CACC79/2020

HKSAR

v

Shao Rong Qiang

(Court of Appeal)

(Criminal Appeal No. 79 of 2020)

Before: Hon Yeung VP, Chu and Pang JJA in Court

Date of Hearing: 18 December 2020

Date of Judgement: 18 December 2020

Date of Reasons for Judgement: 8 January 2021

Criminal sentencing – importing specimens of Appendix II species otherwise than in accordance with Protection of Endangered Species of Animals and Plaints Ordinance (Cap.586) s11(1) – appeal against sentence – dismissed

The Appellant (“A”) pleaded guilty to 1 count of importing of specimens of Appendix II species, contrary to sections 11 (1) and (3) of Protection of Endangered Species of Animals and Plant Ordinance (Cap. 586). A arrived at Hong Kong by plane from Moscow and was intercepted by Customs Officers when he was entering Hong Kong through the “Nothing to Declare” channel. Customs Officers found inside the A’s luggage 224 Saiga antelope horns, which weighed 49.9kg and had an estimated market price worth between HK$719,000 to HK$1,188,000. The Deputy District Court Judge sentenced D to 20 months’ imprisonment, having adopted a starting point of 30 months’ imprisonment and after affording to A a discount of one-third for his guilty plea. A appealed against the sentence on the grounds that it was manifestly excessive, partly because of the Judge’s over-reliance on the cases concerning Aquilaria. It was submitted that this case concerned only importing but not stealing endangered species, and the Judge should not have directly applied sentences passed on the Aquilaria cases even though some of the sentencing factors in those cases were applicable in this case.

Held dismissing the appeal, that:

1. The greed of human beings has endangered the existence of many species and it has severely affected the environment and ecosystem of the Earth. All crimes which might jeopardise the existence of endangered species must be deterred, not only to adhere to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”) which Hong Kong has signed, but also to ensure the protection of endangered species and prevent their extinction. (see para 17)

2. Although Saiga antelope horns are listed under Appendix II of CITES, the value of the antelope horns illegally imported in this case was significant and therefore reflected in the 30 month imprisonment starting point imposed by the District Court Judge. (see para 19-26) HKSAR v Lam Kan Pao unrep. DCCC 24/ 2019 considered

3. Whereas it is this court’s view that the sentences passed in similar cases in Mainland China are not binding and do not guide Hong Kong Courts, this court agrees that sentences against the illegal import of endangered species must be of sufficient deterrence, or else Hong Kong would not be able to fulfil its duties under the International Convention. If the species listed in Appendix II are not sufficiently protected, they will most certainly face extinction.

4. Sentencing factors such as the level of endangerment of the species, its number and value, the manner and motive of the defendant, the harm caused to the species, whether the offending was part of a group criminal act, and the role the defendant played are all factors that should be considered by a Court in sentencing offenders under Cap 586. (see para 30)

5. The appellant has illegally imported 224 Saiga antelope horns, which must have come from at least 112 Saiga antelopes, accounting for a substantial proportion of the Saiga antelopes that still exist in the wild now. (see para 37)

6. The offence committed by the appellant caused considerable harm to the existence of Saiga antelopes. The offence was extremely serious and must be deterred. It must not be ignored that the maximum sentence of the offence committed by the appellant is 7 years’ imprisonment. Although the appellant had not committed the offence in group, and there was no evidence showing that he had participated in hunting down the Saiga antelopes, the appellant’s act will necessarily encourage others to participate in illegal hunting in areas of habitats of Saiga antelopes. (see para 38)

7. Adopting a starting point of 30 months’ imprisonment and passing a sentence of 20 months’ imprisonment was not manifestly excessive. (see para 40).

Courtesy of Kelly Ma

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Saiga Antelope Fact Sheet

Wild Saiga antelopes are very rare and are classified as “critically endangered” on the Red List of Threatened Species of the International Union for Conservation of Nature (IUCN).

According to an expert report filed and before the Court of Appeal, the numbers of wild Saiga antelopes have drastically dropped over 85% in the recent 30 years, from a population of 1 million in the 1970s to an estimated number of 164,600-165,600 in January 2018. With  Saiga's decline being one of the fastest population collapses of large mammals recently observed, the Memorandum of Understanding (MoU) Concerning Conservation, Restoration and Sustainable Use of the Saiga Antelope (a multilateral environmental memorandum of understanding) aims to reduce current exploitation levels and restore the population status of these animals.

There have been reports of illegal hunting in all habitats of Saiga antelopes, the main reason being the horns and derivative of male Saiga antelopes are of great commercial value. The horns of male Saiga antelopes can be used to treat numerous illness and are used in traditional Asian medicine and can sell for as much as US$150. There is constant demand for male Saiga antelopes horns in China, Hong Kong, Japan, Singapore and Malaysia, where the horns are commonly made into bottled liquids, wood shavings and pills.

Commentary

Studies have repeatedly shown that Hong Kong is a hub for the illegal trading of endangered species. While some species are smuggled for local consumption, most are destined for the Mainland.

The Protection of Endangered Species of Animals and Plants Ordinance, Cap. 586, reflects Hong Kong’s obligations, as part of China, under CITES. The purpose of the Ordinance is two-fold: to protect endangered species including plants and animals, as well as to deter others from committing an offence so as to prevent the protected endangered species from harm. Indeed, the Court of Appeal in HKSAR v Xie Jinbin [2011] 2 HKLRD 631 has stated that the prime considerations in sentencing offenders for breaches of CITES under Cap 586 should be protection and deterrence.

On 1 May 2018, amendments to Cap 586 took place and increased the maximum penalty for the unauthorised import, export, re-export and possession of Appendix I listed species to 10 years’ imprisonment and a fine of $10,000,000. The maximum penalty for offences involving Appendix II and III listed species was raised to seven years’ imprisonment and a fine of $1,000,000. One of the most significant changes to arise from the amendment was that the distinction between commercial and non-commercial purpose of use was removed. Despite the legislative enhancement, there are still a large number of wildlife trafficking cases coming through Hong Kong, with sentences for breaches of Cap 586 on the lenient side.

Since the 2018 amendment, eight rhino horn cases have been prosecuted in the District Court. The Defendants smuggled between 1.32 and 20.41 kilograms of horn into Hong Kong secreted inside baggage or hidden on their persons. In respect of those cases. Judges have adopted starting points between 12 and 39 months’ imprisonment. After reduction for guilty pleas and personal mitigation, each of the defendants was imprisoned for between 8 and 26 months. Whilst these sentences are substantially higher than the 2-month starting point used in HKSAR v Cheung Mo Tak HCMA 89/2012, (unreported High Court Magistracy Appeal, 8 June 2012), they still remain much lower than comparative jurisdictions and with the thought - is that sentence really going to deter others?

In October 2020, a new report “A Comparative Evaluation of Hong Kong’s Legislative Powers to Regulate Trade in Endangered Wild Animals” was published. The review sets out the findings of a two-year study into the effectiveness of Hong Kong’s controls on trade in endangered and threatened species of animals led by Associate Professor Amanda Whitfort of the Faculty of Law, The University of Hong Kong and Dr Fiona Woodhouse, Deputy Director (Welfare) of the Society for the Prevention of Cruelty to Animals (HK).

In respect of the sentencing portion of the Report, the learned authors had the following recommendations: -

1. Hong Kong should train specialist prosecutors in wildlife crimes. Endangered species cases should not be briefed out to Fiat Counsel without specialised training.

2. In sentencing wildlife crimes, judges should not only take into account the value of the specimens involved in the offence and the benefits (financial and material) to the offender but also the damage caused by the crimes to the species and to the ecosystem from which it was taken from, including the costs of rehabilitating specimens (where they have been live traded). This can be assessed from the Species Victim Impact Statements provided by HKU to AFCD and DoJ.

3. Fines imposed should reflect the costs of rehabilitating specimens (where they have been live traded).

4. Amendments which would allow orders to be made permitting the recovery of the costs of care and maintenance of species seized should be legislated.

It is hoped that the judicial system in Hong Kong will continue to take a hard stance on illegal wildlife trafficking and to impose sentences for those who contravene CITES and Cap 586 that are reflective of seriousness of the act (be it scale, damage to the ecosystem and rehabilitative costs), but also to deter others from using Hong Kong as a haven for trading illegal wildlife.