HKSAR v. Zhang Liuming and Another

DCCC 669/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 669 OF 2014

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Reasons for Sentence

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Charge and facts

1.D1 and D2 plead guilty to theft of wood chips of Aquilaria sinensis wood commonly known as “Incense Tree”. 

2.At around 1:45 p.m. on 29 May 2014, the police spotted D1 and D2 acting suspiciously in Fan Kam Road, Pat Heung, N.T.  They each carried a backpack.  They were stopped and searched.  Each backpack contained wood chips of Incense Tree.  D1’s part weighed 0.95 kg whereas D2’s part weighed 1.33 kg.  They told the police that their part was bought in Mongkok for $600 the day before. 

3.Immigration movement record revealed that they both arrived in Hong Kong on 25 May 2014 at around 1021 h from Lo Wu Control Point using their two-way permit for a limit of stay for 7 days, ie until 1 June 2014.

4.The expert from the Agriculture, Fisheries and Conservation Department, Mr. Pang Kuen-shum, confirmed that the incense wood chips in question were recently cut from the root, trunk or branch of Aquilaria sinensis.  There were wild Incense Trees in the habitat near to the location of arrest.  Unsustainable felling of the species had caused irreparable damage to the general natural feature and ecology of the natural forests.  The wood chips in question had a value of HK$155,800.

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”. 

6.The last paragraph of the summary of facts is worded in a way to suggest that D1 and D2 had actually cut the wood chips from the Incense Trees belonging to the government.  They admit this paragraph as well. 

Personal background and mitigation

7.D1 is 59 years of age.  He had a record for dealing with dutiable commodities 18 years ago in Hong Kong.  He is a farmer in Mainland China.  He lived with his wife and mother-in-law.  His 2 daughters had married and lived apart.  He came to commit the offence as he was told that Incense Tree wood chips could make a tonic drink to cure rheumatism from which his mother-in-law was suffering.

8.D2 is 21 years of age.  He has a clear record in Hong Kong.  He is a farmer in Mainland China.  He lived with his parents, wife, and 9-month-old son.  He last worked in a shoe factory.  Before coming to Hong Kong to commit the offence, he had been told of the curing effect and financial value of Incense Trees.  

9.D1 and D2 both accept that they came from the same village.  They committed the offence together with simple tools.  It only happened that when arrested by the police, D2 was carrying the big chips that both had cut.  Their solicitors do not challenge the prosecution’s application for enhancement of sentence, nor the big chips being suggestive of substantial damage to the trees in question.   

Sentencing considerations

10.Ms. Wong, who represents D1, has put up 5 cases for comparison of sentences as follows:

(1) 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 and a 25% enhancement based on the same ground as our present case. The Court of Appeal reduced the eventual sentence from 30 months to 20 months since the defendant was aged 17 only and he was obviously influenced by the other 3 defendants, who were in their thirties or forties and one of them had brought up the defendant since childhood.

(2) 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 and a 25% enhancement based on the same ground as our present case. The Court of Appeal made observations on the relevance of weight of the wood chips in sentencing as follows:

16. While the quantity of stolen goods in a case of theft is usually an important factor in determining the appropriate sentence, it is not necessarily the only and determinative factor. In the ordinary cases of theft from supermarket, or theft of ordinary goods, even of trees which do not fall within the category of protected endangered species, value or quantity or weight may be the only consideration. The same is true of trafficking in dangerous drugs. But where the stolen property involved is a protected endangered species, the considerations are wholly different. The end which the law seeks to achieve is protection of our endangered flora. Thus, the evil which the law seeks to prevent is not theft as such but injury to the protected flora. Unlike theft of ordinary goods, restitution is impossible. The recovered wood could not be restored to the plant. The focus, therefore, should be on protection of the plant rather than the value of the plant or part stolen. The factors to be taken into consideration are the injury done to the tree, profit-motive, the manner of commission and the gravity of the offence.

17. We echo Yeung JA’s sentiment [in the case of Wen Zelang] that a clear and firm message is needed to deter mainlanders from coming to Hong Kong, legally or illegally, specifically for the purpose of exploiting our protected and endangered flora for profit. A starting point of three years for case of extraction of wood from an incense tree by mainlanders could not be faulted. We do emphasise that the starting point is not meant to be a strait-jacket.

(3) In HKSAR v Fok Kong-fung & 2 Others DCCC 475/2011, the 3 defendants were carrying 10 blocks of wood of Incense Tree with a total weight of 0.38 kg. The judge expressly recognized any irreparable damage to the tree as an aggravating factor but found no such evidence before her. A lower starting point, ie 2 years, was adopted. She adopted a 25% enhancement based on the same ground as our present case.

(4) In HKSAR v Tang Longzhou DCCC 505/2014, the defendant was found to have 4.95 kg of Incense Tree wood chips, a machete, a saw and a hoe on a footpath in Sai Kung, N.T. The judge took a starting point of 2 years and 9 months and a 25% enhancement based on the same ground as our present case.

(5) In HKSAR v Wen Zhenhui DCCC 850/2012, the defendant was found to have 5.81 kg of Incense Tree wood chips, a handsaw, 2 hoes, and 2 shovels in the hillside in N.T. The judge took a starting point of 3 years and a 25% enhancement based on the same ground as our present case.

Sentencing the defendants

11.This was a joint enterprise.  The total weight of wood chips was 2.28 kg.  It is the irresistible inference that substantial damage had been caused to the trees in question as seen from the big chips seized from D2.  I do not accept D1’s mitigation that he had no financial gain in mind.  I accept D2’s mitigation that he had both the curing effect and the financial gain in mind when he committed the offence.

12.I take a starting point of 3 years for each defendant.  After a one-third reduction for his plea of guilty, the sentence is 2 years.  I give an extra 4 months for the fact that the prosecution had a weak case which the defence might well have contested with a reasonable prospect of success.  There are no other mitigating factors.  The sentence is 20 months. 

13.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 25% enhancement of sentence.  The eventual sentence is 25 months for each defendant.