DCCC 850/2012







Before: HH Judge E. Yip

Date: 25 October 2012 at 9:52 am

Present: Miss Margaret LAU, Public Prosecutor, of the Department of Justice, for HKSAR
Mr LOU Iok Kuong, Damy, of M/s Edward Lau, Wong & Lou assigned by DLA for Defendant

Offence: Theft(盜竊罪)


Reasons for Sentence



1. The defendant pleads guilty to the theft of wood chips of Aquilaria sinensis, commonly known as Incense Tree from the hillside ofHa Yeung New Village, Ha Yeung San Tsuen Road, New Territories.


2. In the afternoon of 20 July 2012, the police were patrolling in plainclothes at the said hillside. They saw the defendant in thebush squatting with a firewood knife in his hand. They asked him to put down the knife, which he did. After being arrested fortheft and cautioned, he said he had cut some wood chips from the Incense Tree but could not remember the exact location.

3. He was carrying a black rucksack, which contained wood chips. A grey rucksack was beside him, which contained woodchips, a handsaw,2 hoes each of 35 cm long, 2 shovels of 24 cm and 26 cm respectively, 1 awl of 17 cm long, 2 pairs of gloves and 2 pieces of grindstone.

4. In a video-recorded interview, he admitted having the 2 rucksacks.

5. The wood chips were confirmed by the botanical expert, Dr. Pang, to be a species of Aquilaria sinensis. They weighed 5.81 kg intotal. The estimated value was $506,700. It was a protected endangered species and the only species known to produce Chen Xiangin Hong Kong. Illegal felling can irreversibly disrupt the ecological balance. Consequently, great loss will be caused to the community.

Enhancement of sentence

6. The prosecution seeks to have the sentence enhanced pursuant to s. 27(2)(d) of the Organized and Serious Crimes Ordinance, Cap. 455. The defence has no submissions.

Personal background and mitigation

7. The defendant is aged 46, a Chinese Mainlander on a two-way permit to Hong Kong. He is a farmer with little education. His wifehas to look after their children aged from 11 to 20 years. His father is aged 78. The defendant is the sole breadwinner. He intendedto sell the wood chips in his home town for RMB¥800. He has a clear record in Hong Kong.

8. His solicitor asks me to adopt a sentence lower than that of a rather oft-cited case, HKSAR v. Xie Jinbin(謝錦彬)CACC 195/2010, in which the applicant received a sentence of 2 ½ years.

Examples of sentences

9. In HKSAR v. Wen Zelang (溫澤浪)CACC 220/2006, the appellant and 3 others each held a two-way permit to Hong Kong. In Lautau, they took wood chips from a matureIncense Tree, a total weight of 5.6 kg. A starting point of 3 years, down by one-third for the plea of guilty, and an enhancementof 25% were approved by the Court of Appeal in a clear echo of the ecological concern raised by the botanical expert arising outof illegal exploitation of the materials from Incense Tree. The eventual sentence ought to have been 2 ½ years but that of theappellant was reduced to 2 years on appeal, only because he was notably influenced by the adult co-defendant who reared him at childhood.

10. In Xie Jinbin (above), the applicant and 3 others took wood chips from a mature Incense Tree, a total weight of 1.181 kg. The police also seizeda hoe and a knife. A starting point of 3 years, down by one-third for the plea of guilty, and an enhancement of 25% were approvedby the Court of Appeal.

Sentencing this defendant

11. He could not remember the exact location of the damaged trees. I have to assess the harm done by drawing upon circumstantial evidence. Although not aided by any accomplices as in Xie Jinbin, he possessed a much wider range of tools. I have no doubt that such an abundance of tools had caused serious damage to the IncenseTree, hence the ecological system, in his acquisition of the wood chips. Besides, the quantity he reaped (5.81 kg) was much morethan that of Xie Jinbin (1.181 kg). Counterbalancing these factors, he was no less culpable than Xie Jinbin.

12. A starting point of 3 years is warranted. One-third off for his plea of guilty, it becomes 2 years. He has no other mitigatingfactors. I take a 25% enhancement. His sentence is 2 ½ years.

( E. Yip )
District Judge