HKSAR v. Chan Fu Yee

DCCC 128/2019

[2019] HKDC 804

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 128 OF 2019

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one charge of importing specimens of live European eel (Anguilla anguilla), contrary to section 11(1) and (3) of the Protection of Endangered Species of Animals and Plants Ordinance, Cap 586.

Summary of facts

2.The defendant flew into Hong Kong from Lisbon via Moscow on 1 December 2018.  Upon search, Customs Officers found 20 bags of live European eel fry, with a net weight of 14.29 kilograms, from his checked-in luggage.

3.Importation of live European eel into Hong Kong is prohibited subject to certain exceptions.  For sentencing purpose, it is sufficient to state that the importation by the defendant of the 14.29 kg of eels was not under any of the applicable exceptions.

4.There are between 43,300 to 53,700 European eel fry in the 20 bags, worth between HK$154,000 and $192,000.  As at 1 March 2019, all the fry had died.

5.According to expert witness Dr Wong, the European eel faces a series of potential threats, including the loss of and changes to their habitat, migration barriers, pollution, parasites, change in oceanic conditions and overfishing.

6.Together, these threats had caused their population to suffer massive decline.  For the past decade, the number of European eels found in their natural area of distribution has reached historic lows with a decreasing population trend.

7.The European eel was included into Schedule II of the Convention on International Trade in Endangered Species of Wild Fauna and Flora in 2009, meaning that the species is under threat of extinction if its trading remained uncontrolled.  The European Union has banned their import and export since 3 December 2010.

8.The European eel is listed in the ICUN Red List and categorized as ‘critically endangered’, being the second last step before extinction.

Previous convictions

9.The defendant has no previous convictions.

Mitigation

10.The defendant was born in Hong Kong in June 1994 and is almost 25 years old.

11.In his very detailed written submissions in mitigation, Mr Lee for the defendant informed the court how the defendant committed the present offence in order to fund his studies.

12.The defendant sat for DSE examinations in 2012.  From 2012 to 2014, he worked full time as a factory worker and later a waiter.

13.The defendant enrolled and completed an Advanced Diploma in Business Management course of Lingnan University between 2014 and June 2016.  He continued to work part-time jobs to support his studying and living expenses.

14.After obtaining the Advance Diploma, the defendant enrolled for a distant learning Master Degree in Engineering Management with University of Technology Sydney.  He was awarded the degree in March 2018.  Again, the defendant continued to work part-time to support himself.

15.In April 2018, the defendant enrolled for another distant learning master degree with Monash University.  Due to lack of funds, he was unable to pay their fees and his enrolment was discontinued in August the same year.

16.In around September and October 2018, the defendant was introduced to some people who promised that he could make some quick money.  He was told to travel to Europe and to bring back 2 luggage for an HK$8,000 reward.  The defendant was told that he was bringing back fish products that required permits to be brought into Hong Kong, but due to time constraints, no permits had been obtained and so they had to be brought back by someone as check-in luggage.  They promised the defendant that the luggage did not contain drugs or guns.

17.Upon inquiry, Mr Li confirmed with the court that the defendant does not suffer from any medical or mental condition that would have affected his judgment on matters.

Sentence

18.The maximum sentence for the importation of endangered species under s 11 of the Ordinance on conviction on indictment is a fine of $1 million and imprisonment for 7 years.

Seriousness of the offence

19.A host of countries saw fit to declare in the Convention on International Trade in Endangered Species of Wild Fauna and Flora that this particular species of European eel needed protection.

20.This is a strong indication of its importance in the global ecosystem of living organisms, as well as the importance of not letting it become extinct.

21.As a participating jurisdiction to the Convention, Hong Kong has an obligation to ensure that appropriate punishment is visited upon those who violate the clauses of the Convention.

22.The sentence must be severe enough to punish those who have further endangered the survival of the species, and to deter those who might be tempted to do so in future.

23.It is dangerously easy to be oblivious to the consequences of killing off a species seemingly unrelated to human existence, since those consequences may not be immediately apparent.

24.Yet, the extinction of one species can have significant long term effects on other species, which can eventually be extended up, or down, the food chain, affecting human beings.

25.There is still so much we do not know about the importance of biodiversity, which is all the more reason why we must try to avoid killing off other species before we found out how important they are to us, and to the planet.

The defendant’s role

26.The role of the defendant in the importation of the 20 bags of eel fry is most important.  Without his participation as the courier to bring in the eel fry, whatever transactions that had been concluded between those dealing in them would have come to nothing.

27.The defendant was contacted in Hong Kong by a gang of people to help him earn some quick money.  He left Hong Kong on 29 November 2018 via the airport and returned just 2 days later, flying in from Moscow.  There is an international element to the defendant’s commission of the offence.

28.There is no information on who the entities are behind the operation.  Given the large amount of eel fry and their high market value, it would appear that it is a sizeable operation.

29.The air tickets for and accommodation in Europe could not have been cheap.  I was told that they were all paid for by those behind the operation.

30.The defendant was offered a reward of $8,000 for one delivery, which is a rather substantial reward.  I was told that the defendant had not received his reward since he was arrested at the airport.

Starting point

31.Taking into consideration the fact that the defendant had committed the offence for a sizeable reward, including paid passage and accommodation, the fact that a total of between 43,300 to 53,700 European eel fry worth between HK$154,000 and $192,000 were being imported into Hong Kong, and the need for deterrence, I find that an immediate custodial sentence is the only appropriate sentence in the circumstances, despite the fact that the defendant is of previously clear record.

32.Bearing in mind the maximum sentence and the circumstances of the defendant’s commission of the offence, I find that an appropriate starting point is that of 12 months’ imprisonment.

The defendant’s movement records

33.The movement records from 22 April 2014 to 21 May 2019 of the defendant show a total of 33 return trips out of and into Hong Kong.  All of the trips were of very short duration, with 10 being day trips.

34.Counsel in mitigation said that the defendant had only committed this one offence on this one occasion.

35.I was told that the defendant liked to go to Shenzhen for entertainment with his friends because it is cheaper, and a few were trips with family.

36.However suspicious his travelling pattern might have been in the past, there is no evidence to suggest that he was also dealing with endangered species on those occasions, or that he was conducting any illegal activities.

37.I have reminded myself that the defendant is only being charged with the one offence and he is only being sentenced for that one offence.

Mitigating factor

38.As mentioned above, the reason the defendant decided to commit the offence was to earn some quick money to support his studies.  He had taken the wrong path to do the right thing.

39.Nevertheless, I find that this is a mitigating factor and will reduce his sentence by 3 months, resulting in 9 months’ imprisonment.

Final Sentence

40.The defendant is granted the full one-third discount for his timely plea and is sentenced to 6 months’ imprisonment.