HKSAR v. Siricheunvichit Pawat

DCCC 745/2023

[2023] HKDC 1855

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 745 OF 2023

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REASONS FOR SENTENCE

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1.In this hearing, the defendant faces three counts. The first two count are “Importing of Species other than under the Provisions of the Protection of Endangered Species of Animals and Plants Ordinance”, Cap 586 (hereinafter referred to as “the Ordinance”); the third count was related to the manner the animals were smuggled: the prosecution stated, and the defendant admitted, that it caused needless suffering to them. The defendant pleaded guilty to all three counts and is convicted as charged upon his admission of facts.

Facts

2.On 14 May 2023, the defendant, a Thai passport holder arrived at Hong Kong. He was intercepted and searched by the Customs and Excise officers. They found six long socks between the defendant’s legging shorts and underwear.

3.The six socks were bound in a total of 21 small balls by rubber bands, inside each of these balls were either live tortoises or lizards. In all there were 18 tortoises and three lizards.

4.Further investigation confirmed that of the tortoises, 12 were of the species “Geochelone platynota”, commonly known as Burmese star tortoise, and one of the species “Astrochelys radiate”, commonly known as Radiated tortoise.

5.These 13 animals were listed in Appendix I of the Ordinance. Therefore, he was charged with Count 1 which relates to illegal import of Appendix I species.

6.There were also five heads of live “Cyclemys dentate”, commonly known as Asian leaf turtles, and three live “Varanus beccarii”, commonly known as Black tree monitor lizard. They were listed in Appendix II of the Ordinance. They formed the subject matter of the 2^nd Charge relating to the illegal import of Appendix II species in the Ordinance.

7.By the manner they were smuggled in and by the manner they were restrained, the prosecution also contended that the defendant had caused needless suffering to the animals. The prosecution informed this court on the day of the sentencing, only two of the Asian leaf turtles (related to Charge 2), were still alive.

8.The offences under Charge 1 warrant a penalty of 1 million fine and 10 years’ imprisonment. According to the prosecution’s case, the Burmese star tortoise is an endemic species of Myanmar. The species has already extremely rare in as early as the 1980s and have been extensively and heavily poached for the international pet trade. As a result, the species suffered significant decline to the point of extinction in the wild as early as 2000 and the current wild population was re-established early by the reintroduction from captive colonies. They remain rare and susceptible to decline.

9.The animals are in high demand in international pet trade. Their habitat is under continuing decline and fragmentation. They had been listed by the International Union for Conservation of Nature (IUCN)  as critically endangered in 2020. They could fetch in the black market the price of $10,000 per head.

10.The Radiated tortoise is also an endemic species found in Madagascar. It is listed as critically endangered on the IUCN Red list. Its existence is threatened by poaching and habitat loss. It is estimated that the species lost 40% of its habitat and its remaining population had been severely depleted by ongoing poaching.

11.The Asian leaf turtles referred to in Charge 2 are found in South East Asia including Thailand, Malaysia, Singapore, Indonesia and the Philippines. In addition to ongoing habitat loss, they are also threatened by poaching for food and for the international pet trade.

12.The IUCN assessment in 2018 showed that the species would suffer a further population decline of nearly 30% over the next 60 years. It is on the “Near Threatened” IUCN Red list.

13.The Black tree monitor is endemic to the Aru Islands of Indonesia. They live high in the trees in the forest and mangrove swamps. The science community has yet to gather enough information on the population status of this animal species. It has been assessed by IUCN as Data Deficit in 2014. Again the species is known to be threatened by poaching to supply the international pet trade its and its existence is threatened by loss of habitat.

14.All the turtles or tortoises could fetch at least about $10,000 per head in the black market, whereas the lizards could fetch $500 each.

15.The total black market value of all the animals found was $162,000.

16.In considering sentence, I note that the law had been amended on 1 May 2018 to the present status; the maximum sentence and fine had been increased. The purpose of the legislation is to deter illicit wildlife trade and send a clear message to international and local communities of the government’s commitments to protect wildlife trafficking.

17.There are no Court of Appeal decisions on the proper sentence but the principles adopted by my learned colleagues in the District Court has been useful in considering a proper sentence.

18.In the case of HKSAR v Rasolonirina Marie Yvon Aljymi, DCCC 896/2019, His Honour Judge Dufton in paragraph 20 of his reasons for sentence had the following to say:

“20. These tortoises are threatened with extinction. The International Union for Conservation of Nature (IUCN)  Red List of Threatened Species has classified the tortoises as critically endangered.

21. By reason of habitat loss and exploitation, predominantly for domestic consumption, the population of radiated tortoises has drastically reduced. Population modelling indicates collapse and extinction in a period of on average 45 years.

22. By reason of habitat loss and exploitation, predominantly poaching for the illegal pet trade, the population of the Madagascar tortoise has also drastically reduced. If the current threats continue unabated the extinction of the Madagascar tortoise is expected within the next generation.

23. The maximum penalty for the importation of endangered species listed in Appendix I is a fine of $10,000,000 and to imprisonment for 10 years, which maximum was increased in 2018 from a fine at level 6 and to imprisonment for 1 year.

24. Hong Kong is a contracting party to CITES and has an international obligation to protect endangered species. This can only be done by imposing deterrent sentences which send a clear message to the international and local communities that the government is committed to the protection of endangered species and to combat wildlife trafficking whilst at the same time reflecting that the maximum sentence in cases of the upmost gravity (Appendix I)  was significantly increased.”

19.The prosecution has also helpfully provided four other cases as references. They involved different species. The manners of trafficking was keeping those animals in boxes inside checked luggages.

20.The present case is different because the defendant basically stuffed them on to his person. One can imagine the discomfort and suffering of the animals involved, as a result only two of the leaf turtles remain alive as of today.

21.In my view, the previous cases do not reflect the gravity of the present crime. And as already been spelled out at the time of the amendment, the legislation’s purpose is to deter and also fulfil Hong Kong’s international obligation.

22.I would therefore consider it appropriate for the 1^st count a starting point of 3 years and for the 2^nd count, 2 years. They are to run concurrently.

23.In respect of the 3^rd count, in view of the ruthless and inhumane manner the animals were restrained, I would adopt a starting point of 12 months.

Mitigation

24.I turn to consider the mitigation put forward by the defence counsel. The defendant is a Thai national, he has a clear record in Hong Kong. He is a relatively young man.

25.The defence stated that he committed the present offence out of the naive belief that he could help his friend to bring in the animals. He did not do it for profit. The defence counsel also contended that these animals are on sale in Thailand pet shops, but quickly admitted that it does not excuse the defendant’s breaking the laws of Hong Kong. In my view, even if I accepted (which I do not)  that the defendant did it as a favour to his friend, it is quite clear that he was aware that it was illegal to bring them to Hong Kong.

26.By the elaborate method of stuffing them in socks and then putting it inside his garments, the defendant’s behaviour exhibited detailed planning and a ruthless disregard for other lifeforms. I also find it doubtful that he was doing it for a friend.

27.The defendant was educated in Thailand and he made about 120,000 Baht per month (about 26,800 in Hong Kong Dollars)  working in the agricultural industry. He was also involved in livestock trade.

28.I do not consider his background information, even if I were to accept it, a valid mitigating factor. The only mitigating factor is that he pleaded guilty in accordance to the directions of the High Court, I would therefore reduce his sentence for Charge 1 and 2 from 36 months to 24 months. And for the 3^rd count, 12 months down to 8.

29.Having also taken into account of the totality principle, I order 6 months of the 3^rd count to run consecutive to the 24 months ordered in respect of Charge 1 and 2. In all, the defendant is to serve a total of 30 months.