HKSAR v. Tsang Kai Yiu

DCCC 376/2022

[2023] HKDC 166

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 376 OF 2022

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to charge two of importing specimens of Appendix II species otherwise than in accordance with the provisions of s 11 (1)  of Cap 586, contrary to s 11(1)  and (3)  of the Protection of Endangered Species of Animals and Plants Ordinance, Cap 586.

2.As to charge 1, it is now ordered to be left in the Court’s file and ordered not to be proceeded with without the leave of the Court. 

3.The defendant was intercepted at the arrival hall of the Hong Kong international airport when he arrived Hong Kong on 8 November, 2020. 

4.When customs officer searched his backpack, it was found that there was a white metal case containing: -

(a)  6 bird hatchlings – one died and 5 were alive.

(b)  8 hatchlings bird eggs – 5 hatched, but all died. The other 3 were never hatched.

(c)  48 bird eggs (Specimen)  – none of them were ever hatched.

(d)  All of the above were species listed in Appendix 11 of Cap 586.

5.The defendant said under caution that :-

(a)  He visited his friend in South Africa on 4 November 2020.

(b)  His initial plan was to stay for 5 days, but cut short the trip by 2 days.

(c)  His friend gave him the bird eggs as souvenir when he left South Africa.

(d)  However, he could not provide any contact of his friend.

(e)  He was unaware that some eggs had been hatched until the inspection by the Customs and Excise officer.

(f)  He did not apply for permit to import the specimen.

Market value of the Specimen

6.PW6 gave expert opinion that the market value of the 5 birds and 56 eggs (value of the birds after hatching)  listed in Appendix II was HKD$1,504,000, the table below shows :-

Common name	Quantity	Market price per adult bird (HK$)	Total market price (HK$)
Turquoise-fronted parrot	9	22,000	198,000
Yellow-crowned parrot	20	23,000	460,000
Red-lored parrot	2	15,000	30,000
Red and green macaw	3	40,000	120,000
Blue and yellow macaw	21	23,000	483,000
White cockatoo	3	22,000	66,000
Major Mitchell’s cockatoo	3	49,000	147,000
Total	61		1,504,000

7.Of the parrot species involved in the seizure, seven are listed in Appendix II of the “Convention on International Trade in Endangered Species of Wild Fauna and Flora” (CITES).  Species listed in Appendix II may face the threat of extinction if their trade is not controlled.  According to the International Union for Conservation of Nature (IUCN)  red list assessment, all seven species are threatened by trapping and hunting for pet trade.

	IUCN red list status	Population trend	Threat/ Status
Turquoise-fronted parrot	Near threatened	Decreasing.  Its population has declined by 20-29% over 37 years.	Heavily trapped for cage bird trade and decline in habitat.
Yellow-crowned parrot	Least Concern	Decreasing.  Population decline up to 25% over 37 years.	Threatened by exploitation for pet trade
Red-lored parrot	Least Concern	Decreasing.	On-going habitat destruction and unsustainable levels of exploitation.
Red and green macaw	Least Concern	Decreasing	Threatened by exploitation for pet trade.
Blue and yellow macaw	Least Concern	Decreasing.  Population decline is estimated to be up to 25% over 38 years.	Threatened by exploitation for pet trade.
White cockatoo	Endangered	Decreasing.  Population has rapidly declined over 39 years.  International trade was taking 17% of the global population annually at its peak in the early 1990s.	Heavily trapped for cage bird trade.
Major Mitchell’s cockatoo	Least Concern	Stable	Threatened by habitat destruction, nest robbing and trapping for pet trade.

8.Parrot populations have been decimated by illegal trade.

9.Although some of the species seized in this case are classified as least concerned in IUCN red list, it does not make the illegal act any less culpable for the following reasons:-

(a)  Parrots, particularly those large-sized species as in this case, are long-lived and have a low productivity. Any removal of breeding adults can have a rapid and grave impact on the populations. Species classified as least concern today can become threatened or endangered rapidly.

(b)  Species with various biological traits can have different levels of susceptibility to population decline. Yet, poaching is most often indiscriminate with the parrot species, hence poaching and the associated illegal trade threaten all parrots at large. In this connection, illegal trade of less susceptible species does not make this illegal act any less culpable in jeopardizing the survival of parrots.

Mitigation

10.The defendant has a clear record.  He is 42 years old and is separated from his wife.  He is currently a taxi driver. 

11.The defendant and his wife kept a dog and a cat at home. 

12.In November 2020, he and his wife relationship deteriorated, his wife asked for divorce.  The defendant was deeply upset by her decision, he decided to take a break and booked a 5 days’ holiday from 4 to 11 November 2020 to Johannesburg, South Africa.  The package was $15,000. 

13.The defendant met his friend in Johannesburg who took him for sightseeing in the market place of which the shops were selling live parrots and trays of eggs for about $100 to $150 USD.

14.The vendor told him that there was no restriction for exportation and the eggs would hatch if they were kept warm.

15.The defendant was interested in having the parrots and their eggs.  As he checked the Hong Kong customs page on internet, there is no mention about importing the birds and eggs into Hong Kong.

16.On 6 November 2020, the defendant decided to cut short his trip in South Africa due to the Hong Kong government’s implementation of the hotel quarantine.

17.His friend “Mun Gor” gave him a box of eggs as souvenir to take home.  The defendant simply put them into his backpack without looking into it.

18.The defendant is now very remorseful.  His parents also provided letter to inform me that the defendant is the main bread winner of the family. 

Sentence

19.The maximum sentence upon indictment is a fine of $1,000,000 and to imprisonment for 7 years. 

20.The defence quoted the case of HKSAR v Ng Wai Leung DCCC 37/2020 that the defendant came from Shau Tau Kok to Hong Kong and he brought with him 121 live stocks, 6 were grey parrots.  He was sentence to 8 months suspended for a period of 18 months plus a fine of $40,000 for the charge involved 6 grey parrots.

21.The defence said that the 6 grey parrots were adult birds, they belonged to the Appendix I categories and therefore was more serious than the present case. 

22.The defence also said that there is also no data to show that there is a rising trend of importing parrots illegally into Hong Kong. 

23.The defence accepted that apart from the 5 live parrots, there were also 56 eggs in the charge and HKSAR v Ng Wai Leung DCCC 37/2020 has no binding effect upon this court.

24.I have great doubt that the defendant would make a trip to as far as Johannesburg for 5 days bearing in mind of the distance and time difference. 

25.He simply landed in Johannesburg on 5/11 and turned around on 7/11 to come back to Hong Kong.  Effectively stayed in Johannesburg for 2 days. 

26.The defendant said that in the market, the selling price for trays of parrot egg was about USD$100 to $150.  He claimed that his friend gave him 61 eggs as present/souvenir.  He did not look at the box and simply put them into his backpack.

27.I have the opportunity to look at the pictures provided by the Prosecution and I do not believe that the defendant just received a box without looking at the content.  He himself was to hold liable for carry anything into Hong Kong. 

28.On the other hand, the defendant has a very generous friend, he should have kept his contact, but he could not provide one when he was arrested at the airport. 

29.The defendant was a driver, earned about $15,000 to $20,000 per month, his wife made $20,000 per month.  They paid about 25% of their total earnings for mortgage.  He has to support his parents with a monthly contribution of $7,000 to $10,000.  He hardly had any saving to made this trip.

30.At that time, he lived with his wife in a 700 square feet village property, when all the eggs hatched, the defendant would have 56 birds flying around in his flat.  He found out 5 eggs hatched in the airport, how could he afford to keep all these birds by maintaining them?

31.He said that he would give away some as souvenir.  He must have a lot of bird lover friends to take care of all these baby parrots. 

32.The market value of the parrots, depending on the species, it ranges from $15,00 to $49,000 each, with an average of about $22,000 per parrots.  The expert is of the opinion that the total value of the 5 birds and 56 eggs (after hatching)  were about $1.5 million.

33.As stated in the summary of facts, just the information of the 5 parrots :-

Name	Quantity	Market value each	Threat/status
Turquoise-fronted parrot	2	$22,000	Heavily trapped for cage bird trade and decline in habitat.  Its population has declined by 20-29% over 37 years (near threatened statues )
Yellow –crowned parrot	2	$23,000	Threatened by exploitation for pet trade.  Its population declines up to 25% over 37 years ( least concern )
Red and green macaw	1	$40,000	Its population is decreasing.  Threatened by exploitation for pet trade  ( least concern )
	5	$83,000

34.For the 5 parrots, the total market value is $83,000.  It has a very high profitable margin for trays of eggs at a value of US$100 to 150. 

35.It is clear to me and the defendant knew that the importation of those eggs were for commercial purposes.  He did not go to Johannesburg for a holiday. He went there for a business deal. 

36.When the defendant embarked on this trip, he knew he was taking a great risk, he could not expect leniency when he was caught. 

37.It is important for this Court to send a clear message to the public that the court do not tolerate this kind of illegal activities.  The defence said that there is no rising trend of such illegal importation, however, all the species listed in Appendix II may face the threat of extinction if their trade is not controlled.

38.The Prosecution informed me that since May,2018, sentences of imprisonment were substantially increased from 6 months to 7 years.  Clearly, it is in the interest of protecting engendered species of animal/plants.  Deterrent sentence is called for. 

39.Taking all the matter into consideration, I consider that the only sentencing option is one of imprisonment. 

40.To this end, I adopt a starting point of 2 years, reduce to 16 months’ imprisonment after 1/3 discount.