DCCC727/2013 HKSAR v. GAO HUACHANG AND OTHERS - LawHero
DCCC727/2013
HKSAR v. GAO HUACHANG AND OTHERS
區域法院（刑事）Deputy District Judge A. Yim12/9/2013
DCCC727/2013
A DCCC727/2013 A
IN THE DISTRICT COURT OF THE
B HONG KONG SPECIAL ADMINISTRATIVE REGION B
CRIMINAL CASE NO.727 OF 2013
--------------------
C C
HKSAR
D D
v.
E GAO Huachang (D1) E
GAO Shixin (D2)
CAI Jingxiang (D3)
F F
G -------------------- G
Before: Deputy District Judge A. Yim
H Date: 13 September 2013 H
Present: Miss Sheroy Tam, SPP, of the Department of Justice, for
I
HKSAR I
Mr Kam Yee Wai Andrew, of Messrs. Kam & Fan, assigned
by the Director of Legal Aid, for all Defendants
J Offences: (1)Theft (盜竊罪) J
(2)-(4) Remaining in Hong Kong without the authority of
the Director of Immigration after having landed
K K
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)
L L
---------------------
M M
Reasons for Sentence
N N
---------------------
O 1. The defendants were jointly charged with theft, O
contrary to section 9 of the Theft Ordinance, Cap.210 and each
was charged with one count of illegal remaining contrary to
P P
section 38(1)(b) of the Immigration Ordinance Cap.115.
Q 2. The defendants pleaded guilty to their respective Q
charges and admitted the facts, they are convicted accordingly.
R Facts R
3. At about 1817 hours on 29 May 2013, whilst conducting
anti-crime patrol along the hillside of Tsim Kong Tung near Yung
S S
Shue Au, Sha Tau Kok, the police spotted 5 males including D1 to
D3 walking into the area. When the police approached the 5 males,
T they attempted to flee. Eventually, the police managed to T
intercept D1 to D3 whilst the other 2 males had escaped.
U U
1
V V
A A
Charge 1
4. Upon search of the rucksacks carried by D1 to D3, the
B police had the following findings: B
(1) Inside D1’s black rucksack were items including:
a) one chopper about 32 cm long;
C C
b) one bending chisel/sickle about 17 cm long;
c) one hoe with 2 mental blades/fixers;
D d) one green coloured bag containing one canvas; and D
e) wood chips of incense tree weighed 9.7kg.
E (2) Inside D2’s black rucksack were items including: E
a) one whetstone about 17 cm long;
b) one chisel/plow about 30 cm long;and
F F
c) wood chips of incense tree weighed 10.4kg.
Also, in the orange coloured bag of D2 further wood
G block of incense tree weighed 6.3kg was found. G
(3) Inside D3’s green rucksack were items including:
H a) one chopper about 32 cm long; H
b) one whetstone about 19 cm long;
I
c) one chisel/plow about 30 cm long; and I
d) wood chips of incense tree weighed 8.8kg.
J J
5. Further, in the green rucksack left behind by one of
the escaped male, the police found:
K a) two whetstones about 12 cm and 18 cm long K
respectively;
L b) one chisel/plow about 30 cm long; and L
c) wood chips of incense tree weighed 9.6kg.
M Charge 2 to 4 M
6. Each of the defendants entered Hong Kong unlawfully
and remaining in Hong Kong without the authority of the Director
N of Immigration between 27 May 2013 and 29 May 2013. N
O 7. Upon examination, it is confirmed that all the wooden O
chips/blocks seized were Aquilaria sinensis (commonly known as
Incense Tree), and they were recently cut from the tree trunks
P of Aquilaria sinensis if not the branches. The value of the P
woods blocks/chips of Incense Tree estimated to be $3,863,000.
Q Q
8. The tools found were tools suitable or tailor-made for
harvesting Incense Tree or fit for tool sharpening.
R R
9. The prosecution case is that the defendants shortly
after they illegally entered Hong Kong, together with other
S persons unknown, stole the Incense Tree by cutting and the total S
Incense Tree involved being 44.8kg in weight.
T T
10. The populations of Aquilaria sinensis have reportedly
been over-exploited or depleted in Hong Kong. The illegal
U harvesting or unsustainable felling of species has caused U
2
V V
A irreplaceable damages to the general natural feature and ecology A
of the natural forests of Hong Kong.
B B
Mitigation
11. D1 aged 36, married with a son and 3 daughters aged
C C
from 17 to 10. He is a Mainland resident and a farmer in home
village. He has a clear record.
D D
12. D2 aged 20, single living with his parents and
siblings. He is a Mainland resident and a farmer in home
E village. He received education up to Form 2, he has a clear E
record.
F F
13. D3 aged 59, married with a son and a daughter aged 26
and 23 respectively. He is a Mainland resident and a farmer in
G home village. He has 1 previous conviction record for going G
equipped for stealing in 2004 of which he was sentenced for 4
weeks, this conviction is 9 years ago, I will treat him as of
H clear record. H
I
14. The defendants all from the same village, they came to I
Hong Kong with 2 other clansmen to steal the Incense Tree by
cutting for profit to support their respective families, they
J thought the value of the woods in question would be about J
¥20,000, they were not aware the value of the woods would be
over $3.8 mils. Each of the defendants submitted a mitigation
K letter to court to show their remorse. K
L L
15. The defence rely on the sentencing principle and
reasoning in HKSAR v Xie Jinbin CACC 195/2010, and urged me to
M adopt the same starting point despite the quantity of Incense M
Trees involved is much more than that in the present case and
that the defendant entered into Hong Kong illegally. The defence
N submitted that the quantity found on the defendant is a matter N
of chance, what the law seeks to achieve is protection of our
O endangered flora, thus the quantity should not be the primary O
consideration. Further the defence urged the court to take into
account of the totality principle and have the sentence of
P illegal remaining partly concurrent with the theft charge. P
Sentencing
Q Q
16. In HKSAR v Wen Zelang CACC 220/2006, the appellant
R together with three other defendants entered Hong Kong on 19 R
March 2006 as visitor. They came with woodchoppers for the
purpose of finding incense trees so that the wood they cut from
S such trees could be sold in the Mainland. On 24 March, they were S
discovered to be carrying wooden blocks weighing 5.6 kg., which
had been cut from a large and mature incense tree on 20 March.
T T
The sentencing judge adopted a starting point of 3 years’
imprisonment for all of them, allowing all the usual 1/3
U discount for their pleas, and then, upon the prosecution’s U
3
V V
A application, enhanced the sentence by 25% under section 27 of A
the Organized and Serious Crimes Ordinance, Cap.455 by reason of
the prevalence of the offence to bring the sentence to 30
B months’ imprisonment. The court of Appeal stated that B
“ …. the judge was right to have taken a serious view of
the offence when the defendants had expressly come to
C C
Hong Kong for the purpose of cutting endangered trees for
profit.
D D
A clear and strong message is needed to deter Mainland
people from coming to Hong Kong to cut endangered trees,
E be they Buddist Pines or incense trees. In our view, E
neither the three-year starting point nor the 25%
enhancement for prevalence of the offence under OSCO is
F F
manifestly excessive.”
G The sentence of the appellant in that case was reduced because G
of his special circumstance being 17 years at time of offence
and one of the defendant is his paternal uncle, who had assumed
H a de facto parental role towards the appellant from a time when H
he was very young and the court was entitled to assume the uncle
I
may have exercised considerable influence over the appellant I
when the appellant decided to embark upon this criminal
enterprise.
J J
17. In HKSAR v Xie Jinbin CACC 195/2010, on 29 March 2010
the appellant together with 3 other males was found cutting tree
K and packing the blocks into their rucksacks at a hillside. When K
the police approached, all of them fled. Later the appellant and
L other 2 were intercepted and arrested; tools and blocks of L
incense tree were found on all three. The total of all blocks of
incense tree was 1.181 kg. All the three entered Hong Kong on 27
M March 2010 with two way permits and were granted leave to stay M
for 7 days. The conservation officer who examined the wood
opined that illegal exploitations of incense tree would threaten
N the natural survival of the native plant. The sentencing judge N
after considering HKSAR v Wen Zelang adopted a starting point of
O 3 years, reduced to 2 years on account of the guilty plea, then O
enhanced the sentence by 25% upon the application of the
prosecution pursuant to section 27(2) of OSCO. Though only 1.181
P kg of wood was found, the sentence was approved by the court of P
appeal. The court of appeal dismissing the appeal stated that:
“While the quantity of stolen goods in a case of theft
Q Q
is usually an important factor in determining the
appropriate sentence, it is not necessarily the only
R and determinative factor. … where the stolen property R
involved is a protected endangered species, the
considerations are wholly different. The end which the
S law seeks to achieve is protection of our endangered S
flora. Thus, the evil which the law seeks to prevent
is not theft as such but injury to the protected flora.
T T
:
:
U U
4
V V
A … The Applicant is not to be punished only according A
to the weight of the wood block he has stolen, but
according to the enterprise he and the other three
B offenders had collectively participated in and the B
seriousness of the offence. The Applicant and three
others come to Hong Kong in a joint enterprise with the
C C
intention to exploit our endangered flora for profit.
They equipped themselves with a knife, hoe and saw.
D They acted as a group. The offence was clearly D
premeditated. The four of them were seen cutting the
tree and packing the blocks into their rucksacks,
E though only three of them were arrested. The offence E
is one which calls for deterrence.”
F F
18. In the present case, the defendants together with the
G other 2 escaped males equipped themselves with tools suitable or G
tailor-made for harvesting Incense Tree. They came to Hong Kong
in a joint enterprise with the intention to exploit our
H endangered flora for profit. The offence was clearly H
premeditated. The total quantity involved is 44.8kg, which is
I
exactly 8 times of that found in the case of Wen Zelang. I
Although the end which the law seeks to achieve is protection of
our endangered flora, where the quantity involved is
J significant, proper consideration should be given to that. I J
consider the appropriate starting point for the theft charge to
be 3.5 years’ imprisonment.
K K
19. The defendants entitled to 1/3 discount for their
L pleas respectively, the sentence is thus reduced to 28 months. L
For D2 he is the youngest one, he was born on 15 July 1993, and
was 19 at time of the offence, all the defendants come from the
M same village, I am entitle to assume the defendants may have M
exercised considerable influence over the D2, taking all these
into account, I consider it is appropriate to reduce his
N sentence on the theft charge by 4 months down to 24 months. For N
the other 2 defendants I do not consider there is any mitigating
O factor that called for further deduction. O
20. The prosecution applies for enhancement of sentence of
P the theft charge pursuant to section 27(2) of the Organized and P
Serious Crimes Ordinance, Cap.455 on the ground that the nature
and extent of any harm, whether direct or indirect, caused to
Q Q
the community by recent occurrence of this specified offence.
The notice of the application was duly served to the defendants.
R R
21. In support of the application, the prosecution submits
the statement of Mr Pang Kuen-shum, the conservation officer of
S the Agriculture Fisheries and Conservation Department dated 8 S
September 2013. The defence did not object to the application
and did not take issue of the content of the statement, and
T T
conceded the prosecution has made out her ground.
U U
5
V V
A 22. Mr Pang stated that from the point of view of flora A
conservation in Hong Kong, as those populations in other parts
of China are reportedly over-exploited and depleted, the local
B populations of Aquilaria sinensis represent likely some of the B
remaining healthy populations in China. The plant communities to
which local populations of Aquilaria sinensis belong (lowland
C C
broadleaved forests and fung shui woods) have been well-
preserved by both former villagers and local legislations, and
D are considered of conservation value. Most illegal exploitations D
of the species involve the use of unsustainable method of
harvesting, which caused undesirable impact to the survival of
E Aquilaria sinensis, particularly the larger individuals. And he E
is of the view that the illegal exploitations would threaten the
natural survival of the native plant Aquilaria sinensis.
F F
23. After consideration, I am satisfied beyond reasonable
G doubt that the ground for enhancement is made out. G
24. Taking into account of all the circumstances, I
H considered that the sentence should be enhanced by 25%. H
Consequently, the sentence on the theft charge becomes 35 months
I
for D1 and D3 and 30 months for D2. I
25. For illegal remaining in Hong Kong, I refer to the
J tariff in So Man-king [1989] 1 HKLR 142, and I consider that J
nothing in their mitigation called for departure from the
tariff. Upon their own plea they are sentenced to 15 months’
K imprisonment for their respective illegal remaining charge. K
L 26. The theft and the illegal remaining charges were L
separate offences, and part of the sentences should be served
consecutively. Having considered the totality principle, I order
M 3 months of the sentence imposed on the illegal remaining charge M
to be served consecutively with that of the first charge, making
a total sentence of 38 months’ imprisonment in case of D1 and D3
N and 33 months’ imprisonment in case of D2. N
O O
Order
D1
P Charge 1 sentenced to 35 months imprisonment; P
Charge 2 sentenced to 15 months imprisonment, 3 months of which
be served consecutively with charge 1;
Q Q
making a total of 38 months imprisonment.
R D2 R
Charge 1 sentenced to 30 months imprisonment;
Charge 3 sentenced to 15 months imprisonment, 3 months of which
S be served consecutively with charge 1; S
making a total of 33 months imprisonment.
T T
D3
Charge 1 sentenced to 35 months imprisonment;
U U
6
V V
A Charge 4 sentenced to 15 months imprisonment, 3 months of which A
be served consecutively with charge 1;
making a total of 38 months imprisonment.
B B
C C
A. Yim
D Deputy District Judge D
E E
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
7
V V
A DCCC727/2013 A
IN THE DISTRICT COURT OF THE
B HONG KONG SPECIAL ADMINISTRATIVE REGION B
CRIMINAL CASE NO.727 OF 2013
--------------------
C C
HKSAR
D D
v.
E GAO Huachang (D1) E
GAO Shixin (D2)
CAI Jingxiang (D3)
F F
G -------------------- G
Before: Deputy District Judge A. Yim
H Date: 13 September 2013 H
Present: Miss Sheroy Tam, SPP, of the Department of Justice, for
I
HKSAR I
Mr Kam Yee Wai Andrew, of Messrs. Kam & Fan, assigned
by the Director of Legal Aid, for all Defendants
J Offences: (1)Theft (盜竊罪) J
(2)-(4) Remaining in Hong Kong without the authority of
the Director of Immigration after having landed
K K
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)
L L
---------------------
M M
Reasons for Sentence
N N
---------------------
O 1. The defendants were jointly charged with theft, O
contrary to section 9 of the Theft Ordinance, Cap.210 and each
was charged with one count of illegal remaining contrary to
P P
section 38(1)(b) of the Immigration Ordinance Cap.115.
Q 2. The defendants pleaded guilty to their respective Q
charges and admitted the facts, they are convicted accordingly.
R Facts R
3. At about 1817 hours on 29 May 2013, whilst conducting
anti-crime patrol along the hillside of Tsim Kong Tung near Yung
S S
Shue Au, Sha Tau Kok, the police spotted 5 males including D1 to
D3 walking into the area. When the police approached the 5 males,
T they attempted to flee. Eventually, the police managed to T
intercept D1 to D3 whilst the other 2 males had escaped.
U U
1
V V
A A
Charge 1
4. Upon search of the rucksacks carried by D1 to D3, the
B police had the following findings: B
(1) Inside D1’s black rucksack were items including:
a) one chopper about 32 cm long;
C C
b) one bending chisel/sickle about 17 cm long;
c) one hoe with 2 mental blades/fixers;
D d) one green coloured bag containing one canvas; and D
e) wood chips of incense tree weighed 9.7kg.
E (2) Inside D2’s black rucksack were items including: E
a) one whetstone about 17 cm long;
b) one chisel/plow about 30 cm long;and
F F
c) wood chips of incense tree weighed 10.4kg.
Also, in the orange coloured bag of D2 further wood
G block of incense tree weighed 6.3kg was found. G
(3) Inside D3’s green rucksack were items including:
H a) one chopper about 32 cm long; H
b) one whetstone about 19 cm long;
I
c) one chisel/plow about 30 cm long; and I
d) wood chips of incense tree weighed 8.8kg.
J J
5. Further, in the green rucksack left behind by one of
the escaped male, the police found:
K a) two whetstones about 12 cm and 18 cm long K
respectively;
L b) one chisel/plow about 30 cm long; and L
c) wood chips of incense tree weighed 9.6kg.
M Charge 2 to 4 M
6. Each of the defendants entered Hong Kong unlawfully
and remaining in Hong Kong without the authority of the Director
N of Immigration between 27 May 2013 and 29 May 2013. N
O 7. Upon examination, it is confirmed that all the wooden O
chips/blocks seized were Aquilaria sinensis (commonly known as
Incense Tree), and they were recently cut from the tree trunks
P of Aquilaria sinensis if not the branches. The value of the P
woods blocks/chips of Incense Tree estimated to be $3,863,000.
Q Q
8. The tools found were tools suitable or tailor-made for
harvesting Incense Tree or fit for tool sharpening.
R R
9. The prosecution case is that the defendants shortly
after they illegally entered Hong Kong, together with other
S persons unknown, stole the Incense Tree by cutting and the total S
Incense Tree involved being 44.8kg in weight.
T T
10. The populations of Aquilaria sinensis have reportedly
been over-exploited or depleted in Hong Kong. The illegal
U harvesting or unsustainable felling of species has caused U
2
V V
A irreplaceable damages to the general natural feature and ecology A
of the natural forests of Hong Kong.
B B
Mitigation
11. D1 aged 36, married with a son and 3 daughters aged
C C
from 17 to 10. He is a Mainland resident and a farmer in home
village. He has a clear record.
D D
12. D2 aged 20, single living with his parents and
siblings. He is a Mainland resident and a farmer in home
E village. He received education up to Form 2, he has a clear E
record.
F F
13. D3 aged 59, married with a son and a daughter aged 26
and 23 respectively. He is a Mainland resident and a farmer in
G home village. He has 1 previous conviction record for going G
equipped for stealing in 2004 of which he was sentenced for 4
weeks, this conviction is 9 years ago, I will treat him as of
H clear record. H
I
14. The defendants all from the same village, they came to I
Hong Kong with 2 other clansmen to steal the Incense Tree by
cutting for profit to support their respective families, they
J thought the value of the woods in question would be about J
¥20,000, they were not aware the value of the woods would be
over $3.8 mils. Each of the defendants submitted a mitigation
K letter to court to show their remorse. K
L L
15. The defence rely on the sentencing principle and
reasoning in HKSAR v Xie Jinbin CACC 195/2010, and urged me to
M adopt the same starting point despite the quantity of Incense M
Trees involved is much more than that in the present case and
that the defendant entered into Hong Kong illegally. The defence
N submitted that the quantity found on the defendant is a matter N
of chance, what the law seeks to achieve is protection of our
O endangered flora, thus the quantity should not be the primary O
consideration. Further the defence urged the court to take into
account of the totality principle and have the sentence of
P illegal remaining partly concurrent with the theft charge. P
Sentencing
Q Q
16. In HKSAR v Wen Zelang CACC 220/2006, the appellant
R together with three other defendants entered Hong Kong on 19 R
March 2006 as visitor. They came with woodchoppers for the
purpose of finding incense trees so that the wood they cut from
S such trees could be sold in the Mainland. On 24 March, they were S
discovered to be carrying wooden blocks weighing 5.6 kg., which
had been cut from a large and mature incense tree on 20 March.
T T
The sentencing judge adopted a starting point of 3 years’
imprisonment for all of them, allowing all the usual 1/3
U discount for their pleas, and then, upon the prosecution’s U
3
V V
A application, enhanced the sentence by 25% under section 27 of A
the Organized and Serious Crimes Ordinance, Cap.455 by reason of
the prevalence of the offence to bring the sentence to 30
B months’ imprisonment. The court of Appeal stated that B
“ …. the judge was right to have taken a serious view of
the offence when the defendants had expressly come to
C C
Hong Kong for the purpose of cutting endangered trees for
profit.
D D
A clear and strong message is needed to deter Mainland
people from coming to Hong Kong to cut endangered trees,
E be they Buddist Pines or incense trees. In our view, E
neither the three-year starting point nor the 25%
enhancement for prevalence of the offence under OSCO is
F F
manifestly excessive.”
G The sentence of the appellant in that case was reduced because G
of his special circumstance being 17 years at time of offence
and one of the defendant is his paternal uncle, who had assumed
H a de facto parental role towards the appellant from a time when H
he was very young and the court was entitled to assume the uncle
I
may have exercised considerable influence over the appellant I
when the appellant decided to embark upon this criminal
enterprise.
J J
17. In HKSAR v Xie Jinbin CACC 195/2010, on 29 March 2010
the appellant together with 3 other males was found cutting tree
K and packing the blocks into their rucksacks at a hillside. When K
the police approached, all of them fled. Later the appellant and
L other 2 were intercepted and arrested; tools and blocks of L
incense tree were found on all three. The total of all blocks of
incense tree was 1.181 kg. All the three entered Hong Kong on 27
M March 2010 with two way permits and were granted leave to stay M
for 7 days. The conservation officer who examined the wood
opined that illegal exploitations of incense tree would threaten
N the natural survival of the native plant. The sentencing judge N
after considering HKSAR v Wen Zelang adopted a starting point of
O 3 years, reduced to 2 years on account of the guilty plea, then O
enhanced the sentence by 25% upon the application of the
prosecution pursuant to section 27(2) of OSCO. Though only 1.181
P kg of wood was found, the sentence was approved by the court of P
appeal. The court of appeal dismissing the appeal stated that:
“While the quantity of stolen goods in a case of theft
Q Q
is usually an important factor in determining the
appropriate sentence, it is not necessarily the only
R and determinative factor. … where the stolen property R
involved is a protected endangered species, the
considerations are wholly different. The end which the
S law seeks to achieve is protection of our endangered S
flora. Thus, the evil which the law seeks to prevent
is not theft as such but injury to the protected flora.
T T
:
:
U U
4
V V
A … The Applicant is not to be punished only according A
to the weight of the wood block he has stolen, but
according to the enterprise he and the other three
B offenders had collectively participated in and the B
seriousness of the offence. The Applicant and three
others come to Hong Kong in a joint enterprise with the
C C
intention to exploit our endangered flora for profit.
They equipped themselves with a knife, hoe and saw.
D They acted as a group. The offence was clearly D
premeditated. The four of them were seen cutting the
tree and packing the blocks into their rucksacks,
E though only three of them were arrested. The offence E
is one which calls for deterrence.”
F F
18. In the present case, the defendants together with the
G other 2 escaped males equipped themselves with tools suitable or G
tailor-made for harvesting Incense Tree. They came to Hong Kong
in a joint enterprise with the intention to exploit our
H endangered flora for profit. The offence was clearly H
premeditated. The total quantity involved is 44.8kg, which is
I
exactly 8 times of that found in the case of Wen Zelang. I
Although the end which the law seeks to achieve is protection of
our endangered flora, where the quantity involved is
J significant, proper consideration should be given to that. I J
consider the appropriate starting point for the theft charge to
be 3.5 years’ imprisonment.
K K
19. The defendants entitled to 1/3 discount for their
L pleas respectively, the sentence is thus reduced to 28 months. L
For D2 he is the youngest one, he was born on 15 July 1993, and
was 19 at time of the offence, all the defendants come from the
M same village, I am entitle to assume the defendants may have M
exercised considerable influence over the D2, taking all these
into account, I consider it is appropriate to reduce his
N sentence on the theft charge by 4 months down to 24 months. For N
the other 2 defendants I do not consider there is any mitigating
O factor that called for further deduction. O
20. The prosecution applies for enhancement of sentence of
P the theft charge pursuant to section 27(2) of the Organized and P
Serious Crimes Ordinance, Cap.455 on the ground that the nature
and extent of any harm, whether direct or indirect, caused to
Q Q
the community by recent occurrence of this specified offence.
The notice of the application was duly served to the defendants.
R R
21. In support of the application, the prosecution submits
the statement of Mr Pang Kuen-shum, the conservation officer of
S the Agriculture Fisheries and Conservation Department dated 8 S
September 2013. The defence did not object to the application
and did not take issue of the content of the statement, and
T T
conceded the prosecution has made out her ground.
U U
5
V V
A 22. Mr Pang stated that from the point of view of flora A
conservation in Hong Kong, as those populations in other parts
of China are reportedly over-exploited and depleted, the local
B populations of Aquilaria sinensis represent likely some of the B
remaining healthy populations in China. The plant communities to
which local populations of Aquilaria sinensis belong (lowland
C C
broadleaved forests and fung shui woods) have been well-
preserved by both former villagers and local legislations, and
D are considered of conservation value. Most illegal exploitations D
of the species involve the use of unsustainable method of
harvesting, which caused undesirable impact to the survival of
E Aquilaria sinensis, particularly the larger individuals. And he E
is of the view that the illegal exploitations would threaten the
natural survival of the native plant Aquilaria sinensis.
F F
23. After consideration, I am satisfied beyond reasonable
G doubt that the ground for enhancement is made out. G
24. Taking into account of all the circumstances, I
H considered that the sentence should be enhanced by 25%. H
Consequently, the sentence on the theft charge becomes 35 months
I
for D1 and D3 and 30 months for D2. I
25. For illegal remaining in Hong Kong, I refer to the
J tariff in So Man-king [1989] 1 HKLR 142, and I consider that J
nothing in their mitigation called for departure from the
tariff. Upon their own plea they are sentenced to 15 months’
K imprisonment for their respective illegal remaining charge. K
L 26. The theft and the illegal remaining charges were L
separate offences, and part of the sentences should be served
consecutively. Having considered the totality principle, I order
M 3 months of the sentence imposed on the illegal remaining charge M
to be served consecutively with that of the first charge, making
a total sentence of 38 months’ imprisonment in case of D1 and D3
N and 33 months’ imprisonment in case of D2. N
O O
Order
D1
P Charge 1 sentenced to 35 months imprisonment; P
Charge 2 sentenced to 15 months imprisonment, 3 months of which
be served consecutively with charge 1;
Q Q
making a total of 38 months imprisonment.
R D2 R
Charge 1 sentenced to 30 months imprisonment;
Charge 3 sentenced to 15 months imprisonment, 3 months of which
S be served consecutively with charge 1; S
making a total of 33 months imprisonment.
T T
D3
Charge 1 sentenced to 35 months imprisonment;
U U
6
V V
A Charge 4 sentenced to 15 months imprisonment, 3 months of which A
be served consecutively with charge 1;
making a total of 38 months imprisonment.
B B
C C
A. Yim
D Deputy District Judge D
E E
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
7
V V