HKSAR v. Wong Wing Kei

DCCC 1075/2020

[2021] HKDC 1236

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1075 OF 2020

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Reasons for Sentence

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1.The defendant has pleaded guilty to a single charge of possession 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)  of the Protection of Endangered Species of Animals and Plants Ordinance, Cap 586, the particulars of that offence being that the defendant, on 2 April 2019, at Room 1610, 16^th Floor, Block 7, Oak House, Kwong Yuen Estate in Sha Tin, had in his possession or under his control specimens of Appendix I species, namely 17.64 kilos of pangolin scale.

2.The defendant has agreed the Admitted Facts which show that on 30 March 2019 at the Express Cargo Terminal of Hong Kong International Airport at Chek Lap Kok, an examination was conducted of an inbound postal consignment originating from Malaysia which consisted of two carton boxes, here described as the parcels.  The examination of the two carton boxes found they had nine cylinder-shaped packets wrapped by semi-transparent yellow tapes, and they contained in total 17.64 kilos of pangolin scales. Those are the goods we are concerned with. 

3.The named receiver was Li Zhi Xion with a contact number which is described as the first receiver contact.  The designated address was in Yuen Long.  The contents of that parcel were described as a spinner.  The receiver’s address had been asked to be altered by a Mr Li to another receiver contact number described as the second receiver contact. 

4.On 2 April 2019, a controlled delivery operation was conducted, and Mr Li who was contacted confirmed that someone would be there to collect the parcels by that time. 

5.At the point of delivery, the defendant himself signed to acknowledge receipt of the parcels and paid the $30 fee charged for the parcels’ change of delivery address to the premises.  Later that same day, the defendant was intercepted on a minibus which was going to the Lok Ma Chau Spur Line Control Point.  It was found that the goods on search were not with the defendant.  The defendant was escorted back to premises which was his residence in Hong Kong, and the parcels containing the subject goods were recovered from a room at the premises.  They were unopened. 

6.The defendant was arrested and made a number of statements under caution.  He said he collected the parcels in the afternoon of 2 April 2019.  The parcels belonged to Mr Li.  He acted upon Mr Li’s instructions to collect the parcels on Mr Li’s behalf.  The defendant signed on the receipt and paid the $30 fee for change of delivery address. 

7.He said at the time he received a monthly salary of $10,000 from Mr Li for collecting parcels.  He was only responsible for parcel collection.  After receiving the parcels, he would visit Mr Li in the mainland to notify Mr Li about the collection.  Mr Li may send someone to take the parcels or collect it himself from the defendant’s residence at the premises.  The defendant would receive a salary payment in cash when he met Mr Li in the mainland.  He had met Mr Li in a sauna house in mainland China and would not be contacted directly.  The defendant at the time said he did not open the parcels and was ignorant of their contents. 

8.A search of the defendant’s mobile phone found that the defendant had frequent phone calls with both the second receiver and first receiver contacts.  Movement records show the defendant was a frequent traveller between Hong Kong and the mainland. 

9.The endangered status and value of the subject goods are as follows.  The subject goods were 17.64 kilos of pangolin scales and specimens of Appendix I species under the ordinance.  The subject goods represented about 49 individual pangolins with an estimated market value of between 48,000 and $90,000 in Hong Kong currency. 

10.All eight species of pangolins have been up-listed from Appendix II to Appendix I of CITES, meaning that pangolins are a species facing the threat of extinction.  The International Union for Conservation of Nature Red List of Threatened Species classification shows that each species of pangolin is threatened with extinction.  The species suffers past, ongoing and future population declines attributed to poaching and hunting for international wildlife trafficking and domestic use. 

11.The facts also show between 2001 and 2016, an estimated 18,000 pangolins have been trafficked each year but the actual illegal trades should be even higher.  Thus, it is a serious and ongoing problem that the courts have to face. 

12.Going now to the defendant’s situation, an antecedent statement taken from the defendant shows that he was aged 62 at the time the statement was taken.  I believe he is now aged 63.  He has one criminal record in Hong Kong, a case of common assault back in 1980, for which he was bound over.  One has to say that conviction is not relevant for the purpose of sentencing today.  I shall treat him as a person of clear record. 

13.The defendant in his antecedent statement indicated he was single, living in Kwong Yuen Estate in Shatin, had education up to primary level, and was unemployed at the time of his arrest. 

14.As far as the defendant’s background as assessed in mitigation is concerned, it is said that the defendant is a Hong Kong citizen born in Hong Kong, currently 63 years old, divorced with two daughters, aged 20 and 24, living alone.  The defendant has brothers who have provided written mitigation letters to support him.  The defendant has worked as a factory worker and casual worker, was unemployed in 2019, was in receipt of CSSA with a figure of $6,200 per month. 

15.The defendant suffers from certain medical conditions.  He has a cataract and was scheduled to receive follow-up treatment later this year. 

16.In mitigation, it was said the defendant became acquainted with Mr Li in a sauna in China and indicated he would receive packages for him at his Hong Kong address.  Communication with Mr Li was by way of WeChat and someone would be arranged to pick up the parcels from the defendant’s premises.  It was submitted from this information the defendant is not the mastermind behind this smuggling operation and the defendant was a small potato in the grand scheme of things.

17.The defendant is said to be a simple man who was taken advantage of by more sinister and organised forces.  He is remorseful. He confessed his role by way of a video-recorded interview.  He has pleaded guilty and in the fullness of time provided a non-prejudicial statement to the police.  And sentencing was in fact adjourned for that statement to be taken. 

18.A medical report taken on the defendant shows that his general health condition remains unremarkable.  A background report on the defendant describes him as an old man who lives by himself.  He has led a law-abiding life for 40 years.  He is remorseful and determined to start a new life.  It is thought the defendant could benefit from social rehabilitation. 

19.Of interest in this case is the defendant’s provision of a non-prejudicial statement to the Customs and Excise Department on 14 July 2021.  It was taken by an inspector of Customs and Excise. 

20.The defendant provided a non-prejudicial statement.  The defendant repeated admissions made in his statement on 2 April 2019 that he collected the parcels for Mr Li and another person would later collect the parcels from him.  He could not provide any contact information for Mr Li.  He provided a telephone number which in fact was the number of the second receiver which had already been surfaced in the course of investigation, but it says in the statement this telephone number was previously surfaced during the search on the defendant’s mobile phone.  An investigation regarding this phone number has been conducted.  The phone number was registered under a prepaid SIM card.  No subscriber information could be retrieved. 

21.The sixth paragraph says:

“To conclude, since no information of value was provided by the defendant, I am of the view that the information/assistance provided by the defendant was of no practical use.”

22.Turning to the approach to sentence, I refer to a part of the judgment given in another District Court case, HKSAR v Fung Tak Cheung, DCCC 399/2020, in relation to a case involving elephant tusks. It was said that on 1 May 2018, the maximum sentence for this current offence we are dealing with carries a fine of $10 million and 10 years’ imprisonment upon conviction on indictment. 

23.It is clear that the legislative intent was to drastically enhance the maximum penalty and it is said the reason for that was to provide a sufficiently strong deterrent against illicit wildlife trade, including ivory, and to send a clear message to the international and local communities the government is committed to the protection of endangered species and combatting wildlife trafficking. 

24.An enhanced scheme of penalties has been provided for in the ordinance.  The government has spoken loudly and clearly it values protection of endangered species and the government is determined to stop trafficking activities.  The increase in the sentence is clearly meant to be a deterrent. 

25.I have been referred to a number of authorities, some dealing with the trafficking or importation of elephant tusks and also plants such as agar, an incense tree, and also a summary of sentences passed in respect of other endangered species.  These cases date from 2019 to 2020.  Take, for example, the case of HKSAR v Wei Binxue and Wei Yanhong [2019] HKDC 1162, a case of importing specimens of Appendix I species involving up to 55 kilos of pangolin scales involving 154 pangolins.  It was on a greater scale than the case today, the court adopting a 24 months’ imprisonment as a starting point and imposing sentences of 16 months’ imprisonment upon guilty pleas.  

26.In another case of [2019] HKDC 616, again a case of importing 48.18 kilos of pangolin scales involving 137 pangolins, a starting point of 36 months’ imprisonment was taken.  Again, on 12 May 2020, a case involving 50 kilos of pangolin scales involving some 276 pangolins, a starting point of 36 months’ imprisonment was adopted in that case. 

27.In this case, I will adopt a lower starting point than that adopted in [2019] HKDC 616 to reflect the fact that we are dealing here with a total of 17.64 kilos of pangolin scales involving 49 individual pangolins with an estimated value of at its lowest at $48,000, at its highest at $90,000. 

28.I would make a remark in relation to that that although the weight and the value of the pangolins is of course of importance in determining the sentence, it is necessary that the courts reflect that these are serious matters and these are highly endangered species and they do require protection and that protection can only be made through substantial deterrent sentences of imprisonment regardless of the quantity of the species imported. 

29.Furthermore, the defendant says that the court should also bear in mind the fact that he provided a non-prejudicial statement to the Customs and Excise Department and that the case of HKSAR v Lo Sze Tung Stephanie, CACC 190/2017, permits the court to give an enhanced discount in cases where information is provided to the prosecuting authorities even if that information is unfruitful and provides no actionable intelligence.  It is said that a discount of between 33.3 to 40 per cent can be granted to a defendant who has made a genuine attempt to assist the authorities.  His assistance has been helpful but for some reason or other is not assessed to be of particularly great value, and the court in that case went on to refer to the form of assistance commonly found is one of an unsuccessful controlled delivery. 

30.The court went on in paragraph 51 to say if information is unfruitful, there would need to be something quite exceptional about it to justify awarding a defendant a discount as much as 40 per cent, and it was described as the high watermark for any assistance as granted.  At the end of the day, the decision of whether to grant a discount and by how much that discount should be assessed is a matter for the trial judge. 

31.In this case, I do bear in mind that the defendant only provided the information in July of 2019; and secondly, the information that was provided was of no practical assistance; and thirdly, as pointed out by the prosecution in this case, that the telephone number provided had already surfaced in the course of the investigation.  So there is no further information provided.  It was already in the hands of the prosecution.

32.Nevertheless, it may well be that the court should provide some encouragement to defendants to at least provide some assistance to the authorities, and of course it would be of note to the other defendants in this case, potential defendants, that the defendant had provided assistance to the authorities that may well prejudice his position in the future. 

33.I take all these factors into account in determining the starting point for sentence.  In this case, I do bear in mind that these species are highly endangered and although the amount of pangolin scales and individual pangolins is less than in other cases I have been referred to, it is still a serious offence requiring a deterrent sentence. 

34.In respect of this case, I will take a starting point for sentence of 24 months’ imprisonment and reduce that to 16 months’ imprisonment for the defendant’s plea of guilty at this stage.  I do bear in mind the defendant provided a non-prejudicial statement that was of no practical value.  However, I do consider that some acknowledgment should be given that the defendant provided some assistance or tried to provide some assistance, and I reduce that sentence by 1 further month to reflect that, leading to a final sentence of 15 months’ imprisonment.