HKSAR v. Liang Jianghong

DCCC131/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 131 OF 2012

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

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

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

Reasons for Sentence

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

1.In these proceedings the defendant Liang Jianghong, was charged with and pleaded guilty to one count of “Theft”, contrary to section 9 of the Theft Ordinance, Cap.210, Laws of Hong Kong. He was convicted on the basis of his plea and the facts he admitted in court.

2.The subject matter in question was 0.478 kilograms of wood pieces, wood chips and tree barks of a species known as Aquilaria Sinensis, commonly known as Incense Tree, an endangered species protected by the Laws of Hong Kong.  The estimated value of the subject matter was $13,960.

Facts of the case

3.The offence was revealed when police officers saw the defendant on a hillside of Ko Tong Village, Pak Tam Chung, Sai Kung, with another male sometime in the morning on 28 November 2011,.  He was intercepted while the other male made good his escape.  Under caution, the defendant admitted that the wood pieces, wood chips and tree barks found in his backpack were cut from the hillside and he intended to sell it in the Mainland. 

4.Further inquiries revealed that the defendant was a Mainland resident.  He came to Hong Kong a few days earlier on

24 November 2011 and was allowed to stay for seven days. He admitted the purpose of his visit was to illegally harvest Incense Trees for resale in China.

5.On the day in question after he had found an Incense Tree on the hillside, he cut wood chips from it with a chopper and collected the pieces. Afterwards he discarded the chopper.  There was no evidence of the extent of the damage to that tree as both he and the police officers could not locate the tree from which the wood chips were taken. 

6.The Agriculture, Fisheries and Conservation Department confirmed that the wood chips indeed belonged to the species Aquilaria Sinensis, an endangered species, and that the unsustainable felling of the species would cause irreplaceable damages to the general natural feature and ecology of the natural forests in Hong Kong.     

Personal circumstances and mitigation of the defendant

7.The defendant was aged 37, a Chinese resident and working as a driver.  He had a clear record in Hong Kong.  His family consists of two aged parents, both suffering from ill health, his wife, who was aged 37, and a son aged 8.  

8.He had been cooperative with the police and showed his remorse in a letter submitted by the defence.  In mitigation, the defence lawyer pleaded for clemency on the basis of his family circumstances, the small quantity of wood chips found and the absence of evidence to the damage to the tree itself. 

Sentencing considerations

9.The prosecution drew my attention to the case of

Xie Jinbin [2011] 2 HKLRD 631, where the Court of Appeal confirmed the earlier decision of Wen Zelang [2006] 4 HKLRD 460 and approved a starting point of 3 years together with a 25 per cent enhancement for an offence similar in nature to the present one.

10.In the case of Xie, the appellant and three other males, all visitors from China on a seven day visa, were observed to be cutting down trees with tools at a hillside in Lamma Island.  Subsequently, only the defendant and two other males were apprehended at the Lamma Pier. The police found wood blocks taken from the species Aquilaria Sinensis and cutting tools in their backpacks.  The total weight of the wood blocks found was 1.181 kilograms, although what was found in the appellant’s possession was 0.677 kilograms. 

11.Echoing the words of Yeung J in Wen Zelang, the Court of Appeal in Xie explained the rationale of the sentence order in paragraph 16s to 17 of the judgement, the relevant part of which reads,  

“The end which the Law seeks to achieve is protection of our endangered flora. Thus, the evil which the Law seeks to prevent is not theft as such but injury to the protected flora. Unlike theft of ordinary goods, restitution is impossible. The recovered wood could not be restored to the plant. The focus, therefore, should be on protection of the plant rather than the value of the plant or part stolen. The factors to be taken into consideration are the injury done to the tree, profit-motive, the manner of commission and the gravity of the offence.”

Paragraph 17,

“We echo Yeung JA’s sentiment that 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. We do emphasise that the starting point is not meant to be a straitjacket.”

12.Furthermore, the Court of Appeal pointed out two other factors in the facts of the Xie case that justified the 3 year starting point.  They are, namely:

(1) the learned trial judge was afforded the opportunity to look at the pictures of the trees in question to assess the damages or injury done to the tree.

(2) The defendant had acted in joint enterprise with three other persons.

13.The Court of Appeal also pointed out that weight of the wood chips seized was not the determining factor nor was it a reliable indicator of the seriousness of the offence and the injury caused to the tree.

14.Having considered the above factors, the Court of Appeal pointed out that the starting point of 3 years was not  inappropriate but stated,

“The sentence might be on the high side in view of the quantity of wood stolen, but is not one which may be regarded as manifestly excessive as to justify interference.”

See paragraph 23.

Facts of the present case

15.In the present case, although the police did see another person with the defendant on the hillside, only the defendant was intercepted. There was no evidence therefore to make a finding that the other man had also been involved in the illegal exploitation of the endangered species, or that he had acted in joint enterprise with the defendant. 

16.Furthermore, there was no evidence to show the damage done to the tree in question.  Nonetheless, the damage to the particular tree is of relatively less importance as the purpose of the sentence is to deter.  It is common sense that anyone who was not professionally engaged in the trimming or cutting of trees would be likely to cause damage to them. 

17.Having considered the whole of the evidence before me, I accept that the defendant had acted alone, and from the observation of the exhibits and from what the defendant had admitted, what he did was chopping down bits of a tree which would definitely cause damage to the tree, and therefore would affect the survival of the species in Hong Kong. 

18.In the light of the aforesaid authority, I consider a starting point of 2 years is appropriate in the circumstances.  Having considered the defendant’s background, I am of the view that only the fact that he pleaded guilty is a valid mitigating factor. He should be awarded a one-third deduction as is the practice.    He therefore is sentenced to a term of imprisonment for 16 months. 

The question of enhancement

19.The prosecution had served a Notice of Intention to Furnish Information pursuant to section 27(2) of the Organized and Serious Crimes Ordinance, Cap.455.  The purpose is to apply to this court to consider an enhancement and the grounds was under section 27(2)(d) of the said ordinance, namely,

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

20.To support this application, the prosecution has served a statement by one Mr Pang Kuen-shum, the Conservation Officer (Flora) of the Agriculture, Fisheries and Conservation Department.  Apart from confirming that the wood chips seized from the defendant were of the species Aquilaria Sinensis, Mr Pang has comprehensively set out the history and the distribution of the species in question.    

21.Since such trees are native to Hong Kong and that they had been considered part of the Fung Shui trees, they had been conserved by the local residents and as a result they formed part of the native forests in Hong Kong.  However, owing to their medicinal value, they had been exploited illegally.  In paragraph 11 of the statement, Mr Pang added thus,

“The trunks of many large and old trees of Aquilaria Sinensis have been illegally cut or felled in an unsustainable fashion (i.e. cannot ensure the long term survival of the species) deliberately for mass extraction of timber to the extent that such trees are dead or damaged and likely unable to recover. Large and old individuals of Aquilaria Sinensis have since become rare in Hong Kong. Getting worse is that in the recent cases relatively smaller but mature trees of such species were also subject to illegal harvesting. As Aquilaria Sinensis is a dominant tree species in Fung Shui woods and other lowland forests, such deliberate felling and damage of large and smaller Aquilaria Sinensis by causing damages to the habitats of the organisms have jeopardised the normal ecological relationship of the organism in such woodlands. I am of the view that the unsustainable felling of the species has caused irreplaceable damages to the general natural feature and ecology of the natural forests.”

Paragraph 24,

“Exploitation of this plant species for agarwood such as Aquilaria Sinensis was uncommon in Hong Kong for the last few decades. However, there is an increase in this trend reflected by numerous recent reports that the species has been illegally exploited. The trunks of many large and old trees are being cut or felled for extraction of agarwood to the extent that such trees are damaged and likely unable to recover. In recent cases, smaller but mature trees were also subject to illegal harvesting. The threat owing to illegal exploitations and sustainable uses have indeed surged, threatening the survival of such trees in a natural environment. Aquilaria Sinensis is an evergreen tree, with no dormant period throughout the year. According to Chinese medicine literature, agarwood can be harvested from this species all year round. Therefore, the threat posed by illegal exploitation of Aquilaria Sinensis for agarwood is not seasonal.”

22.The defence criticised Mr Pang’s report as unspecific because it did not deal with the damages done to the specific tree in question.  However, as has been pointed out before, the specific damage of the particular tree in question is not the most crucial element this court ought to consider.  The defendant has admitted chipping the wood from an Incense Tree.  He admitted that he had brought a tool, i.e. a chopper, to carry out the illegal harvest, although he did contend in a letter to this court that he did not have the heart to cut down the whole tree but instead had tried to work his way around it so that the tree could survive.  Yet, it is common sense that for a non-professional to chip away parts of a tree thus, it would inevitably cause some damage to the tree. On this basis I agree with the opinions supplied by Mr Pang, namely that the illegal exploitation would cause damage to the habitat and ecology in question, and that the incidents of a similar nature have been on the rise.

23.I am satisfied beyond all reasonable doubt that the prosecution have supplied evidence to show that such criminal activities have caused a direct harm to the survival of the species in Hong Kong and also their natural environment.  I therefore decide to increase the sentence by 25 per cent.  In all, the defendant would have to serve a term of imprisonment for 20 months, to take effect immediately.