The factors to be considered are the injury done to the trees, the profit motive, the manner of commission and the gravity of the offence.”

27.Bearing this in mind, I disagree with the defence argument that since the defendant was acting alone, not in a group of three of four persons, the starting point should be lower than 3 years as upheld in CACC 195/2010.  To agree with this argument is to send a wrong message to the public that anyone who is acting alone to cut this endangered species will receive a lighter sentence.

28.To this end, having considered all the mitigating factors before me, I consider a proper starting point should be 3 years.

29.I reduce the sentence to 2 years because of the defendant’s guilty plea.

30.As I have accepted that the sentence should be enhanced by 25 per cent, that is, 6 months, the total sentence arrives at 2 years and 6 months.