A A
DCCC33/2012
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 33 OF 2012
C ---------------------- C
D
HKSAR D
v.
E E
Su Hegui
F ----------------------- F
G Before: H H Judge S. D’Almada Remedios G
Date: 20 March 2012 at 11.21 am
Present: Mr Sanny Kwong, PP of the Department of Justice, for
H HKSAR H
Mr Yeung Yuk-chun, instructed by Chong, So & Co., for
the Defendant
I I
Offence: (1) Theft (盜竊罪)
(2) Remaining in Hong Kong without the authority of
J the Director of Immigration after having landed J
unlawfully in Hong Kong (在香港非法入境後未得入境事務處處長
授權而留在香港)
K K
---------------------
L L
Reasons for Sentence
M --------------------- M
N 1. Defendant, you have pleaded guilty to two offences. N
The first offence is one of theft, contrary to section 9 of the
O O
Theft Ordinance, and the other is unlawful remaining in Hong
Kong, contrary to section 38(1)(b) of the Immigration Ordinance.
P P
Q 2. You admitted that on 22 November 2011, at the hillside Q
at Yung Shue Au Tsuen, Sha Tau Kok, New Territories in Hong
R Kong, together with a person unknown, stole 1.56 kilograms of R
wood pieces, tree bark, branch with green leaves of Aquilaria
S Sinensis wood commonly known as Incense Tree, the property S
belonging to the Government of the HKSAR. On the same day, you
T T
admitted to remaining unlawfully in Hong Kong.
U U
CRT33/20.3.2012/AL/lt 1 DCCC33/2012/Sentence
V V
A A
3. On 22 November 2011, at about 10.40 am, field
assistants of the Agriculture, Fisheries and Conservation
B B
Department (AFCD) were patrolling at the Yung Shue Au, Sha Tau
C Kok when they heard sounds of trees being chopped and C
conversations between different people emitting from a nearby
D hillside. Feeling suspicious, they made a report to police. D
Police officers later arrived at the location. They immediately
E E
rushed forward when they saw you and other wanted persons in the
vicinity in the bushes. The other wanted persons escaped, but
F F
you had slipped off the slope and you were subsequently subdued
G by the police officers. They found a hoe, a machete, blue gloves G
and 22 Incense Tree wood blocks and pieces inside a white nylon
H bag. H
I I
4. Under caution, you admitted you came to Hong Kong and
you were taken up a hill and the Incense Tree pieces found in
J J
the white nylon bag were cut down by your boss at the hillside
K
just prior to your arrest. You were to take the bag with the K
wood Incense Tree away that evening. In your cautioned
L statement, you had admitted that the bag was brought along to L
the hillside to put the pieces of cut wood inside to be taken
M away. M
N N
5. You further admitted that the equipment found, such as
the hoe and machete, were brought along to cut the trees. There
O O
was a 210 centimetre Incense Tree which was sawn off and found
P near the area you were arrested. You were asked who had cut this P
section of the trunk and you said under interview it was cut off
Q by that man who was with you. You said in your record of Q
interview that the trunk had been cut off right before the
R R
coppers nabbed you. You knew they were Incense Trees.
S S
6. Mr Y C Yeung has mitigated fully and thoroughly on your
T behalf and I have taken into account all that he has had to say. T
U U
CRT33/20.3.2012/AL/lt 2 DCCC33/2012/Sentence
V V
A A
7. You are 56 years of age and of clear record. You are
married and have two children aged 17 and 20. You are from
B B
Maoming Province in China and your occupation is that of a
C farmer farming Lychee trees. Last year, in November 2011, your C
harvest was not good and therefore you went to Shenzhen to look
D for employment. You had been offered ¥100 renminbi a day D
originally to pick shells, but then the man who employed you had
E E
taken you off in a small boat and went off for about an hour and
arrived at Hong Kong, and there you were told about the cutting
F F
of the Incense Trees.
G G
8. Mr Yeung has submitted in mitigation that it was the
H young buds or wood at the joints of the tree to which your boss H
had cut and to which you were stealing. You believed that if the
I I
buds were cut they would grow back after two years. You admit
that those buds were wrongly cut off. However, you were not
J J
doing it for a huge profit but a mere ¥100 renbinmi a day.
K K
9. The actual tree that was cut down of which your counsel
L Mr Yeung accepts the evidence of the expert, that the stump L
would not be able to survive and therefore as the tree had been
M cut, it was killed. M
N 10. Mr Yueng has mitigated that you are remorseful for your N
misdeeds and you wish to go back to Maoming as soon as possible
O O
to reunite with your family members.
P P
11. In this case, the prosecution has asked for an
Q enhancement of sentence under section 27(2) of the Organized and Q
Serious Crimes Ordinance, namely that the nature and extent of
R any harm, whether direct or indirect, caused to the community by R
recent occurrences of this specified offence.
S S
12. The Court of Appeal on 28 January 2011 in CACC195/2010,
T T
HKSAR v Xie Jinbin, has laid down some guidelines, not tariffs,
U
on cases of stealing Incense Trees. The Court of Appeal in that U
case did not seek to say as excessive a starting point of 3
CRT33/20.3.2012/AL/lt 3 DCCC33/2012/Sentence
V V
A A
years for extraction of wood from Incense Trees by Mainlanders
could be faulted. It also endorsed in that case the enhancement
B B
taken by the trial judge of 25 per cent. The court there held
C that the prime considerations in this type of case is the C
protection of the endangered species and deterrence. The weight
D of the wood blocks stolen is not determinative of the sentence. D
E 13. The factors to be considered are the injury done to the E
tree, the profit-motive and the manner of commission and the
F gravity of the offence. F
G G
14. In the case before me, as was the same in Xie Jinbin,
an expert, Mr Pang Kuen-shum, gave evidence and a report was
H H
submitted. Mr Pang made similar observations as set out at
I paragraph 14 in the Court of Appeal decision. Paragraph 10 is I
reflected similarly in paragraph 11, paragraph 22 in paragraph
J 24, paragraph 23 in paragraph 25 and paragraph 24 in paragraph J
26 in the report before me.
K K
15. In summary, he said at paragraph 11 of the report
L L
before me that the trunks of many large and old trees of
M Aquilaria Sinensis have been illegally cut or felled in an M
unsustainable fashion deliberately for mass extraction of timber
N to the extent that such trees are dead or damaged and likely N
unable to recover. Large and old individual Aquilaria Sinensis
O O
have since become rare in Hong Kong.
P P
16. There is, as I see it, an addition in his report
Q further than that stated in the Court of Appeal case of Xie Q
Jinbin of the cases “getting worse”, I quote,
R R
“is that in the recent cases, relatively smaller but
S mature trees of such species were also subject to S
illegal harvesting. These Incense Trees produce a
valuable fragrant wood which is used for incense and
T for production of a valuable Chinese medicine called T
Chen Xiang.”
U U
CRT33/20.3.2012/AL/lt 4 DCCC33/2012/Sentence
V V
A A
17. In view of the seriousness of the offence and following
the factors and matters stated in the case of Xie Jinbin, I
B B
consider that in this case a starting point of 3 years’
C imprisonment is appropriate for Charge 1. C
D 18. It is clear that the property stolen in this type of D
theft is a protected endangered species. The profit-motive in
E E
this case as estimated by the expert Mr Pang for these wood
pieces was estimated at a total value of HK$102,300. The
F F
defendant had gone along with other wanted persons who were
G there chopping down trees and, as can be seen, one tree was sawn G
just before the officers arrived and that tree was killed. That
H tree can be seen in the photographs in photo album P8, Photos H
11, 12, 13 and 14.
I I
19. Taking a starting point of 3 years’ imprisonment, I
J J
give you full credit for your plea of guilty and reduce that
K
term to one of 2 years’ imprisonment. I accept that this K
sentence should be enhanced and I take a 20 per cent enhancement
L and that shall take your sentence to 2 years and 4 months’ L
imprisonment.
M M
20. You have also pleaded guilty to the illegal remaining
N N
in Hong Kong. There is a very plain long standing tariff for
that offence and you shall be sentenced to 15 months’
O O
imprisonment for that offence, Charge 2.
P P
21. There is a clear authority from the Court of Appeal
Q that sentences involving unlawful remaining offences together Q
with other offences, that the other offence should run
R R
consecutive to the unlawful remaining offence. In those
circumstances, those sentences shall run consecutive to each
S S
other, making a total term of 3 years and 7 months’
T imprisonment. T
U (S. D’Almada Remedios) U
District Judge
CRT33/20.3.2012/AL/lt 5 DCCC33/2012/Sentence
V V
A A
DCCC33/2012
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 33 OF 2012
C ---------------------- C
D
HKSAR D
v.
E E
Su Hegui
F ----------------------- F
G Before: H H Judge S. D’Almada Remedios G
Date: 20 March 2012 at 11.21 am
Present: Mr Sanny Kwong, PP of the Department of Justice, for
H HKSAR H
Mr Yeung Yuk-chun, instructed by Chong, So & Co., for
the Defendant
I I
Offence: (1) Theft (盜竊罪)
(2) Remaining in Hong Kong without the authority of
J the Director of Immigration after having landed J
unlawfully in Hong Kong (在香港非法入境後未得入境事務處處長
授權而留在香港)
K K
---------------------
L L
Reasons for Sentence
M --------------------- M
N 1. Defendant, you have pleaded guilty to two offences. N
The first offence is one of theft, contrary to section 9 of the
O O
Theft Ordinance, and the other is unlawful remaining in Hong
Kong, contrary to section 38(1)(b) of the Immigration Ordinance.
P P
Q 2. You admitted that on 22 November 2011, at the hillside Q
at Yung Shue Au Tsuen, Sha Tau Kok, New Territories in Hong
R Kong, together with a person unknown, stole 1.56 kilograms of R
wood pieces, tree bark, branch with green leaves of Aquilaria
S Sinensis wood commonly known as Incense Tree, the property S
belonging to the Government of the HKSAR. On the same day, you
T T
admitted to remaining unlawfully in Hong Kong.
U U
CRT33/20.3.2012/AL/lt 1 DCCC33/2012/Sentence
V V
A A
3. On 22 November 2011, at about 10.40 am, field
assistants of the Agriculture, Fisheries and Conservation
B B
Department (AFCD) were patrolling at the Yung Shue Au, Sha Tau
C Kok when they heard sounds of trees being chopped and C
conversations between different people emitting from a nearby
D hillside. Feeling suspicious, they made a report to police. D
Police officers later arrived at the location. They immediately
E E
rushed forward when they saw you and other wanted persons in the
vicinity in the bushes. The other wanted persons escaped, but
F F
you had slipped off the slope and you were subsequently subdued
G by the police officers. They found a hoe, a machete, blue gloves G
and 22 Incense Tree wood blocks and pieces inside a white nylon
H bag. H
I I
4. Under caution, you admitted you came to Hong Kong and
you were taken up a hill and the Incense Tree pieces found in
J J
the white nylon bag were cut down by your boss at the hillside
K
just prior to your arrest. You were to take the bag with the K
wood Incense Tree away that evening. In your cautioned
L statement, you had admitted that the bag was brought along to L
the hillside to put the pieces of cut wood inside to be taken
M away. M
N N
5. You further admitted that the equipment found, such as
the hoe and machete, were brought along to cut the trees. There
O O
was a 210 centimetre Incense Tree which was sawn off and found
P near the area you were arrested. You were asked who had cut this P
section of the trunk and you said under interview it was cut off
Q by that man who was with you. You said in your record of Q
interview that the trunk had been cut off right before the
R R
coppers nabbed you. You knew they were Incense Trees.
S S
6. Mr Y C Yeung has mitigated fully and thoroughly on your
T behalf and I have taken into account all that he has had to say. T
U U
CRT33/20.3.2012/AL/lt 2 DCCC33/2012/Sentence
V V
A A
7. You are 56 years of age and of clear record. You are
married and have two children aged 17 and 20. You are from
B B
Maoming Province in China and your occupation is that of a
C farmer farming Lychee trees. Last year, in November 2011, your C
harvest was not good and therefore you went to Shenzhen to look
D for employment. You had been offered ¥100 renminbi a day D
originally to pick shells, but then the man who employed you had
E E
taken you off in a small boat and went off for about an hour and
arrived at Hong Kong, and there you were told about the cutting
F F
of the Incense Trees.
G G
8. Mr Yeung has submitted in mitigation that it was the
H young buds or wood at the joints of the tree to which your boss H
had cut and to which you were stealing. You believed that if the
I I
buds were cut they would grow back after two years. You admit
that those buds were wrongly cut off. However, you were not
J J
doing it for a huge profit but a mere ¥100 renbinmi a day.
K K
9. The actual tree that was cut down of which your counsel
L Mr Yeung accepts the evidence of the expert, that the stump L
would not be able to survive and therefore as the tree had been
M cut, it was killed. M
N 10. Mr Yueng has mitigated that you are remorseful for your N
misdeeds and you wish to go back to Maoming as soon as possible
O O
to reunite with your family members.
P P
11. In this case, the prosecution has asked for an
Q enhancement of sentence under section 27(2) of the Organized and Q
Serious Crimes Ordinance, namely that the nature and extent of
R any harm, whether direct or indirect, caused to the community by R
recent occurrences of this specified offence.
S S
12. The Court of Appeal on 28 January 2011 in CACC195/2010,
T T
HKSAR v Xie Jinbin, has laid down some guidelines, not tariffs,
U
on cases of stealing Incense Trees. The Court of Appeal in that U
case did not seek to say as excessive a starting point of 3
CRT33/20.3.2012/AL/lt 3 DCCC33/2012/Sentence
V V
A A
years for extraction of wood from Incense Trees by Mainlanders
could be faulted. It also endorsed in that case the enhancement
B B
taken by the trial judge of 25 per cent. The court there held
C that the prime considerations in this type of case is the C
protection of the endangered species and deterrence. The weight
D of the wood blocks stolen is not determinative of the sentence. D
E 13. The factors to be considered are the injury done to the E
tree, the profit-motive and the manner of commission and the
F gravity of the offence. F
G G
14. In the case before me, as was the same in Xie Jinbin,
an expert, Mr Pang Kuen-shum, gave evidence and a report was
H H
submitted. Mr Pang made similar observations as set out at
I paragraph 14 in the Court of Appeal decision. Paragraph 10 is I
reflected similarly in paragraph 11, paragraph 22 in paragraph
J 24, paragraph 23 in paragraph 25 and paragraph 24 in paragraph J
26 in the report before me.
K K
15. In summary, he said at paragraph 11 of the report
L L
before me that the trunks of many large and old trees of
M Aquilaria Sinensis have been illegally cut or felled in an M
unsustainable fashion deliberately for mass extraction of timber
N to the extent that such trees are dead or damaged and likely N
unable to recover. Large and old individual Aquilaria Sinensis
O O
have since become rare in Hong Kong.
P P
16. There is, as I see it, an addition in his report
Q further than that stated in the Court of Appeal case of Xie Q
Jinbin of the cases “getting worse”, I quote,
R R
“is that in the recent cases, relatively smaller but
S mature trees of such species were also subject to S
illegal harvesting. These Incense Trees produce a
valuable fragrant wood which is used for incense and
T for production of a valuable Chinese medicine called T
Chen Xiang.”
U U
CRT33/20.3.2012/AL/lt 4 DCCC33/2012/Sentence
V V
A A
17. In view of the seriousness of the offence and following
the factors and matters stated in the case of Xie Jinbin, I
B B
consider that in this case a starting point of 3 years’
C imprisonment is appropriate for Charge 1. C
D 18. It is clear that the property stolen in this type of D
theft is a protected endangered species. The profit-motive in
E E
this case as estimated by the expert Mr Pang for these wood
pieces was estimated at a total value of HK$102,300. The
F F
defendant had gone along with other wanted persons who were
G there chopping down trees and, as can be seen, one tree was sawn G
just before the officers arrived and that tree was killed. That
H tree can be seen in the photographs in photo album P8, Photos H
11, 12, 13 and 14.
I I
19. Taking a starting point of 3 years’ imprisonment, I
J J
give you full credit for your plea of guilty and reduce that
K
term to one of 2 years’ imprisonment. I accept that this K
sentence should be enhanced and I take a 20 per cent enhancement
L and that shall take your sentence to 2 years and 4 months’ L
imprisonment.
M M
20. You have also pleaded guilty to the illegal remaining
N N
in Hong Kong. There is a very plain long standing tariff for
that offence and you shall be sentenced to 15 months’
O O
imprisonment for that offence, Charge 2.
P P
21. There is a clear authority from the Court of Appeal
Q that sentences involving unlawful remaining offences together Q
with other offences, that the other offence should run
R R
consecutive to the unlawful remaining offence. In those
circumstances, those sentences shall run consecutive to each
S S
other, making a total term of 3 years and 7 months’
T imprisonment. T
U (S. D’Almada Remedios) U
District Judge
CRT33/20.3.2012/AL/lt 5 DCCC33/2012/Sentence
V V