i.Outline

In August 2021, Hong Kong took a significant step in strengthening its stance against the trafficking of animal specimens. The statutory basis of the prohibition, found in Parts 2 and 3 of the Protection of Endangered Species of Animals and Plants Ordinance (Cap.586), was further concretised by the extension of Schedule 1 of the Organised and Serious Crimes Ordinance (Cap.455) to include animal smuggling offences. However, despite legal reinforcements, the spectre of this lucrative trade still looms large. Headlines in Hong Kong’s leading newspapers routinely feature images showcasing the latest million-dollar seizures by customs authorities, underscoring the pervasiveness of the issue. Just two weeks ago officers intercepted a haul comprised of frozen venison tails, suspected shark fins, and aquarium animals destined for sale, with an estimated value of HKD 4 million. Situated as a vital conduit between Asia and the global community, particularly serving as a gateway to mainland China, the geographic position of Hong Kong presents a daunting task for its border control authorities. Yet, within this challenge lies an opportunity to change the future trajectory of this intersection between animal conservation and border protection.

The following article examines the root causes and existing legal framework governing wildlife trafficking in Hong Kong to explain the overall sense of stagnation in this field. It will also analyse the broader repercussions of the black-market industry on animal welfare. To close, strategies and reforms aimed at fortifying Hong Kong’s defences against this illicit trade will be proposed, drawing on methodologies implemented by other jurisdictions similarly targeted by international smuggling syndicates.

II. The Current Legal Framework

The regulatory landscape governing wildlife trafficking in Hong Kong is defined by several interdependent pieces of legislation. Section 18 of the Import and Export Ordinance (Cap.60) is a general provision deeming it an offence to import or export unmanifested (undeclared) cargo. However, Cap.586 deals specifically with the unauthorised trade of endangered species of plants and animals. It protects species listed under its three appendices in Part 2 of Schedule 1 by imposing penalties ranging from 10 years imprisonment and a fine of HKD 10 million for the most serious transgressions, or one-year imprisonment and a fine of HKD 500,000 for smaller-scale cases. The sentence passed will depend on a range of factors weighed up by the judge, including the endangered status of the species, its country of origin, and the presence or absence of an accompanying ‘Convention certifying document or certificate in lieu’ in respect of the specimen.

The incorporation of the above provisions into Schedule 1 of Cap.455 (section 20), which targets organised and serious crimes, places wildlife trafficking offences on an equal footing with other serious criminal activities. This allows law enforcement agencies to deploy enhanced investigative techniques, including surveillance, forfeiture, and confiscation of illicit products using powers conferred by the Customs and Excise Ordinance (Cap.342). Additionally, the inclusion enables prosecutors to seek harsher sanctions for offenders, fortifying the deterrent effect of the law. If identifiable, defendant(s) could face multiple stacked charges under different Ordinances, but prosecutors will typically choose the provision that best fits the alleged criminal conduct and therefore provides the strongest legal basis for securing a guilty verdict.

III. Ongoing Challenges

Hong Kong’s strategic location and status as a major transportation hub make it attractive for traffickers looking to exploit its connections. Ultimately, the unwavering demand for exotic animals and their derivative products remains the primary incentive for engagement in illegal trade. The high-risk, high-reward nature of trafficking lures individuals into perpetuating the cycle; circumventing laws and exploiting vulnerabilities in the system. Dried shark fin and pangolin scales are two heavily sought-after ingredients in East Asia, due to the supposed health benefits associated with their consumption. The cartilage fetches a high price, ranging from USD 300 to 3,000 per kilogram depending on the region, rarity, and species of origin. As the result of excessive poaching in China, native pangolin numbers have fallen by up to 94% since the 1960s, meaning the animals are increasingly sourced from African countries like Nigeria. According to the UN Office on Drugs and Crime (UNODC), up to 99% of pangolin scale seizures were once destined for China. Claims made by traditional medicine practitioners that pangolin scales can aid women struggling to lactate are unfounded and accountable for the needless suffering of pangolin populations driven to the brink of extinction. As of June 2021, the Chinese government has taken steps towards protecting the species, including prohibiting the use of scales for medicinal purposes. But consignments still filter through, and demand has developed elsewhere, such as in Vietnam.

The deplorable conditions in which live animals are generally transported further contribute to their unnecessary death and injury. Where animals are particularly fragile and require expert handling, or are being transported across long distances, mortality rates are even higher. The leaders of highly organised groups will be largely indifferent to these deaths, viewing them as merely incidental to their operations. But from an ordinary ethical perspective, as Norwegian author Ragnhild Sollund puts it, “it is an abominable crime,” even if animals are ultimately well-kept as exotic pets. This was likely the intended fate for 257 reptiles smuggled from Sydney to Hong Kong last month. Moreover, the introduction of foreign animals to established ecosystems can pose a biosecurity risk to humans and native species through the destruction of crops and the transmission of diseases.

Notwithstanding the introduction of new legislation, gaps or loopholes that allow traffickers to exploit legal ambiguities or weaknesses remain. For example, Part 4 of Cap.586 details ‘Circumstances in which Dealings in Scheduled Species without Licence are Permitted.’ The provision outlines scenarios such as a specimen being obtained before the implementation of CITES (the Convention on International Trade in Endangered Species of Wild Fauna and Flora), or where it is declared and accompanied by a certificate for purposes endorsed by the Convention. The precise meaning of a “Convention certifying document” is not made clear, and it is foreseeable that traffickers could mask their true commercial incentives by mislabeling a consignment as being for scientific research or cultural purposes, or even a different permitted species altogether. This tactic has been used by traffickers to smuggle European glass eels, which are often mis-declared as shrimp or other seafood or packaged in layered containers with hidden compartments.

Wildlife trafficking is sometimes furthered by corruption within law enforcement agencies or other relevant institutions that shelter traffickers or turn a blind eye to their activities. Corruption may take the form of discrete bribe or commission payments. If enforcement agencies are not provided with the resources, authority, or motivation to actively combat trade, or conversely rewarded for inaction, traders will feel emboldened to continue their activities. Wildlife trafficking is often part of larger international criminal networks transcending borders. Therefore, lenient sentencing due to the inability to pinpoint ringleaders undermines the deterrent effect of regulations and enforcement efforts, allowing trade to flourish largely unchecked.

IV. Room for Reform?

China’s temporary ban on wildlife trade was a silver lining to the devastating impact of the global coronavirus outbreak. However, the frequency and magnitude of seizures intercepted in Hong Kong in recent months supersede pre-pandemic levels, indicating that permanent solutions are still necessary. It has been shown that most discoveries of contraband are made through targeted investigations, risk assessments, and tip-offs, rather than routine inspections (UNODC World Wildlife Report, 2020). Communication between regional port and overland intelligence units is vital to maintaining a united front against crime groups. Hostility or reticence to pass information to other agencies greatly hampers the possibility of a successful interception. In cases where corruption plays a role in subsequent non-disclosure, the successful invocation of the Prevention of Bribery Ordinance (POBO; Cap.201), which criminalises the inducement and acceptance of bribes in relation to public servants and officials, makes harsh penalties available.

However, this is by no means standard practice. The predominant issue is a lack of resources. Vast expanses of unmonitored transit routes provide windows of opportunity for traffickers. The UNODC reports that individuals living in border regions across Asia are “uniquely aware of, vulnerable to, and capable of helping address, organised crime”. Syndicates target less economically prosperous settlements, luring residents into furthering their objectives with promises of money. Accordingly, the UNODC has made efforts to strengthen ties with border communities, leveraging the resulting patterns of trust and cooperation to encourage information-sharing and the promotion of alternatives to illicit activities.

At the regulatory level, authorities must be equally comprehensive in addressing the dualistic policy goals of reducing barriers to migration and trade, particularly between mainland China and Hong Kong, and clamping down on wildlife trafficking. If the free movement of people and goods becomes the overriding factor considered by lawmakers, the potency of border security measures will necessarily be compromised. Instead, a balancing exercise must be conducted, evaluating whether a greater proportion of funds might be allocated to train and support border control authorities and whether civil service jobs in the industry can be more widely promoted to eligible residents. The adoption of this approach is evident in other jurisdictions that regularly encounter animal smuggling attempts, such as Australia and the United Kingdom. Further, existing wildlife trafficking laws must be subjected to continuous review and amended to close loopholes and enhance penalties for offenders. This includes clarifying ambiguous language in legislation, such as providing a statutory or common law definition for terms to prevent exploitation by traffickers.

V. Closing Remarks

Preventing wildlife trafficking is in the collective interest of society. At the UN General Assembly in 2015, “the protection of wildlife, forests, and fish” was cited as an imperative step towards “poverty eradication, food security, sustainable development […] economic growth, social wellbeing and sustainable livelihoods”. Therefore, it is important to keep the dialogue surrounding the issue alive. Future generations should not be consigned to learning about species as extinct relics in a textbook. Fostering a culture of respect for all animals and teaching responsible consumption choices remain the keys to dismantling this black-market trade by reducing demand for endangered wildlife. However, regulation undoubtedly plays a supporting role in enforcing ethical trade practices. As the gateway to Asia, Hong Kong occupies an influential position in this respect, wielding the capacity to preserve biodiversity and tackle this transnational issue head-on.

Courtesy of Saskia Sinha