HKSAR v. Yang Jianzeng

DCCC425/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 425 OF 2012

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.Defendant, you pleaded guilty to one offence of attempted theft, contrary to section 9 of the Theft Ordinance, Cap.210 and section 159G of the Crimes Ordinance, Cap.200.

2.You also pleaded guilty to one offence of theft, contrary to section 9 of the first mentioned ordinance.

3.You admitted the brief facts and I convicted you on those facts.

4.What occurred is this.

5.On 27 March of this year at about 9.10 am, PC 3176 (PW1) and PC 53439 (PW2) were on patrol in plainclothes at the northern hillside in No.5A, Tai Wan Kau Tsuen, Lamma Island.  They saw you cutting a tree and another man tidying up the ground.

6.They approached you both and you both fled, leaving the saw behind on the tree.  You were intercepted and arrested by PW1, whilst the other man escaped.

7.Under caution, you denied the offence.

8.However, at a subsequent video recorded interview under caution, you said the following.

(1) You came to Hong Kong to help your friend Lau
Ah-hung to steal incense trees, for which you would be paid RMB1,000;

(2) after cutting the incense trees, Lau would take them to Sham Shui Po;

(3) a tent at the scene was erected by Lau for you both to stay overnight;

(4) you knew the wood could be sold for 400 to 500 Renminbi per catty;

(5) a bag of incense tree bark found there did not belong to you; it was already there when you erected the tent.

9.You are, in fact, a two-way permit holder who arrived in Hong Kong on 26 March and you were permitted to stay for seven days.

10.Photos of the scene were taken, including(and?) the bag of woodchips, tools and the control sample of the tree being sawed were seized.

11.A botanist from the Agricultural, Fisheries and Conservation Department found the bag of woodchips to belong to the species Aquilaria sinensis.  The total weight was 0.12 kilogrammes and the value around HK$1,210. He also found that due to deep cuts, the tree being sawed was unlikely to recover.

12.The estimated value of the tree is $10,000.

13.He also confirmed that the tools seized were fit for cutting and specimen collection.

14.He opined that the illegal exploitation of the plant Aquilaria sinensis threatened its survival in Hong Kong.  Unsustainable felling caused irreplaceable damage to natural features in ecology and of the natural forests of Hong Kong.

15.You are a man of hitherto clear record in Hong Kong.

16.A special feature of this case to which I shall make reference is that the prosecution had served a notice of intention to furnish information pursuant to section 27(2) of the Organised and Serious Crimes Ordinance, Cap.45, seeking an enhanced sentence based on the nature and extent of harm caused to the community by recent occurrences of these two offences.  These are specified offences for the purpose of the ordinance.

17.This application was not opposed by Mr Lam on your behalf, Mr Lam fairly and reasonably accepting the expert’s report that the grounds were applicable and made out, and that there must indeed be an enhancement of sentence which he suggested should be in accordance with the cited authorities of 25 per cent.

18.This sensible approach is to be applauded, and with the greatest respect, I agree with Mr Lam.

19.Two cases were cited to me to assist in sentencing.  I have taken each into account when reaching a sentence.

20.The prosecution cited the case of HKSAR v Xie Jinbin, CACC 195/2010.  That case provides for a starting point of 3 years with an enhancement of 25 per cent, but related to a much higher amount of wood.

21.Mr Lam produced a District Court authority. That was the case of HKSAR v Fok Kong Fung & Ors [2011] HKDC 1021, DCC475/2011.  In that case, my colleague took as a starting point of 2 years and enhanced that by 25 per cent.  That case involved a higher amount of wood, a greater value and more persons.

22.Mr Lam, therefore, on the basis of that case, argued for leniency and not to follow the first authority quoted by the prosecution.

23.He then proceeded to enter mitigation on your behalf.  He told me that, in essence, you accepted the contents of the antecedent statement, save to the extent that you were educated only to Primary 6, not to secondary level.

24.You are 26 years of age, married with a young daughter.  The family resides with your parents.  Your father is a farmer.  He told me that you are the sole breadwinner, working as a construction site worker, earning RMB800 per month.

25.The other man referred to in the facts, a Mr Lau, is also a Mainlander, an ex-schoolmate.

26.Mr Lam said that this offence occurred because of economic reasons.

27.Quite correctly, he stressed your clear record and that you had intended to plead guilty from the outset.

28.With regard to the offence itself, the amount of wood involved was very small, of little value and there was a lack of sophistication in the operation.

29.He urged a lenient approach.

30.I turn now to the sentence.

31.Whilst these are two offences, in reality it is one incident.

32.In mitigation, I accept that the operation was lacking in sophistication and Charge 2 involves a small amount of timber of little value.  This was not a case of a gang coming by speedboat to effect the theft; it involved only you and Mr Lau.

33.However, it is a matter of aggravation of the offence that the tree itself was destroyed.  The loss of that tree has an impact on the environment of Hong Kong and I take that into account.

34.I have been told that the value of that tree was $10,000.

35.The sentence itself for the incident I take as a starting point 24 months’ imprisonment.

36.I am satisfied that the prosecution have established that enhancement is both appropriate and called for under the appropriate terms of the Organised and Serious Crimes Ordinance.

37.That enhancement will be 25 per cent; that means a starting point on each charge of 30 months.

38.However, giving you credit for your plea of guilty, that will be reduced to 20 months.

39.You will go to prison for 20 months on each charge, to be served concurrently.