HKSAR v. Hip Yu Pun

CACC 435/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 435 OF 2014

(ON APPEAL FROM DCCC 840 OF 2014)

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J U D G M E N T

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Introduction

1.On 3 December 2014 the applicant appeared before Judge Woodcock (“the judge”) in the District Court and pleaded guilty to one charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210 and one charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, contrary to section 38(1)(b) of the Immigration Ordinance, Cap 115.

2.On that day he was sentenced by the judge to a total sentence of 3 years and 11 months’ imprisonment.  He now applies for leave to appeal that sentence. 

3.On the hearing of this application it was adjourned for a week to enable the applicant to give a statement to the police which I was subsequently informed was of no value to them.  The applicant did not provide the police with any useful information.

The background to the offence

4.On 20 June 2014 the applicant was aboard a fishing vessel south of Lantau with four other Mainlanders.  The boat was under the charge of the person who was D1 on the applicant’s charge sheet.  This vessel was intercepted by Marine police who found on it five backpacks of incense tree wood and one bag of tools that could be used for cutting the wood.  There was a total of 68.412 kg of incense tree wood chips and 3.238 kg of incense tree bark making a total weight of 71.65 kg of incense tree which was valued at $3,921,000.

5.D1 was charged with theft of the incense tree wood and with assisting the passage within Hong Kongof unauthorised entrants.  He pleaded not guilty to these charges and so was dealt with separately.  All the other defendants, like the applicant, who was D5 at trial, were charged with theft of incense tree wood and unlawfully remaining in Hong Kong and all pleaded guilty to these two offences.   

6.At the time of his arrest the applicant stated that he agreed to participate in the chopping of incense tree wood as he was unable to pursue his normal occupation of a fisherman.  However in a subsequent video recorded interview he stated that he came to Hong Kong to pick up sea snails and about a week before his arrest he and the other Mainland men boarded the fishing vessel from where they had been arrested and were brought to Lantau Island where they went ashore and discovered incense trees and tools.  They used the tools to chop incense trees that had already fallen.  The applicant said he chopped the incense trees for one day to make the pieces smaller in size so that they could be put into a backpack that was also found on the hills.  They then re-boarded the boat. 

7.An expert from the Agriculture, Fisheries and Conservation Department, Mr KS Pang, confirmed that the wood chips found in the backpacks were recently cut from the tree trunks of Aquilaria Sinensis wood.  He also confirmed that the unsustainable felling of the species had caused irreplaceable damage to the general natural features and the ecology of the nature forests.  He confirmed that the tools in one of the bags were handsaws and choppers that could be used for cutting the wood chips.  He confirmed that the chisels were fit for graving work while the hoe blades were fit for digging and plant specimen collection.  He confirmed that all the tools might be suitable for harvesting “Chen Xiang” from incense tree wood chips and barks.

The judge’s reasons for sentence 

8.All the Mainland defendants who pleaded guilty came from a similar background in that they were fishermen who earned only approximately $3,000 a month when fishing work was available to them.  Two of the defendants, D2 and D4, were over 60 years of age.  The others were all in their forties. 

9.As commonly occurs with this type of offence the prosecution applied for the sentences of the defendants to be enhanced under the provisions of the Organised and Serious Crimes Ordinance (“OSCO”), Cap 455.  The particular provision of OSCO on which the prosecution relied for enhancement of sentence was section 27(2)(d) which allows for enhancement on the basis of the “the nature and extent of any harm, whether direct or indirect, caused to the community by recent occurrence of” the specified offences.  There was no opposition by the defendants to the application.

10.The judge noted that all the Mainland defendants held a deckhand visa issued by the Immigration Department but that this visa had a restriction on where and what the defendants could do in Hong Kong.  The judge said that these defendants clearly were not working on board a fishing vessel, as required, nor travelling between a fishing vessel and two designated fish markets.  Because they were not working or present in Hong Kong in accordance with the requirements of the visa they were charged with unlawfully remaining in Hong Kong.

11.The judge referred to the defendants’ admissions made under caution and noted that in many of the caution interviews, including that of the applicant, the defendants did not actually admit coming to Hong Kong with the tools and with intent to cut incense tree for sale or because they were paid to do it.  She noted that there were attempts by the defendants to excuse themselves and to distance themselves from the actual act of cutting and damaging the trees.  She said she did not accept that line of explanation.

12.After reviewing the facts and mitigation advanced for the defendants the judge concluded as follows:

“They are clearly all five transported here from Mainland China, left here with food and tools. I am sure they are picked up days later. Being five in a party, they can cut a significant amount of wood. When done, they called the 1^st defendant to pick them up. This is an organised group with a plan.”

13.The personal background of the applicant is that he is 47 years old and has 4 children.  His son was unable to attend university because of financial difficulties.  The applicant’s wife is not in good health and he has elderly parents who live with him and his mother is wheelchair bound.

14.The judge referred to the decision of HKSAR v Xie Jinbin [2011] 2 HKLRD 631 and HKSAR v Wen Zelang, [2006] 4 HKLRD 460.  These two cases are well known sentencing authorities for the offence of theft of incense tree wood.  In these two cases the Court of Appeal approved an enhancement of 25% of the final sentence.

15.The judge noted that the amount of wood taken by these defendants was greater than that in the Court of Appeal authorities to which she referred.  She also noted the comment of the Court of Appeal to the effect that deterrent sentences are required for this type of offence.  For the theft charge the judge adopted a starting point of 3 years and 9 months’ imprisonment which she discounted by one third to allow for the defendants’ pleas of guilty.  This brought their sentences down to 2 years and 6 months’ imprisonment.  The judge concluded that there was no reason to reduce the sentences of the applicant and D3 and D6 any further.  However, noting that both D2 and D4 were over 60 years of age she reduced their sentences by a further 3 months so that their final sentences were 2 years and 3 months’ imprisonment.

16.The judge then turned her mind to the enhancement of these sentences and accepted that the prosecution had proved beyond reasonable doubt that grounds existed to justify enhancement.  She adopted 25% as the appropriate percentage by which the sentences should be enhanced.  That meant that for the applicant, D3 and D6 their sentences were enhanced by 7 months.  For these persons the final sentence became 3 years and 1 month.  For D2 and D4 she also adopted an enhancement of 25% and that meant they would be subject to an additional 7 months’ imprisonment which brought their sentences to 2 years and 10 months.

17.The judge then turned her mind to the additional charge of illegally remaining in Hong Kong.  She noted that the guideline sentence laid down by the Court of Appeal is 15 months’ imprisonment and she saw no reason to depart from this authority.  She then went on to consider the totality principle to determine whether and if so how much of the second sentence should be ordered to be served consecutively to the sentence for the theft charge.  She concluded that it was appropriate to order 5 months of the unlawful remaining charge to be served concurrently with the theft charge which meant that the remaining 10 months’ imprisonment would be served consecutively to it.  This brought the sentence of the applicant to a total sentence of 3 years and 11 months’ imprisonment and that was the sentence she also imposed upon D3 and D6.  The sentences on D2 and D4 were 3 years and 8 months’ imprisonment.

The grounds of appeal

18.In his Form XI and in subsequent letters to the court the applicant complains of the difference in sentences received by D2 and D4 and refers to the fact that his 85-year-old mother has suffered a stroke and has a disability.

19.He also refers to a medical condition from which he himself suffers and a medical condition from which his wife also suffers.  By way of explanation for his involvement in this offence he said that he had no choice and out of momentary stupidity he thought he could earn some money by participating in this activity and so he accompanied his clansmen. 

20.In another letter he refers to the sentences imposed on Chen Lianhan DCCC 358/2014, Chen Yawei DCCC 638/2014 and Gao Huachang & ors DCCC 727/2013 which he said were lighter than his.

Discussion

21.There is no merit in the complaint about disparity of sentence between the applicant and D2 and D4.  The judge explained why she was discounting their sentences by a further 3 months and her reason for doing so is quite proper.

22.As to the disparity with the other District Court cases to which the applicant refers this can be explained by the fact that they all involved significantly less quantities of incense tree wood.  Chen Lianhan involved 4 kg of the wood, Chen Yawei involved 1.18 kg and Gao Huachang 44.8 kg. 

23.In the Gao Huachang case on which the applicant heavily relies and which is the closest in quantity to the applicant’s case, the judge adopted a sentencing starting point of 3.5 years’ imprisonment, just 3 months less than the starting point adopted by the judge in respect of the applicant.  However, the real difference between the sentences in that case and the applicant’s case is due to the judge in that case ordering a significantly lesser part of the unlawful remaining sentence to be served consecutively to the theft of incense tree wood sentence. 

24.If anything, the judge in the Gao Huachang case displayed unusual generosity to the offenders before him but the leniency he extended to them was a matter for him in the exercise of his sentencing discretion.  It is incumbent on the applicant to demonstrate error by his sentencing judge or excessiveness in his sentence.  Just because a judge in a different case adopts a different sentencing course does not mean that the judge in the present case has erred or that the applicant’s sentence is excessive.  In fact, very clearly the judge has not erred and the sentence is not excessive.  There is no merit in this complaint.

25.As to the applicant’s personal circumstances they cannot provide a proper basis for interfering with his sentence.

26.In view of what I have been told by the prosecution as to the value of the applicant’s very late offer of assistance to the police, the assistance rendered, such as it is, does not provide a basis for the granting of leave to appeal sentence.

Conclusion

27.There being no merit in any of the applicant’s complaints, I refuse him leave to appeal his sentence.

28.I have informed the applicant of the power of the Court of Appeal under section 83W of the Criminal Procedure Ordinance, Cap 221 to order that part of the time during which he has been in custody pending determination of his appeal shall not be reckoned as part of the term of the sentence to which he is for the time being subject.  I warned him that should he renew his application it is possible that the court hearing his renewed application might exercise that power adversely to him.

Ms Irene Poon SPP, of the Department of Justice, for the respondent

The applicant appeared in person