HKSAR v. Rong Lixing and Another

DCCC 98/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.98 OF 2012

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Reasons for Sentence

1.The defendants face one joint charge of theft, contrary to s.9 of the Theft Ordinance, Cap.210. Particulars of the charge are that they on 20^th December 2011 stole 1.54 kg of wood pieces of Aquilaria sinensis, commonly known as Incense Tree at a location near Big Wave Bay in Hong Kong.

Facts

2.Police officers on plainclothes patrol duties in the vicinity of Big Wave Bay noticed sound of tree sawing at around 1:55pm on 20^th December. Upon investigation, the defendants were found standing next to a tree about 4 feet in height. There were fresh cut marks in the tree trunk and tree debris were found on the ground adjacent to the tree.

3.Upon seeing the plainclothes officers, the 2^nd defendant dropped a 20-inch saw on to the ground. He squatted down, picked up something from the ground, placed them into a black plastic bag and started to walk away with it. The defendants left the scene hurriedly.

4.The officers intercepted the defendants and revealed their Police identities. 5 pieces of wood were found inside the black plastic bag that the 2^nd defendant was seen carrying away.

5.Upon initial enquiry, the 2^nd defendant said he used the saw to cut wood from the above mentioned tree. The 2^nd defendant said he intended to sell the 5 wood blocks for profit. He would then share the proceeds with the 1^st defendant equally.

6.The 2^nd defendant was arrested. Under caution, he confessed that he had come to Hong Kong to cut wood to sell in mainland China.

7.In a subsequent cautioned interview, the 2^nd defendant confessed that he came to know D1 in the mainland. Since D2 was at the time unemployed, he decided to come to Hong Kong to cut Incense Wood for sale. D2 entered Hong Kong on 19^th December 2011 (1 day before the arrest). After his arrival, D2 went to where they were found by the Police where the Incense Tree was identified and the two of them together cut wood from the tree with a saw.

8.Both the defendants are two-way permit holders visiting from the mainland. They came to Hong Kong together at around 7:15am on 19^th December 2011, each permitted to remain in Hong Kong for 7 days.

9.The 5 pieces of wood found on D2 were sent for examination and were confirmed to be ‘Chen Xiang沈香’, cut from the bark of the local tree species Aquilaria sinensis  (commonly known as Incense Tree). Examination also confirmed that they were recently cut pieces. The trunk diameter of the tree and its age were respectively over 40 cm and 50 years. At the material time, ‘Chen Xiang’ could be sold at HK$80,000 per kg, meaning that the 1.54 kg stolen by the defendants could have been sold for HK$123,200.

10.According to the summary of facts, as well as the witness statement of the expert,  in recent years, Aquilaria sinensis have been illegally cut or fell in an unsustainable fashion deliberately for mass extraction of timbre to the extent that such trees are rendered dead or damaged and unlikely to recover. Large and old individuals of Aquilaria sinensis have since become rare in Hong Kong.

Enhancement of sentence

11.The prosecution applied to enhance the defendants’ sentences pursuant to s.27(2) of the Organized and Serious Crimes Ordinance (hereinafter “OSCO”), Cap.455, on the ground of ‘the nature and extent of any harm, whether direct or indirect, caused to the community by recent occurrences of this specified offence.’

12.The defendants did not object to the enhancement, just asking the court to be lenient and to exercise its discretion for a lower percentage of enhancement.

Previous convictions

13.D2 is of clear record. D1 has 3 previous convictions including two for breach of Condition of Stay and one for making false representation to an Immigration Officer. The latest offences were back in 2001 and D1 was given a suspended sentence and fined.

Mitigation

D1

14.D1 is 49 years old. He was born in China and came to Hong Kong at the time of the offence on a two-way permit. He is married with his wife in China. They have 4 daughters and one son.

15.D1 has no similar previous conviction. He was last convicted back in 2001. The strongest mitigating factor is his guilty plea. D1 has written a letter by way of mitigation. D1’s parents are 80 plus years old, of the 5 children, the youngest is only 10, D1 wishes to support his family and wishes for leniency.

16.Photos of the tree, the saw and the cut wood are produced as evidence. It would appear that the tree in question had already been cut prior to the defendants committing the offence.

17.Mr. Li for D1 asks for a lower starting point and a smaller enhancement.

D2

18.D2 is 40 years old. He was born in China. He is divorced and living with his girlfriend in China. D2 has 2 daughters (16, 14) and 2 sons (13, 11). They are all students. The elder 3 children attend boarding school while the youngest one lives with D2’s girlfriend. The defendant has an elder brother who is of mild grade mental retardation. The defendant had been a bus attendant for 3.5 years, as a result of the nature of his work, he suffered back injury. Before the present incident, the defendant was forced to quit his job because of lower back pain.

19.Letters in mitigation from the defendant, her daughter and his pastor are submitted.

20.It is Mr. Lee’s submission that there was no indiscriminate cutting of the tree and because of the fact that the tree in question had already been cut before, the action of the defendants are not as culpable.

21.Mr. Lee does not argue against whether the court can enhance the sentence under s.27(2) of OSCO. Mr. Lee only ask for the court to exercise its discretion for a lower percentage of enhancement.     

Sentencing cases

22.The prosecution referred me to the cases of HKSAR v Wen Zelang, CACC 220/2006 and HKSAR v Xie Jinbin, CACC 195/2010.

23.In the case of HKSAR v Wen Zelang, CACC 220/2006, the Court of Appeal stated that for the theft of 5.6kg of wood from incense trees, a starting point of 3 years’ imprisonment and an enhancement of 25% is entirely appropriate. The 17 year old applicant in that case succeeded on his appeal on the sole ground that he was influenced by his paternal uncle in the commission of the offence and was found to be less culpable. This situation does not exist in our present case.

24.In the case of Xie Jinbin, to which both defendants also refer, the applicant and 3 other mainlanders came to Hong Kong on two-way permits and were seen by Police cutting the tree and packing wood blocks into their rucksacks. A total of 7 wood blocks weighing 1.181 kg, a saw, an iron hoe and a knife were found in their rucksacks. The learned District Judge adopted a starting point of 3 years’ imprisonment, reduced it for plea and then enhanced the sentence by 25% under s.27(2) of OSCO and sentenced the applicant to 2 years and 6 months’ imprisonment.

25.The appeal against sentence was dismissed. It was held by the Court of Appeal that a

“clear and firm message was needed to deter mainlanders from coming to Hong Kong, legally or illegally, for the specific purpose of exploiting protected and endangered flora for profit. A starting point of 3 years of the extraction of wood from an Incense Tree by mainlanders could not be faulted, although this was not meant to be a straitjacket.”

26.The Court of Appeal also said this,

“The focus should be on the protection of the plant rather than the value of the plant or part stolen, taking into account the injury done to the tree, profit motive, the manner of commission and the gravity of the offence.”

27.It was further held that,

“weight was not determinative of sentence nor a reliable indicator of the seriousness of the offence and the injury caused to the tree….[a] defendant was not to be punished only for the weight of the wood block he had stolen, but according to the enterprise he and the others had collectively participated in and the seriousness of the offence, which was premeditated.”

28.The Court of Appeal observed that

“the men came to Hong Kong in a joint enterprise with the intention to exploit endangered flora for profit. They equipped themselves with a knife, hoe and saw and acted as a group. Accordingly, having regard to the purpose of the Protection of Endangered Species of Animals and Plants Ordinance, Cap.586 and the need of deterrence, the starting point was appropriate. While the sentence might be on the high side in view of the quantity of wood stolen, it was not manifestly excessive so as to justify interference.”

Sentence

29.The stolen wood in our present case is at 1.54 kg, which is more than that in Xie Jinbin.

30.Just as in Xie Jinbin, both defendants said they are remorseful and they have family back in mainland China that they need to support. D2 is of clear record, which is the same situation as that of the applicant in Xie Jinbin. Although D1 is not of clear record, he does not have any similar record and the last offence he was convicted of was back in 2001. I do not find his previous record to be an aggravating factor.

31.I find that it is an irresistible inference that both the defendants came to Hong Kong from mainland China just 1 day before the offence date in order to steal the wood in question. Their commission of the offence was premeditated.

32.I have given careful consideration to the defendants’ submission that looking at the photos (exhibit P-1), the incense tree in question appears to have already been cut by someone prior to the defendants’ sawing. The witness statement of the expert (exhibit P-2), at paragraph 8, confirmed this observation:

“Meanwhile the non-cutting surfaces of such wood pieces were mostly wounded openings, some of which covered with epiphytes[1] and bryophytes[2].”

33.There was a suggestion by the defendants that since they were not the first to cut the tree, the damage they caused would not have harmed the plant as much as a fresh cut would have. I find that this is not the case, as can be deduced from the witness statement of the expert at paragraph 11:

“The trunks of many large and old trees of Aquilaria sinensis have been illegally cut or felled in an unsustainable fashion deliberately for mass extraction of timber to the extent that such trees are dead or damaged and likely unable to recover. This is well reflected by the two large wood pieces (fitting to form one single piece) in exhibit Label(1) which should be horizontally cut from the lower part of the trunk of a big tree…Such cutting caused serious damage to the tree that it could never recover and certainly would die.”

34.If the tree had already been dead at the time of the cutting by the defendants, the expert would not have stated that the tree would certainly die, he would have said that the tree was dead already.

35.The harm done by the defendants are as serious as if they were the first person cutting the tree. If left alone, the tree might still have had a chance to survive, now, it would certainly die.

36.Nevertheless, I find that the act of 2 mainlanders coming to Hong Kong to specifically seek out incense tree to cut and steal is grave enough as it is. I find that the prosecution had proved beyond reasonable doubt that the nature of the harm to Hong Kong if not the world’s environment is such that would warrant an enhancement of sentence.

37.In relation to each of the 2 defendants, I will adopt a starting point of 3 years’ imprisonment, reduce it to 2 years in recognition of their guilty plea and then enhance the sentence by 25%. Each of the 2 defendants is therefore sentenced to 30 months’ imprisonment.

[1]a plant that grows on another plant but is not parasitic, such as the numerous ferns, bromeliads, air plants, and orchids growing on tree trunks in tropical rain forests.

[2]a small flowerless green plant of the division Bryophyta, which comprises the mosses and liverworts.