HKSAR v. Lu Chengfa and Another

DCCC 1037/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1037 OF 2012

____________

____________

REASONS FOR SENTENCE

1.The defendants plead guilty to one charge of theft, contrary to section 9of the Theft Ordinance, Chapter 210.

2.In summary on the 19th September this year the police intercepted a taxi at Robin’s Nest, Sha Tau Kok.  The defendants were sat in the rear of the taxi.  The police searched the backpack of each defendant and found wood chips, later confirmed on examination to have been recently cut from “Aquilaria sinensis” trees, commonly known as incense trees.  The total weight of the wood chips was 4.17kg. 

3.Both defendants admitted they came to Hong Kong two days earlier. They took a taxi to Robin’s Nest where D1 cut three trees and D2 picked up the wood chips from the ground. Knives were used which the defendants discarded.  The defendants then spent the next two nights on the hillside at Robin’s Nest.  The defendants admitting as soon as they arrived in Hong Kong they went straight to Robin’s Nest where they cut the trees I proceed to sentence on the basis they came to Hong Kong to commit the crime.

4.In passing sentence I have carefully considered everything said on behalf of the defendants by Mr Yiu.  I take into account both defendants have clear records.  This however carries little weight where the defendants come to Hong Kong specifically to commit crime.   

Endangered species

5.Due to the fact that the trunks of many large and old trees of “Aquilaria sinensis” have been illegally cut or felled in an unsustainable fashion whereby the long-term survival of the species cannot be ensured, the trees have become rare in Hong Kong.  More recently relatively smaller but mature trees have also been subject to illegal harvesting.  The “Aquilaria sinensis” being the dominant tree species in fung shui woods and other lowland forests, such deliberate felling and damage to the trees has caused irreplaceable damage to the general natural feature and ecology of the natural forests of Hong Kong (see paragraph 7 of the admitted facts as read with paragraph 11 of the statement of K.S. Pang, dated the 30th October 2012).  

6.“Aquilaria sinensis” is a protected species.  The 2012 International Union for Conservation of Nature Red List of Threatened Plants lists the status of “Aquilaria sinensis” as vulnerable. In the Mainland the “Aquilaria sinensis” is a category II protected plant in the List of Wild Plants under State Protection.  Over exploitation in Guandong province has resulted in the species being a rare and threatened one (see paragraphs 20-22 of the statement of K.S. Pang).

7.“Aquilaria” are also protected species in Hong Kong, listed as Appendix II species to Schedule 1 of the Protection of Endangered Species Ordinance, Chapter 586.  The ordinance was enacted to give effect in Hong Kong to the Convention on International Trade in Endangered Species of Wild Fauna and Flora.  The recent surge in illegal exploitation and unsustainable uses has threatened the survival of the trees in the natural environment (see paragraphs 18 & 24 of the statement of K.S. Pang).

8.By reason of the endangered nature of “Aquilaria sinensis” the courts have repeatedly said that a clear and strong message is needed to deter Mainland people from coming to Hong Kong to cut or remove incense trees (see for example HKSAR v Xie Jinbin [2011] 2 HKLRD 631 and HKSAR v Wen Zelang [2006] 4 HKLRD 460).  In both these cases the Court of Appeal held that a 3 year starting point was appropriate for this type of offence. 

9.I am satisfied the appropriate starting point is also one of 3 yearsimprisonment. Giving the defendants full credit for their pleas of guilty reduces the sentences to 2 years imprisonment.

Enhancement of sentence

10.The prosecution apply for enhancement of sentence pursuant to section 27(2) of the Organized and Serious Crimes Ordinance by reason of the nature and extent of any harm, whether direct or indirect, caused to the community by recent occurrences of the offence.

11.In support of the application the prosecution rely on thestatement of K.S. Pang,dated the 30th October 2012.  The statement clearly shows, as noted earlier, that the recent surge in illegal exploitation and unsustainable uses has threatened the survival of the trees in Hong Kong. There has been no objection to the admission in evidence of this statement or the conclusions of K.S. Pang, Mr Yiu accepting this is a proper case for enhancement. 

12.On the evidence of K.S. Pang, which I accept, I am satisfied beyond reasonable doubt the application for enhancement is made out.  In both HKSAR v Xie Jinbin and HKSAR v Wen Zelang the Court of Appeal approved enhancement of 25%.  In the circumstances of the present case I am satisfied that an enhancement of 25%, namely 6 monthsimprisonment, is also appropriate.

13.The defendants are both convicted and sentenced to 2 years and   6 months imprisonment.