HKSAR v. Shiqibang Trade Co Ltd

DCCC 506/2020

[2020] HKDC 880

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 506 OF 2020

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REASONS FOR SENTENCE

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1.D2 pleaded guilty to one charge of importing 7,301.32 kg of American ginseng (Panax quinquefolius), contrary to section 11(1) and (3) of the Protection of Endangered Species of Animals and Plants Ordinance, Cap 586.

The facts

2.On 8 August 2018, an incoming tractor with a 20 feet container was intercepted by the Customs and Excise Department upon arrival to Hong Kong via Man Kam To Control Point, New Territories, Hong Kong.  Upon examination, a total of 7,301.32 kg of American ginseng (“Pl”) was found in the container.

3.The driver of the tractor, was unable to produce any valid export document under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”) or any valid import licence for P1.  P1 was thus seized and was later identified by Endangered Species Protection Officer as Panax quinquefolius species, a specimen of an Appendix II species.

4.Panax quinquefolius has been listed in Appendix II to CITES since 1975.  Appendix II includes species not necessarily threatened with extinction but in which trade must be controlled in order to avoid utilization incompatible with their survival.

5.Panax quinquefolius can be found in Canada and the United States.  The species is slow growing and takes 3 to 8 years to be harvested.  The root of the plant has been used for traditional medicine.  Due to heavy harvesting pressure, wild Panax quinquefolius has become rare.

6.D2 is the offshore consignee of P1.  Mr Chen Guo Xiang, the sole director and authorized representative of D2 provided a cautioned statement and admitted, inter alia, the following:-

(i)  D2 was the consignee of P1;

(ii)  It purchased P1 from the mainland consignor, namely, Shenzhen Fok Ho Limited;

(iii)  He did not know the final destination of P1 but D2 intended to resell it;

(iv)  P1 was “西洋蔘”, which was artificially propagated and processed in Mainland China;

(v)  He did not know American ginseng was a scheduled endangered species or that a CITES permit was required for import and export purposes;

(vi)  D2 could not provide a valid CITES permit for P1; and

(vii)  Based on his understanding, P1 could be imported into Hong Kong legally.

7.The estimated market value of P1 is $4,040,000.

Criminal record

8.D2 is of previously clear record.

Mitigation

9.D2 was a limited company established in 2015.  In the present case, D2 was a trader helping purchasers to purchase and import the American ginseng in question.

10.However, D2 was an inexperience trader and made the mistake in believing that American ginseng was not an endangered species. Hence, D2 and its employees was negligent that the American ginseng was not controlled under the Ordinance and therefore mistaken that importation did not require a licence.

11.D2 accepts the seriousness of the offence since there was a large quantity of American ginseng that was imported without a licence. However, D2 did not conceal as to the substance or the large quantity of the American ginseng, as both was declared to the Mainland and Hong Kong Custom Authorities.

12.There were also labels on each of the boxes to identify the contents (i.e. ginseng). The American ginseng was also held inside clear plastic bags to easily identify its contents.

13.The defence relies on HKSAR v Schwendinger Glenn Harry Patrick DCCC923/2019 in which the defendant was charged with importing pink conch pearls that worth about HK$3.9 million.  They can only be imported legally with a valid export licence from origin. Upon the guilty plea, the court imposed a fine of $300,000.

14.In that case, the learned judge held that since there were no artificial means to culture pearls, and owing to the unpredictability of their production, the trading of conch pearls must be regulated in some form in order to discourage the indiscriminate and irresponsible harvesting. Therefore, a sentence must be made for the purpose of deterrence.

15.In the present case, there were no slaughter and commercial exploitation of wildlife. The American ginseng was artificially grown. Hence, D2 invites the Court to consider a lesser deterrent sentence and to consider a more lenient sentence to reflect the less seriousness of this case in comparison to Schwendinger Glenn Harry Patrick.

Sentence

16.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.

17.In sentencing, I take into consideration the whole circumstance of the case including its nature and facts, background of D2, as well as mitigation put forward on her behalf.

18.Given the substantial quantity of the American ginseng, it is easy to be oblivious to the consequences of overharvesting for commercial purpose. There is a likelihood to deplete them to very low level and make utilization incompatible with their survival.

19.It can directly impact humans as well, especially the fact that they are valued for their medicinal purpose.

20.In practical terms, it reduces valuable resources to such low levels that their exploitation is no longer sustainable.

21.I have taken into consideration that D2 had no concealment in the importing process of the American ginseng and the unlikelihood that D2 will reoffend again.   I accept that D2 is remorseful. 

22.However, having considered the total value and the quantity involved, it is important to discourage the unregulated trading of the same, deterrent sentence is necessary.  As such, I sentence a fine of $200,000 on D2.