Case Document

DCCC 505/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 505 OF 2014

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	HKSAR
	v.
	TANG Longzhou

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Before:

HH Judge E. Yip

Date:

25^th July 2014 at 15:10 pm

Present:	Mr Karl CHU, Public Prosecutor, of the Department of Justice, for HKSAR
	Ms CHAN Suk Han Mary, of M/s Ho & Ip assignedby DLA for Defendant

Offence:	[1] Theft (盜竊罪)
	[2] Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong (在香港非法入境後未得入境事務處處長授權而留在香港)

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Reasons for Sentence

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Charges and facts

1.The defendant pleads guilty to theft (1^st Charge) and unlawful remaining in Hong Kong (2^nd Charge）.

2.At around 6:30 p.m. on 28 April 2014, the police spotted the defendant acting suspiciously on a footpath in Sai Kung, Hong Kong, and intercepted him. Upon search of his backpack, the police found incense tree wood chips weighing 4.95 kg, a machete, a saw, and a hoe. He had no valid documentation for entering Hong Kong lawfully.

3.He made various admissions to the police. His case was that the incense tree wood chips were chopped from 5 to 6 incense trees in the mountain nearby, that he would resell them in the Mainland, and that he was a Mainland resident sneaking into Hong Kong by boat the day before. The Director of Immigration has confirmed that he had no permission to enter Hong Kong on 28 April 2014.

4.The expert from the Agriculture, Fisheries and Conservation Department, Mr. Pang Kuen-shum, confirmed that the incense tree wood chips in question were recently cut from the root, trunk or branch of Aquilaria sinensis, commonly known as Incense Tree. Unsustainable felling of the species had caused irreparable damage to the general natural feature and ecology of the natural forests. That lot of wood chips had a value of HK$297,000.

5.The prosecution has served a notice of intention to furnish information pursuant to section 27(2)(d) of the Organized and Serious Crimes Ordinance, Cap. 455, for enhancement of sentence based on “the nature and extent of any harm, whether direct or indirect, caused to the community by recent occurrences of this specified offence”.

Personal background and mitigation

6.The defendant is 19 years of age. He has a clear record. He came from a farming family in Guangdong province. He could not complete senior first year schooling as his family was unable to support him. He worked as a security guard but had to quit due to allergy of the skin. As he had no income and was short of money, he was persuaded by a friend to go to Hong Kong to cut wood chips from the Incense Tree.

7.His solicitor, Ms Chan, does not challenge the prosecution’s application for enhancement of sentence. She submits in mitigation that the defendant had committed the theft alone by bringing along farming tools available to him at home.

Sentencing considerations

Theft of wood chips from Incense Tree

8.In HKSAR v. Wen Zelang (溫澤浪) CACC 220/2006, the defendant came to Hong Kong with 3 others. They cut down wood chips from an incense tree. The total weight was 5.6 kg. The judge took 3 years as the starting point. After a one-third reduction for his plea of guilty, the sentence was 2 years. As the prosecution had successfully applied for enhancement of sentence (based on the same ground as our present case), the judge passed an eventual sentence of 30 months based on a 25% enhancement of sentence. The Court of Appeal reduced the eventual sentence to 20 months since the defendant was aged 17 only and he was obviously influenced by the other 3 culprits, who were in their thirties or forties and one of them had brought up the defendant since childhood.

9.In HKSAR v. Xie Jinbin (謝錦彬) CACC 195/2010, the defendant together with 3 others cut down wood chips from an incense tree. The total weight was 1.181kg. They had a saw, a hoe and a knife. The judge took 3 years as the starting point. After a one-third reduction for his plea of guilty, the sentence was 2 years. As the prosecution had successfully applied for enhancement of sentence, the judge passed an eventual sentence of 30 months based on a 25% enhancement of sentence. The Court of Appeal regarded that the weight of the wood chips was not the determining factor for sentence but rather the damage done to the ecology and the endangered species.

Unlawful remaining in Hong Kong

10.The sentence is 15 months for a first offender on a plea of guilty (R v So Man-king [1989] 1 HKLR 142.

Sentencing this defendant

11.For the 1^st Charge, ie theft, I take 2 years and 9 months. This is a slightly lower starting point as he had committed the theft alone. After a one-third reduction for his plea of guilty, the sentence is 22 months. He has no other mitigating factors. I am satisfied that the prosecution has made out a case for enhancement of sentence based on section 27(2) of Cap. 455. I take a near 25% enhancement of sentence. The eventual sentence is 27 months.

12.For the 2^nd Charge, ie unlawful remaining in Hong Kong, I take 15 months as the sentence upon his plea of guilty.

13.I have considered the issue of totality of sentences. As he sneaked into Hong Kong for the specific purpose of committing the theft, I do not regard that a total of 42 months resulting from wholly consecutive sentences as too long in the circumstances. I make no totality adjustment.