DCCC38/2018 HKSAR v. WONG KWOK HUNG HARDY - LawHero
DCCC38/2018
區域法院（刑事）HH Judge K Lo27/9/2018[2018] HKDC 1362
DCCC38/2018
A A
B B
DCCC 38/2018
C [2018] HKDC 1362 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 38 OF 2018
F F
G ---------------------------- G
HKSAR
H H
v
I WONG KWOK HUNG HARDY (D1) I
----------------------------
J J
K Before: HH Judge K Lo K
Date: 28 September 2018
L L
Present: Mr Alex Ng C W, Counsel on fiat, for HKSAR
M Mr Albert Luk, instructed by Ha & Ho, for the 1st defendant M
Offence: Conspiracy to steal (串謀偷竊)
N N
O O
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P
REASONS FOR SENTENCE P
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Q Q
R
1. D1 is convicted on his own plea to a charge of conspiracy to R
steal, contrary to section 9 of the Theft Ordinance, Cap 210 and section
S S
159A and 159C of the Crimes Ordinance, Cap 200.
T T
U U
V V
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A A
B B
Agreed summary of facts
C C
2. According to the agreed summary of facts, at around 8 am on
D D
31 July 2017, PW1, a volunteer staff of Tin Hau Temple, saw a light goods
E vehicle NV 8319 (“LGV”) parked at the entrance of the temple. E
F F
3. PW1 saw D1 and D2 standing adjacent to the LGV and there
G was a mechanical saw on the ground next to the LGV. G
H 4. PW1 recognised D1 as a resident in the village. However, H
PW1 had not seen D2 before.
I I
J 5. PW1 proceeded to the temple. Moments later, PW1 heard J
sawing sound and informed the village head accordingly.
K K
L 6. At 8:17 am, PW2 saw D1 and D2 picking up wood log from L
the ground at the entrance of the temple. The case was reported to the
M M
police and the vehicle was registered under the name of D2 since 12 June
N N
2014.
O O
7. D2 fled with the LGV. D1 was left behind with the wood log
P P
which was found to be over 80 kilogrammes.
Q Q
8. At 9 am, D1 was arrested at scene. Under caution, he said that
R R
he cut the trees for research purpose.
S S
T T
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V V
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A A
B B
9. In the video recorded interview, D1 stated as follows:-
C C
(1) he was retired and currently resided in a flat in Wu Shek
D D
Kok Tsuen with his wife;
E E
(2) in June 2017, he attended an arborist class for his
F F
personal interest and therefore acquainted with D2 who
G was the instructor; G
H H
(3) D1 still kept contact with D2 after he completed the
I course; I
J J
(4) a few days before the incident, D1 found two suspected
K incense tree at Wu Shek Kok Tsuen and therefore he K
approached D2 with a view to confirm whether his
L L
judgment was correct;
M M
(5) in the morning of 31 July, D1 and D2 went to Wu Shek
N N
Kok Tsuen and wanted to saw them off for research
O purpose; O
P P
(6) D1 saw off the trees by himself whilst D2 helped in the
Q logistics until they were intercepted by PW2; Q
R R
(7) D1 did not want D2 to be implicated with police
S involvement and told D2 to leave first, so D2 left the S
scene.
T T
U U
V V
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A A
B B
10. D2 surrendered to the police with his hand held petrol-
C operated saw on 2 August 2017. C
D D
11. D2 was arrested. In the video recorded interview, D2 stated
E as follows:- E
F F
(1) he knew D1 in his arborist class and they became
G friends; G
H H
(2) he owned the LGV and he neither lost his LGV nor lent
I his LGV to any other person on 31 July 2017; I
J J
(3) he owned the saw he brought along;
K K
(4) he refused to answer other questions.
L L
12. It was confirmed later that D2 was the class instructor when
M M
D1 was a trainee in the classes between May and July 2017. In the classes,
N N
the relevant laws governing conservation of trees were covered and there
O
was no exercise involving sawing off trees in rural area other than inside O
the site of “Tree Climbing Hong Kong” in Lau Fau Shan. Trainees would
P P
also use dead tree logs to practise cutting tree logs with petrol-operated
Q saw. Q
R R
13. Mr Pang Kuen-shum, Botanical Expert of Agriculture,
S Fisheries and Conservation Department, has conducted examination on the S
bark samples/the wood blocks seized at scene. The wood logs were
T T
identified as Aquilaria sinensis ( 土 沉 香 ). They had the same
U U
V V
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A A
B B
characteristics and texture of those being found in the wood and on the bark
C of the local species Aquilaria sinensis. C
D D
14. Among all the wood blocks seized, a wood block of
E 2.1 kilogramme and two wood blocks of 0.617 kilogramme and E
10.283 kilogramme were identified as “Chen Xiang” ( 沉 香 ) as they
F F
possessed the characteristic cut surfaces reflecting the mode of harvesting
G the wood chips and the characteristic of dark resin resulting from infection G
in the wood. The estimated market value was around HK$82,698.
H H
I 15. The expert confirmed that the Aquilaria sinensis is a dominant I
tree species in fung shui woods and other lowland forests. Such deliberate
J J
felling and damage of large and smaller Aquilaria sinensis, by causing
K damages to the habitats of the organisms, have jeopardised the normal K
ecological relationship of the organisms in such woodland.
L L
M Criminal record M
N N
16. D1 has a clear record.
O O
P
Mitigation P
Q Q
17. D1 was aged 71 at the time of offence and is now aged 72.
R R
18. D1 had received education up to Form 5 and had attended a
S S
six-month arborist course in 2017.
T T
U U
V V
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A A
B B
19. He is retired since year 1998 and had lived with his wife and
C daughter in Wu Shek Kok Tsuen. Before his retirement, he used to work C
in the property management industry.
D D
E 20. Mr Luk, counsel for D1, submitted that D1 has a stable family E
and has led a law-abiding life in the last 71 years.
F F
21. It is noted that, subsequent to his plea of guilt on 26 July 2018,
G G
D1 has offered to assist the police in reopening the case against D2 but
H such offer was not accepted by the prosecution, as they decided not to H
reopen the case against D2.
I I
J 22. Mr Luk further said that D1 has pleaded guilty and that he is J
deeply remorseful as to what he has done and further that it is unlikely that
K K
he will reoffend.
L L
23. Letters in mitigation were presented to this court for
M M
consideration, including those from his wife, his son, daughter, friend, Sha
N N
Tau Kok Rural Committee chairman and other residents from the same Wu
O
Shek Kok Tsuen. O
P 24. These letters all say that defendant is an honest, hardworking, P
loving and responsible father and husband and that after his retirement he
Q Q
became interested in trees, flowers, gardening, planting and arboricultural
R management and that he had taken a number of related courses in the area. R
S S
25. It is said also that due to carelessness and stupidity, D1 had
T unintentionally offended the law and that he is now deeply remorseful. T
U U
V V
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A A
B B
26. The letters also say D1 had tried to help his tutor, D2, to get
C some teaching material and that there was no personal benefit for D1. C
D D
27. The part that D1 had tried to help D2 to get some teaching
E material for research purpose or that D1 thought the trees were dead were E
withdrawn at the hearing, as the court indicated that it was not prepared at
F F
that stage to accept that submission.
G G
28. It was also said D1 was ignorant of the seriousness of the
H H
offence and that he was misguided by D2, his tutor.
I I
29. It was further submitted that it was D2 who held the electric
J J
saw and cut the trees and that D1 merely watched and therefore his role in
K the commission of the offence was minor. K
L L
30. This court was handed a certificate certifying D1 had
M completed courses in horticulture assistant training, turf maintenance, M
horticulture maintenance, machine operations, eco-gardening,
N N
arboricultural management and tree preservation and risk assessment.
O O
31. WhatsApp messages exchanged between D1 and D2 on
P P
27 July 2017 were shown to this court and defence counsel submitted that
Q they show invitation by D2 sent to D1 for cutting trees and that on the day Q
D1 did not do the actual cutting of the trees and that the role was minor,
R R
and that the idea of cutting the trees was not triggered by D1.
S S
32. Defence counsel sought further to explain why D1 did not
T T
relate the truth to the police when arrested earlier, that it was D2 who had
U U
V V
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A A
B B
the idea and it was D2 who actually cut the trees was because D1 thought
C at the time that D2 was his tutor and therefore he did not want to implicate C
D2.
D D
E 33. Mr Luk said D1 is of advanced age of 72 years old and E
although old age by itself cannot constitute mitigating ground, the fact that
F F
he has such unblemished record in the past is a material mitigating factor.
G He told this court that the commission of the present offence by D1 is one G
that is really out of character.
H H
34. He has supportive family, he urged this court to impose a short
I I
custodial sentence on 1st defendant and treat this as an exceptional case.
J J
Reports from Conservation Officer dated 24 January 2018 and 10 August
K K
2018
L L
35. Pang Kuen Shum, Conservation Officer of the Agriculture,
M M
Fisheries and Conservation Department, and the incumbent curator of the
N N
Hong Kong Herbarium wrote that he had obtained previously a Bachelor
O
of Science (Honours) degree in Environmental Biology; an International O
Diploma in Herbarium Techniques from the Royal Botanic Gardens, Kew,
P P
UK; a Certificate in Plant Taxonomy from the South China Agricultural
Q University; and a Master of Science degree in Protected Landscape Q
Management and he has practised botany for more than 24 years.
R R
S 36. Mr Pang said his major duty in the department is to oversee S
the operation of the Hong Kong Herbarium and he is also responsible for
T T
surveying the plants of Hong Kong.
U U
V V
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A A
B B
37. He is also the officer in charge of the Incense Tree Patrol
C C
Team set up in 2016 for stepping up patrols at blackspots and conducting
D joint operations with the police to deter illegal tree felling of the Incense D
Trees.
E E
38. He is familiar with the characteristic of Aquilaria sinensis and
F F
he had handled cases of illegal tree felling according to the Forests and
G G
Countryside Ordinance, Cap 96 and assisted in the examination of
H
suspected scheduled plants seized during law enforcement of the Forests H
and Countryside Ordinance, Cap 96 and Animals and Plants (Protection of
I I
Endangered Species) Ordinance, Cap 187.
J J
39. Mr Pang said he had appeared in District Court to give
K K
evidence for cases relating to illegal possession of wild orchids and theft
L and illegal felling of native tree species Podocarpus macrophyllus L
(common name: 羅漢松, Buddha pine or Buddhist pine) and Aquilaria
M M
sinensis (common name: 土沉香, incense tree).
N N
40. In his report Mr Pang said he had been to the scene on 9
O O
August 2017 and had found two incense trees cut, leaving only the stumps
P P
still attached to the ground.
Q Q
41. Mr Pang said that these tree stumps found were unlikely to
R survive and recover and that the wood blocks seized at the scene were dead. R
S 42. He spelt out that the ecological impact resulting from damage S
to those trees in his statement dated 24 January 2018 and reproduced in his
T T
statement 10 August 2018 as follows:-
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V V
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A A
B B
“Aquilaria sinensis (土沉香) is common in Hong Kong and
C C
chiefly distributed in woodlands on hillsides and also in fung
shui woods ( 風 水 林 ) alongside rural villages. From a
D conservation point of view, fung shui woods can be considered D
remnants of the Hong Kong’s native low-elevation, broad-
E
leaved forest. Because of the belief in a connection between E
trees and good fortune, trees and the natural environment have
been under the care and protection of villages, forests matured
F and flourished to form natural forests of great species diversity, F
so that in the rural parts of Hong Kong Mature and unique fung
shui woods are with high ecological value, enjoy a sustainable
G G
existence.
H The trunks of many large and old trees of Aquilaria sinensis H
have been illegally felled or cut in unsustainable fashion (ie
cannot ensure the long-term survival of the species) deliberately
I for mass extraction of timber to the extent that such trees are I
dead or damaged and likely unable to recover. Trunks, branches
J and roots of trees have been cut and left deep wounds (or even J
upper trunk beheaded) for inducing fungal attack to the wood or
being resulted from exploring/harvesting “Chen Xiang”. Large
K and old individuals of Aquilaria sinensis have since become rare K
in Hong Kong. Getting worse is that in recent cases relatively
smaller but mature trees of such species were also subject to
L L
illegal harvesting. As Aquilaria sinensis is a dominant tree
species in fung shui woods and other lowland forests, such
M deliberate felling and damage of larger and smaller Aquilaria M
sinensis, by causing damages to the habitats of the organisms,
have jeopardised the normal ecological relationships of the
N N
organisms in such woodlands. Some of adversely ecological
impacts are listed as below:
O O
(1) illegal cutting or felling of trees in fact is taking
the home (sheltered ground) away from
P insects/animals. Also, the exposed woodland P
area may cause to the extinction of shade-loving
Q
plants and intrusion of invasive plant species. Q
The result could be irreversible habitat
degradation and extinction of native species;
R R
(2) illegal cutting or felling of trees will cause to
scarcity of food source for insects/animals as
S S
trees provide food (leaves, nectar and fruits) to
them;
T T
(3) when raining, trees hold the water and do not
allow water to pass over soil, and which avoid
U U
V V
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A A
B soil erosion. Illegal tree cutting or felling at B
larger or accumulated extent, landslide might
C also happen and further cause to serious damage C
of natural habitat, ie tree uprooting and stream
pollution owing to the influx of eroded mud.”
D D
43. Hence Mr Pang said in his report that he is of the view that
E E
the unsustainable felling of the species has caused irreplaceable damage to
F F
the general natural feature and ecology of the natural forest of Hong Kong.
G G
44. This is in fact also a great loss to our community.
H H
I Discussion I
J J
45. Defendant here is convicted of conspiring with D2 to steal
K Aquilaria sinensis wood, commonly known as Incense Tree, belonging to K
another.
L L
M 46. In this case, according to reports of Mr Pang, the conservation M
officer, the two trees which were cut with only the stumps left behind were
N N
unlikely to recover. The wood log at the scene, according to reports of
O Mr Pang, came from Aquilaria sinensis (Incense Tree) and they weighed O
over 80 kilogrammes.
P P
Q 47. In the case of HKSAR v Wen Zelang, CACC 220/2006, where Q
a defendant, a 17-year-old Mainlander, pleaded guilty to theft of incense
R R
tree wood blocks weighing 5.6 kilogrammes, the judge adopted 3 years’
S imprisonment as a sentencing starting point, reduced it to 2 years’ S
imprisonment for guilty plea, and enhanced it under section 27 of the
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V V
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A A
B B
Organized and Serious Crimes Ordinance, Cap 455, by 25 per cent to 30
C months’ imprisonment, on account of prevalence. C
D D
48. On appeal, the Court of Appeal held that the incense tree was
E under threat of extinction and a clear and strong message was needed to E
deter Mainland people from coming to Hong Kong to cut the endangered
F F
trees, be they Buddhist pines or incense trees. Neither the 3-year starting
G point nor the 25% enhancement for prevalence was manifestly excessive. G
H H
49. It was also held that a discount of one-third for those who
I pleaded guilty in an appropriate time was usually the full extent of the I
discount to be given, whether or not a defendant was able to claim previous
J J
good character in the sense of clear record.
K K
50. In that case, the appeal was allowed only for the reason that
L L
the Court of Appeal held that the court was entitled to assume that the
M defendant in this case was under the considerable influence by his uncle M
and that therefore the defendant in that case was less than that of the other
N N
defendants and so, having regard to the circumstances of that case, the 2-
O year imprisonment starting point was adopted. O
P P
51. Again, in the case of HKSAR v Xie Jinbin, CACC 195/2010,
Q the Court of Appeal, differently constituted, again confirmed 3 years’ Q
imprisonment as starting point in the theft case of incense tree, where the
R R
defendant pleaded guilty to theft of wood block weighing 0.677
S kilogramme. The case involved defendant, a visitor to Hong Kong on a S
two-way permit and three other males committing the theft. In the
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A A
B B
rucksack of the two males, wood blocks weighing 1.181 kilogrammes, a
C saw, an iron hoe and a knife in rucksack were found. C
D D
52. The expert opined that illegal exploitation of the incense tree
E threatened the natural environment of the natural survival of the native E
plant at large. A large section of the tree trunk had been removed and the
F F
judge found that it had been indiscriminately cut.
G G
53. The Court of Appeal also held that in sentencing of these sort
H of cases, the prime consideration were protection and deterrence: the evil H
which the law sought to prevent was not theft as such, but injury to the
I I
protected flora, since restitution was impossible. The focus should be on
J the protection of the plant rather than the value of the plant or the part J
stolen, taking into account the injury done to the tree, profit motive, the
K K
manner of commission and the gravity of the offence, and that weight was
L said to be not determinative of the sentence nor a reliable indicator of the L
seriousness of the offence and the injury caused to the tree.
M M
N N
54. In that case the quantity of wood recovered from the
O
defendant and other males did not reflect the actual and substantial injuries O
to the tree. Defendant was not to be punished only for the weight of the
P P
wood block he had stolen, but according to the enterprise he and the other
Q males had collectively participated in and the seriousness of the offence Q
which was premeditated. These people came to Hong Kong in a joint
R R
enterprise with the intention to exploit the endangered flora for profit.
S They equipped themselves with knife, hoe and saw, and acted as a group. S
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A A
B B
55. Accordingly, having regard to the Protection of the
C Endangered Species of Animals and Plants Ordinance and need for C
deterrence, starting point was appropriate. While the sentence might be on
D D
the high side, in view of the quantity of wood stolen, it was not manifestly
E excessive so as to justify interference. E
F F
56. Coming back to our case here, the defendant is a Hong Kong-
G belonger who conspired with another in the commission of the offence. G
The wood stolen is said to weigh over 80 kilogrammes of Aquilaria
H H
sinensis. The commission of the offence was premeditated. Electric saw
I was used in the actual cutting of the trees. The light goods vehicle was to I
be used for transporting the wood blocks.
J J
57. According to Mr Pang, two incense trees were, as a result of
K K
the offence, unlikely to survive and 80 kilogrammes of incense tree wood
L blocks were the subject matter of this charge. D1 here had attended courses L
in trees preservation and risk assessment and should know the impact on
M M
those trees when they are cut to the stump.
N N
O
58. The offence committed by D1, together with D2, had highly O
likely resulted in loss of the two incense trees. This case is therefore much
P P
more serious than that of Wen Zelang case.
Q Q
59. The court therefore considered the starting point of 3-year
R R
imprisonment in the circumstances, even considering D1 is himself a Hong
S Kong-belonger as opposed to the defendants in those two cases, S
Mainlanders coming to Hong Kong for that purpose, is appropriate.
T T
U U
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A A
B B
60. No doubt D1 used to be a man of good character before
C commission of the present offence. I accept that he was a law-abiding, C
responsible citizen and that the commission of the presence offence is
D D
really one that is out of character.
E E
61. Having said this, however, the court noted that although D1
F F
said that he is deeply remorseful as to what he has done, during the time
G when letters in mitigation were written by relatives and friends, they were G
still led to believe that he had committed the offence with a view to assist
H H
D2 to collect teaching material or for research purpose, and that he had
I pleaded guilty to the charge only after the short adjournment on 26 July I
2018 hearing.
J J
K 62. Further, though it was mitigated on D1’s behalf that he did not K
actually take part in the cutting of the trees and he was merely taking
L L
photographs at the time when D2 was using the saw cutting the trees, this
M Court does not accept and does not find the culpability of D1 in the M
circumstances is anything less than that of D2.
N N
O 63. From the WhatsApp messages disclosed, clearly D1 and D2 O
had intended and planned to have the sawing of the trees. D1 lived in the
P P
vicinity of the cut trees; it is reasonable to suspect that D1 is the one who
Q volunteered the existence and location of the trees to D2, as per his Q
admission in the video recorded interview. Although there is no evidence
R R
as to who first made the suggestion to cut the trees, with the WhatsApp
S messages, the photos, coupled with the admission of D1 in the video S
recorded interview, the fact that D1 did participate in this joint enterprise
T T
is evident.
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A A
B B
C 64. The main valid mitigating factor is really those of his guilty C
plea, though it is not as timely as it could be. Despite the foregoing, ie that
D D
it is not as timely, that he has caused these other people who wrote the
E mitigation letters under a mistaken belief, I am still willing to afford him E
the one-third sentencing discount.
F F
G 65. The sentence is therefore reduced from 3 years’ starting point G
to 2 years.
H H
I 66. And also, further, in view of his unblemished good record in I
the past and the fact of his old age and the fact that he has committed the
J J
present offence out of character, I am willing to further exercise my
K discretion and to further allow him sentencing discount of 4 months. K
L L
67. Accordingly, D1 is sentenced to 1 year and 8 months for this
M case. M
N N
O O
P P
Q ( K Lo ) Q
District Judge
R R
S S
T T
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V V
A A
B B
DCCC 38/2018
C [2018] HKDC 1362 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 38 OF 2018
F F
G ---------------------------- G
HKSAR
H H
v
I WONG KWOK HUNG HARDY (D1) I
----------------------------
J J
K Before: HH Judge K Lo K
Date: 28 September 2018
L L
Present: Mr Alex Ng C W, Counsel on fiat, for HKSAR
M Mr Albert Luk, instructed by Ha & Ho, for the 1st defendant M
Offence: Conspiracy to steal (串謀偷竊)
N N
O O
--------------------------------------
P
REASONS FOR SENTENCE P
--------------------------------------
Q Q
R
1. D1 is convicted on his own plea to a charge of conspiracy to R
steal, contrary to section 9 of the Theft Ordinance, Cap 210 and section
S S
159A and 159C of the Crimes Ordinance, Cap 200.
T T
U U
V V
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A A
B B
Agreed summary of facts
C C
2. According to the agreed summary of facts, at around 8 am on
D D
31 July 2017, PW1, a volunteer staff of Tin Hau Temple, saw a light goods
E vehicle NV 8319 (“LGV”) parked at the entrance of the temple. E
F F
3. PW1 saw D1 and D2 standing adjacent to the LGV and there
G was a mechanical saw on the ground next to the LGV. G
H 4. PW1 recognised D1 as a resident in the village. However, H
PW1 had not seen D2 before.
I I
J 5. PW1 proceeded to the temple. Moments later, PW1 heard J
sawing sound and informed the village head accordingly.
K K
L 6. At 8:17 am, PW2 saw D1 and D2 picking up wood log from L
the ground at the entrance of the temple. The case was reported to the
M M
police and the vehicle was registered under the name of D2 since 12 June
N N
2014.
O O
7. D2 fled with the LGV. D1 was left behind with the wood log
P P
which was found to be over 80 kilogrammes.
Q Q
8. At 9 am, D1 was arrested at scene. Under caution, he said that
R R
he cut the trees for research purpose.
S S
T T
U U
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A A
B B
9. In the video recorded interview, D1 stated as follows:-
C C
(1) he was retired and currently resided in a flat in Wu Shek
D D
Kok Tsuen with his wife;
E E
(2) in June 2017, he attended an arborist class for his
F F
personal interest and therefore acquainted with D2 who
G was the instructor; G
H H
(3) D1 still kept contact with D2 after he completed the
I course; I
J J
(4) a few days before the incident, D1 found two suspected
K incense tree at Wu Shek Kok Tsuen and therefore he K
approached D2 with a view to confirm whether his
L L
judgment was correct;
M M
(5) in the morning of 31 July, D1 and D2 went to Wu Shek
N N
Kok Tsuen and wanted to saw them off for research
O purpose; O
P P
(6) D1 saw off the trees by himself whilst D2 helped in the
Q logistics until they were intercepted by PW2; Q
R R
(7) D1 did not want D2 to be implicated with police
S involvement and told D2 to leave first, so D2 left the S
scene.
T T
U U
V V
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A A
B B
10. D2 surrendered to the police with his hand held petrol-
C operated saw on 2 August 2017. C
D D
11. D2 was arrested. In the video recorded interview, D2 stated
E as follows:- E
F F
(1) he knew D1 in his arborist class and they became
G friends; G
H H
(2) he owned the LGV and he neither lost his LGV nor lent
I his LGV to any other person on 31 July 2017; I
J J
(3) he owned the saw he brought along;
K K
(4) he refused to answer other questions.
L L
12. It was confirmed later that D2 was the class instructor when
M M
D1 was a trainee in the classes between May and July 2017. In the classes,
N N
the relevant laws governing conservation of trees were covered and there
O
was no exercise involving sawing off trees in rural area other than inside O
the site of “Tree Climbing Hong Kong” in Lau Fau Shan. Trainees would
P P
also use dead tree logs to practise cutting tree logs with petrol-operated
Q saw. Q
R R
13. Mr Pang Kuen-shum, Botanical Expert of Agriculture,
S Fisheries and Conservation Department, has conducted examination on the S
bark samples/the wood blocks seized at scene. The wood logs were
T T
identified as Aquilaria sinensis ( 土 沉 香 ). They had the same
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characteristics and texture of those being found in the wood and on the bark
C of the local species Aquilaria sinensis. C
D D
14. Among all the wood blocks seized, a wood block of
E 2.1 kilogramme and two wood blocks of 0.617 kilogramme and E
10.283 kilogramme were identified as “Chen Xiang” ( 沉 香 ) as they
F F
possessed the characteristic cut surfaces reflecting the mode of harvesting
G the wood chips and the characteristic of dark resin resulting from infection G
in the wood. The estimated market value was around HK$82,698.
H H
I 15. The expert confirmed that the Aquilaria sinensis is a dominant I
tree species in fung shui woods and other lowland forests. Such deliberate
J J
felling and damage of large and smaller Aquilaria sinensis, by causing
K damages to the habitats of the organisms, have jeopardised the normal K
ecological relationship of the organisms in such woodland.
L L
M Criminal record M
N N
16. D1 has a clear record.
O O
P
Mitigation P
Q Q
17. D1 was aged 71 at the time of offence and is now aged 72.
R R
18. D1 had received education up to Form 5 and had attended a
S S
six-month arborist course in 2017.
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19. He is retired since year 1998 and had lived with his wife and
C daughter in Wu Shek Kok Tsuen. Before his retirement, he used to work C
in the property management industry.
D D
E 20. Mr Luk, counsel for D1, submitted that D1 has a stable family E
and has led a law-abiding life in the last 71 years.
F F
21. It is noted that, subsequent to his plea of guilt on 26 July 2018,
G G
D1 has offered to assist the police in reopening the case against D2 but
H such offer was not accepted by the prosecution, as they decided not to H
reopen the case against D2.
I I
J 22. Mr Luk further said that D1 has pleaded guilty and that he is J
deeply remorseful as to what he has done and further that it is unlikely that
K K
he will reoffend.
L L
23. Letters in mitigation were presented to this court for
M M
consideration, including those from his wife, his son, daughter, friend, Sha
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Tau Kok Rural Committee chairman and other residents from the same Wu
O
Shek Kok Tsuen. O
P 24. These letters all say that defendant is an honest, hardworking, P
loving and responsible father and husband and that after his retirement he
Q Q
became interested in trees, flowers, gardening, planting and arboricultural
R management and that he had taken a number of related courses in the area. R
S S
25. It is said also that due to carelessness and stupidity, D1 had
T unintentionally offended the law and that he is now deeply remorseful. T
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26. The letters also say D1 had tried to help his tutor, D2, to get
C some teaching material and that there was no personal benefit for D1. C
D D
27. The part that D1 had tried to help D2 to get some teaching
E material for research purpose or that D1 thought the trees were dead were E
withdrawn at the hearing, as the court indicated that it was not prepared at
F F
that stage to accept that submission.
G G
28. It was also said D1 was ignorant of the seriousness of the
H H
offence and that he was misguided by D2, his tutor.
I I
29. It was further submitted that it was D2 who held the electric
J J
saw and cut the trees and that D1 merely watched and therefore his role in
K the commission of the offence was minor. K
L L
30. This court was handed a certificate certifying D1 had
M completed courses in horticulture assistant training, turf maintenance, M
horticulture maintenance, machine operations, eco-gardening,
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arboricultural management and tree preservation and risk assessment.
O O
31. WhatsApp messages exchanged between D1 and D2 on
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27 July 2017 were shown to this court and defence counsel submitted that
Q they show invitation by D2 sent to D1 for cutting trees and that on the day Q
D1 did not do the actual cutting of the trees and that the role was minor,
R R
and that the idea of cutting the trees was not triggered by D1.
S S
32. Defence counsel sought further to explain why D1 did not
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relate the truth to the police when arrested earlier, that it was D2 who had
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the idea and it was D2 who actually cut the trees was because D1 thought
C at the time that D2 was his tutor and therefore he did not want to implicate C
D2.
D D
E 33. Mr Luk said D1 is of advanced age of 72 years old and E
although old age by itself cannot constitute mitigating ground, the fact that
F F
he has such unblemished record in the past is a material mitigating factor.
G He told this court that the commission of the present offence by D1 is one G
that is really out of character.
H H
34. He has supportive family, he urged this court to impose a short
I I
custodial sentence on 1st defendant and treat this as an exceptional case.
J J
Reports from Conservation Officer dated 24 January 2018 and 10 August
K K
2018
L L
35. Pang Kuen Shum, Conservation Officer of the Agriculture,
M M
Fisheries and Conservation Department, and the incumbent curator of the
N N
Hong Kong Herbarium wrote that he had obtained previously a Bachelor
O
of Science (Honours) degree in Environmental Biology; an International O
Diploma in Herbarium Techniques from the Royal Botanic Gardens, Kew,
P P
UK; a Certificate in Plant Taxonomy from the South China Agricultural
Q University; and a Master of Science degree in Protected Landscape Q
Management and he has practised botany for more than 24 years.
R R
S 36. Mr Pang said his major duty in the department is to oversee S
the operation of the Hong Kong Herbarium and he is also responsible for
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surveying the plants of Hong Kong.
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37. He is also the officer in charge of the Incense Tree Patrol
C C
Team set up in 2016 for stepping up patrols at blackspots and conducting
D joint operations with the police to deter illegal tree felling of the Incense D
Trees.
E E
38. He is familiar with the characteristic of Aquilaria sinensis and
F F
he had handled cases of illegal tree felling according to the Forests and
G G
Countryside Ordinance, Cap 96 and assisted in the examination of
H
suspected scheduled plants seized during law enforcement of the Forests H
and Countryside Ordinance, Cap 96 and Animals and Plants (Protection of
I I
Endangered Species) Ordinance, Cap 187.
J J
39. Mr Pang said he had appeared in District Court to give
K K
evidence for cases relating to illegal possession of wild orchids and theft
L and illegal felling of native tree species Podocarpus macrophyllus L
(common name: 羅漢松, Buddha pine or Buddhist pine) and Aquilaria
M M
sinensis (common name: 土沉香, incense tree).
N N
40. In his report Mr Pang said he had been to the scene on 9
O O
August 2017 and had found two incense trees cut, leaving only the stumps
P P
still attached to the ground.
Q Q
41. Mr Pang said that these tree stumps found were unlikely to
R survive and recover and that the wood blocks seized at the scene were dead. R
S 42. He spelt out that the ecological impact resulting from damage S
to those trees in his statement dated 24 January 2018 and reproduced in his
T T
statement 10 August 2018 as follows:-
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“Aquilaria sinensis (土沉香) is common in Hong Kong and
C C
chiefly distributed in woodlands on hillsides and also in fung
shui woods ( 風 水 林 ) alongside rural villages. From a
D conservation point of view, fung shui woods can be considered D
remnants of the Hong Kong’s native low-elevation, broad-
E
leaved forest. Because of the belief in a connection between E
trees and good fortune, trees and the natural environment have
been under the care and protection of villages, forests matured
F and flourished to form natural forests of great species diversity, F
so that in the rural parts of Hong Kong Mature and unique fung
shui woods are with high ecological value, enjoy a sustainable
G G
existence.
H The trunks of many large and old trees of Aquilaria sinensis H
have been illegally felled or cut in unsustainable fashion (ie
cannot ensure the long-term survival of the species) deliberately
I for mass extraction of timber to the extent that such trees are I
dead or damaged and likely unable to recover. Trunks, branches
J and roots of trees have been cut and left deep wounds (or even J
upper trunk beheaded) for inducing fungal attack to the wood or
being resulted from exploring/harvesting “Chen Xiang”. Large
K and old individuals of Aquilaria sinensis have since become rare K
in Hong Kong. Getting worse is that in recent cases relatively
smaller but mature trees of such species were also subject to
L L
illegal harvesting. As Aquilaria sinensis is a dominant tree
species in fung shui woods and other lowland forests, such
M deliberate felling and damage of larger and smaller Aquilaria M
sinensis, by causing damages to the habitats of the organisms,
have jeopardised the normal ecological relationships of the
N N
organisms in such woodlands. Some of adversely ecological
impacts are listed as below:
O O
(1) illegal cutting or felling of trees in fact is taking
the home (sheltered ground) away from
P insects/animals. Also, the exposed woodland P
area may cause to the extinction of shade-loving
Q
plants and intrusion of invasive plant species. Q
The result could be irreversible habitat
degradation and extinction of native species;
R R
(2) illegal cutting or felling of trees will cause to
scarcity of food source for insects/animals as
S S
trees provide food (leaves, nectar and fruits) to
them;
T T
(3) when raining, trees hold the water and do not
allow water to pass over soil, and which avoid
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B soil erosion. Illegal tree cutting or felling at B
larger or accumulated extent, landslide might
C also happen and further cause to serious damage C
of natural habitat, ie tree uprooting and stream
pollution owing to the influx of eroded mud.”
D D
43. Hence Mr Pang said in his report that he is of the view that
E E
the unsustainable felling of the species has caused irreplaceable damage to
F F
the general natural feature and ecology of the natural forest of Hong Kong.
G G
44. This is in fact also a great loss to our community.
H H
I Discussion I
J J
45. Defendant here is convicted of conspiring with D2 to steal
K Aquilaria sinensis wood, commonly known as Incense Tree, belonging to K
another.
L L
M 46. In this case, according to reports of Mr Pang, the conservation M
officer, the two trees which were cut with only the stumps left behind were
N N
unlikely to recover. The wood log at the scene, according to reports of
O Mr Pang, came from Aquilaria sinensis (Incense Tree) and they weighed O
over 80 kilogrammes.
P P
Q 47. In the case of HKSAR v Wen Zelang, CACC 220/2006, where Q
a defendant, a 17-year-old Mainlander, pleaded guilty to theft of incense
R R
tree wood blocks weighing 5.6 kilogrammes, the judge adopted 3 years’
S imprisonment as a sentencing starting point, reduced it to 2 years’ S
imprisonment for guilty plea, and enhanced it under section 27 of the
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Organized and Serious Crimes Ordinance, Cap 455, by 25 per cent to 30
C months’ imprisonment, on account of prevalence. C
D D
48. On appeal, the Court of Appeal held that the incense tree was
E under threat of extinction and a clear and strong message was needed to E
deter Mainland people from coming to Hong Kong to cut the endangered
F F
trees, be they Buddhist pines or incense trees. Neither the 3-year starting
G point nor the 25% enhancement for prevalence was manifestly excessive. G
H H
49. It was also held that a discount of one-third for those who
I pleaded guilty in an appropriate time was usually the full extent of the I
discount to be given, whether or not a defendant was able to claim previous
J J
good character in the sense of clear record.
K K
50. In that case, the appeal was allowed only for the reason that
L L
the Court of Appeal held that the court was entitled to assume that the
M defendant in this case was under the considerable influence by his uncle M
and that therefore the defendant in that case was less than that of the other
N N
defendants and so, having regard to the circumstances of that case, the 2-
O year imprisonment starting point was adopted. O
P P
51. Again, in the case of HKSAR v Xie Jinbin, CACC 195/2010,
Q the Court of Appeal, differently constituted, again confirmed 3 years’ Q
imprisonment as starting point in the theft case of incense tree, where the
R R
defendant pleaded guilty to theft of wood block weighing 0.677
S kilogramme. The case involved defendant, a visitor to Hong Kong on a S
two-way permit and three other males committing the theft. In the
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rucksack of the two males, wood blocks weighing 1.181 kilogrammes, a
C saw, an iron hoe and a knife in rucksack were found. C
D D
52. The expert opined that illegal exploitation of the incense tree
E threatened the natural environment of the natural survival of the native E
plant at large. A large section of the tree trunk had been removed and the
F F
judge found that it had been indiscriminately cut.
G G
53. The Court of Appeal also held that in sentencing of these sort
H of cases, the prime consideration were protection and deterrence: the evil H
which the law sought to prevent was not theft as such, but injury to the
I I
protected flora, since restitution was impossible. The focus should be on
J the protection of the plant rather than the value of the plant or the part J
stolen, taking into account the injury done to the tree, profit motive, the
K K
manner of commission and the gravity of the offence, and that weight was
L said to be not determinative of the sentence nor a reliable indicator of the L
seriousness of the offence and the injury caused to the tree.
M M
N N
54. In that case the quantity of wood recovered from the
O
defendant and other males did not reflect the actual and substantial injuries O
to the tree. Defendant was not to be punished only for the weight of the
P P
wood block he had stolen, but according to the enterprise he and the other
Q males had collectively participated in and the seriousness of the offence Q
which was premeditated. These people came to Hong Kong in a joint
R R
enterprise with the intention to exploit the endangered flora for profit.
S They equipped themselves with knife, hoe and saw, and acted as a group. S
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55. Accordingly, having regard to the Protection of the
C Endangered Species of Animals and Plants Ordinance and need for C
deterrence, starting point was appropriate. While the sentence might be on
D D
the high side, in view of the quantity of wood stolen, it was not manifestly
E excessive so as to justify interference. E
F F
56. Coming back to our case here, the defendant is a Hong Kong-
G belonger who conspired with another in the commission of the offence. G
The wood stolen is said to weigh over 80 kilogrammes of Aquilaria
H H
sinensis. The commission of the offence was premeditated. Electric saw
I was used in the actual cutting of the trees. The light goods vehicle was to I
be used for transporting the wood blocks.
J J
57. According to Mr Pang, two incense trees were, as a result of
K K
the offence, unlikely to survive and 80 kilogrammes of incense tree wood
L blocks were the subject matter of this charge. D1 here had attended courses L
in trees preservation and risk assessment and should know the impact on
M M
those trees when they are cut to the stump.
N N
O
58. The offence committed by D1, together with D2, had highly O
likely resulted in loss of the two incense trees. This case is therefore much
P P
more serious than that of Wen Zelang case.
Q Q
59. The court therefore considered the starting point of 3-year
R R
imprisonment in the circumstances, even considering D1 is himself a Hong
S Kong-belonger as opposed to the defendants in those two cases, S
Mainlanders coming to Hong Kong for that purpose, is appropriate.
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60. No doubt D1 used to be a man of good character before
C commission of the present offence. I accept that he was a law-abiding, C
responsible citizen and that the commission of the presence offence is
D D
really one that is out of character.
E E
61. Having said this, however, the court noted that although D1
F F
said that he is deeply remorseful as to what he has done, during the time
G when letters in mitigation were written by relatives and friends, they were G
still led to believe that he had committed the offence with a view to assist
H H
D2 to collect teaching material or for research purpose, and that he had
I pleaded guilty to the charge only after the short adjournment on 26 July I
2018 hearing.
J J
K 62. Further, though it was mitigated on D1’s behalf that he did not K
actually take part in the cutting of the trees and he was merely taking
L L
photographs at the time when D2 was using the saw cutting the trees, this
M Court does not accept and does not find the culpability of D1 in the M
circumstances is anything less than that of D2.
N N
O 63. From the WhatsApp messages disclosed, clearly D1 and D2 O
had intended and planned to have the sawing of the trees. D1 lived in the
P P
vicinity of the cut trees; it is reasonable to suspect that D1 is the one who
Q volunteered the existence and location of the trees to D2, as per his Q
admission in the video recorded interview. Although there is no evidence
R R
as to who first made the suggestion to cut the trees, with the WhatsApp
S messages, the photos, coupled with the admission of D1 in the video S
recorded interview, the fact that D1 did participate in this joint enterprise
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is evident.
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C 64. The main valid mitigating factor is really those of his guilty C
plea, though it is not as timely as it could be. Despite the foregoing, ie that
D D
it is not as timely, that he has caused these other people who wrote the
E mitigation letters under a mistaken belief, I am still willing to afford him E
the one-third sentencing discount.
F F
G 65. The sentence is therefore reduced from 3 years’ starting point G
to 2 years.
H H
I 66. And also, further, in view of his unblemished good record in I
the past and the fact of his old age and the fact that he has committed the
J J
present offence out of character, I am willing to further exercise my
K discretion and to further allow him sentencing discount of 4 months. K
L L
67. Accordingly, D1 is sentenced to 1 year and 8 months for this
M case. M
N N
O O
P P
Q ( K Lo ) Q
District Judge
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S S
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