HKSAR v. Liang Guangrong

DCCC 575/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 575 OF 2013

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Reasons for Sentence

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1.The defendant, Mr Liang Guangrong, pleads guilty before me to one charge of theft.

2.This case concerns the theft of 0.047 kilogramme of wood chips of Aquilaria sinensis, commonly known as “incense tree”.

3.On 5 April 2013 at about 8 o’clock in the morning, the defendant entered Hong Kong at the Lo Wu Control Point with his two-way permit.

4.On the following day at about 9.30 am, police intercepted the defendant at the Shui Hau Village, Lantau Island.  The defendant was then carrying a backpack. 

5.The police officers searched the defendant and found the following in the defendant’s backpack:

(1) a bag containing suspected wood chips of Aquilaria sinensis;

(2) one saw;

(3) a pair of gloves.

6.Under enquiry, the defendant admitted that the wood chips were sawed off from Aquilaria sinensis and he could lead the police to the location where he sawed off the wood chips.

7.The defendant was arrested by the police.

8.Under caution, the defendant admitted that he sawed off the wood chips from three trees of Aquilaria sinensis and he intended to take the wood chips back to China for sale.

9.The defendant then led the police to the location near distance post L010, Lantau Trail, Lantau Island, Hong Kong, and identified the three trees of Aquilaria sinensis from which he sawed off the wood chips.

10.In a subsequent video recorded interview, the defendant admitted the following:

(1) he entered Hong Kong on 5 April 2013. He went to Sham Shui Po and purchased a saw and a pair of gloves. He then went to Lantau Island to saw Aquilaria sinensis and he stayed in the hill overnight;

(2) the defendant brought the police to the location of the Aquilaria sinensis from which he sawed off the wood chips;

(3) the defendant knew about Aquilaria sinensis as he grew Aquilaria sinensis at home;

11.Agriculture, Fisheries and Conservation Department confirmed the following:

(1) the wood chips contained:

a. five pieces of wood chips (0.047 kilogramme) which were identified as Chen Xiang. Among the five pieces of wood chips, two of them were with the tree bark of Aquilaria sinensis. The estimated value was about HK$940;

b. two pieces of wood chips from unidentified species;

(2) based on the cutting surfaces of the wood chips, the wood chips were recently cut from the tree trunks or the branches of Aquilaria sinensis;

(3) Aquilaria sinensis was commonly known as “incense tree”. It was a protected endangered species and was the only species known to be able to produce Chen Xiang in Hong Kong;

(4) Aquilaria sinensis was illegally cut or felled in an sustainable fashion for mass extraction of timber, to the extent that the trees were dead or damaged and unable to recover. The long-term survival of the species could not be ensured;

(5) deliberate felling and damage of Aquilaria sinensis jeopardised the normal ecological relationship of the organisms in the woodlands. Unsustainable felling of the species caused irreplaceable damage to the general natural feature and ecology of the natural forest and it was a great loss to our community.

12.The antecedent statement of the defendant shows that he is now 26 years old.  He completed primary school education in China.  He is now unemployed and he last worked as a handbag mechanic.

13.Mr Chan submits a medical report of the defendant which shows that the defendant has a history of hypertension.  He is a Hepatitis B carrier and is suffering from chronic renal disease for two years.

14.At one stage Mr Chan submitted that the defendant stole the incense wood in question for self-consumption.  He also submitted some research materials showing that incense wood can be used as herbal medicine in Chinese medicine.

15.Mr Chan withdrew his submissions when I pointed out to him that the defendant admitted under caution that he intended to take the wood chips back to China for sale.

16.In his written mitigation, Mr Chan draws my attention to the fact that the wood chips in question were only 0.047 kilogramme in weight.  He draws my attention to the health condition of the defendant.  He is remorseful and he pleads guilty to the offence and had fully cooperated with the police upon his arrest.

17.Mr Chan also draws my attention to the authority HKSAR v Xie Jinbin, CACC 195/2010. 

18.In this case, the prosecution applies for an enhancement of the sentence based on section 27(2) of the Organised and Serious Crimes Ordinance.  The prosecution submits that, given the nature and extent of the harm, direct or indirect, caused to the community by recent occurrences of the specified offence, sentence for this defendant should be enhanced.

19.In support of the application, the prosecution submits a statement from Mr. PANG Kuen-shum, the Conservation Officer (Flora) of the Agriculture, Fisheries and Conservation Department and the incumbent curator of the Hong Kong herbarium.

20.Mr. PANG in his statement sets out the adverse ecological impact of illegal cutting or felling of incense trees in Hong Kong.  Mr. PANG points out in paragraph 24 of the statement that there is an increasing trend reflected by numerous recent reports that incense trees have been illegally exploited.  In some recent cases, smaller but mature trees were also subject to illegal harvesting.

21.In HKSAR v Xie Jinbin, the case referred to by Mr. CHAN, three Mainlanders came to Hong Kong and stole incense trees. The sentencing judge considered the case HKSAR v Wen Zelang [2006] 4 HKLRD 460.  She took a starting point of 3 years’ imprisonment and reduced the sentence to 2 years on account of the guilty plea.  She then enhanced the sentence by 25 per cent upon the application of the prosecution, pursuant to section 27(2) of the Organised and Serious Crimes Ordinance. 

22.The total term of imprisonment of 2 years and 6 months was upheld on appeal.  The Court of Appeal referred to the decision by Yeung JA in the case Wen Zelang. 

23.Yeung JA in paragraph 15 of the judgment said,

“In our opinion, the judge was right to have taken a serious view of the offence when the defendants had expressly come to Hong Kong for the purpose of cutting endangered trees for profit.”

24.Paragraph 16,

“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 3-year starting point nor the 25-per-cent enhancement for prevalence of the offence under OSCO is manifestly excessive.”

25.The Court of Appeal in the decision in Xie Jinbin at paragraph 20 of the judgment said,

“As already mentioned above, the prime considerations in this type of cases are protection of the endangered species and deterrence. The weight of the wood blocks stolen is not determinative of the sentence. The factors to be considered are the injury done to the tree, the profit motive, the manner of commission and the gravity of the offence.”

26.The court went on to say at paragraph 23,

“The offence is one which calls for deterrence. Weight is, therefore, not the determining factor for sentencing nor is it a reliable indicator of the seriousness of the offence and the injury caused to the tree. Having regard to the purpose of the Ordinance and the need for deterrence, we consider the starting point appropriate. The sentence might be on the high side in view of the quantity of wood stolen, but it is not one which may be regarded as manifestly excessive as to justify interference.”

27.In sentencing the defendant, I have borne in mind the facts of this case.  I have borne in mind the weight of the incense wood involved (i.e., 0.047 kilogramme).  It is clear from the facts that the defendant had expressly come to Hong Kong for the purpose of cutting incense wood in Hong Kong for profit.

28.Conduct of this kind must be deterred and the element of deterrence must be reflected in the sentence passed on the defendant.

29.On the facts before me, I take a starting point of 3 years’ imprisonment.

30.The defendant is entitled to one-third reduction for his guilty plea.

31.I have considered the statement of Mr. PANG, and I attach full weight to the statement.

32.It is a case where enhancement should be made.  In my judgment, an enhancement of 25 per cent is appropriate, i.e., an enhancement of 6 months’ imprisonment.

33.For the above reasons, I sentence the defendant to 2 years and 6 months’ imprisonment.