HKSAR v. Fung Tak Cheung
Read the full judgment text of DCCC 399/2020 on BabelCite. This District Court judgment was delivered on 10 September 2020.
1. The defendant pleads guilty to one charge of possession or control of specimens of Appendix I species otherwise than in accordance with the provisions of section 9(1) of Cap 586, contrary to section 9(1) and (2) of the Protection of Endangered Species of Animals and Plants Ordinance, Cap 586 (“the Ordinance”).
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DCCC 399/2020 [2020] HKDC 778 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 399 OF 2020 ________________________
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________________________ REASONS FOR SENTENCE ________________________ Background and Facts 1.The defendant pleads guilty to one charge of possession or control of specimens of Appendix I species otherwise than in accordance with the provisions of section 9(1) of Cap 586, contrary to section 9(1) and (2) of the Protection of Endangered Species of Animals and Plants Ordinance, Cap 586 (“the Ordinance”). 2.The subject matters are 20.04 kilogrammes of worked ivory and 35.27 kilogrammes of raw tusk (both are ivory of Elephantidae spp.) 3.The facts admitted by the defendant revealed that:-
Mitigation 4.Defence Counsel Mr Chow submitted the mitigation bundle (“the bundle”) which includes:-
Defendant's personal background 5.The defendant is a 45 year old Hong Kong citizen. He is divorced with 2 children, a 13 year-old daughter and a 4 year-old son. In 2018, the son has been diagnosed to have Autism Spectrum Disorder and is receiving treatment. The defendant does not live with his children but provides financial support to them. 6.The defendant, being a sole proprietor, has been engaging in wood carving & jewellery processing business for some 8 years. His main source of customers was from Mainland China and he used to have good income. He is described as a successful businessman and passionate with craftsmanship. Background of the Offence 7.Mr Chow submitted that since 2015 the defendant has developed a keen interest in ivory carving. For the purpose of collection, he bought 2 complete Portugal-imported ivory tusks with a CITES re- export certificate at HK$447,300 (certificate at tab 5 & the related invoice at tab 4 of the bundle). Prosecution also provided to court the same documents (i.e. MFI-1 & MFI-1a) and agreed that it was a legal purchase. 8.Although it is mentioned in paragraph 20 of the written submissions that the defendant decided to make some ivory products out of the ivory tusks and put them on sale in 2019, it was Mr. Chow’s oral submission that the worked ivory were made by the defendant since 2015. The defendant also mentioned in his mitigation letter that he carved the ivory tusk after purchase for household decoration when he was free. 9.Between September 2016 and March 2018, the defendant resided in Mainland China for about 19 months in order to take care of his ill father. He was unaware of the amendments to the Ordinance introduced in HK in 2018. 10.In 2019, the defendant moved back to Hong Kong. However, his business suffered losses and his income reduced substantially due to social disorder and economic downturn. 11.Besides, the defendant had to stop working so as to look after his autistic son. 12.It was out of financial difficulty that the defendant decided to put the worked ivory on sale to generate income. 13.Defence claimed that all the ivory artworks seized at the Premises were made by the defendant himself. 14.Prosecution informed the court that Exhibit E3 (象牙球塔) has a serial number and it was owned by a company and therefore it was not made by the defendant. 15.Defence then clarified that the defendant bought Exhibit E3 from a company in 2018 for self-learning purpose. Mitigating Factors 16.In defence written submissions, Mr Chow set out various mitigating factors which include but not limited to the followings:-
Sentencing considerations 17.With the commencement of the (Amendment) Ordinance on 1 May 2018, the maximum sentence for the current offence carries a fine of HK$10 million and 10 years’ imprisonment upon conviction on indictment. Even though the amendments to the Ordinance have been in force for 2 years, when one looks at the Legislative Council brief regarding the (Amendment) Bill of the Ordinance, one would understand the legislative intent in drastically enhancing the maximum penalty. 18.I quote the statement from the brief:-
19.Here, we see the government has spoken loudly and clearly that it values on protection of the endangered species and the government is determined to stop the trafficking activities. 20.The defendant admitted that elephants have been one of the iconic species group in wildlife trade conservation. Both African and Asian elephants are facing the threat of extinction, and illegal trade is to supply the black markets of producing worked ivory. The elephant populations are badly declining. 21.The defendant should not take the control-buy operation of AFCD as his mitigation factor claiming no ivory has entered into the black market. If AFCD had not stopped him from selling Exhibit E1 and Exhibit E2, it would be the natural consequences that the remaining worked ivory would be sold by the defendant subsequently. 22.Amongst the worked ivory, Exhibit E6 and Exhibit EI0 are 893 pieces of ivory seals and 5,504 pieces of small jewellery parts respectively. The making of such a large amount of these items by the defendant for the purpose of household decoration is hardly convincing. 23.In respect of defence submission that the defendant committed the offence out of negligence and ignorance of law, I have informed defence counsel at the beginning of this hearing that I am not inclined to accept this assertion. After inviting defence to make further submissions on this point, I was informed by Mr Chow that defendant decided not to give evidence in respect of this assertion and Mr Chow has nothing to add on his written or oral submissions made during last hearing. 24.(a) The defendant spent HK$447,300 to buy the 2 ivory tusks in 2015, which is a substantial amount of money. In addition, defence submitted that the defendant, as a craftsman, has always been passionate about ivory art works since 2015. As such, the defendant should be very concerned to the latest information relating to the local ivory industry. In particular if there are any drastic amendments to the existing law in regulating ivory trade.
Defendant's Criminal Conviction Records 25.From 1992 to 1994, there are 4 records of “Possession of goods for sale to which a forged trade mark was applied” and the defendant was fined for 4 times. In 1993, there is a record of “Possession of Part 1 Poison” and the defendant was sentenced to a probation order. As these records are more than 25 years and they are not similar to the present offence faced by the defendant, I would not consider enhancing the defendant’s sentence by reason of his previous convictions. Sentencing the Defendant 26.I have read carefully each and every letter prepared by the defendant, the defendant's ex-girlfriend and his current girlfriend. 27.I should say at the outset that, from all the letters I received, I have no doubt that the defendant is a highly self-motivated businessman, and working hard for his career and family. 28.His present conviction is a heavy blow to his family and the plight in which his children will be put is not difficult to understand. 29.However, not only has the court said time and again that family hardship is a matter which an accused has to seriously consider before and not after embarking on his criminal conduct, and which is part of the price he must pay for his crime. 30.The estimated market value of the worked ivory and the raw tusk (Exhibits E1 to E11) is about HK$577,000. 31.But the market value is only one of the factors for sentencing consideration. 32.With the operation of the (Amendment) Ordinance, the maximum sentence for the present offence, upon conviction on indictment, has increased substantially, namely the fine is HK$10 million and the prison term of 10 years. 33.This remarkable increase in maximum sentence shows the Government’s strong commitment to protect the endangered species and to stop illegal trading. 34.In order to reflect the legislative intent, it would be appropriate to recognise the importance of a deterrent sentence. 35.Having considered all the circumstances of the case, all that was said on the defendant’s behalf in mitigation, and the defendant’s personal and family circumstances, in my view, the appropriate starting point for the defendant's sentence should be 3 years imprisonment. 36.The defendant would be given the full one-third discount for his timely plea of guilty. The sentence is therefore reduced to 24 months. 37.I do not see any other powerful mitigation which would warrant a further reduction. 38.Defendant, you are to serve 24 months’ imprisonment.
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