HKSAR v. Hung Yiu Wing

DCCC 60/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 60 OF 2015

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Reasons for Sentence
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Charge and facts

1.The Defendant pleads guilty to attempted theft of Aquilaria sinensis wood commonly known as Incense Tree. 

2.At around 10:15 a.m. on 26 November 2014, the police were alerted of a case of suspected Incense Tree felling at Kak Hang Tun Road, Sai Kung.  At around 11:43 a.m., the police were conducting mobile patrol while the Defendant was walking down with a man from Kak Hang Tun Road about 30 metres behind a group of 3 men.  Upon interception and search, the police seized from the Defendant’s backpack the following:

(1) A folded saw;

(2) A knife wrapped in a T-shirt;

(3) A chisel;

(4) A whetstone;

(5) A triangular file;

(6) A multi-purpose tool key;

(7) A pair of labour gloves.

3.Under caution, he said that the tools were for chopping trees at Kak Hang Tun Village, and that he was a lookout when the tree was being chopped by another man. 

4.He then led the police to a location at 1.3km away in Kak Hang Tun Road where he said the tree had been chopped by another man. There was a damaged tree. 

5.At all material times, Ah Ming and the 3 other men were two-way permit holders from the Mainland. 

6.In the subsequent interviews under caution, he said:

(1) On the day of arrest, Ah Ming, whom he had met in the Mainland, phoned up to tell him that Incense Tree was worth a lot of money and asked him to take them to chop Incense Tree in Sai Kung for sale;

(2) He took Ah Ming and the 3 men brought along by Ah Ming to Kak Hang Tun Village by taxi at about 10:00 a.m.;

(3) Ah Ming told him to act as a lookout when Ah Ming chopped the Incense Tree with two of the men;

(4) When a passer-by yelled at them, they stopped chopping and left with the backpack containing Ah Ming’s tools for chopping the tree;

(5) That was the backpack later seized by the police from him upon interception;

(6) He had not received any reward.

7.The conservation officer from the Agriculture, Fisheries and Conservation Department, Mr. Pang Kuen-shum, confirmed the following:

(1) The tree that had been chopped was Incense Tree;

(2) The damage to the tree was recent;

(3) Unsustainable felling of the species had caused irreparable damage to the general natural feature and ecology of the natural forests;

(4) This is a great loss to our community and such activity will also create dangerous trees causing the problem of public safety.

8.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”.  Mr. Pang’s expert report[1] is submitted in support of the application. 

Personal background and mitigation

9.The Defendant is 37 years of age.  He was educated up to F. 5 level.  His parents had divorced since he was very young.  He lives with his mother, who recently suffers diabetes.  He takes care of her daily living.  Before arrest, he last worked as a casual worker.  He contributed $5,000 to the monthly outgoings of the family.  He has a sister working as a nurse and living apart.  He has 4 previous records for possession of dangerous drugs. 

10.He writes a mitigating letter to ask for leniency.  He states that he committed the offence to make quick money.  His solicitor, Mr. Chan informs me that he expected to have a few thousand dollars as his reward for the theft. 

11.Mr. Chan objects to the application for enhancement of sentence as he observes from Photos 4 and 6 of Book 1[2] that the tree in question had 4 trunks which converged at the bottom.  Damage was done to only one of them.  Without intending to call any expert evidence, he infers that the tree can survive with the 3 trunks intact.  I do not agree with this observation because according to the expert report of Mr. Pang, whose finding is not challenged by Mr. Chan, “[t]his tree was seriously damaged by cuts at the tree trunks and at the base of the trunks.”[3] 

12.Mr. Chan also refers to the case of HKSAR v Liao Minghui & Another DCCC 806/2013 to contend that where a conspiracy to steal Incense Tree had caused no actual harm to the tree, the learned judge refused an application for enhancement of sentence.  The defendants with the tools were stopped by the police before they even reached the tree.  They admitted to the conspiracy upon being arrested and cautioned.  Contrary to the facts there, our present case had the Defendant arrested after his accomplices had already cut and caused certain harm to the tree. 

Sentencing considerations

13.I am aware of the following 5 cases for comparison of sentences and the extent of enhancement of sentences:

(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 the irreparable damage to the tree as an aggravating factor in law 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 Defendant

14.There were 5 people in the conspiracy.  He knew Ah Ming was from the Mainland.  The 3 others were from the Mainland as well.  He acted as the lookout when the others chopped the tree.  There were a lot of tools.  The saw and the chisel were of a very strong type.  Although it was an attempted theft as they had not made off with any wood chips, the harm to the tree, thereby “seriously damaged” as found by the expert, would be irreversible.  I take a starting point of 3 years. 

15.After a one-third reduction for his plea of guilty, the sentence is 2 years.  There are no other mitigating factors.  The sentence is 2 years. 

16.I am satisfied that the prosecution has made out a case for enhancement of sentence based on section 27(2)(d) of Cap. 455.  I take a 25% enhancement of sentence.  The eventual sentence is 2 years and 6 months.