HKSAR v. Zhao Zhengxin

DCCC 1119/2018

[2019] HKDC 223

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1119 OF 2018

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Reasons for Sentence

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1.The defendant pleaded guilty to one count of importing specimens of Appendix I species, contrary to section 5 of the Protection and Endangered Species of Animals and Plants Ordinance, Cap 586 (the Ordinance). He was convicted accordingly. The subject matter is 2.94 kg of rhino horn cut pieces with a retail value of between HK$784,000 to HK$1.6 million-odd.

Brief facts

2.On 6 October 2018, the defendant was intercepted by Customs officers when the defendant was walking through the Green channel of the Customs Arrival Hall of the Hong Kong International Airport. From the defendant’s baggage, Customs officers found a total of 2.94 kg of rhino horn cut pieces (exhibit P1), which are Appendix I specimen under Cap 586. These cut pieces were found concealed inside some bags of aluminium foil and were packed inside a red wine box. Later it transpired that the 3 bags of dried mangoes were placed inside the paper box (see photo album MFI-1). 

3.The defendant could not provide any valid export document under the Convention of International Trade in Endangered Species of Wild Fauna and Flora (CITES).

4.Subsequently, the defendant made certain admissions in the video-recorded interview, saying and admitting, inter alia, the following:

(1) He travelled from South Africa to Hong Kong and the Customs found 3 rhino horn items in his suitcase;

(2) The aluminium foil bags were used to pack the rhino horns;

(3) He purchased the rhino horns at the price of RMB $5,000;

(4) He said he bought the rhino horns for his uncle for medical purpose;

(5) He did not have any permit for the rhino horns.

5.Officer from the AFCD confirmed that exhibit P1 is rhino horns, an endangered species. It was said that all species of rhinos in the family of rhinocerotidae have been listed in Appendix I of CITES, except for two populations of a subspecies because they are facing the threat of extinction and illegal trade is one of the reasons for the decrease of population of the rhino family. 

6.It is said, rhinos have been heavily poached for their horns in the past few years to supply the black markets of traditional medicine and ornaments. It is revealed by the statistics that there has been an increase in rhino poaching in Africa, reaching 1,342 heads in 2015, the highest level since 2009.  The number of rhino horns sourced in Africa annually for illegal markets increased to 2,674 in recent years, which is the highest level in over two decades.  As at the end of 2015, there were less than 30,000 heads of rhinos left in the world.

7.At the material time, the defendant did not have any exemption order nor a licence to import exhibit P1 under the Ordinance. The estimated market price of the seized rhino horns amounts to between HK$784,000 to HK$1.6 million-odd.

Mitigation

8.Defence counsel has submitted a skeleton submission for mitigation, together with two cases:  HKSAR v Cheung Mo Tak HCMA 89/2012, and HKSAR v Wei Bin DCCC 680/2018.

9.The defendant is aged 27 and was born in China. He is married and lived with his wife in Liaoning. The defendant had a clear record in Hong Kong. He was the breadwinner of the family.

10.Defence counsel said the defendant joined a tour to go to South Africa for sightseeing. He entered into Hong Kong on the day of his arrest with the intention to go to Shenzhen and then fly back to Liaoning on the same day. 

11.It was said the defendant was taken to a medicinal shop for shopping in South Africa and was persuaded to buy the rhino horns for his uncle in order to treat the latter’s cancer. The defendant paid about $12,000 in South African Rand (about RMB $5,000) for the rhino horns. He bought 3 bags of dried mango at the same time, and the shopkeeper used a paper box to pack all these in the box. The defendant did not open the box after the purchase.

12.The defendant pleaded guilty to the charge at his earliest opportunity. It was said that the defendant simply did not know that it was illegal to import such specimens into Hong Kong without a permit. He underestimated the seriousness of his carelessness for not further looking into the law. The defendant is very remorseful and has been remanded for almost 4 months. 

13.There is no sentencing guideline for this offence. As the amendment was operative lately, there are not many sentencing cases in hand, let alone guidelines or sentencing considerations from higher courts.

14.Given the quantity and value of the rhino horns, the specimens were not imported for commercial purpose and the unlikelihood to reoffend (paragraph 27 of the mitigation submission), defence counsel asked for a lenient sentence.

Sentence

15.There is no dispute that the Legislature has increased the penalty substantially since May 2018. That effectively means that those sentencing cases of the pre-amendment era can bear less weight when the court considers the sentence in the present context. The authorities cited in Sentencing in Hong Kong 8th edition 2018 (at page 760 to 761), all related to cases of the pre-amendment period.

16.In the Legislative Council brief regarding the amendment bill of Cap 586, it is said: “In order to provide a sufficiently strong deterrent against illicit wildlife trade including ivory, and to send a clear message to the international and local communities that the government is committed to the protection of endangered species and to combat wildlife trafficking”, the proposed penalty was increased tenfold to a fine of $10 million and imprisonment for 10 years for indictable offences concerning Appendix I species.

17.This court is of the view that sentence of this kind of the offence should reflect the legislative intent of the Ordinance, which inevitably calls for a deterrent sentence. It is to convey a clear message to society that import and/or export of endangered species of Appendix I to III would attract heavy penalty. 

18.I do not accept the scenario in which the defendant bought the rhino horns. I do not accept that the rhino horns were bought for treating his uncle. The defendant worked as a salesman in Liaoning, earning RMB$5,000 per month and yet it was said the defendant used his one-month salary to buy the rhino horns. In fact, that can be seen as a huge bargain hence profit so derived, as the prosecution said the retail value of the rhino horns can be between HK$784,000 to HK$1.6 million-odd. 

19.The defendant travelled to South Africa alone and it would not be cheap to go all the way from Liaoning to South Africa.  I am sure the rhino horns were put into aluminium bags for some sort of ulterior purpose, and the defendant passed through the green channel in order to avoid Customs clearance. 

20.The defendant is no stranger to Hong Kong as he had come to Hong Kong twice on 17 September and 24 September 2018. This was the defendant’s third visit to Hong Kong between January 2009 and 28 January 2019 (see the travel record of the defendant, MFI-2). 

21.I do not accept that it was not for any commercial purpose that the defendant brought the rhino horns into Hong Kong as submitted. I note that these rhino horns were not sliced but, as shown in the photos, were still in a solid form. I am satisfied that the act of the defendant was carried out for commercial purposes.

22.I am of the view that the retail value of the seized specimen is only one of the considerations for sentence. I also take the view that the culpability of the defendant in the present case is higher than the one in HKSAR v Wei Bin DCCC 680/2018, even though the latter case is not one of binding effect. 

23.In light of the legislative intent and all the factors in the present case, I would adopt a starting point of 15 months. The defendant’s early plea is a wise decision, and I will give him the full one-third discount. That would reduce the sentence to 10 months.

24.I have also considered the defendant’s mitigation grounds and believe that the 27-year-old and tertiary-educated defendant will not re-offend again. I will take a lenient stance and further reduce the sentence for 1 month. As such, I sentence the defendant to an imprisonment of 9 months.