HKSAR v. Wong Kam Shui

DCCC 486/2022

[2023] HKDC 253

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 486 OF 2022

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to three counts of “Importing specimens of Appendix II species otherwise than in accordance with the provisions of section 11(1)  of Cap 586”, contrary to section 11(1)  and (3)  of the Protection of Endangered Species of Animals and Plants Ordinance, Cap 586, Laws of Hong Kong (“the Ordinance”). The imported specimens of endangered species are 74.05 kilograms of dried seahorses (Hippocampus species).

Summary of facts

2.On 24 November 2020, an incoming lorry was intercepted at Lok Ma Chau Control Point, Lok Ma Chau, New Territories and two carton-boxes containing 25.45 kilograms of dried seahorses (“Consignment A”)  were found on board.  It was later confirmed that the said dried seahorses were an Appendix II species and no import licence had been issued by the Director of Agriculture, Fisheries and Conservation for importing the said dried seahorses.

3.According to the documents attached to Consignment A, the consignor was a person named “Lucki Wong” resided in Indonesia and the defendant was named as the consignee with his residential address and mobile phone number provided. The goods description was “Body Scrub (480 pcs)”.

4.A controlled delivery was arranged with Custom and Excise officer (“C&E officer”)  disguised as courier to deliver Consignment A to the defendant.  The C&E officer made a call to the mobile phone number of the defendant and was told to delivered the consignment to another flat in the same block of the defendant’s address.

5.The C&E officer duly delivered the consignment to the other flat as directed.  Later in the same evening, the defendant went to the said flat to collect the consignment and was subsequently arrested.

6.Under cautioned, the defendant made the following admissions :-

(a)  He was the named consignee of Consignment A which was for delivery to his residential address;

(b)  He collected the consignment for one Mr Lam but he had no means to contact him;

(c)  Afterward, one Mr Tsoi would collect the consignment from him but he had no means to contact Mr Tsoi; and

(d)  He had not received any remuneration from Mr Lam for handling the consignment.

7.A search warrant was executed to conduct a search at the defendant’s residential address.  Two more consignments both containing 24.2 kilograms of dried seahorses (“Consignment B” and “Consignment C”)  were found inside the flat.  It was later confirmed by the staff of Federal Express (Hong Kong)  Limited (“FedEx”)  that Consignment B and Consignment C were both delivered to the defendant’s residential address by FedEx on 23 and 24 November 2020 respectively.  No import licence had been issued for both consignments by the Director of Agriculture, Fisheries and Conservation.

8.The defendant was further arrested and cautioned.  Under caution, he admitted he collected Consignments B and C for Mr Lam and he would later hand over the consignments to Mr Tsoi.  In a video-recorded interview, the defendant admitted that he received the consignments from Indonesia for others and was told that the consignments contained seahorses.

9.Endangered Species Protection Officer of the Agriculture, Fisheries and Conservation Department had examined the samples taken from Consignments A, B and C.  It was confirmed they are specimens of dried seahorses (Hippocampus species)  which is Appendix II species under the Ordinance.  The average retail price of dried seahorses was about HK$13,000 per kilogram.  The estimate total market value of the seized dried seahorses from the three consignments was about HK$960,050.

Mitigation

10.The defendant is a 66-year-old married man but is currently separated with his wife.  He has three adult children and four grandchildren.  He received education in Mainland China up to Primary 2 and came to Hong Kong with his family in 1996.  Since he came to Hong Kong, he mainly worked as a construction site worker until he sustained a serious injury at work in 2019. After two years of treatment and physiotherapy, he resumed working as a formwork worker in 2022 earning about HK$20,000 per month.     

11.The defendant has two previous convictions in 2013 and 2019.  Both are gambling convictions and he was fined in both occasions.

12.In mitigation, defence urged the court to considered that the defendant is remorseful and he only has two unrelated convictions of relatively minor nature.  According to his son and his employer, the defendant is a responsible father and a hardworking man.  It was submitted that the defendant committed the present offences out of ignorance of the law and underestimation of legal consequence.  Defence also submitted an article from an organization called OceansAsia in which it stated that the majority of seahorses are obtained as bycatch in some non-selective fishing methods and not from direct harvesting. 

13.Defence invited the court to consider two cases which involved importation of seahorses, namely, HKSAR v Yue Hung, DCCC 892/2018 and HKSAR v Patrick Serioso, Tjhin David and Indra Kesuma Saputra Ong, DCCC 513/2019. In Yu Hung, a sentence of 6 months’ imprisonment was adopted as starting point for importing 19.85 kilograms of seahorses while in Patrick Serioso 9 months was adopted as the starting point for importing 40.4 kilograms of dried seahorses.

Sentencing consideration

14.Protection of endangered species is very important because it saves the wildlife and plants from going into extinction.  Once extinct, they are gone forever and will not come back.  Losing even one single species can lead to disastrous effect to the environment and ecosystem.  That is why all crimes that threaten the survival of endangered species are serious crimes that must be taken seriously and deterrent sentence is always called for.

15.Pursuant to sections 5 to 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 HK$10 million and imprisonment for 10 years.  For importing specimens of the species listed in Appendix II of the Ordinance, the maximum penalty is a fine of HK$1 million and imprisonment for 7 years.

16.In a more recent case HKSAR v Xiao RongQiang, CACC 79/2020, the Court of Appeal has considered two District Court sentences concerning illegal import of Appendix II species including Patrick Setioso and another case HKSAR v Hiraguchi Naoki, DCCC 1192/2018 which involved 60 live Ryukyu black-breast leaf turtles, valued at HK$510,000 to HK$2,400,000.  In short, the Court of Appeal opined that the 9 months and 21 months starting points adopted respectively in the two cases are “neither adequate to reflect the gravity of the offence of illegal import of endangered species, nor are they binding on this court.”

17.In another District Court case HKSAR v Goron Jomar Osal and two others, DCCC 914/2019 where the sentence was passed on 11 January 2021, 18 months’ imprisonment was adopted as the starting points for Appendix II species charges involving 48 to 71 kilograms of dried shark fins valued between HK$40,000 to HK$76,000.

18.In considering the gravity of the offence, the court bears in mind that Appendix II species is not necessarily threatened with extinction, but in which trade must be controlled in order to avoid utilization incompatible with their survival.  There is no dispute that population of seahorse has declined.  It does not matter if it is caused by overfishing, overharvesting or inappropriate fishing methods. 

19.Considered all the circumstances of the case, the background of the defendant, his criminal record, the total market value of the specimens, the submissions and mitigation put forward by the defence, the court adopts 15 months as the starting points for all three charges.  The defendant pleaded guilty to all charges at the earliest opportunity and is entitled to one-third discount.  Therefore, the defendant is sentenced to 10 months’ imprisonment for each charge.

20.The court further considers the totality of the sentence.  The defendant committed the three offences within a very short period of time.  After consideration, the court orders that 2 months’ imprisonment of charges 2 and 3 to be served consecutively with the sentences of other charges.  As a result, the total sentence is 14 months’ imprisonment.