Tree Preservation in Hong Kong

Introduction

Tree preservation is widely discussed in Hong Kong these days. Interestingly, it is not a new issue at the turn of this century. In fact, it has been a concern of our government since the early colonial years. This article will illustrate how our government has over the years used various pieces of legislation to achieve the goal of tree preservation.

Urban Greening and Afforestation Efforts during Early Colonial Years

Mathew Robert Pryor is Head of the Division of Landscape Architecture and an Associate Professor (Teaching) within the Faculty of Architecture of the University of Hong Kong. His article “Street Tree Planting in Hong Kong in the Early Colonial Period (1842-98)” traces the early governmental efforts in creating a greener Hong Kong. According to this article, tree planting began as early as 1847 in today’s Central area and further tree planting exercises were conducted between the 1860s and the 1870s. Some were conducted along the newly constructed suburban roads like Robinson Road, Bonham Road, Peak Road and Kennedy Road. By the early 1880s, attention turned from street tree planting to the afforestation of the barren hills. 

Robert Peckham is a founder and Director of the Centre for the Humanities and Medicine at the University of Hong Kong. His article “Hygienic Nature: Afforestation and the Greening of Colonial Hong Kong” suggests that health concerns and aesthetic sensibilities were behind the governmental efforts to create a greener city. Our government believed that a well-planned and hygienic city could promote sustainable urban growth and commercial expansion. 

Despite the governmental efforts, various factors hampered the greening work. Apart from natural calamities like typhoon or wildfire, illegal logging of the local Chinese population was also a major problem. In order to support their living, the Chinese would cut down the trees for firewood. They would either use it as fuel or sell it for money. Furthermore, the Chinese would allow their animals like goats to graze in the woodland and these animals would eat the newly planted trees or tender shrubs.

Early Legislation to Preserve Trees

Our government therefore introduced tree protecting provisions in various pieces of legislation to safeguard its greening efforts. The Summary Offences Ordinance 1845, the Malicious Injuries to Property Ordinance 1865, the Larceny Ordinance 1865 and the Malicious Damage Ordinance 1865 all contained provisions with similar wordings prohibiting people from destroying trees. Severity of the punishment depended on the value of the destroyed trees and the nature of the offences. The forms of punishment included fine, whipping, hard labour and imprisonment.

Due to the continuing theft and destruction of trees, our government ultimately responded by enacting the Trees Preservation Ordinance 1888. Its preamble specifically provided the background for its enactment as follows:

“WHEREAS great damage is done to trees and plantations in the neighbourhood of the respective villages of this Colony; and whereas it is frequently difficult or impossible to discover the persons who have committed such damage…

The key provision was set out in section 2, which provided the followings:

“2. Whenever it is proved, to the satisfaction of the Governor-in-Council, that trees or plantations belonging to Government in the neighbourhood of any village in this Colony have been felled, cut, mutilated, lopped, barked or otherwise damaged or destroyed, and that there is sufficient reason to believe that such damage or destruction was committed by the inhabitants of the said village or by any of them, it shall be lawful for the Governor-in-Council, by order under his hand, to levy a special rate assessed upon such village to an amount sufficient to cover the damage done…”

Further attempts to introduce legislation against destruction of trees by the inhabitants of the villages can be found in the Crown Land Preservation Ordinance 1910, the Crown Land Preservation Ordinance 1917 and the Forestry Ordinance 1937 (Cap. 96), which all contained provisions with similar wordings as s. 2 of the Trees Preservation Ordinance 1888.

The legislation mentioned above were more than a scrap of paper. As per the annual government reports on botanical and forestry matters between the early 1880s and the late 1930s, forest guards were deployed and arrests were made every year. During the time of social upheaval like Canton Hong Kong General Strike in the mid-1920s and Sino-Japanese War between 1937 and 1945, forestry offences were more numerous than usual. This was caused by the disruption of usual firewood supplies from South China, which resulted in higher prices of imported firewood and hence higher fuel prices.

Due to the acute fuel shortage, Hong Kong's plantations were heavily damaged during the Japanese occupation of Hong Kong between 1941 and 1945 and the subsequent civil war in China. Forestry work restarted in the late 1940s. Various legislations were also subsequently enacted or amended to enhance the protection of trees in Hong Kong. 

Tree Destruction in Recent Years

Given the advancement in technology, Hong Kong people no longer need to use firewood as fuel today. Unfortunately, the problem of tree destruction has continued albeit for very different reasons. In particular, there have been numerous reports in recent years in relation to the destruction of Buddhist Pine and Incense Tree in Hong Kong. 

Buddhist Pine is a slow growing native species with commercial value as an ornamental plant. Incense Tree is an endangered native species which can produce a valuable fragrant wood for incense and Chinese medicine, and is now protected under the Protection of Endangered Species of Animals and Plants Ordinance (Cap. 586). 

Both trees have high conservation value. Sadly, there are numerous reports in recent years that the natural populations of these two species in the Hong Kong countryside are subject to threats of illegal exploitation. Due to the unsustainable felling, some of the trees have been damaged to the extent that they are unlikely to recover. Apart from causing irreplaceable damage to the ecology of the natural forests, this has also threatened the survival of such trees in the natural environment.

Relevant Case Law

The case law below illustrates how our government has used various pieces of legislation to tackle the problem of the destruction of Buddhist Pine and Incense Tree.

In HKSAR v Bu Hua Lai and Others (CACC 380/2006), the police noticed an unlit sampan travelling towards the Mainland. The marine intercepted that sampan and the three Applicants were found inside the sampan together with 54 Buddha Pine trees with roots. The 1st Applicant pleaded guilty to “handling stolen goods”, contrary to s. 24 of the Theft Ordinance (Cap. 210), and an immigration charge while the 2nd and the 3rd Applicants were convicted of “handling stolen goods” after trial at the District Court. On appeal, the Court of Appeal reduced the terms of imprisonment for the 1st, the 2nd and the 3rdApplicants to 42 months, 36 months and 24 months respectively.

In HKSAR v Xie Jinbin (CACC 195/2010), the police saw four males, including the Applicant, cutting a tree at the hillside near Mo Tat Wan Old Village. The police managed to arrest three of them including the Applicant. They found a saw and a wood block of about eight inches in length in the rucksack carried by the Applicant. They also found in the rucksacks carried by the other two males an iron hoe of about 12.5 inches in length, a knife of about 11 inches in length and six wood blocks of about four to seven inches in length. The wood block found in the Applicant’s possession weighed 0.677 kilogram and the total weight of all the wood blocks was 1.181 kilograms. The wood blocks were examined and found to have been taken from the Incense Tree. The Applicant pleaded guilty to theft, contrary to s. 9 of the Theft Ordinance (Cap. 210), before Her Honour Judge Esther Toh in the District Court. The judge adopted a starting point of three years and reduced the sentence to two years on account of the guilty plea. She then enhanced the sentence by 25 percent upon the application of the prosecution pursuant to s. 27(2) of the Organized and Serious Crimes Ordinance (Cap. 455), making a total term of imprisonment of two years and six months. The Applicant appealed against the sentence. The Court of Appeal dismissed the appeal.

In 香港特別行政區 訴 楊亚文 (DCCC 185/2019), the custom officer intercepted the Defendant at the Hong Kong Port Area of the Shenzhen Bay Port and searched his luggage. There were some plastic bags inside his luggage which contained around 3.33 kilograms of Incense Tree woodblocks with an estimated value of around HK$264,000.00. The Defendant was arrested since he was not able to produce any valid export/re-export documents. He pleaded guilty to one count of exporting a specimen of an Appendix II species without a licence issued in respect of that specimen under s. 23(1)(c) of the Protection of Endangered Species of Animals and Plants Ordinance (Cap. 586), contrary to s. 13(1) of the Protection of Endangered Species of Animals and Plants Ordinance (Cap. 586). The judge adopted a starting point of three years and reduced the sentence to two years on account of the 
guilty plea.

Conclusion

This article has illustrated how our government over the years has used various pieces of legislation to enhance the protection of trees in Hong Kong. Apart from the legislation mentioned above, other existing legislation relating to the protection of trees include the Antiquities and Monuments Ordinance (Cap. 53) and the Forests and Countryside Ordinance (Cap. 96). Nonetheless, the current legal framework regarding tree management in Hong Kong is far from perfect. There is indeed a need for a more comprehensive legal framework for various reasons. For example, there is still no specific legislation to protect important trees including the old and valuable trees and stone wall trees. Furthermore, the current legal framework largely focuses on the protection of trees in the countryside and pleasure grounds while there is a lack of legislation regarding protection of other urban trees. In addition, an accreditation system is yet to be established for the arborists to ensure they are sufficiently qualified for their job. 

Jurisdictions: 

Assistant Solicitor, Ng, Au Yeung & Partners

Tammy was admitted as a Solicitor in Hong Kong in July 2017. Her practice focuses on civil litigation. She also has experience in handling matters related to family law and criminal litigation.