HKSAR v. Chen Xishi and Another
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DCCC 304/ 2013 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO.304 OF 2013 ---------------------------
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---------------------------- Reasons for Sentence ---------------------------- 1.The defendants face one joint charge of theft. Particulars of the charge are that they on 5th February 2013 stole 10.17kg of wood chips and blocks of Incense Tree that belonged to the HKSAR government. The defendants pleaded guilty and admitted to the summary of facts and were duly convicted. Facts 2.The defendants are PRC two-way permits holders. They were intercepted by Police officers at around 6am at Chuk Yeung Road near Shan Liu, Sai Kung. Upon search, wood chips (exhibit P1) were found in the rucksack that D1 was carrying. D1 was arrested and cautioned. Under caution D1 said that those were Chen Xian (“沈香”) that he had cut for sale in the mainland. D1 said he had disposed of the tools he had used for the cutting. 3.Wood chips and blocks (exhibit P2) were also found in the rucksack of D2, who said under caution that they were Chen Xian he had cut to be sold in the mainland. 4.In subsequent video recorded interviews, the defendants admitted that they came to Hong Kong together to look for Chen Xian. They went to Ma On Shan and went uphill after they arrived in Hong Kong and stayed there for 4 nights. They had each cut some Chen Xian and had put the wood in their rucksacks. They had cut 4 trees and had disposed of the cutting tools in the hillside. 5.Exhibits P1 and P2 were examined by the Agriculture, Fisheries and Conservation Department (“AECD”) and confirmed respectively to be 4.41kg and 5.76kg of Aquilaria Sinesis (commonly known as Incense Tree or 沈香 in Chinese). The estimated street value of the combined 10.71kg of Chen Xian is about $945,400. 6.The expert report of Mr. Pang of the AECD is produced as exhibit P3. Neither the expert status nor the contents of the report are disputed by the defendants. Enhancement of sentence 7.Pursuant to s.27(2) of the Organized and Serious Crimes Ordinance, Cap.455, the prosecution applied to enhance the defendants’ sentences on the ground of ‘the nature and extent of any harm, whether direct or indirect, caused to the community by recent occurrences of this specified offence.’ Previous conviction 8.D1 is of previously clear record. D2 has 1 previous conviction for going equipped for stealing when he was sentenced to 4 weeks’ imprisonment in September 2004, which is almost 9 years ago. I will not take this as an aggravating factor when sentencing D2. Mitigation 9.D1 is 55, married and the sole bread winner of the family. He was a farmer earning RMB200-300 per month. His wife is handicapped, his 27 years old daughter disappeared some 6 years ago, his son is 23, a farmer, and he has another 18 year old daughter who is a student. The defendant’s father has passed away while his 101 year old mother suffers from various illnesses. D1 himself suffers from liver disease. The sole reason for him to commit the offence is to make some quick money to support his family. He feels remorseful for what he has done. He has been cooperative and agrees to the enhancement of sentence. A letter written by D1 himself was submitted. 10.D2 is 44, married. He was a farmer earning RMB200-300 per month and is the sole bread winner of the family. The defendant’s eldest son died a few years ago in a traffic accident while his 15 year old son is in high school. The defendant suffers from liver disease and has incurred substantial expenses for medical treatment, resulting in debts of around RMB20,000. The defendant committed the offence because he wanted quick money to take care of his family and to pay for expenses and to repay his debts. The defendant has been cooperative with the Police since his arrest and does not contest the prosecution’s application to enhance his sentence. A letter written by D2 was also submitted. Sentencing cases 11.Mr. Kwong for the prosecution referred me to the cases of HKSAR v Wen Zelang, CACC 220/2006 and HKSAR v Xie Jinbin, CACC 195/2010. 12.In the case of Wen Zelang, the Court of Appeal stated that for the theft of 5.6kg of wood from incense trees, a starting point of 3 years’ imprisonment and an enhancement of 25% is entirely appropriate. The 17 year old applicant in that case only succeeded in his appeal on grounds that do not exist in our present case. 13.In the case of Xie Jinbin, the appellant and 3 other mainlanders came to Hong Kong on two-way permits and were seen by Police cutting the tree and packing wood blocks into their rucksacks. A total of 7 wood blocks weighing 1.181 kg, a saw, an iron hoe and a knife were found in their rucksacks. At trial, the learned District Judge adopted a starting point of 3 years’ imprisonment, reduced it for plea and then enhanced the sentence by 25% under s.27(2) of OSCO and sentenced the appellant to 2 years and 6 months’ imprisonment. 14.The appeal against sentence was dismissed. In their judgment, the Court of Appeal stated that a “clear and firm message was needed to deter mainlanders from coming to Hong Kong, legally or illegally, for the specific purpose of exploiting protected and endangered flora for profit. A starting point of 3 years of the extraction of wood from an Incense Tree by mainlanders could not be faulted, although this was not meant to be a straitjacket.” 15.It was also held that “weight was not determinative of sentence nor a reliable indicator of the seriousness of the offence and the injury caused to the tree….[a] defendant was not to be punished only for the weight of the wood block he had stolen, but according to the enterprise he and the others had collectively participated in and the seriousness of the offence, which was premeditated.” 16.Lastly, the Court of Appeal observed that “the men came to Hong Kong in a joint enterprise with the intention to exploit endangered flora for profit. They equipped themselves with a knife, hoe and saw and acted as a group. Accordingly, having regard to the purpose of the Protection of Endangered Species of Animals and Plants Ordinance, Cap.586 and the need of deterrence, the starting point was appropriate. While the sentence might be on the high side in view of the quantity of wood stolen, it was not manifestly excessive so as to justify interference.” The effect of unsustainable felling 17.At paragraph 8 of his report, Conservation Officer Mr. Pang, the expert who examined the wood chips and blocks in the present case found that the non-cutting surfaces of the wood chips and blocks were mostly wounded openings, with some of them covered with bryophytes[1]. This should mean that the trees had previously been cut before. Nevertheless, based on the cutting surfaces of the same wood chips and blocks, Mr. Pang believes that they were recently cut from the tree trunk or branches of Incense Trees. Mr. Pang then explained the adverse effect and impact of such cutting in paragraph 11 and concluded that the unsustainable felling of incense trees has caused irreplaceable damages to the general natural feature and ecology of the natural forests of Hong Kong, which is a great loss to our community. Sentence 18.The quantity of stolen wood in our present case is that of 10.17kg. This is a much higher figure than the wood stolen in the 2 cases referred to above. 19.Similar to the appellant in the Xie Jinbin case, both our defendants said they are remorseful and they have family members in mainland China who needed their support. D1 is of clear record, as was the appellant in Xie Jinbin. Although D2 has one previous conviction involving dishonesty, it was some 9 years ago and as I indicated above, I will not hold this against him in sentencing for the present offence. 20.Both the defendants came to Hong Kong from mainland China with the specific purpose of looking for and cutting off wood chips from incense trees so that they can sell them for a profit in mainland China. They committed the offence over 4 days while hiding in the hillside in Hong Kong. Their commission of the offence was obviously premeditated. 21.While the quantity of wood stolen should not be the determinative factor, I find that 10.17kg of Chen Xian must lead to a higher starting point than that of the 3 years’ imprisonment in Xie jinbin and Wen Zelang, which involved only 1.181 and 5.6kg respectively. 22.Bearing in mind all the circumstances and the 2 cases, I will adopt a starting point of 3 years and 3 months’ imprisonment as the initial starting point for each of the defendants, reducing it by one-third in recognition of their guilty pleas, resulting in a discounted sentence of 2 years and 2 months’ imprisonment. 23.I find that the prosecution has proved beyond reasonable doubt that serious harm had been done to the tree or trees from which the wood chips and blocks had been cut. I find that such harm will likely cause the trees to be unable to recover. I find that the prosecution has proved beyond reasonable doubt that the nature of the harm to Hong Kong as a result of the defendants’ action warranted an enhancement of sentence. 24.Following from the percentage of enhancement adopted in both the cited cases, and not disputed by the defendants, I will enhance each of the defendants’ sentence by about 25% and sentence them each to the final sentence of 32 months’ imprisonment.
[1] a small flowerless green plant of the division Bryophyta, which comprises the mosses and liverworts. |
Cases cited in this judgment