HKSAR v. Chen Yaan

DCCC 321/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 321 OF 2014

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REASONS FOR SENTENCE

1.The defendant pleaded guilty to an offence of "Theft". He stole Aquilaria sinensis wood (commonly known as "incense tree").

Summary of Facts

2.About 3:15 a.m. on 21 February 2014, police officers saw the defendant and another male ("the Male") acting suspiciously at Wo Tai Street, Fanling.  Upon revealing their police identity, the defendant and the Male fled.  The police officers pursued them.  The Male dropped his backpack and escaped.  The defendant was eventually subdued.

3.The defendant's backpack was searched. Wood chips weighing 2.92 kg (later confirmed to be of Aquilaria sinensis) and a chopper with a 23-cm long blade were found.  The Male's backpack was also searched.  It contained a saw with a 48-cm long blade, a hoe and 3 pairs of gloves.

4.Under caution, the defendant admitted that he received money to cut incense tree wood.  He immediately led the police officers to the rear garden of No.87, Fan Leng Lau Village, Fanling ("the Location") where incense tree wood chunks were picked up by him for cutting.  He also led them to a nearby slope where some incense tree wood chunks were found.  The defendant admitted cutting incense tree wood chunks there.

5.In his video recorded interview, the defendant admitted that his friend "Ah Shui" asked him for assistance in return for a monetary reward.  The defendant came to Hong Kong from Shenzhen on 18 February 2014.  He and his friend "Ah Shui" chopped up tree trunks found on the roadside in the early hours on 21 February.  The defendant also admitted that he knew the tree trunks were incense tree wood.

6.Mr. PANG, a representative of Fan Leng Lau Village, confirmed that the incense tree wood chunks were kept by the village office for paying respect to the ancestors.  The wood chunks came from an incense tree which was cut down by the Leisure and Cultural Services Department in July 2013 for safety reasons.  The wood chunks were then given to the village office.  Mr. PANG also confirmed that access to the Location was not sealed off from the public.

Mitigation & Sentence

7.The defendant is 31 and has a clear record.  He is a farmer in the mainland.  He is married with 4 children (aged 2 to 7).  His lawyer Ms. CHENG submitted that the defendant foolishly committed the present offence for a reward of $1,000.  His wife cannot work because she needs to look after 4 children.  Ms. CHENG stressed that the defendant did not damage any live incense trees.  The tree was cut by the government for safety reasons.  The defendant had only chopped off the wood chunks he found on the roadside to get woodchips.  The defendant's letter was placed before me; its contents are duly noted.

8.Time after time, the court has expressed in very clear terms that the incense tree is a vulnerable and protected endangered species.  A clear and firm message is required to deter mainlanders from coming to Hong Kong, legally or illegally, for the specific purpose of exploiting protected and endangered flora for profit.

9.Although not meant to be a straitjacket, the Court of Appeal in HKSAR v Xie Jinbin [2011] 2 HKLRD 631 held that a starting point of 3 years' imprisonment for the extraction of wood from incense trees by mainlanders could not be faulted.  Furthermore, the Court of Appeal held that the prime considerations in sentencing are protection and deterrence.  The evil which the law sought to prevent was not theft as such but injury to the protected flora, since restitution is impossible.  The focus, therefore, should be on the protection of the plant rather than the value of the plant or part stolen.

10.It is most fortunate that according to the evidence, no live incense trees were damaged by the defendant or the Male; they have only stolen and chopped up the incense tree wood chunks which belonged to the village office.  However, their motive of coming to Hong Kong is clear; they were fully equipped for cutting trees.  I have no doubt in my mind that had they not found the wood chunks in the village office, they would have been prepared to chop up live incense trees in order to get what they wanted.  Their criminal intention still needs to be deterred.

11.In the present case, I am prepared to adopt a lower starting point since the stealing act was directed at incense tree wood chunks which were already cut for legitimate reasons.  In my view, a starting point of 2 years' imprisonment is appropriate. The usual one-third discount is given for the guilty plea, reducing the sentence to 16 months.  Apart from this, I see no other mitigating factors which warrant any further discount.  The defendant is sentenced to 16 months' imprisonment.