HKSAR v. Muller Canlyn Yolande

DCCC 49/2020

[2020] HKDC 630

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 49 OF 2020

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REASONS FOR SENTENCE

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Introduction

1.The defendant (“D”) (aged 34) (female), a South African national, appeared before me and pleaded guilty to a single charge of importing specimens of Appendix I species otherwise than in accordance with the provisions of section 5(1) of Cap 586.  The subject matter of the charge involves 15.93 kilogrammes of rhino horns.

Facts

2.On 19 October 2019, D arrived at Hong Kong International Airport from Johannesburg, South Africa.  She was scheduled to fly to Ho Chi Minh City via Hong Kong as transit.  She checked a luggage with tag number CX169169 personally at Johannesburg, South Africa.

3.Upon baggage examination by the Hong Kong Customs officers, 7 rhino horns cut pieces wrapped in aluminium foils, which weighed 15.93 kg were found.

4.The rhino horn cut pieces were later examined by The expert of the Agriculture, Fisheries and Conservation Department and confirmed that they were specimens of Rhinocerotidae species. (“the species”)

5.They are specimens of Appendix I species under the Protection of Endangered Species of Animals and Plants Ordinance (Cap 586).

6.As D failed to produce any valid permit, licence or certificate for the importation of the species controlled by Cap 586, they were seized and D was arrested.

7.The estimated market value of the specimens is between HK$4,228,000 and HK$8,704,000.

8.The species were also listed in Appendix I of the Convention on the International Trade in Endangered Species of Wild Fauna and Flora (“CITES”), meaning they are facing extinction and illegal trade is one of the reasons for their decrease in population.

9.According to the International Union for Conservation of Nature (“IUCN”) there were only 25,000 Rhinocerotidae species left in Africa, which already represented 79% of its total population.

10.The number of the species reported poached in Africa has increased dramatically from 201 in 2009 to 1,342 in 2015.

D’s background

11.D was born in South Africa in 1986 and is now 34 years old.  She has no criminal record in South Africa and Hong Kong.  She has attended upper secondary education.  She was married with two sons aged 14 and 7.  She was previously employed as a quality controller and her monthly income was around the equivalent of HK$10,000.

Mitigation

12.In mitigation, Mr Donald, counsel for D, told the court that D was in a desperate financial situation and was unable to adequately contribute to the family’s need.  D’s husband had an occupational accident and was injured in 2005 and was unable to work since then.  The family was residing with her parents as a result.  She was later introduced to a man called Johan who was aware of her financial plight.  Johan offered to employ D on a casual basis as a courier to transport objects overseas.

13.D agreed to deliver goods to Vietnam via Hong Kong and she was provided with the air tickets by Johan.  In Johannesburg, she met Johan and arrangements were finalized for her to take possession of a sealed bag and its contents.  She then flew to Hong Kong and checked in her flight with the bag with its contents.

14.Mr Donald stressed to the court that D has tendered her plea of guilty at the first available opportunity indicating her full remorse.  She was a person of good character and has hitherto clear record both in South Africa and Hong Kong.  She asked for leniency so that she can be released sooner and go back to take care of her family and it is unlikely that she would ever appear in the court of Hong Kong again.

Sentence

15.In HKSAR v Zhao Zhengxin [2019] HKDC 223, HH Judge Stanley Chan said:-

“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.”

16.Judge Stanley Chan adopted a starting point of 15 months’ imprisonment for importation of 3 rhino horns weighing 2.94 kilogrammes and valued at HK$784,000 to HK$1.6 million.

17.Mr Donald has referred to three other sentencing cases in the District Court but two of the cases were dealing with much less quantities and estimated values so the seriousness and gravity of those cases are at all comparable to the present case.  The only one case which is similar to the present case is HKSAR v Tshirobo Confidence and Anor DCCC 318/2019.  The case also involved two South African nationals who were arrested in the Hong Kong International Airport when they were in transit to Vietnam.  The 1^st charge involved 20.17 kilogrammes of rhino horns valued at between HK$4,195,360 and HK$6,333,380 and the 2^nd charge involved 20.41 kilogrammes of rhino horns valued at between HK$4,245,280 and HK$6,408,740.  The sentencing judge adopted a starting point of 39 months’ imprisonment for each charge and sentenced each of the defendant to 26 months’ imprisonment upon their pleas of guilty.

18.Mr Donald submitted that as D was in possession of 15.93 kilogrammes of rhino horn, based on the above authority, the starting point for this case would be in the 30-36 month range.

19.In my judgment, although the quantity involved was about 5 kilogrammes less than the above case, the value is even HK$2.3 million higher.  The difference may be due to the prevailing market price at the time of the offence.  It is clear that the species are facing extinction due to the economic value of the rhino horns and a deterrent sentence must be imposed in order to send a clear message to those who are involved in the illicit wildlife trade.  I will therefore adopt 36 months as the starting point.  I give 1/3 discount to D for her timely plea which is an indication of her remorse and the saving of the court’s time.  I have every sympathy for the burden and hardship that D has to endure as the sole breadwinner of the family.  However, family circumstances are generally not a valid mitigating factor and the court can never accept economic reasons for committing crimes.  There being no further valid mitigating factors justifying further reduction in sentence, D is sentenced to 24 months’ imprisonment.