HKSAR v. Lan Yuchu and Others

DCCC 160/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 160 OF 2012

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BETWEEN

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Reasons for Sentence

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Introduction

1.The four defendants are convicted on their own plea of the charge of theft of 4.49 kilogrammes of wood chips and wood blocks of Aquilaria sinensis wood commonly known as Incense Tree, contrary to section 9 of the Theft Ordinance, Cap.210.

Facts

2.The facts admitted by the four defendants are as follows:

(i) At about 11:10 am on 5 December 2011, the police stopped the defendants at a slope near Tseng Tau San Tsuen, Mui Wo Rural Committee Road, Lantau Island for enquiries.

(ii) Upon search, the following wood chips and blocks of Aquilaria sinensis were found from D1, D2 and D3’s rucksacks (collectively the “Stolen Property”):

	Item	Value (HK$)
D1	0.79 kg of wood chips	31,600
	0.56 kg of wood chips	22,400
D2	0.8 kg of wood block	32,000
	0.8 kg of wood block	40,000
D3	1.14 kg of wood block	79,800
	0.34 kg of wood block	17,000
	0.06 kg of wood chips	2,400
	Total:	225,200

(iii) Under caution, D1said inter alia that:

(a) He had followed his clansmen to Lantau Island to pick up incense tree for resale at his hometown in order to support his three children;

(b)He would be paid RMB800 for bringing the incense tree to the Mainland; and

(c) He and D4 acted as lookouts while D2 and D3 went downhill to pick up the incense tree. After D2 and D3 had picked up the incense tree from downhill, they placed it into D1’s rucksack.

(iv) Under caution, D2said inter alia that:

(a) His boss had asked him to bring back the wood blocks to the Mainland;

(b)D1 was his fellow townsman, D3 was his brother and D4 was the boss who had employed D2 to bring something back to the Mainland in exchange for a reward; and

(c) He did not know what the wood blocks D4 had passed to him were but he knew Aquilaria sinensis is a medicine.

(v) Under caution, D3said inter alia that:

(a) His boss had asked him to take the wood blocks to the Mainland for resale;

(b)D1 was his fellow townsman, D2 was his brother and D4 had arranged for them to come to Hong Kong to bring some “medicine” back to Shenzhen; and

(c) Each of them would receive RMB800 as salary.

(vi) D4 claimed under caution that he was a tourist.

(vii) The Stolen Property was sent to the Agriculture Fisheries and Conservation Department for examination. Dr. PANG Kuen-shum identified that the Stolen Property belonged to the species Aquilaria sinensis. Dr. PANG opined the Stolen Property was recently cut from the tree trunks or branches, and this illegal harvesting of Aquilaria sinensis has caused irreplaceable damage to the natural forests of Hong Kong.

(viii) Travel index record showed that all four defendants arrived in Hong Kong on 2 December 2011 between 8:17 am and 8:24 am.

The defendants’ previous records

3.All four defendants have no previous criminal conviction records in Hong Kong.

Application for enhancement of sentence

4.The prosecution applied for enhancement of sentence pursuant to section 27(2)(d) of the Organized and Serious Crimes Ordinance, Cap.455. A statement of Dr. PANG dated 9 February 2012 was submitted to this court in support of the application. The defence had no objection to the application.

Mitigation

5.D1 was born in October 1983. He is now 29 and married with three children aged 3, 4 and 5 respectively. D1 has a 63-year-old mother who suffers from thoracic spine degeneration. He has received education up to Primary 6 level. Before his arrest, he was an electric worker earning RMB1,800 a month. I have read a number of letters written by D1 himself, his relatives and friends asking for leniency. It was stated in those letters that D1 was the sole bread winner of the family and he had committed the present offence because he was trying to earn some money to support his family.

6.D2 was born in January 1980. He is now 32 and married with two children, aged 1 and 4 respectively. He has received education up to Form 3 level. Before his arrest, he was a garage worker earning RMB1,600 a month. I have read the letter written by D2’s wife asking for leniency. It was stated in that letter that D2 was the sole bread winner of the family.

7.D3 was born in November 1985. He is now 26 and is married with a 2-year-old daughter. In addition to D3’s wife and daughter, D3’s parents, aged 58 and 61 respectively, are financially dependent on D3. He has received education up to Primary 6 level. Before his arrest, he was a chef assistant earning RMB800 a month. I have read the letters written by D3 and his wife asking for leniency. It was stated in the letters that D3 was the sole bread winner of the family.

8.D4 was born in October 1964. He is now 47 and is married with three children. In addition to D4’s wife and children, D4’s 81-year-old father is financially dependent on D4. He has received education up to Primary 6 level. Before his arrest, he was a construction worker earning RMB700 per month.

9.Mr Lou submitted that the defendants were remorseful and pleaded guilty to the charge at the very first opportunity. It was also submitted that no tools were used and the damage to the incense trees was relatively low comparing with those cases where tools were used.

10.Mr. Lou referred this court to HKSAR v XIE Jinbin CACC 195/2010 in which the Court of Appeal confirmed the starting point of 3 years’ imprisonment and an enhancement of sentence by 25%. In XIE Jinbin, Mr Justice To said:

“… 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.”

Other authority

11.In HKSAR v WEN Zelang CACC220/2006, Mr Justice Yeung, JA (as he then was), also 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 three-year starting point nor the 25% enhancement for prevalence of the offence under OSCO is manifestly excessive.”

Incense tree wood blocks weighing 5.6 kg were involved in WEN Zelang.

Sentence

12.I note that no tools were found from any of the defendants and there is no direct evidence that any of them had cut the Stolen Property from the incense trees. Nonetheless, I find that the picking up of incense tree wood blocks and chips is an integral and indispensible part of the process of illegal harvesting and exploiting of our protected and endangered flora for profit. I am sure that in the industry of illegal harvesting of Aquilaria sinensis, the more Aquilaria sinensis is picked up, the more Aquilaria sinensis is going to be cut. I do not find the absence of tools from the defendants or absence of direct evidence that any of them had cut the Stolen Property from the incense trees a factor justifying a starting point lighter than those adopted in WEN Zelang and XIE Jinbin.

13.Whilst I have full sympathy to the situation of the defendants’ families, I do not consider it a mitigating factor justifying a reduction in sentence.

14.Having considered the facts of this case, the mitigation submitted by Mr Lou and various sentencing authorities, I adopt a starting point of 3 years’ imprisonment for each of the defendants.

15.The defendants are entitled to 1/3 discount for their respective guilty pleas. There being no other valid mitigating features justifying further reduction in sentence, the sentence in this case is therefore reduced to 2 years’ imprisonment for each of the defendants.

16.I also accept that the sentence should be enhanced by 25% by virtue of section 27(2)(d) of the Organized and Serious Crimes Ordinance. As such, each of the four defendants is sentenced to 2 years and 6 months’ imprisonment.