HKSAR V Tabor Dexter Valera

DCCC 860/2024

[2025] HKDC 559

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 860 OF 2024

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to the 1^st charge of illegal import of specimens of an Appendix I species contrary to section 5(1)  and (3)  of the Protection of Endangered Species of Animals and Plants Ordinance, Cap. 586, the 2^nd charge of illegal import of specimens of an Appendix II species contrary to section 11(1)  and (3)  of the same Ordinance, and the 3^rd charge of cruelty to animals, contrary to section 3 (1)(g)  of the Prevention of Cruelty to Animals Ordinance, Cap. 169.

Facts

2.On 31 March 2024, the defendant arrived at the Hong Kong International Airport from Kuala Lumpur, Malaysia for transit to Manila, the Philippines.

3.Security check revealed that one of the defendant’s bags contained 2 live turtles whose limbs could not move freely as each turtle was wrapped with a piece of cloth and a layer of plastic tape. The bag contained no hole for breathing, and no food or water for the turtles.

4.2 other bags checked in by the defendant were also retrieved. One bag contained 8 live turtles, the other one contained 53 live turtles. These turtles were either wrapped directly with plastic tape, or with a piece of cloth and a layer of plastic tape. These turtles could not move their limbs freely. Neither of these bags had holes for breathing, or food and water for the turtles.

5.The defendant could not produce any valid documents under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). He was arrested and the 63 live turtles were seized.

6.An Endangered Species Protection Officer of the Agriculture, Fisheries and Conservation Department (AFCD)  identified the turtles as 49 heads of Radiated Tortoise which are App. I species and 14 heads of Painted Batagur which are App. II species under the Protection of Endangered Species of Animals and Plants Ordinance. The estimated market value of Radiated Tortoise and Painted Batagur was HK$18,000 per head and HK$6,000 per head respectively. The total estimated market value of the 63 turtles was HK$966,000.

7.One of the turtles was so weak that it had to be euthanized on 3 April 2024. Another turtle was later found dead. Two other turtles affected by severe irreversible conditions were euthanized on 23 April 2024. 

8.Based on the packing and the transport condition of the 63 turtles, a veterinary officer of AFCD was of the opinion that the turtles were kept in a cruel manner and such conditions caused needless and avoidable suffering to the animals by reason of: i)  deprivation of free movement; ii)  risk of suffering traumatic injury during transportation; and iii)  unsuitable packing for their transport.

9.Radiated Tortoise is an endemic species in Madagascar and is listed as Critically Endangered on the International Union for Conservation of Nature and Natural Resources (IUCN)  Red List. They are threatened by poaching and habitat loss. It is estimated that the species has lost 40% of its habitat and its remnant population has been severely depleted by ongoing poaching. IUCN estimated that this species has declined by over 80% over a hundred years.

10.Painted Batagur is a species from a limited area in Southeast Asia. They are threatened by illegal poaching for consumption, collection of eggs, pet trade and sand mining which destroys their habitat. According to IUCN, the decline in population of Painted Batagur is ongoing with some populations having been heavily and drastically depleted by at least 80%. This species is also listed as Critically Endangered on the IUCN Red List.

Defendant’s Background

11.The defendant is a Philippines national. He is now 38 years old, married with 3 children. He received post-secondary education and was a cargo driver in the Philippines before his arrest. His wife is a homemaker.

12.He has a clear record.

Mitigation

13.Defence counsel Mr Lawrence Pang said the defendant committed the present offences due to financial desperation. During his wife’s third pregnancy, she suffered from a condition called placenta previa as a result of which his wife had to stop working and undergo constant medical attention and monitoring which cost a lot of money. On top of that, their second child was diagnosed with Autism Spectrum Disorder with hyperactive features which required regular paid behavioural and speech therapy. With his monthly income the equivalent of about HK$2,000, the defendant found it difficult to meet the family’s monthly expenditure which was  the equivalent of around HK$2,700. He thus foolishly agreed to commit the present offences for financial reward.

14.He is extremely remorseful. As borne out by the mitigation letters from both the defendant and his wife, the commission of these offences was out of the defendant’s character, as he has no criminal conviction or vice habits and is a loving and dependable husband and father. His chances of re-offending are extremely slim.

15.Mr Pang further pointed out that the defendant played no part in the packing of the turtles and was not aware of the way they were packed. He was sorry to have caused suffering to the turtles.

Sentencing considerations

16.The maximum sentence for the 1^st charge of illegally importing App. I species is 10 years’ imprisonment and a fine of HK$10,000,000. For the 2^nd charge of illegally importing App. II species, the maximum sentence is 7 years imprisonment and a fine of HK$1,000,000.

17.As submitted by Mr Pang, there are no sentencing guidelines for this type of offence. The appropriate sentence would depend on the facts of a particular case.

18.In the case of HKSAR v Xiao Rongqiang (肖荣强) [2022] 4 HKLRD 764 cited by Mr Pang, the defendant was charged with illegally importing close to 50 kg of Saiga antelope horns which are App. II species. These horns had a market value of between HK$719,000 and HK$1,188,000. In dismissing the defendant’s appeal against his sentence of 20 months’ imprisonment after a one-third discount for plea, the Court of Appeal pointed out that all crimes that threaten the survival of endangered species must be deterred, and that relevant sentencing factors include “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”.

19.For the court’s reference, Mr Pang referred to a number of District Court sentencing cases on the illegal import of turtles and its related cruelty to animal offence.

i)  香港特別行政區 訴 熊淇慧 [2024] HKDC 1563 involved a defendant importing 64 turtles which were specimens of App. II species and classified as “vulnerable” and had a market value of HK$655,000. The turtles were put in plastic boxes, paper bags or wrapped in socks. The starting points for the App. II charge and the cruelty to animal charge were 24 months and 6 months respectively. On account of guilty pleas and totality, the total sentence was 18 months.

ii)  HKSAR v Rasolonirina [2020] HKDC 170 involved a defendant importing 57 turtles which were specimens of App. I species and classified as “critically endangered” and which had a market value of HK$816,555. The turtles were individually wrapped with plastic tape, diaper and carbon paper. The starting points for the App. I charge and the cruelty to animal charge were 36 months and 12 months respectively. On account of guilty pleas and totality, the total sentence was 24 months.

iii)  香港特別行政區 訴 罗勇 [2019] HKDC 1152 involved a defendant importing one turtle which was a specimen of App. I species and 209 turtles which were specimens of App. II species. The turtles had a market value of at least HK$570,000. They were wrapped in socks and plastic cable ties. The starting points for the App. I charge, the App. II charge and the cruelty to animal charge were 6 months, 12 months and 3 months respectively. On account of guilty pleas and totality, the total sentence was 12 months.

iv)  香港特別行政區 訴 肖松进 [2019] HKDC 1173 involved a defendant importing one turtle which was a specimen of App. I species and 222 turtles which were specimens of App. II species. The turtles had a market value of around HK$790,000. They were wrapped in a way that allowed limited mobility only. The starting points for the App. I charge, the App. II charge and the cruelty to animal charge were 6 months, 15 months and 3 months respectively. On account of guilty pleas and totality, the total sentence was 12 months.

20.Aside from factual differences, these decisions are of course not binding on me, but they do provide some idea of the parameters of sentences meted out in the District Court for offences involving the illegal import of live turtles.

21.However, with regard to the level of sentence, it should be noted that the Court of Appeal in Xiao Rongqiang said:

“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 & two others [2019] HKDC 1347, in which about 10-odd kilograms of dried seahorses, valued at about $200,000 plus, were involved)  to 21 months (HKSAR v Kiraguchi Naoki [2019] HKDC 624, 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.”(emphasis added)

22.Furthermore, one should bear in mind what the Court of Appeal in the same case said about the need for deterrence for this kind of offence and the reasons therefor, as follows:

“27.…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.”

23.Although the 63 turtles in our case belong to two different Appendix species under Cap. 586, both types of turtles were listed as “critically endangered” on the IUCN Red List. Both species are so seriously threatened by illegal poaching and habitat loss due to human greed and activities that their population has declined drastically. Population of Radiated Tortoises has declined by over 80% over a hundred years. The Painted Batagurs’ situation is just as direful. The general population of this species is on the decline as well, with some population having been heavily and drastically depleted by at least 80%.

24.It must have been human greed again which caused the import of these endangered species. With a market value of HK$18,000 per head, the total value of the 49 Radiated Tortoises was HK$882,000. For the HK$6,000 per head value of the 14 Painted Batagurs, their total value was HK$84,000. Together, these turtles had a market value close to HK$1 million at that time. Huge profits could have been made had they been successfully sold.

25.Arrangements for the hunting and transfer of such a large number of animals which have their origins in 2 geographically different areas, namely Madagascar and South East Asia, must have been the work of a syndicate, with the defendant acting as a courier.

26.In view of all the circumstances, and bearing in mind the need for deterrence, I adopt 36 months’ imprisonment as the starting point for the 1^st charge and 24 months as the starting point for the 2^nd charge.

27.As for the 3^rd charge of cruelty to animals, the maximum sentence is 3 years’ imprisonment and a fine of HK$ 200,000.

28.In the case of Secretary for Justice v Fung Chi Hoi [2019] 4 HKLRD 188 cited by Mr Pang, the Court of Appeal made it clear that there is no starting point for sentence for this type of offence, and that the sentence should depend on the nature and circumstances of each case, the modus operandi, the motive, the type of victimized animal, the background of the defendant, and so on. The correct approach is to impose deterrent sentences.

29.Mr Pang said the defendant played no part in the packing of the animals, and was not aware of the way they were packed. While I am prepared to accept that the packing may not have been done by the defendant, I find it hard to believe that the he was not aware at all of the way the turtles were packed. After all, the turtles were being carried in his bags.

30.Nevertheless, I am prepared to accept that even if the defendant were aware of how the turtles were packed, he probably had little or no say in how the they were packed. His job apparently was just to take the bags containing the turtles from one place to another.

31.It is not clear for how long the turtles had been packed in the way when they were found. As a rough estimate, the flight from Kuala Lumpur to Hong Kong would take about 4 hours. Factoring in the fact that it took time to get these bags to the airport in Kuala Lumpur, the pre-flight check-in procedures, the duration of the flight, the unloading of the checked-in baggage upon their arrival in Hong Kong and inspection of those bags by the relevant personnel in the Hong Kong Airport, the animals must have been bound at least for hours during which they could hardly move their limbs and had no access to food, water and fresh air. The handling of the bags both in the pre-flight and post-flight stages must have added a certain amount of suffering and distress to these animals.

32.All these sufferings must have contributed to the death of one turtle and euthanasia of 3 other turtles.

33.For the kind of suffering caused and the number of animals affected, I would adopt for the 3^rd charge a starting point of 9 months’ imprisonment.

34.The only effective mitigation is the defendant’s early guilty pleas, for which he will be given a one-third discount in sentence. His family and financial situations are hardly mitigating factors.

35.On account of the defendant’s guilty pleas, the 1^st charge sentence is reduced from 36 months to 24 months, the 2^nd charge sentence is reduced from 24 months to 16 months, the 3^rd charge sentence is reduced from 9 months to 6 months.

36.A total sentence of 30 months after plea would be sufficient to reflect the gravity of the defendant’s acts.  To achieve this total, I order that the sentence for the 2^nd charge is to run concurrently with the sentence for the 1^st charge, whereas the sentence for the 3^rd charge is to run consecutively to the sentence for the 1^st charge.