HKSAR v. Xiao Rongqiang

CACC 79/2020

[2021] HKCA 23

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 79 OF 2020

(ON APPEAL FROM DCCC NO 117/2020)

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REASONS FOR JUDGMENT

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Hon Yeung VP (giving the Reasons for Judgment of the Court):

Facts of the case

1.On 29 November 2019, the appellant (Xiao Rongqiang) travelled from Moscow to Hong Kong by plane and was intercepted by the Customs for examination when he was passing through the “Nothing to Declare” channel to enter Hong Kong. The Customs officer(s) found from the baggage he was carrying 224 pieces of Saiga antelope horns, weighing 49.9 kilograms in total and having a market value between $719,000 and $1,188,000.

2.The appellant was charged with illegal import of specimens of an Appendix II species, namely the 224 pieces of Saiga antelope horns in question, contrary to sections 11(1) and (3) of the Protection of Endangered Species of Animals and Plants Ordinance, Cap. 586, Laws of Hong Kong (“the Ordinance”).

3.On 3 June 2020, the appellant pleaded guilty before the trial judge, Deputy District Judge June Cheung (as she then was), and was sentenced to 20 months’ imprisonment. The trial judge adopted 30 months’ imprisonment as the starting point, and the sentence was reduced by one third to 20 months’ imprisonment for his plea of guilty.

4.The appellant disputed the sentence and applied for leave to appeal against sentence in the hope that the court would grant him such leave. On 10 November 2020, a single judge of the Court of Appeal granted the appellant leave to appeal against sentence and made an order for his application to be heard by the Full Court of the Court of Appeal. Upon the hearing, this court dismissed his application. Our Reasons for Judgment are as follows.

The appellant’s background and mitigation

5.The appellant, aged 50, is a Mainland resident who claimed to have worked as a sales assistant and construction worker earning a monthly income of around RMB 3,000. He is a divorcee with a 9-year-old son and he claimed that he had to take care of his mother who is about 80 years old. He stated that after the divorce, he got sacked by a construction company in 2019, and he ran the risk and committed the present offence for a reward of RMB 2,000 just to support his family.

6.The appellant claimed that through the arrangement and recommendation by his friend/s, he first took a flight to Moscow to bring the specimens in question to Hong Kong. He said he committed the offence only because of his ignorance of the law and his desire to support his family. He said he was repentant for his foolish act of committing the offence. He hoped that the court would pass a lenient sentence on him so that he could return home as soon as possible to look after his mother and son.

Reasons for sentence by the trial judge

7.The trial judge pointed out that in May 2018, the maximum sentence for the subject offence was increased from imprisonment for 1 year to imprisonment for 7 years reflecting the gravity of the offence and the determination of the legislature to combat the crime. The trial judge also listed the sentences in some cases involving incense tree, an endangered species of plant, and emphasised that the main objective of the laws was to protect endangered species, including animals and plants, and to act as a deterrence to prevent endangered animals and plants from being harmed.

8.The trial judge took the view that in sentencing, the court should put emphasis on protecting endangered species rather than on the value of the subject specimens, and take into account the damage done to the subject species by the commission of the offence, the defendant’s motive and modus operandi, as well as the gravity of the offence with reference to the conservation status, quantity and value of the species.

9.The trial judge was satisfied that the present case did not involve syndicated operations, that the appellant was not a leader of any syndicate, and that there was no evidence suggesting that the appellant directly took part in hunting the Saiga antelopes. Nevertheless, she stated that the purpose of hunting the protected species was to transport them somewhere to make a profit, and therefore the appellant’s act was an indispensable part in the commission of the offence of hunting the protected species.

10.The trial judge pointed out that the appellant’s offence was premeditated and involved international elements. Moreover, the Saiga antelope was listed as critically endangered even though it was not in danger of extinction, with its number having drastically dropped by over 80% in the past 30 years to the threshold for critically endangered species.

11.Having considered the number of Saiga antelopes, their value and all other relevant factors in this case, the trial judge held that the appropriate starting point should be one of 30 months’ imprisonment. She indicated that the appellant showed his repentance by pleading guilty at the earliest opportunity, and thus the sentence was reduced by one third to one of 20 months’ imprisonment.

Grounds of appeal

12.Mr Bernard Yuen, counsel for the appellant, submitted that the starting point of 30 months’ imprisonment adopted by the trial judge was manifestly excessive; one of the reasons being that she had over-relied on the authorities concerning theft of incense trees. Mr Yuen was of the view that even if certain sentencing factors in those cases were applicable, the trial judge should not have directly adopted those sentences because the present case only involved import but not theft of the protected endangered species.

13.Mr Yuen submitted that according to the authorities, the sentence for theft of incense trees was in general heavier than that for import of endangered species, but this factor was not reflected in the sentencing by the trial judge. Mr Yuen contended that the starting point taken by the trial judge was higher than the starting point in similar cases, which ranged from 9 months to 21 months.

14.Mr Yuen further submitted that the trial judge had misunderstood the reasons for sentence in certain cases when passing her sentence and had overlooked the fact that the subject species in the present case was listed in Appendix II instead of Appendix I of the Ordinance.

15.According to Mr Yuen, the starting point of 30 months’ imprisonment adopted by the trial judge was too high and the sentence of 20 months’ imprisonment eventually passed was manifestly excessive.

Respondent’s position

16.Ms Bertha Christal Chan, Acting Assistant Director of Public Prosecutions for the respondent, objected to the appellant’s appeal. Ms Chan opined that the cases to which Mr Yuen referred were not of much referential value as they took place soon after the maximum sentence for the offence under the Ordinance had been raised in May 2018 from imprisonment for 1 year to imprisonment for 7 years, and those sentences passed by the court were exceptionally lenient. Ms Chan stressed that the purpose of the Legislative Council’s amendment to the Ordinance in 2018 was to effectively deter illegal trading of protected species and to align the penalty of the subject offence with that adopted by other jurisdictions. She further submitted that in Mainland China, smuggling 12 pieces of Saiga antelope horns may lead to a term of imprisonment for up to 3 years, while smuggling 303 pieces may attract a term up to 8 years. Ms Chan contended that the sentence imposed by the trial judge was definitely not excessive.

Discussion

17.Human greed has endangered many species and brought severe adverse effect to the global environment and ecosystem. All crimes that threaten the survival of endangered species must be deterred, the purpose of which is not only to comply with the Convention on International Trade in Endangered Species of Wild Fauna and Flora to which Hong Kong has acceded, but also to ensure that endangered species are properly protected from the risk of extinction.

18.Pursuant to sections 5 and 11 of the Ordinance, importing specimens of certain species is an illegal act. Upon conviction on indictment, the maximum penalty for importing specimens of the species listed in Appendix I of the Ordinance is a fine of $10 million and imprisonment for 10 years whereas the maximum penalty for importing specimens of the species listed in Appendix II of the Ordinance is a fine of $1 million and imprisonment for 7 years.

19.Before passing the sentence, while defence counsel was making submissions, the trial judge referred to HKSAR v Lam Kam Pao, DCCC 24/2019 which involved import of pangolin scales listed in Appendix I of the Ordinance. Referring to the facts of that case, the trial judge said:

“...there was a Lam Kam Pao... concerning 134 pangolins, weighing 48 kilograms, which all belonged to class II, that is… species of Appendix I — Appendix II.”

20.Although the starting point of 30 months’ imprisonment adopted by the trial judge was the same as that in Lam Kam Pao, this court disagrees that she had misunderstood Lam Kam Pao and had bracketed the sentence in the present case with the sentence in that case.

21.This court has to first highlight the fact that the value of the pangolin scales involved in the case of Lam Kam Pao was only $189,000, which is way below the range of $719,000 to $1,188,000, being the value of the subject Saiga antelope horns in the present case.

22.If the trial judge had mistaken Saiga antelope horns for a species covered by Appendix I, she presumably would have taken a starting point of over 30 months’ imprisonment.

23.In mitigation, the defence had in fact expressly told the trial judge that Appendix I and Appendix II cover species under different degrees of threat, and the maximum sentences for them were 10 years’ and 7 years’ imprisonment respectively.

24.The trial judge also clearly stated in her reasons for sentence that the maximum sentence in the present case was raised in May 2018 from imprisonment for 1 year to 7 years.

25.Under the above circumstances, this court does not agree with Mr Yuen’s submission that the trial judge had erred in making a direct comparison between the sentence of the present case and that of Lam Kam Pao.

26.Having said that, this court only has to consider whether the starting point of 30 months’ imprisonment adopted by the trial judge is manifestly excessive.

27.This court is of the view that sentences in similar cases in Mainland China do not serve as guidance, and they are not binding on this court. Nevertheless, this court accepts that the sentence for illegal import of endangered species must be sufficiently deterrent. Otherwise, Hong Kong would not be able to fully discharge its duty under the International Convention. If the Appendix II species were not properly protected, they would extremely likely be faced with the danger of extinction. In that case, it would be difficult to estimate the extent of the damage which would be brought by human greed to the global environment and ecosystem.

28.In accordance with the authorities cited by Mr Yuen, the starting point taken by the District Court for offences involving illegal import of Appendix II species under the Ordinance ranged from 9 months (HKSAR v Patrick Setioso and two others, DCCC 513/2019, in which about 10-odd kilograms of dried seahorses, valued at about $200,000 plus, were involved) to 21 months (HKSAR v Hiraguchi Naoki, DCCC 1192/2018, which involved 60 live Ryukyu black-breasted leaf turtles, valued at $510,000 to $2,400,000).

29.Most of the abovementioned cases were committed soon after the Ordinance was amended in May 2018, when the maximum sentence was raised to 7 years’ imprisonment. This court opines that the sentences in those cases are neither adequate to reflect the gravity of the offence of illegal import of endangered species, nor are they binding on this court.

30.This court accepts that the sentence for theft of incense trees may not be applicable to the offence of importing specimens of endangered species, but the sentencing factors that the trial judge listed out, including the conservation status of the subject species, its quantity and value, the defendant’s modus operandi, his motive, the damage done to the subject species by the defendant, the presence or absence of a syndicated operation, and the role of the defendant and so on, are definitely relevant factors.

31.As stated in the expert reports, Saiga antelopes are distributed across Central Asia and Eastern Europe, inhabiting countries like Kazakhstan, Mongolia, Russia, Turkmenistan and Uzbekistan. They are found on arid and semi-arid steppes at an altitude of 1,000 to 2,000 metres. They are a nomadic species that undertakes long-distance migration.

32.Despite the fact that female Saiga antelopes do have a long reproductive period and high reproductive ability, and they usually deliver twins, Saiga antelopes are at the same time vulnerable to diseases from which they may die.

33.Illegal poaching takes place in all habitats of the Saiga antelope mainly due to the commercial value of the male Saiga antelopes’ horns and their derivative products. The male Saiga antelopes’ horns are viewed as being able to cure multiple illnesses, and they are used in traditional Asian medicine. There is demand for Saiga antelope horns in different markets like China, inclusive of Hong Kong, Japan, Singapore and Malaysia, and products that come in phials of liquid, shredded form and tablets are commonly found.

34.Available information shows that Saiga antelopes are protected by the laws in all the countries or regions where they breed, so it is an illegal act to hunt them. Internationally, the Saiga antelope has been listed in Appendix II of the Convention on International Trade in Endangered Species of Wild Fauna and Flora since 1995, and the legal quota for export of wild Saiga antelope specimens for commercial purposes has stood at zero since 2019.

35.According to the second report of the expert in this case dated 5 December 2019, population of wild Saiga antelopes has drastically shrunk by over 85% in the past 30 years, from over 1,000,000 in the 1970s to an estimated number of 164,600 to 165,600 in January 2018. The sky-high commercial value of their horns is the main reason for the massive hunting of the male Saiga antelopes, resulting in gender imbalance which in turn affects the birth rate of the Saiga antelope.

36.In spite of the strict anti-poaching measures taken by various countries, massive scale death of the Saiga antelope caused by illness or climate change is not uncommon. Between 2015 and 2016, the number of Saiga antelopes in the Kazakhstan region was reduced by over 200,000 owing to contagious diseases, amounting to two thirds of its global population. Existing wild Saiga antelopes are few in number. Starting from 2002, the Saiga antelope has been put on the Red List of Threatened Species of the International Union for Conservation of Nature (IUCN). Even though female Saiga antelopes do have a long reproductive period and high reproductive ability, the population of the Saiga antelope is still shrinking drastically, which further demonstrates how widespread the hunting of the Saiga antelope by humans has been.

37.The 224 pieces of horns that the appellant imported illegally were extracted from at least 112 Saiga antelopes, representing a significant percentage of the existing wild Saiga antelopes.

38.The appellant’s offence had a great impact on the survival rate of the Saiga antelope, making it a very serious offence that must be deterred. This court cannot ignore the fact that the maximum sentence for the relevant offence is 7 years’ imprisonment. Although it was not a syndicated crime and neither was there any evidence which showed his participation in hunting Saiga antelopes, the appellant’s offence would definitely have indirectly encouraged others to engage in illegal hunting of Saiga antelopes in their habitats.

39.Moreover, this court cannot disregard the total value of the subject Saiga antelope horns either, which was $719,000 to $1,188,000.

40.The appellant must be severely punished for his offence of illegally importing 224 pieces of Saiga antelope horns for a profit. Considering the background of the case and the modus operandi of the appellant, this court is of the view that definitely, the trial judge’s starting point of 30 months’ imprisonment and sentence of 20 months’ imprisonment were not manifestly excessive. This court even takes the view that there is still room for increasing the appropriate starting point if the illegal activities continue to be rampant. Therefore, the appellant’s appeal against sentence is dismissed and the original sentence shall stand.

Ms Chan Shuk Yi Bertha, Christal,Acting Assistant Director of Public Prosecutions and Mr Tsui Wo Chung, Jones, Senior Public Prosecutor of the Department of Justice, for the Respondent

Mr Bernard Yuen, instructed by Sam Fu & Co, assigned by the Director of Legal Aid, for the Appellant

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Walter Lee, solicitor.