HKSAR v. Qiu Xuehui

DCCC 451/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 451 OF 2014

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Reasons for Sentence

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1.The defendant has pleaded guilty to one offence of theft of 1.5 kilos of the woodchip of Aquilaria sinensis or Incense Tree wood.

2.He has admitted the facts of the case and I have convicted him.

3.Now, the facts admitted by the defendant show that, 22 March this year, the defendant was seen acting suspiciously in Lam Kam Road in the New Territories.  He ran away but was detained by the police and searched.  He was wearing a backpack and in the backpack police found 1.5 kilogrammes of incense tree wood chip and a machete with a 20-centimetre-long blade.

4.What the defendant initially said under caution was that he picked up the wood chip and the machete from a monastery.  He picked up the wood because it was beautiful and he would throw away the machete.

5.He later made a video recorded interview.  He admitted arriving in Hong Kong on his own on 21 March and he picked up a plastic bag containing the wood and knife outside the Ling Wan Monastery. He intended to take the wood home.

6.The opinion of Mr Pang, the expert from the Agriculture, Fisheries and Conservation Department, was that the wood had recently been cut from the tree trunk of Aquilaria sinensis.  He also evidenced that the unsustainable felling of this species caused irreplaceable damage to the general natural features and ecology of natural forests.

7.The incense tree wood found in the backpack had a value of $120,000.

8.The defendant’s antecedents were agreed also. He is a 22-year-old man of previous clear record in Hong Kong.

9.In mitigation, defendant’s advocate submitted that this was the defendant’s first visit to Hong Kong.  This was an individual visit.  Defendant heard in Shenzhen that expensive wood could be obtained in Hong Kong and could be taken to China.  He had also found out the whereabouts in Hong Kong that such wood could be obtained.

10.In submission, his explanation under caution that he found the wood and knife in a plastic was maintained.

11.I indicated to the parties that I found this explanation unlikely.

12.Prosecution indicated they did not necessarily accept the explanation in the video recorded interviews and cautioned statement.  The prosecution said that inferences contrary to the defendant could be drawn from the facts admitted in this case.  The prosecution maintained that an inference that the defendant had been involved in the harvesting of the wood himself could be drawn from the facts admitted by the defendant.

13.I gave an opportunity for the parties to call evidence on this issue.  In the event, neither the prosecution nor the defendant elected to give evidence on this factual issue.

14.I found from the facts admitted by the parties that I could draw the irresistible inference the defendant did not find the wood, as he said in his statement, but he was involved in the harvesting of the wood.

15.The defendant admitted possession of the wood valued at $120,000.  He had the machete in his possession at the time of arrest (this was also a tool that can be used for the harvesting of the wood) and the defendant also ran away when he was intercepted by police.

16.Clearly, I can reject the suggestion by the defendant that such items would be left lying around to be found by others.  It is, as I say, somewhat absurd to think that that would happen, given the value attributed to the wood itself.

17.Now, the only reasonable inference I consider that could be drawn from the facts admitted in this case, that it was the defendant’s knife and the wood was wood that he had harvested himself.

18.Having resolved the factual issue in the case, it is necessary, of course, to determine what the appropriate starting point would be for an offence of this nature.

19.There is a guideline case in respect of theft of this particular form of wood.  The guideline case commonly referred to is HKSAR v Wen Zelang, CACC 220/2006, where, in respect of a total of 5.6 kilos of this particular wood, Aquilaria sinensis, a starting point for sentence of 3 years’ imprisonment was determined to be correct. 

20.It has also been said that the quantity of stolen goods in a case of theft is usually an important factor in determining the appropriate sentence, though it is not necessarily the only determinative factor.

21.The defendant in this case is in possession of a smaller quantity of wood and appears to be acting alone.  He is also a young man.

22.I consider that in this case a lower starting point can be adopted:  I am going to adopt a starting point of 27 months’ imprisonment. 

23.After deduction for plea of guilty, that would be a sentence of 18 months’ imprisonment.

24.The prosecution apply for enhancement of sentence on the basis of Section 27(d) of the ordinance, having regard to the nature and extent of any harm, direct or indirect, caused to the community by the occurrence of the specific offence. 

25.This is a specified offence.  There is evidence from Mr Pang of the unsustainable felling of Aquilaria sinensis causing irreplaceable damage to the features and ecology of natural forests in Hong Kong.

26.There is, of course, great loss to the community.  The witness is of the view that the illegal exploitation threatens the natural survival of the native plant Aquilaria sinensis.  That view is not challenged.

27.This is an appropriate case for the enhancement of sentence.  The normal enhancement would be one of 25 per cent. 

28.In this case, that, of course, would leave one with a fraction of a month. 

29.I will round that down to give a final sentence of 22 months’ imprisonment.