HKSAR v. Chen Lianhan

DCCC 358/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 358 OF 2014

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Reasons for Sentence

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1.The defendant has pleaded guilty to two charges. The first being theft, contrary to section 9 of the Theft Ordinance. The particulars are that the defendant on 2 March with two other persons unknown stole 4 kilogrammes of wood chips of Aquilaria sinensis wood commonly known as “incense tree”. The 2nd charge being remaining in Hong Kong without the authority of the Director of Immigration.

2.The facts of this case are straightforward.  On 2 March the defendant was caught red-handed by police officers cutting a tree with a chopper in a country park in Sai Kung.  The defendant’s bag was searched, and the police found tools as well as the 4 kilogrammes of wood chips from incense trees.  The wood chips have been valued over HK$320,000.

3.The defendant admitted to the police that he came by boat from the mainland and landed here illegally on 28 March.  There were two other persons, but the defendant says they split up after they chopped incense tree wood together.   

4.The defendant was caught after having cut and damaged trees for profit.  Damage to these trees is usually irreparable and irreversible. 

5.The prosecution have made an application to enhance sentence under the Organised and Serious Crimes Ordinance. 

6.The defendant admitted the offences to the police and pleaded guilty today.  That is his best mitigation.

7.I have been told the defendant has a clear record in Hong Kong.  I have heard mitigation put forward on his behalf.

8.The defendant is 52 years old and works in a chicken farm earning RMB1,500 a month.  He lives with his wife, son and elderly father.  His wife works and earns RMB1,200 a month.  However, the defendant has tuberculosis and requires medicine costing RMB1,200 a month.  In addition, his father is not well, suffering from a heart condition and requires RMB300 for medical expenses.

9.I have been told that the defendant committed this offence for financial reward or gain because his income was insufficient to support his family as well as medical expenses. 

10.Both the prosecution and defence rely on the authority of HKSAR v Xie Jinbin CACC195/2010 where for theft of incense tree wood a 3-year starting point was upheld by the Court of Appeal.  In that authority the appellant had 1.181 kilogrammes of incense tree wood.  In that case, like here, the prosecution applied to enhance the sentence pursuant to section 27(2) of the Organised and Serious Crimes Ordinance, Cap 455.

11.Here, the prosecution has submitted a report by a Mr Pang Kuen-shum of the Agricultural, Fisheries and Conservation Department to show the nature and extent of harm caused to the community of Hong Kong by recent occurrences of this specified offence.  I have read the report submitted and accept its contents, particularly paragraph 24.

12.The defence do not dispute the report nor challenge the prosecution’s application, they concede it.

13.I accept Mr Pang’s opinion that there is an increasing trend reflected by numerous recent reports of cutting and felling these trees.  

14.That authority also refers to the case of HKSAR v Wen Zelang CACC220/2006.  In that case the Court of Appeal accepted the incense tree was under threat of extinction.  It said a clear and strong message was needed to deter mainland people coming to Hong Kong to cut our endangered trees.  It held neither a 3-year starting point nor a 25 per cent enhancement was manifestly excessive. 

15.I have considered mitigation I have heard, the facts of this case, the authorities referred to, as well as the overwhelming need to protect our endangered trees and deter those that will damage and kill the trees for profit. 

16.After careful consideration, for Charge 1, I will take a starting point of 3 years.  The defendant has pleaded guilty and is entitled to a discount of one-third, a 1-year discount.  However, I will enhance that sentence by 25 per cent pursuant to the prosecution’s application for enhancement. 

17.For Charge 1, the defendant is sentenced to 2 years and 6 months.

18.For Charge 2, and I have been referred to the relevant authority of The Queen v So Man King [1989] 1 HKLR 142.  There the court was of the view a 15-month sentence after plea was appropriate for unlawfully remaining in Hong Kong. 

19.I will take a starting point of 15 months but reduce that to 10 months to take into account mitigation I have heard.

For Charge 2, the defendant is sentenced to 10 months’ imprisonment.

20.It has been said time and time again that the sentence for this offence will invariably run consecutively to the sentence for the offence which has resulted in the defendant being prosecuted in the first place.  I will order that the 10 months of Charge 2 run consecutively to Charge 1.  The defendant is sentenced to 3 years and 4 months in total.  Do you understand that sentence?

INTERPRETER: Defendant understands.