DCCC840/2014 HKSAR v. YIM YIU KWAI
AND OTHERS - LawHero
DCCC840/2014
HKSAR v. YIM YIU KWAI
AND OTHERS
區域法院（刑事）HH Judge Woodcock2/12/2014
DCCC840/2014
A A
DCCC 840/2014
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO 840 OF 2014 C
D
---------------------- D
HKSAR
E E
v
F Yim Yiu-kwai (D2) F
Wan Chun-to (D3)
G Li Tak-yau (D4) G
Hip Yu-pun (D5)
Hui Ah-ying (D6)
H H
----------------------
I Before: HH Judge Woodcock I
Date: 3 December 2014 at 12.16 pm
J Present: Ms Chan Sze-yan, (Ag) SPP of the Department of J
Justice, for HKSAR
Miss Yeung Mo-sheung Ann, of Wong & Wong, assigned by
K the Director of Legal Aid, for the 2nd and 4th K
defendants
Mr Wong Ka-hing Daniel, of Wong & Co, assigned by the
L L
Director of Legal Aid, for the 3rd, 5th and 6th
defendants
M Offence: (1) Assisting the passage within Hong Kong of M
unauthorised entrants (協助未獲授權進境者在香港境內的旅程)
(against D1 only)
N (2) Theft (盜竊罪) N
(3) Remaining in Hong Kong without the authority of
O the Director of Immigration after having landed O
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) (against D2 only)
P P
(4) Remaining in Hong Kong without the authority of
the Director of Immigration after having landed
Q unlawfully in Hong Kong (在香港非法入境後未得入境事務處處長 Q
授權而留在香港) (against D3 only)
(5) Remaining in Hong Kong without the authority of
R R
the Director of Immigration after having landed
unlawfully in Hong Kong (在香港非法入境後未得入境事務處處長
S 授權而留在香港) (against D4 only) S
(6) Remaining in Hong Kong without the authority of
the Director of Immigration after having landed
T T
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) (against D5 only)
U (7) Remaining in Hong Kong without the authority of U
the Director of Immigration after having landed
CRT25/3.12.2014/ML 1 DCCC 840/2014/Sentence
V V
A A
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) (against D6 only)
B B
---------------------
C C
Reasons for Sentence
D D
---------------------
E 1. The five defendants before me, D2 to D6 in this case, E
have pleaded guilty to two charges.
F F
2. All five have pleaded guilty to a joint charge, Charge
G G
2, of theft, contrary to Section 9 of the Theft Ordinance, Cap
H 210. They have pleaded guilty to stealing together 71.65 H
kilogrammes of woodchips and bark of Aquilaria sinensis wood,
I commonly known as incense tree. This is an exceptionally large I
haul of wood. The estimated value is HK$3.921 million. All the
J J
wood was found in bags belonging to the five defendants.
K K
3. The defendants have also pleaded guilty to an
L individual charge of remaining in Hong Kong without the L
authority of the Director of Immigration after having landed
M unlawfully in Hong Kong, contrary to Section 38(1)(b) of the M
Immigration Ordinance, Cap 115.
N N
4. The facts of the case are that on 20 June at about 7
O O
pm, the Marine Police spotted a vessel acting suspiciously to
P the south of Lantau. Not long after, the Marine Police P
intercepted a fishing vessel which was towing a boat.
Q Q
5. The 1st defendant of this case was driving the vessel.
R He is jointly charged with the other defendants, but has pleaded R
not guilty.
S S
6. The 2nd to the 6th defendant were also found on board
T T
the vessel near the 1st defendant.
U U
CRT25/3.12.2014/ML 2 DCCC 840/2014/Sentence
V V
A A
7. The police found five backpacks and a separate bag
containing tools. The five backpacks contained this quantity of
B B
woodchips and bark, a total of 71.65 kilogrammes. I do not
C intend to specify what amount was in each bag, as the charge is C
a joint charge. Each defendant claimed one backpack each as
D their own. As this is a joint charge, all are equally culpable D
for the full amount stolen.
E E
8. All defendants are Mainlanders, but hold a deckhand
F F
visa issued by the Immigration Department. This visa has
G restrictions on where and what the defendants can do in Hong G
Kong. They clearly were not working on board a fishing vessel,
H as required, nor travelling between a fishing vessel and two H
designated fish markets. They were not working or present in
I I
Hong Kong according to the visa. Hence, all were charged with
unlawfully remaining in Hong Kong on the date of their arrest.
J J
K
9. The defendants made admissions under caution. Most are K
mixed statements, in that they admit going to cut wood due to a
L lack of income, as there was a fishing moratorium in place L
between June and August, and yet, say they arrived on land to
M find tools and wood already chopped and abandoned. They do not M
actually admit coming here with intent and tools to cut wood for
N N
sale or because they were paid to do it. There are attempts to
excuse or try to distance themselves from the actual act of
O O
cutting and damaging trees.
P P
10. I do not accept that line of explanation.
Q Q
11. They are clearly all five transported here from
R R
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
S S
significant amount of wood. When done, they called the 1st
T defendant to pick them up. This is an organised group with a T
plan.
U U
CRT25/3.12.2014/ML 3 DCCC 840/2014/Sentence
V V
A A
12. As I have said, the amount of wood stolen is
significant and the value enormous. I do not believe they found
B B
by accident wood cut and left there, nor do I believe they cut
C the wood for curing family members’ itchy problems. C
D 13. They may not have been aware of the seriousness of the D
offence and sentences imposed in Hong Kong courts for this
E E
offence, but that, I am afraid, is not a mitigating factor I can
take into account.
F F
G 14. All five defendants’ best mitigation is their plea of G
guilty.
H H
15. I have heard full mitigation put forward on behalf of
I I
all five.
J J
16. The 2nd defendant is 68 years old, married and has
K
been a fisherman all his life. His income is $3,000 a month when K
there is fishing. He has said when he does not fish, he has no
L income, which led to the commission of this offence. L
M 17. The 3rd defendant is 47 years old, likewise, earns M
$3,000 a month as a fisherman. To supplement his income, he also
N N
works as a part-time farmer. He has a family to support,
including three young children, who are unable to study because
O O
of a lack of finances. His wife and his mother are of ill
P health. P
Q 18. The 4th defendant is 63 years old. He too earns $3,000 Q
a month fishing. He too is a breadwinner of his family and has
R R
responsibilities for his wife, his father and a grandson left
with him.
S S
T 19. The 5th defendant is 47 years old, again earns $3,000 T
a month fishing. He has four children and his son was originally
U able to attend a university, but unable ultimately to go because U
CRT25/3.12.2014/ML 4 DCCC 840/2014/Sentence
V V
A A
of financial difficulty. His son has written a letter to the
court explaining that he has had to give up his education to
B B
support his family. The 5th defendant’s wife is also not of good
C health. In addition, his two elderly parents live with them and C
his mother is wheelchair bound.
D D
20. The 6th defendant is a 44-year-old fisherman earning
E E
$3,000 a month. He too has three children to support and a wife.
His parents also rely on him, and not in great health. On top of
F F
that, he has a younger sister, who is epileptic and dependent on
G him and her family. G
H 21. I have had mitigation letters that include medical H
reports and photographs of dependent family members. I have
I I
considered all their contents towards sentencing.
J J
22. As I have said, all five pleaded guilty and this
K
indicates remorse. K
L 23. All, I am sure, are very worried for their family L
members at home, who are dependent on them. I do sympathise for
M the plight of the defendants’ family members. However, the M
defendants should have taken this into account before taking the
N N
risk of coming to Hong Kong to commit an offence here.
O O
24. The prosecution has applied, as is common with theft
P of this wood, to enhance the sentence pursuant to Section P
27(2)(d) of the Organized and Serious Crimes Ordinance, Cap 455,
Q on the grounds of “the nature and extent of any harm, whether Q
direct or indirect, caused to the community by recent
R R
occurrences of” these specified offences.
S S
25. The defendants do not challenge this application nor
T oppose it. They accept the prosecution has basis to make such T
application.
U U
CRT25/3.12.2014/ML 5 DCCC 840/2014/Sentence
V V
A A
26. The prosecution rely on and I have seen the report of
Mr Pang Kuen-shum, the Conservation Officer of the Agriculture,
B B
Fisheries and Conservation Department.
C C
27. He identified the wood and the bark and gave the
D estimated value. He opines there is an increasing trend D
reflected by numerous recent reports of exploitation of incense
E E
trees. He says, because of this, the survival of such trees are
threatened in Hong Kong. In cases of such an application, where
F F
this offence is concerned, 25 per cent increase is often imposed
G by the District Court. G
H 28. I have also considered two often cited authorities: H
HKSAR v Xie Jinbin, CACC 195/2010, and the second authority of
I I
HKSAR v Wen Zelang, CACC 220/2006. Both are well-known
authorities for sentencing thefts of incense tree wood.
J J
K
29. In the first authority, four Mainland Chinese were K
caught stealing 1.181 kilogrammes of wood and had tools in their
L possession. The Court of Appeal upheld the sentencing court’s 3- L
year starting point. The ultimate sentence was also enhanced by
M 25 per cent. The Court of Appeal upheld that enhancement as M
well.
N N
30. In the second authority, there was a theft of 5.6
O O
kilogrammes of incense tree wood and the Court of Appeal there
P upheld the starting point of 3 years’ imprisonment, as well as P
the 25-per-cent enhancement imposed.
Q Q
31. Mr Wong, for the 3rd, 5th and 6th defendant, referred
R R
me to a District Court authority, Gao Huachang & Ors, DCCC
727/2013, and specifically refers to a point made in the
S S
authority of Xie Jinbin, that quantity or the weight of the wood
T stolen should not be the primary consideration for sentencing. T
It is not determinative of sentence.
U U
CRT25/3.12.2014/ML 6 DCCC 840/2014/Sentence
V V
A A
32. That is true, but it must be a relevant consideration,
and here, the amount of wood chopped is very significant.
B B
C 33. The prosecution relies on a very recent Court of C
Appeal decision, HKSAR v Cai Jinyou, CACC 161/2014. Judgment was
D handed down on 26 August 2014. There, the Court of Appeal upheld D
a sentencing point of 3 years and 6 months. That was in a case
E E
where four Mainlanders acted together to steal 21.88 kilogrammes
of incense tree wood.
F F
G 34. Here, the quantity of wood is over three times as much G
as that authority.
H H
35. The Court of Appeal has often said deterrence
I I
sentences are required to deter this activity in Hong Kong. We
must send a strong message to deter Mainland people coming to
J J
Hong Kong to cut, damage and often kill endangered trees for
K
profit. These trees are precious and a natural resource of Hong K
Kong that requires protection.
L L
36. I have considered all the mitigation and authorities
M referred to. M
N N
37. I have considered the facts of this case. I do find it
particularly relevant that there were five defendants who came
O O
together to Hong Kong to commit this joint enterprise. The whole
P of wood stolen is significant and worth nearly HK$4 million. P
Q 38. Defendants, please stand up. Q
R R
39. I will take for Charge 2 a starting point of 3 years
and 9 months.
S S
T 40. All defendants are entitled to a discount of one-third T
for their plea, which will reduce this sentence to 2 years and 6
U months. U
CRT25/3.12.2014/ML 7 DCCC 840/2014/Sentence
V V
A A
41. There is no reason to reduce this any further, where
B B
D3, D5 and D6 is concerned.
C C
42. However, I will, for D2 and D4, as they are over 60
D and 65 respectively, I reduce that sentence by a further 3 D
months. That would reduce that sentence to 2 years and 3 months.
E E
Enhancement
F F
G 43. I will enhance the sentence imposed for Charge 2. G
H 44. I accept prosecution have proved beyond reasonable H
doubt that there are grounds for enhancement.
I I
45. I will enhance sentence by 25 per cent.
J J
K
46. Consequently, D3, D5, D6’s sentence is enhanced by 7 K
months. That is just under 25 per cent. For D3, D5, D6, that
L means a sentence of 3 years and 1 month for Charge 2. L
M 47. For the 2nd and 4th defendant, enhancement of 25 per M
cent would mean an additional 7 months. That is, in fact, just
N N
over 25 per cent. Therefore, they are sentenced for Charge 2 to
2 years and 10 months, 2nd and 4th defendant.
O O
P 48. Each face an additional charge of illegally remaining P
in Hong Kong.
Q Q
49. I referred myself to the authority of So Man King
R R
[1989] 1 HKLR 142. The Court of Appeal held that 15 months is
appropriate for a plea of guilty for this offence. There is no
S S
reason to depart from this authority.
T T
50. Therefore, for 2nd defendant (Charge 3), 3rd defendant
U (Charge 4), 4th defendant (Charge 5), the 5th defendant (Charge U
CRT25/3.12.2014/ML 8 DCCC 840/2014/Sentence
V V
A A
6) and the 6th defendant (Charge 7), I impose a term of 1 year
and 3 months’ sentence.
B B
C 51. I take into account and consider the totality C
principle. I will make 5 months of that 1 year and 3 months’
D sentence concurrent to Charge 2, the balance consecutive. D
E E
52. My order is as follows:
F F
(1) the 2nd defendant:
G Charge 2, 2 years and 10 months; G
Charge 3, 1 year and 3 months.
H 5 months of Charge 3 will be concurrent to Charge H
2. That is a total sentence of 3 years and 8
I I
months;
J J
(2) the 3rd defendant:
K
Charge 2, you are sentenced to 3 years and 1 month; K
Charge 4, 1 year and 3 months.
L 5 months of Charge 4 will be served concurrent to L
Charge 2. That is a total sentence of 3 years and
M 11 months; M
N N
(3) 4th defendant:
Charge 2, you are sentenced to 2 years and 10
O O
months;
P Charge 5, you are sentenced to 1 year and 3 months. P
5 months of Charge 5 will be concurrent to Charge
Q 2. A total of 3 years and 8 months; Q
R R
(4) for D5:
for Charge 2, you are sentenced to 3 years and 1
S S
month;
T for Charge 6, you are sentenced to 1 year and 3 T
months.
U U
CRT25/3.12.2014/ML 9 DCCC 840/2014/Sentence
V V
A A
5 months of Charge 6 will be concurrent to Charge
2. That is a total of 3 years and 11 months;
B B
C (5) the 6th defendant: C
Charge 2, you are sentenced to 3 years and 1 month;
D Charge 7, you are sentenced to 1 year and 3 months. D
5 months of Charge 7 will be served concurrently to
E E
Charge 2. That is a total of 3 years and 11
months.
F F
G G
H H
I I
A. J. Woodcock
District Judge
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT25/3.12.2014/ML 10 DCCC 840/2014/Sentence
V V
A A
DCCC 840/2014
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO 840 OF 2014 C
D
---------------------- D
HKSAR
E E
v
F Yim Yiu-kwai (D2) F
Wan Chun-to (D3)
G Li Tak-yau (D4) G
Hip Yu-pun (D5)
Hui Ah-ying (D6)
H H
----------------------
I Before: HH Judge Woodcock I
Date: 3 December 2014 at 12.16 pm
J Present: Ms Chan Sze-yan, (Ag) SPP of the Department of J
Justice, for HKSAR
Miss Yeung Mo-sheung Ann, of Wong & Wong, assigned by
K the Director of Legal Aid, for the 2nd and 4th K
defendants
Mr Wong Ka-hing Daniel, of Wong & Co, assigned by the
L L
Director of Legal Aid, for the 3rd, 5th and 6th
defendants
M Offence: (1) Assisting the passage within Hong Kong of M
unauthorised entrants (協助未獲授權進境者在香港境內的旅程)
(against D1 only)
N (2) Theft (盜竊罪) N
(3) Remaining in Hong Kong without the authority of
O the Director of Immigration after having landed O
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) (against D2 only)
P P
(4) Remaining in Hong Kong without the authority of
the Director of Immigration after having landed
Q unlawfully in Hong Kong (在香港非法入境後未得入境事務處處長 Q
授權而留在香港) (against D3 only)
(5) Remaining in Hong Kong without the authority of
R R
the Director of Immigration after having landed
unlawfully in Hong Kong (在香港非法入境後未得入境事務處處長
S 授權而留在香港) (against D4 only) S
(6) Remaining in Hong Kong without the authority of
the Director of Immigration after having landed
T T
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) (against D5 only)
U (7) Remaining in Hong Kong without the authority of U
the Director of Immigration after having landed
CRT25/3.12.2014/ML 1 DCCC 840/2014/Sentence
V V
A A
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) (against D6 only)
B B
---------------------
C C
Reasons for Sentence
D D
---------------------
E 1. The five defendants before me, D2 to D6 in this case, E
have pleaded guilty to two charges.
F F
2. All five have pleaded guilty to a joint charge, Charge
G G
2, of theft, contrary to Section 9 of the Theft Ordinance, Cap
H 210. They have pleaded guilty to stealing together 71.65 H
kilogrammes of woodchips and bark of Aquilaria sinensis wood,
I commonly known as incense tree. This is an exceptionally large I
haul of wood. The estimated value is HK$3.921 million. All the
J J
wood was found in bags belonging to the five defendants.
K K
3. The defendants have also pleaded guilty to an
L individual charge of remaining in Hong Kong without the L
authority of the Director of Immigration after having landed
M unlawfully in Hong Kong, contrary to Section 38(1)(b) of the M
Immigration Ordinance, Cap 115.
N N
4. The facts of the case are that on 20 June at about 7
O O
pm, the Marine Police spotted a vessel acting suspiciously to
P the south of Lantau. Not long after, the Marine Police P
intercepted a fishing vessel which was towing a boat.
Q Q
5. The 1st defendant of this case was driving the vessel.
R He is jointly charged with the other defendants, but has pleaded R
not guilty.
S S
6. The 2nd to the 6th defendant were also found on board
T T
the vessel near the 1st defendant.
U U
CRT25/3.12.2014/ML 2 DCCC 840/2014/Sentence
V V
A A
7. The police found five backpacks and a separate bag
containing tools. The five backpacks contained this quantity of
B B
woodchips and bark, a total of 71.65 kilogrammes. I do not
C intend to specify what amount was in each bag, as the charge is C
a joint charge. Each defendant claimed one backpack each as
D their own. As this is a joint charge, all are equally culpable D
for the full amount stolen.
E E
8. All defendants are Mainlanders, but hold a deckhand
F F
visa issued by the Immigration Department. This visa has
G restrictions on where and what the defendants can do in Hong G
Kong. They clearly were not working on board a fishing vessel,
H as required, nor travelling between a fishing vessel and two H
designated fish markets. They were not working or present in
I I
Hong Kong according to the visa. Hence, all were charged with
unlawfully remaining in Hong Kong on the date of their arrest.
J J
K
9. The defendants made admissions under caution. Most are K
mixed statements, in that they admit going to cut wood due to a
L lack of income, as there was a fishing moratorium in place L
between June and August, and yet, say they arrived on land to
M find tools and wood already chopped and abandoned. They do not M
actually admit coming here with intent and tools to cut wood for
N N
sale or because they were paid to do it. There are attempts to
excuse or try to distance themselves from the actual act of
O O
cutting and damaging trees.
P P
10. I do not accept that line of explanation.
Q Q
11. They are clearly all five transported here from
R R
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
S S
significant amount of wood. When done, they called the 1st
T defendant to pick them up. This is an organised group with a T
plan.
U U
CRT25/3.12.2014/ML 3 DCCC 840/2014/Sentence
V V
A A
12. As I have said, the amount of wood stolen is
significant and the value enormous. I do not believe they found
B B
by accident wood cut and left there, nor do I believe they cut
C the wood for curing family members’ itchy problems. C
D 13. They may not have been aware of the seriousness of the D
offence and sentences imposed in Hong Kong courts for this
E E
offence, but that, I am afraid, is not a mitigating factor I can
take into account.
F F
G 14. All five defendants’ best mitigation is their plea of G
guilty.
H H
15. I have heard full mitigation put forward on behalf of
I I
all five.
J J
16. The 2nd defendant is 68 years old, married and has
K
been a fisherman all his life. His income is $3,000 a month when K
there is fishing. He has said when he does not fish, he has no
L income, which led to the commission of this offence. L
M 17. The 3rd defendant is 47 years old, likewise, earns M
$3,000 a month as a fisherman. To supplement his income, he also
N N
works as a part-time farmer. He has a family to support,
including three young children, who are unable to study because
O O
of a lack of finances. His wife and his mother are of ill
P health. P
Q 18. The 4th defendant is 63 years old. He too earns $3,000 Q
a month fishing. He too is a breadwinner of his family and has
R R
responsibilities for his wife, his father and a grandson left
with him.
S S
T 19. The 5th defendant is 47 years old, again earns $3,000 T
a month fishing. He has four children and his son was originally
U able to attend a university, but unable ultimately to go because U
CRT25/3.12.2014/ML 4 DCCC 840/2014/Sentence
V V
A A
of financial difficulty. His son has written a letter to the
court explaining that he has had to give up his education to
B B
support his family. The 5th defendant’s wife is also not of good
C health. In addition, his two elderly parents live with them and C
his mother is wheelchair bound.
D D
20. The 6th defendant is a 44-year-old fisherman earning
E E
$3,000 a month. He too has three children to support and a wife.
His parents also rely on him, and not in great health. On top of
F F
that, he has a younger sister, who is epileptic and dependent on
G him and her family. G
H 21. I have had mitigation letters that include medical H
reports and photographs of dependent family members. I have
I I
considered all their contents towards sentencing.
J J
22. As I have said, all five pleaded guilty and this
K
indicates remorse. K
L 23. All, I am sure, are very worried for their family L
members at home, who are dependent on them. I do sympathise for
M the plight of the defendants’ family members. However, the M
defendants should have taken this into account before taking the
N N
risk of coming to Hong Kong to commit an offence here.
O O
24. The prosecution has applied, as is common with theft
P of this wood, to enhance the sentence pursuant to Section P
27(2)(d) of the Organized and Serious Crimes Ordinance, Cap 455,
Q on the grounds of “the nature and extent of any harm, whether Q
direct or indirect, caused to the community by recent
R R
occurrences of” these specified offences.
S S
25. The defendants do not challenge this application nor
T oppose it. They accept the prosecution has basis to make such T
application.
U U
CRT25/3.12.2014/ML 5 DCCC 840/2014/Sentence
V V
A A
26. The prosecution rely on and I have seen the report of
Mr Pang Kuen-shum, the Conservation Officer of the Agriculture,
B B
Fisheries and Conservation Department.
C C
27. He identified the wood and the bark and gave the
D estimated value. He opines there is an increasing trend D
reflected by numerous recent reports of exploitation of incense
E E
trees. He says, because of this, the survival of such trees are
threatened in Hong Kong. In cases of such an application, where
F F
this offence is concerned, 25 per cent increase is often imposed
G by the District Court. G
H 28. I have also considered two often cited authorities: H
HKSAR v Xie Jinbin, CACC 195/2010, and the second authority of
I I
HKSAR v Wen Zelang, CACC 220/2006. Both are well-known
authorities for sentencing thefts of incense tree wood.
J J
K
29. In the first authority, four Mainland Chinese were K
caught stealing 1.181 kilogrammes of wood and had tools in their
L possession. The Court of Appeal upheld the sentencing court’s 3- L
year starting point. The ultimate sentence was also enhanced by
M 25 per cent. The Court of Appeal upheld that enhancement as M
well.
N N
30. In the second authority, there was a theft of 5.6
O O
kilogrammes of incense tree wood and the Court of Appeal there
P upheld the starting point of 3 years’ imprisonment, as well as P
the 25-per-cent enhancement imposed.
Q Q
31. Mr Wong, for the 3rd, 5th and 6th defendant, referred
R R
me to a District Court authority, Gao Huachang & Ors, DCCC
727/2013, and specifically refers to a point made in the
S S
authority of Xie Jinbin, that quantity or the weight of the wood
T stolen should not be the primary consideration for sentencing. T
It is not determinative of sentence.
U U
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A A
32. That is true, but it must be a relevant consideration,
and here, the amount of wood chopped is very significant.
B B
C 33. The prosecution relies on a very recent Court of C
Appeal decision, HKSAR v Cai Jinyou, CACC 161/2014. Judgment was
D handed down on 26 August 2014. There, the Court of Appeal upheld D
a sentencing point of 3 years and 6 months. That was in a case
E E
where four Mainlanders acted together to steal 21.88 kilogrammes
of incense tree wood.
F F
G 34. Here, the quantity of wood is over three times as much G
as that authority.
H H
35. The Court of Appeal has often said deterrence
I I
sentences are required to deter this activity in Hong Kong. We
must send a strong message to deter Mainland people coming to
J J
Hong Kong to cut, damage and often kill endangered trees for
K
profit. These trees are precious and a natural resource of Hong K
Kong that requires protection.
L L
36. I have considered all the mitigation and authorities
M referred to. M
N N
37. I have considered the facts of this case. I do find it
particularly relevant that there were five defendants who came
O O
together to Hong Kong to commit this joint enterprise. The whole
P of wood stolen is significant and worth nearly HK$4 million. P
Q 38. Defendants, please stand up. Q
R R
39. I will take for Charge 2 a starting point of 3 years
and 9 months.
S S
T 40. All defendants are entitled to a discount of one-third T
for their plea, which will reduce this sentence to 2 years and 6
U months. U
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A A
41. There is no reason to reduce this any further, where
B B
D3, D5 and D6 is concerned.
C C
42. However, I will, for D2 and D4, as they are over 60
D and 65 respectively, I reduce that sentence by a further 3 D
months. That would reduce that sentence to 2 years and 3 months.
E E
Enhancement
F F
G 43. I will enhance the sentence imposed for Charge 2. G
H 44. I accept prosecution have proved beyond reasonable H
doubt that there are grounds for enhancement.
I I
45. I will enhance sentence by 25 per cent.
J J
K
46. Consequently, D3, D5, D6’s sentence is enhanced by 7 K
months. That is just under 25 per cent. For D3, D5, D6, that
L means a sentence of 3 years and 1 month for Charge 2. L
M 47. For the 2nd and 4th defendant, enhancement of 25 per M
cent would mean an additional 7 months. That is, in fact, just
N N
over 25 per cent. Therefore, they are sentenced for Charge 2 to
2 years and 10 months, 2nd and 4th defendant.
O O
P 48. Each face an additional charge of illegally remaining P
in Hong Kong.
Q Q
49. I referred myself to the authority of So Man King
R R
[1989] 1 HKLR 142. The Court of Appeal held that 15 months is
appropriate for a plea of guilty for this offence. There is no
S S
reason to depart from this authority.
T T
50. Therefore, for 2nd defendant (Charge 3), 3rd defendant
U (Charge 4), 4th defendant (Charge 5), the 5th defendant (Charge U
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A A
6) and the 6th defendant (Charge 7), I impose a term of 1 year
and 3 months’ sentence.
B B
C 51. I take into account and consider the totality C
principle. I will make 5 months of that 1 year and 3 months’
D sentence concurrent to Charge 2, the balance consecutive. D
E E
52. My order is as follows:
F F
(1) the 2nd defendant:
G Charge 2, 2 years and 10 months; G
Charge 3, 1 year and 3 months.
H 5 months of Charge 3 will be concurrent to Charge H
2. That is a total sentence of 3 years and 8
I I
months;
J J
(2) the 3rd defendant:
K
Charge 2, you are sentenced to 3 years and 1 month; K
Charge 4, 1 year and 3 months.
L 5 months of Charge 4 will be served concurrent to L
Charge 2. That is a total sentence of 3 years and
M 11 months; M
N N
(3) 4th defendant:
Charge 2, you are sentenced to 2 years and 10
O O
months;
P Charge 5, you are sentenced to 1 year and 3 months. P
5 months of Charge 5 will be concurrent to Charge
Q 2. A total of 3 years and 8 months; Q
R R
(4) for D5:
for Charge 2, you are sentenced to 3 years and 1
S S
month;
T for Charge 6, you are sentenced to 1 year and 3 T
months.
U U
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A A
5 months of Charge 6 will be concurrent to Charge
2. That is a total of 3 years and 11 months;
B B
C (5) the 6th defendant: C
Charge 2, you are sentenced to 3 years and 1 month;
D Charge 7, you are sentenced to 1 year and 3 months. D
5 months of Charge 7 will be served concurrently to
E E
Charge 2. That is a total of 3 years and 11
months.
F F
G G
H H
I I
A. J. Woodcock
District Judge
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
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