HKSAR v. Li Guangshui

DCCC 394/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 394 OF 2014

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REASONS FOR SENTENCE

1.Li Guangshui you have pleaded guilty to one charge of theft, contrary to section 9of the Theft Ordinance, Chapter 210.

2.In summary you came to Hong Kong on the 25 February this year.  Less than 48 hours later at around 1:11 a.m. on the 27 February Sgt 52158 spotted you and two other males acting suspiciously in a park in Fanling.  When the three of you left Sgt 52158 gave chase.  During the chase Sgt 52158 saw you drop a backpack and climb over a fence.   You were later found by the police and arrested.

3.The backpack was recovered inside which some incense wood chips, weighing 0.28 kilograms, were found together with two foldable saws and some banknotes. 

4.On examination by an expert from the Agriculture, Fisheries and Conservation Department the wood chips, were found to have been recently cut from the tree trunk or branches of “Aquilaria sinensis” trees, commonly known as incense trees.   

5.In passing sentence I have carefully considered everything said on your behalf by Mr Chan, including that your girlfriend is pregnant.  I also take into account that you have a clear record in Hong Kong.  This however carries little weight where you commit crime within 48 hours of arriving in Hong Kong.   

Endangered species

6.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 5 of the admitted facts as read with paragraph 11 of the statement of K.S. Pang, dated the 27th April 2014).  

7.“Aquilaria sinensis” is a protected species.  The 2013 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).

8.“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).

9.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.  In Xie Jinbin the Court of Appeal emphasised that weight was not determinative of sentence and that the prime considerations were protection and deterrence (see paragraphs 16 & 20 of the judgment). 

10.Mr Chan submits that as you were only the lookout and that there is no evidence you gained from your unlawful activity a starting point lower than 3 years is appropriate.  I disagree.  The backpack you dropped containing the folding saws suggests you were involved in the actual cutting of the trees.  Even if you were the lookout this is no basis to reduce the appropriate starting point. The role of a lookout is essential in any criminal activity.  Similarly there is no basis to reduce the appropriate starting point in the absence of evidence to show how much you would have gained by your unlawful activity.  It would be contrary to common sense to suggest you would have gained nothing. 

11.Taking into account the damage caused to the trees; that the offence was committed in the early hours of the morning; that two others (who escaped) were also involved; two foldable saws had been recovered which had no doubt been used in cutting the trees; the quantity of wood chips was 0.28 kilogramme; and that you had been in Hong Kong less than 48 hours I am satisfied the appropriate starting point after trial is also one of 3 yearsimprisonment.  Giving you full credit for your plea of guilty reduces the sentence to 2 years imprisonment.

Enhancement of sentence

12.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. In support of the application the prosecution rely on thestatement of K.S. Pang, dated the 27th April 2014. 

13.There being no objection to this evidence the statement has been read into evidence pursuant to section 65B of the Criminal Procedure Ordinance, Chapter 221.  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.  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 Xie Jinbin and Wen Zelang the Court of Appeal approved enhancement of 25%.  I am satisfied an enhancement of 25%, namely 6 monthsimprisonment, is also appropriate. 

14.You are convicted and sentenced to 2 years and 6 months imprisonment.