A A
B B
DCCC 654/2021
C [2022] HKDC 572 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 654 OF 2021
F F
G ------------------------------- G
HKSAR
H H
v
I WANG HUASEN I
-------------------------------
J J
K Before: His Honour Judge Tam K
Date: 9 June 2022
L L
Present: Mr Ho Jeff C L, Counsel on fiat, for HKSAR
M Mr Wu Kam Fun Roderick, instructed by Tangs Solicitors, M
assigned by the Director of Legal Aid, for the defendant
N N
Offences: [1] Conspiracy to export specimens of Appendix II species
O without a licence (串謀在沒有許可證的情況下出口附錄II O
P
物種的標本) P
[2] Remaining in Hong Kong without the authority of the
Q Q
Director of Immigration after having landed unlawfully in
R Hong Kong (在香港非法入境後未得入境事務處處長授權 R
而留在香港)
S S
T T
U U
V V
-2-
A A
B B
---------------------------------------
C REASONS FOR SENTENCE C
---------------------------------------
D D
E 1. Mr Wang pleaded guilty before me to two charges on a E
Charge Sheet as follows.
F F
G 2. Charge 1 is Conspiracy to export specimens of Appendix II G
species without a licence, contrary to section 13 of the Protection of
H H
Endangered Species of Animals and Plants Ordinance, Cap 586, and
I sections 159A and 159C of the Crimes Ordinance, Cap 200. I
J J
3. Particulars of Charge 1 are that he, on or about 1 December
K 2020, in Hong Kong or elsewhere, conspired with a person known as K
“Ming Chai”, to export specimens of Appendix II species, namely 9.338
L L
kilogrammes of wood chips and barks of Aquilaria sinensis wood
M commonly known as Incense Tree, without a licence issued in respect of M
that specimen under section 23(1)(c) of the Protection of Endangered
N N
Species of Animals and Plants Ordinance, Cap 586, prior to the export.
O O
4. Charge 2 is Remaining in Hong Kong without the authority of
P P
the Director of Immigration after having landed unlawfully in Hong Kong,
Q contrary to section38(1)(b) of the Immigration Ordinance, Cap 115. Q
R R
5. Particulars of Charge 2 are that he, on 1 December 2020,
S having landed in Hong Kong unlawfully, remained in Hong Kong without S
the authority of the Director of Immigration.
T T
U U
V V
-3-
A A
B B
Facts admitted by Mr Wang
C C
6. Mr Wang was a Mainland resident and a holder of a two-way
D D
permit. Travel movement record showed that he did not enter Hong Kong
E on the strength of his two-way permit through proper immigration channels E
at the material time. He remained in Hong Kong as an illegal immigrant.
F F
G 7. On 1 December 2020, shortly after 12 noon, near Tsiu Hang G
Nature Trail in Sai Kung, Mr Wang was opening a big nylon bag behind
H H
some bushes with an unknown man. Police took overt action and revealed
I their identity and asked what the duo were doing. Both men fled leaving I
behind the big nylon bag.
J J
K 8. Mr Wang was subdued and arrested at a nearby lamppost K
whereas the unknown man successfully escaped. In the waist bag carried
L L
by Mr Wang were found two pieces of suspected Incense Tree chips.
M Under caution, Mr Wang said the wood chips were given to him by a M
friend.
N N
O 9. Mr Wang was escorted back to where the big nylon bag was. O
Inside it, there were found two bags of rice, a few bottles of soft drinks,
P P
five packets of suspected Incense Tree chips and barks, a black backpack
Q and a red backpack. Q
R R
10. In the black backpack, there were a chopper and four
S whetstones. In the red backpack, there were a wooden stick and a saw S
blade knife.
T T
U U
V V
-4-
A A
B B
11. Mr Wang admitted at the scene that the black backpack
C belonged to him. Under caution, he stated that the chopper was given to C
him by a friend.
D D
E 12. Under caution in a later VRI, Mr Wang stated that the red E
backpack belonged to the unknown man who had made good the escape.
F F
In addition, Mr Wang said:-
G G
(a) He sneaked into Hong Kong from Yantian, Shenzhen,
H H
by a speedboat around 0400 to 0500 hours on the
I subject day; he landed at an unknown shore within I
Hong Kong;
J J
K (b) He met “Ming Chai” ie the unknown man near that K
shore; both of them came from the same village; Ming
L L
Chai recruited him to “move” Incense Trees at a daily
M wage of RMB400; he had already received RMB3,000 M
from Ming Chai;
N N
O (c) He knew it was illegal to come to Hong Kong to “move O
things like that”; he had not used any of the tools seized;
P P
Q (d) He and Ming Chai had spent some time walking and Q
eating on the hill before they found the nylon bag
R R
together with its contents on the hill; Ming Chai then
S gave him two pieces of wood chips taken from the S
nylon bag as rewards, which he put inside his waist bag;
T T
he and Ming Chai then carried the nylon bag with
U U
V V
-5-
A A
B B
contents down the hill and took a taxi to Tsiu Hang, Sai
C Kung. C
D D
13. The location in Tsiu Hang where Mr Wang was intercepted
E by the police was only 170 metres away from a shoreline where a boat may E
moor and passengers may embark.
F F
G 14. Conservation officer Dr Tsang of the Agriculture, Fisheries G
and Conservation Department (AFCD) opined that:-
H H
I (a) The wood chips and barks found in the present case I
were agarwood and barks respectively of Aquilaria
J J
sinensis, commonly known as “Incense Trees”; they
K were specimens of an Appendix II species protected K
under the Protection of Endangered Species of Animals
L L
and Plants Ordinance, Cap 586;
M M
(b) The specimens weighed 9.338 kg in total and were
N N
valued at over $1.99M; in particular, the two pieces of
O wood chips found in Mr Wang’s waist bag were O
agarwood valued at around $7,600;
P P
Q (c) The tools found were fit for cutting Incense Trees and Q
harvesting agarwood; and
R R
S S
T T
U U
V V
-6-
A A
B B
(d) The illegal felling of Incense Trees and the illegal
C harvesting of agarwood in Hong Kong would cause C
irreparable damage to the species and threaten its
D D
natural survival.
E E
15. Based on the colour of the cut surfaces and the colour of the
F F
mosses attached to the agarwood and the Incense Tree barks, Dr Tsang
G took the view that they were freshly cut; but they were not freshly cut from G
the Incense Trees that grew in the vicinity of the arrest location.
H H
I 16. Mr Wang and Ming Chai were not exempted or licensed to I
export Incense Tree chips and barks and agarwood out of Hong Kong at
J J
the material time.
K K
Criminal record
L L
M 17. Mr Wang has a clear record in Hong Kong. M
N N
Antecedents
O O
18. Mr Wang is aged 30 (28 at the time of the offence), a resident
P P
of the Mainland where he completed junior high education. He was a
Q farmer. He was living with his wife and two children (both under 10 years Q
old).
R R
S S
T T
U U
V V
-7-
A A
B B
Mitigation
C C
19. Mr Roderick Wu of counsel assigned by the Director of Legal
D D
Aid mitigated on behalf of Mr Wang. The following is a summary of the
E mitigation submissions. E
F F
20. Mr Wang pleaded guilty showing remorse. He made full and
G frank confession to the police. G
H H
21. Mr Wang’s wife is a housewife. His parents are farming
I workers. Their income was unable to meet both ends. Mr Wang used to I
be a part-time construction-site worker, earning RMB200 a day.
J J
K 22. Mr Wang committed the offence for economic reasons. K
L L
23. One day at the end of November 2020, a friend called “Ming
M Chai” of the same village advised him to come to Hong Kong to export M
some expensive woods back to his native place for sale. Mr Wang agreed
N N
and told his wife he would be home in a couple of days.
O O
24. Mr Wu asked the court to adopt a lower starting point of
P P
sentence and asked for the customary 1/3 discount.
Q Q
25. Mr Wu accepted that the nature of the two offences were quite
R R
different; yet he asked for concurrent sentences on the basis that the
S offences occurred on the same date and had a close relationship. S
T T
U U
V V
-8-
A A
B B
26. In relation to the prosecution’s invitation to enhance the
C sentence on Charge 1, after hearing prosecution’s earlier submission, C
Mr Wu changed his position from “no observations to make” as appeared
D D
in his written mitigation to one of “should not be entertained” or “should
E not be necessary” because, as Mr Wu said, “Conspiracy to export [incense E
tree parts]” is not a fashionable crime.
F F
G 27. Mr Wu submitted the following sentencing cases to the court:- G
H H
(a) HKSAR v Lau Chu Kam, CACC 114/2013;
I I
(b) HKSAR v Xie Jinbin, CACC 195/2010;
J J
K (c) HKSAR v Yang Yamin (transliteration), K
DCCC 185/2019 (Chinese Reasons for Sentence);
L L
M (d) HKSAR v Tse Shing Yung (transliteration), M
DCCC 955/2018 (Chinese Reasons for Sentence); and
N N
O (e) HKSAR v Yeung Law Fai (transliteration), O
DCCC 765/2018 (Chinese Reasons for Sentence).
P P
Q 28. Mr Wu submitted a mitigation letter in Chinese (with English Q
translation) written by Mr Wang’s wife. The contents are generally that
R R
Mr Wang was the sole bread winner; that because of what happened, she
S had to go out to work leaving the children home; she asked for a lenient S
sentence so that her husband may return home earlier.
T T
U U
V V
-9-
A A
B B
29. Today, Mr Wu handed up another letter purportedly written
C by Mr Wang himself in Chinese (without English translation). After the C
court has raised with Mr Wu certain irregularities on the face of and in the
D D
contents of the letter, Mr Wu asked the court to disregard the letter
E completely. E
F F
Sentence
G G
30. I have had regard to all the cases referred to by the prosecution
H H
and Mr Wu.
I I
31. I found Mr Wang knew all along what he came to do in Hong
J J
Kong was illegal.
K K
32. The maximum penalty for the offence subject of Charge 1 is
L L
a fine of $1M and imprisonment for 7 years.
M M
33. Prosecution sought to furnish information to the court under
N N
27(2)(d) of the Organized and Serious Crimes Ordinance, Cap 455, namely
O information regarding “the nature and extent of any harm, whether direct O
or indirect, caused to the community by recent occurrences of [the]
P P
specified offence”, the specified offence being the subject of Charge 1,
Q namely Conspiracy to export specimens of Appendix II species without a Q
licence.
R R
S S
T T
U U
V V
- 10 -
A A
B B
34. The information consisted of 3 witness statements of
C Dr Tsang Ho Leung, a Conservation Officer of AFCD, taken between C
February and June 2021, and a witness statement of Detective Inspector of
D D
Police Li Man Yau dated 22 January 2021.
E E
35. Mr Wang did not object to the reception of the information,
F F
nor did he seek to furnish information regarding the same matter.
G G
36. I received the prosecution’s information.
H H
I 37. Under section 27(11) of Cap 455, where a court is satisfied I
beyond reasonable doubt as to the said information, the court shall have
J J
regard to the information when it passes a sentence for the relevant
K specified offence and may, if it thinks fit, pass a sentence on the defendant K
for that offence that is more severe.
L L
M 38. Having gone through all the witness statements, although I am M
satisfied to the required standard that some harm would have been caused,
N N
either directly or indirectly, to the Hong Kong community by occurrences
O of the particular specified offence in this case, namely, Conspiracy to O
export specimens of Appendix II species without a licence, the police
P P
statistics (which ran only up to the end of 2020) do not show there have
Q been recent occurrences of this particular specified offence. Not only were Q
there no statistics for 2021, what statistics there were did not show there
R R
was any occurrence of this specified offence in 2019 or 2020.
S S
T T
U U
V V
- 11 -
A A
B B
39. As a result, even if I were to accept all of the information
C furnished by the prosecution, I would not have been able to enhance the C
sentence by reason of the “nature and extent of harm caused to the
D D
community by recent occurrences of the specified offence”.
E E
40. I therefore decline to enhance the sentence on Charge 1.
F F
G 41. According to HKSAR v Liao Youguang, CACC 46/2019, and G
HKSAR v Xie Jinbin, CACC 195/2010, the appropriate starting point for a
H H
case of unlawful exporting of incense wood without aggravating factors is
I 3 years’ imprisonment. However, the present case involves a conspiracy I
and the actual part-execution of that conspiracy with the named co-
J J
conspirator. This constitutes an aggravating factor. Another aggravating
K factor is Mr Wang came to Hong Kong specifically to commit the offence K
of unlawful exporting.
L L
M 42. For these 2 aggravating factors, I take a starting point of M
3 years 6 months for Charge 1.
N N
O 43. For Charge 2, according to R v So Man King & Ors [1989] O
1 HKLR 142, the tariff sentence for Unlawful remaining is 15 months’
P P
imprisonment after a plea of guilty. In principle, subject only to totality,
Q this sentence ought to be served consecutively. Q
R R
44. Mr Wang pleaded guilty in good time and so is entitled to the
S full 1/3 discount on Charge 1. For his clear record, I shall take off an extra S
month from the sentence on Charge 1 after the 1/3 reduction. I can see no
T T
other mitigating factors of weight to justify any further reduction.
U U
V V
- 12 -
A A
B B
C 45. I pass the following sentences on Mr Wang. C
D D
(Mr Wang, please stand)
E E
46. The sentence on Charge 1 is 2 years 3 months’ imprisonment.
F F
G 47. The sentence on Charge 2 is 15 months’ imprisonment. G
H H
48. On a consideration of totality, I order that 8 months of the
I sentence on Charge 2 to run consecutively to the sentence on Charge 1, I
making an aggregate sentence of 35 months’ imprisonment.
J J
K K
L L
M M
( Isaac Tam )
N N
District Judge
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 654/2021
C [2022] HKDC 572 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 654 OF 2021
F F
G ------------------------------- G
HKSAR
H H
v
I WANG HUASEN I
-------------------------------
J J
K Before: His Honour Judge Tam K
Date: 9 June 2022
L L
Present: Mr Ho Jeff C L, Counsel on fiat, for HKSAR
M Mr Wu Kam Fun Roderick, instructed by Tangs Solicitors, M
assigned by the Director of Legal Aid, for the defendant
N N
Offences: [1] Conspiracy to export specimens of Appendix II species
O without a licence (串謀在沒有許可證的情況下出口附錄II O
P
物種的標本) P
[2] Remaining in Hong Kong without the authority of the
Q Q
Director of Immigration after having landed unlawfully in
R Hong Kong (在香港非法入境後未得入境事務處處長授權 R
而留在香港)
S S
T T
U U
V V
-2-
A A
B B
---------------------------------------
C REASONS FOR SENTENCE C
---------------------------------------
D D
E 1. Mr Wang pleaded guilty before me to two charges on a E
Charge Sheet as follows.
F F
G 2. Charge 1 is Conspiracy to export specimens of Appendix II G
species without a licence, contrary to section 13 of the Protection of
H H
Endangered Species of Animals and Plants Ordinance, Cap 586, and
I sections 159A and 159C of the Crimes Ordinance, Cap 200. I
J J
3. Particulars of Charge 1 are that he, on or about 1 December
K 2020, in Hong Kong or elsewhere, conspired with a person known as K
“Ming Chai”, to export specimens of Appendix II species, namely 9.338
L L
kilogrammes of wood chips and barks of Aquilaria sinensis wood
M commonly known as Incense Tree, without a licence issued in respect of M
that specimen under section 23(1)(c) of the Protection of Endangered
N N
Species of Animals and Plants Ordinance, Cap 586, prior to the export.
O O
4. Charge 2 is Remaining in Hong Kong without the authority of
P P
the Director of Immigration after having landed unlawfully in Hong Kong,
Q contrary to section38(1)(b) of the Immigration Ordinance, Cap 115. Q
R R
5. Particulars of Charge 2 are that he, on 1 December 2020,
S having landed in Hong Kong unlawfully, remained in Hong Kong without S
the authority of the Director of Immigration.
T T
U U
V V
-3-
A A
B B
Facts admitted by Mr Wang
C C
6. Mr Wang was a Mainland resident and a holder of a two-way
D D
permit. Travel movement record showed that he did not enter Hong Kong
E on the strength of his two-way permit through proper immigration channels E
at the material time. He remained in Hong Kong as an illegal immigrant.
F F
G 7. On 1 December 2020, shortly after 12 noon, near Tsiu Hang G
Nature Trail in Sai Kung, Mr Wang was opening a big nylon bag behind
H H
some bushes with an unknown man. Police took overt action and revealed
I their identity and asked what the duo were doing. Both men fled leaving I
behind the big nylon bag.
J J
K 8. Mr Wang was subdued and arrested at a nearby lamppost K
whereas the unknown man successfully escaped. In the waist bag carried
L L
by Mr Wang were found two pieces of suspected Incense Tree chips.
M Under caution, Mr Wang said the wood chips were given to him by a M
friend.
N N
O 9. Mr Wang was escorted back to where the big nylon bag was. O
Inside it, there were found two bags of rice, a few bottles of soft drinks,
P P
five packets of suspected Incense Tree chips and barks, a black backpack
Q and a red backpack. Q
R R
10. In the black backpack, there were a chopper and four
S whetstones. In the red backpack, there were a wooden stick and a saw S
blade knife.
T T
U U
V V
-4-
A A
B B
11. Mr Wang admitted at the scene that the black backpack
C belonged to him. Under caution, he stated that the chopper was given to C
him by a friend.
D D
E 12. Under caution in a later VRI, Mr Wang stated that the red E
backpack belonged to the unknown man who had made good the escape.
F F
In addition, Mr Wang said:-
G G
(a) He sneaked into Hong Kong from Yantian, Shenzhen,
H H
by a speedboat around 0400 to 0500 hours on the
I subject day; he landed at an unknown shore within I
Hong Kong;
J J
K (b) He met “Ming Chai” ie the unknown man near that K
shore; both of them came from the same village; Ming
L L
Chai recruited him to “move” Incense Trees at a daily
M wage of RMB400; he had already received RMB3,000 M
from Ming Chai;
N N
O (c) He knew it was illegal to come to Hong Kong to “move O
things like that”; he had not used any of the tools seized;
P P
Q (d) He and Ming Chai had spent some time walking and Q
eating on the hill before they found the nylon bag
R R
together with its contents on the hill; Ming Chai then
S gave him two pieces of wood chips taken from the S
nylon bag as rewards, which he put inside his waist bag;
T T
he and Ming Chai then carried the nylon bag with
U U
V V
-5-
A A
B B
contents down the hill and took a taxi to Tsiu Hang, Sai
C Kung. C
D D
13. The location in Tsiu Hang where Mr Wang was intercepted
E by the police was only 170 metres away from a shoreline where a boat may E
moor and passengers may embark.
F F
G 14. Conservation officer Dr Tsang of the Agriculture, Fisheries G
and Conservation Department (AFCD) opined that:-
H H
I (a) The wood chips and barks found in the present case I
were agarwood and barks respectively of Aquilaria
J J
sinensis, commonly known as “Incense Trees”; they
K were specimens of an Appendix II species protected K
under the Protection of Endangered Species of Animals
L L
and Plants Ordinance, Cap 586;
M M
(b) The specimens weighed 9.338 kg in total and were
N N
valued at over $1.99M; in particular, the two pieces of
O wood chips found in Mr Wang’s waist bag were O
agarwood valued at around $7,600;
P P
Q (c) The tools found were fit for cutting Incense Trees and Q
harvesting agarwood; and
R R
S S
T T
U U
V V
-6-
A A
B B
(d) The illegal felling of Incense Trees and the illegal
C harvesting of agarwood in Hong Kong would cause C
irreparable damage to the species and threaten its
D D
natural survival.
E E
15. Based on the colour of the cut surfaces and the colour of the
F F
mosses attached to the agarwood and the Incense Tree barks, Dr Tsang
G took the view that they were freshly cut; but they were not freshly cut from G
the Incense Trees that grew in the vicinity of the arrest location.
H H
I 16. Mr Wang and Ming Chai were not exempted or licensed to I
export Incense Tree chips and barks and agarwood out of Hong Kong at
J J
the material time.
K K
Criminal record
L L
M 17. Mr Wang has a clear record in Hong Kong. M
N N
Antecedents
O O
18. Mr Wang is aged 30 (28 at the time of the offence), a resident
P P
of the Mainland where he completed junior high education. He was a
Q farmer. He was living with his wife and two children (both under 10 years Q
old).
R R
S S
T T
U U
V V
-7-
A A
B B
Mitigation
C C
19. Mr Roderick Wu of counsel assigned by the Director of Legal
D D
Aid mitigated on behalf of Mr Wang. The following is a summary of the
E mitigation submissions. E
F F
20. Mr Wang pleaded guilty showing remorse. He made full and
G frank confession to the police. G
H H
21. Mr Wang’s wife is a housewife. His parents are farming
I workers. Their income was unable to meet both ends. Mr Wang used to I
be a part-time construction-site worker, earning RMB200 a day.
J J
K 22. Mr Wang committed the offence for economic reasons. K
L L
23. One day at the end of November 2020, a friend called “Ming
M Chai” of the same village advised him to come to Hong Kong to export M
some expensive woods back to his native place for sale. Mr Wang agreed
N N
and told his wife he would be home in a couple of days.
O O
24. Mr Wu asked the court to adopt a lower starting point of
P P
sentence and asked for the customary 1/3 discount.
Q Q
25. Mr Wu accepted that the nature of the two offences were quite
R R
different; yet he asked for concurrent sentences on the basis that the
S offences occurred on the same date and had a close relationship. S
T T
U U
V V
-8-
A A
B B
26. In relation to the prosecution’s invitation to enhance the
C sentence on Charge 1, after hearing prosecution’s earlier submission, C
Mr Wu changed his position from “no observations to make” as appeared
D D
in his written mitigation to one of “should not be entertained” or “should
E not be necessary” because, as Mr Wu said, “Conspiracy to export [incense E
tree parts]” is not a fashionable crime.
F F
G 27. Mr Wu submitted the following sentencing cases to the court:- G
H H
(a) HKSAR v Lau Chu Kam, CACC 114/2013;
I I
(b) HKSAR v Xie Jinbin, CACC 195/2010;
J J
K (c) HKSAR v Yang Yamin (transliteration), K
DCCC 185/2019 (Chinese Reasons for Sentence);
L L
M (d) HKSAR v Tse Shing Yung (transliteration), M
DCCC 955/2018 (Chinese Reasons for Sentence); and
N N
O (e) HKSAR v Yeung Law Fai (transliteration), O
DCCC 765/2018 (Chinese Reasons for Sentence).
P P
Q 28. Mr Wu submitted a mitigation letter in Chinese (with English Q
translation) written by Mr Wang’s wife. The contents are generally that
R R
Mr Wang was the sole bread winner; that because of what happened, she
S had to go out to work leaving the children home; she asked for a lenient S
sentence so that her husband may return home earlier.
T T
U U
V V
-9-
A A
B B
29. Today, Mr Wu handed up another letter purportedly written
C by Mr Wang himself in Chinese (without English translation). After the C
court has raised with Mr Wu certain irregularities on the face of and in the
D D
contents of the letter, Mr Wu asked the court to disregard the letter
E completely. E
F F
Sentence
G G
30. I have had regard to all the cases referred to by the prosecution
H H
and Mr Wu.
I I
31. I found Mr Wang knew all along what he came to do in Hong
J J
Kong was illegal.
K K
32. The maximum penalty for the offence subject of Charge 1 is
L L
a fine of $1M and imprisonment for 7 years.
M M
33. Prosecution sought to furnish information to the court under
N N
27(2)(d) of the Organized and Serious Crimes Ordinance, Cap 455, namely
O information regarding “the nature and extent of any harm, whether direct O
or indirect, caused to the community by recent occurrences of [the]
P P
specified offence”, the specified offence being the subject of Charge 1,
Q namely Conspiracy to export specimens of Appendix II species without a Q
licence.
R R
S S
T T
U U
V V
- 10 -
A A
B B
34. The information consisted of 3 witness statements of
C Dr Tsang Ho Leung, a Conservation Officer of AFCD, taken between C
February and June 2021, and a witness statement of Detective Inspector of
D D
Police Li Man Yau dated 22 January 2021.
E E
35. Mr Wang did not object to the reception of the information,
F F
nor did he seek to furnish information regarding the same matter.
G G
36. I received the prosecution’s information.
H H
I 37. Under section 27(11) of Cap 455, where a court is satisfied I
beyond reasonable doubt as to the said information, the court shall have
J J
regard to the information when it passes a sentence for the relevant
K specified offence and may, if it thinks fit, pass a sentence on the defendant K
for that offence that is more severe.
L L
M 38. Having gone through all the witness statements, although I am M
satisfied to the required standard that some harm would have been caused,
N N
either directly or indirectly, to the Hong Kong community by occurrences
O of the particular specified offence in this case, namely, Conspiracy to O
export specimens of Appendix II species without a licence, the police
P P
statistics (which ran only up to the end of 2020) do not show there have
Q been recent occurrences of this particular specified offence. Not only were Q
there no statistics for 2021, what statistics there were did not show there
R R
was any occurrence of this specified offence in 2019 or 2020.
S S
T T
U U
V V
- 11 -
A A
B B
39. As a result, even if I were to accept all of the information
C furnished by the prosecution, I would not have been able to enhance the C
sentence by reason of the “nature and extent of harm caused to the
D D
community by recent occurrences of the specified offence”.
E E
40. I therefore decline to enhance the sentence on Charge 1.
F F
G 41. According to HKSAR v Liao Youguang, CACC 46/2019, and G
HKSAR v Xie Jinbin, CACC 195/2010, the appropriate starting point for a
H H
case of unlawful exporting of incense wood without aggravating factors is
I 3 years’ imprisonment. However, the present case involves a conspiracy I
and the actual part-execution of that conspiracy with the named co-
J J
conspirator. This constitutes an aggravating factor. Another aggravating
K factor is Mr Wang came to Hong Kong specifically to commit the offence K
of unlawful exporting.
L L
M 42. For these 2 aggravating factors, I take a starting point of M
3 years 6 months for Charge 1.
N N
O 43. For Charge 2, according to R v So Man King & Ors [1989] O
1 HKLR 142, the tariff sentence for Unlawful remaining is 15 months’
P P
imprisonment after a plea of guilty. In principle, subject only to totality,
Q this sentence ought to be served consecutively. Q
R R
44. Mr Wang pleaded guilty in good time and so is entitled to the
S full 1/3 discount on Charge 1. For his clear record, I shall take off an extra S
month from the sentence on Charge 1 after the 1/3 reduction. I can see no
T T
other mitigating factors of weight to justify any further reduction.
U U
V V
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A A
B B
C 45. I pass the following sentences on Mr Wang. C
D D
(Mr Wang, please stand)
E E
46. The sentence on Charge 1 is 2 years 3 months’ imprisonment.
F F
G 47. The sentence on Charge 2 is 15 months’ imprisonment. G
H H
48. On a consideration of totality, I order that 8 months of the
I sentence on Charge 2 to run consecutively to the sentence on Charge 1, I
making an aggregate sentence of 35 months’ imprisonment.
J J
K K
L L
M M
( Isaac Tam )
N N
District Judge
O O
P P
Q Q
R R
S S
T T
U U
V V