HKSAR v. Liaqat Ali Khan

DCCC 848/2021

[2023] HKDC 404

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 848 OF 2021

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REASONS FOR SENTENCE

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Plea

1.The defendant denied the charge and was convicted after trial.

Factual matrix

2.This Court has given reasons for verdict on 17 March 2023.  I do not intend to repeat the detailed reasons. 

3.The summary of facts are that on 3 November 2018, at around 2:17pm, the defendant presented to Customs and Excise (C&E)  a set of 4 documents for customs clearance, including the Air Waybill 618-59530542 (the Airway bill), the Shipment Release Form, the Packing List and the letter of authorization[2] at the Customs Cargo Examination Compound, Asia Airfreight Terminal 1, Hong Kong.

4.The consignor of the Airway bill was named as Emerald Industries, with an address stated as No. 401A, 1^st Floor, Moore Market, Lilly Pond Commercial Complex, Central, Chennai-0600003, Tamilnadu, India. The consignee was named as Shamas Trading Co Ltd, with address at Shop No 46B, G/F Chungking mansion, 36-44 Nathan Road, Tsim Sha Tsui, Kowloon, Hong Kong, mobile phone numbers stated as +852 96099524, +852 55758881. The departure destination was from Chennai, to Hong Kong. The nature of the goods were stated as “MACHINERY EQUIPMENTS” (original spelling).

5.The C&E officer opened the shipment in front of the defendant, and suspected that the carton of wood was endangered species. He contacted staff from the Agriculture, Fisheries and Conservation Department (AFCD), who confirmed that the goods belonged to the endangered species of sandalwood. At about 5pm, he arrested and cautioned the defendant for suspected breach of the Protection of Endangered Species of Animals and Plants Ordinance, Cap. 586.

6.Mr Lau Tak Chuen, an Endangered Species Protection Officer of AFCD, was shown the batch of wood seized, which weighed 547 kilograms, at Headquarters, Room 603, 6/F, Cheung Sha Wan Government Offices. Upon examination of the seized exhibits of wood, he concluded that the structure and the identification features of the wood specimens belonged to Pterocarpus santalinus (Sandalwood rosewood/lobular rosewood). Pterocarpus santalinus is listed as “Vulnerable” in “The International Union for Conservation of Nature Red List of Threatened Species”. It is a native to India and is endemic to the region, being distributed in three states in southeastern India. The population is severely fragmented and the number is also declining, together with the area, extent and quality of its habitat is also declining. Pterocarpus santalinus (red sandalwood)  was a specimen of Appendix II species under the Protection of Endangered Species of Animals and Plants Ordinance, Cap. 586.

7.An independent valuation estimated the fair market value of the seized woods as $443,000.

8.The defendant did not have a licence for the consignment seized.

Conclusion

9.Although the incident took place over three years ago, there were contemporaneous records, whether they be text/voice messages or consignment documents in support of the prosecution case. Secondly, although the defendant had been dealt with in three languages, Urdu, English and Cantonese, the procedural justice during investigation exhibits fair play and on equal arm strength, if the defendant did not attempt to maneuver the VRI. Thirdly, from the factual matrix, the defendant was not a mere labourer, he provided templates and advice to the consignor for customs clearance. It could not be the case that Kutty might have deceived the defendant.

10.Most important of all, this Court is satisfied that guilty knowledge can be inferred accordingly. In particular, the text/voice messages show that the defendant knew the subject matter was wood but declared it to be “machinery equipment”. He knew the wood is a kind of prohibited goods and hence concealed its existence by lying to the C&E. The defendant was not a mere courier, he was an active “logistic advisor”. 

Mitigation

11.The defendant is a 55-year-old married man. He has three adult children and two children under 18 (10 and 15 respectively). He said he received education up to Primary 5. He obtained permanent resident status in 1997. Since he came to Hong Kong, he mainly worked as a construction site worker or caretaker.

12.The defendant has one previous copyright related conviction in 2021 in which he was fined $4,000. 

13.In mitigation, all family members have prepared mitigation letters to the effect that the defendant is a good father and husband. He is “always been abiding and respect the law”. They pleaded for mercy and leniency. Defence urged the court to consider that he only has one unrelated conviction of relatively minor nature. It was submitted that the defendant committed the present offences out of ignorance of the law and underestimation of legal consequence.

14.Defence agreed with the proposition in the cases cited by the prosecution. Applying the sentencing guidelines to the present case, Mr Arthur submitted that: (i)  the scheme was unsophisticated; (ii)  he was to receive reward of $600; (iii)  there is no evidence of syndicate involved; (iv)  although he was found to be a logistic adviser, his role still remained at the lower end and the scheme was unsophisticated and would be easily discovered by C & E.  In gist, he suggested a spectrum of 9 to 15 months’ imprisonment as the starting point.

15.The prosecution, in reply, said they are neutral on Mr Arthur’s suggestion as 15 months also fall within the spectrum.  

Sentencing consideration

16.Protection of endangered species is cardinal and beyond debate because it reduces the risk of the wildlife and plants from going into extinction. Commercial exploitation of vulnerable 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.

17.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. The present case involves species of Appendix II. 

18.According to HKSAR v Liao Youguang CACC46/2019 and HKSAR v Xie Jinbin CACC195/2010, the appropriate starting point for a case of unlawful exporting of incense wood (Appendix II)  without aggravating factors is 3 years’ imprisonment. 

19.In the case HKSAR v Xiao RongQiang CACC79/2020, 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 DCCC1192/2018 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.”

20.In another District Court case HKSAR v Goron Jomar Osal and two others DCCC914/2019 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.

21.In a more recent case of HKSAR v Wong Kam Shui DCCC486/2022 with sentence dated 15 February 2023, 74.05 kg of dried seahorses of Appendix II were involved. The defendant pleaded guilty to the 3 charges. The judge, having considered that the defendant committed the three offences within a very short period of time, adopted 15 months’ imprisonment for each charge. 

22.In a similar case, HKSAR v Wang Huasen DCCC654/2021, with sentence dated 9 June 2022, 9.338kg of incense trees of Appendix II with value of $1.99 million were involved. The defendant pleaded guilty to the charge. The judge, having considered aggravating factors such as part-execution of the conspiracy and the defendant came to Hong Kong to commit the crime, adopted 42 months’ imprisonment for the charge. 

23.The prosecution has provided a detailed summary of cases. In short, the main streams ideas from more decided cases suggest that: (i)  there is no difference on sentence as to whether the subject matter is endangered animal or endangered plant; (ii)  what matters include the degree or risk of extinction of a particular specie and whether it is listed under Appendix I or Appendix II; (iii)  the quantity and the value involved; (vi)  the presence or absence of syndicate involved; (v)  the role of the defendant etc[3].  

24.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. Pterocarpus santalinus/rosewood is listed as “Vulnerable” in “the International Union for Conservation of Nature Red List of Threatened Species”. It is a native to India and is endemic to the region, being distributed in three states in southeastern India. The population is severely fragmented and the number is also declining, together with the area, extent and quality of its habitat is also declining. It does not matter if it is caused by overharvesting or illegal trading, the fact that it is listed in Appendix II is itself considered serious and provides a maximum sentence of $1 million fine and 7 years’ imprisonment. 

25.In this case, I accept the mitigation done on the defendant’s behalf, in particular, the scheme was not sophisticated.  It would be easily detected by the C&E.  That said, without him in the lower end of chain of crimes, the import of the goods could not succeed.

26.547kg of rosewood was found with estimated value of HK$443,000. 

27.The severity of this case is similar to DCCC914/2019 and DCCC486/2022 but it is less serious than DCCC654/2021. Considering 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 comparable of similar cases, this court adopts 18 months as the starting point for the charge.  I exercise the discretion to reduce 3 months from the starting point as the defendant has agreed with most the prosecution case.  The final sentence is 15 months’ imprisonment.