Man Hing Express & Godown Co Ltd v. The Queen

CACC001025/1979

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 1025 OF 1979.

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Coram: Silke, J. in Court

Date of Judgment: 11 January 1980

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JUDGMENT

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1. On the 14th September 1979 the appellants Man Hing Express and Godown Co. Ltd. warehousemen were convicted in Kwun Tong Magistracy on the following information:

"for that you on day between the 3rd day of February 1979 and the 17th day of February 1979 at 62 Tsun Yip Street Kwun Tong Kowloon in the Colony did possess a scheduled species namely two hundred and twenty furskins of Panthera nebulosa (commonly known as clouded leopard) without a licence from the Director of Agriculture and Fisheries contrary to section 6(1) and the second schedule of the Animals and Plants (Protection of Endangered Species) Ordinance Cap. 187."

2. They were given an absolute discharge.

3. The facts are relatively simple.

4. On the 3rd February a cargo of 208 pieces was delivered to the main godown of the defendants. Amongst them were two bales containing what is now admitted to be furskins of the species panthera nebulosa.

5. The shipping company delivered on the 6th February a godown warrant in respect of these bales - cargo item two - which gave the description "raw rabbit leopard skins".

6. On the 12th February a Delivery Order of the defendants was made out for delivery to the Hong Kong & Kowloon Wharf Co. Ltd. , of that which was then described as "Raw Tortoise Leopard skin". These were released on the 12th February but not picked up for some little time thereafter: the 17th February.

7. On the 19th February the furskins were inspected and identified as "Panthera nebulosa" at the Wharf Company's premises. They were seized.

8. None of these facts are disputed.

9. In the course of the trial evidence was given before the learned trial magistrate to the effect that "panthera nebulosa" has many names: clouded leopard; felix nebulosa, tortoise leopard: neo felix nebulosa.

10. It was further in evidence that all leopards presently known to science are scheduled species in Hong Kong.

11. A director of the defendant company gave it in evidence that if a customer wishes to store goods he will arrange for a transport company to bring them to the godown the contents are not inspected merely the description markings. Bulk is not broken.

12. He said his company did not know the bales contained Raw Tortoise Leopard skin until it received the delivery order and that he did not know that that was a protected species.

13. The trial before the learned magistrate was complicated somewhat by an apparent - I use this word advisedly - concession made by the Crown. Counsel said two things: the first "Crown concedes that mens rea is required for possession" and then "It is not essential for the Crown to prove that he knows it by the name Panthera nebulosa.

14. Crown does not accept that defendant must have known that this was a scheduled species."

15. That last, on the Record, may contain a typing error.

16. In his Statement of Findings the learned trial magistrate had this to say "The only question was: did the defendant's knowledge amount to the mens rea required for conviction. It was conceded by the Crown that this was not an absolute offence."

17. In the course of this appeal Mr. Wong, who appears for the Crown, sought to show that the concession as to mens rea applied only to possession and not to possession of a protected species. He argues that this is an absolute offence.

18. Mr. Denis Chang, who appears for the appellants, described the Crown's position as schizophrenic. I tend to agree with him. What we are concerned with is basically the possession of a scheduled species - nothing more. Mr. Chang urges me to find that this is not an absolute offence and, as I understand him, in the alternative, if it is not, that the approach used in the latter part of his findings by the learned trial magistrate was wrong.

19. The Crown also seeks guidance on the importing and exporting sections of the Ordinance on the same point.

20. I shall treat this appeal, for the moment at least, as turning on whether or not an absolute offence has been created.

21. The preamble to the Ordinance reads "To restrict the importation exportation and possession of certain animals and plants ....."

22. Subsection (1) of section 6 reads "subject to section 18" (which is not relevant here)" no person shall except under and in accordance with a licence under section 7(1) have in his possession or under his control any scheduled species".

23. Subsection (2) of the section provides a penalty of $5,000 to be imposed on any person who contravenes subsection (1); on a second conviction the liability to fine rises to $10,000 and further there is the possibility of imprisonment for six months.

24. Sections 4 and 5 are drafted in similar terms.

25. There is no suggestion that there is any licence here.

26. The first point to note about the Ordinance is that it is not designed to prohibit but to restrict possession, and the granting of licences is clearly envisaged. But this is not a simple licencing contravention. Species of animals are endangered and it is most necessary that they be protected for the future environment of the world in which we live.

27. That having been said I have to consider the law as it is set out in the Ordinance.

28. The second schedule deals amongst others, with "Felidae" amongst which it instances "panthera nebulosa" or "clouded leopard".

29. Incidentally I am told that the Wharf Co. were acquitted on a similar information, that a case stated was requested by the Crown but that, in view of this appeal, that request was withdrawn.

30. It is true that the word "knownly" does not appear in section 6 but that, of itself, does not mean that the legislature intended to create an absolute offence.

31. I have, by Mr. Wong, been referred to Warner v. Metropolitan Police Commissioner ⁽¹⁾, Sweet v. Parsley ⁽²⁾, two Hong Kong cases Koon Pok Man ⁽³⁾ and Halim Sulman & another v. The Queen ⁽⁴⁾, and to the more recent case of Regina v. Howells ⁽⁵⁾ not cited in Halim Sulman ⁽⁴⁾, but which considered both Warner ⁽¹⁾ and Sweet v. Parsley ⁽²⁾.

32. This last case concerned firearms. The appellant possessed a firearm; which he thought was an antique, without a certificate. His defence was that it was an antique or, if it were a fake, he reasonably and honestly believed that it was antique and that he bought it either as a curiosity or an ornament. It was his submission that, if he were correct, then he could be considered to come within the exclusion section of the Firearms Act 1968. The Appeal Court held no: it appeared from the Judgment of Browne L.J. , at p. 720, that the Court considered the exclusion section related to facts not beliefs and found that what was excluded was an antique which is sold or possessed as a curiosity or ornament but not a firearm which was believed to be antique.

33. It went on to find that s.1(1) of the Act created an absolute offence. This section reads "Subject to any exception under this act, it is an offence for a person - (a) to have in his possession, or to purchase or acquire, a firearm to which this section applies without holding a firearm certificate in force at the time ...."

34. In so doing the Court of Appeal seems to have reversed the trend referred to in Sweet v. Parsley, and echoed by Pickering J. , as he then was, in Halim Sulman, of the active discouragement of any further extension of strict liability.

35. In Sweet v. Parsley, Lord Reid at page 148 had this to say:

"Our first duty is to consider the words of the Act: if they show a clear intention to create an absolute offence that is the end of the matter. But such cases are very rare. Sometimes the words of the section which creates a particular offence make it clear that mens rea is required in one form or another. Such cases are quite frequent. But in a very large number of cases there is no clear indication either way. In such cases there has been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea."

36. Browne L.J. in Howell, having considered both Warner and Sweet v. Parsley, put it this way: (They) lead

"this court to the view that in construing a penal statute it is vitally important to remember the presumption of mens rea as a necessary ingredient, but the Parliament may, by the wording of the Act and the nature of the matter to be dealt with, intend that the conduct forbidden should be penalised without proof of a guilty mind."

37. In deciding that s.1 should be construed strictly the learned Lord Justice had this to say:

"First the wording would, on the face of it, so indicate. Secondly the danger to the community resulting from the possession of lethal firearms is so obviously great that an absolute prohibition against their possession without proper authority must have been the intention of Parliament when considered in conjunction with the words of the section. Thirdly to allow a defence of honest and reasonable belief that the firearm was an antique and therefore excluded would be likely to defeat the clear intention of the Act."

38. Two other matters were said to have influenced the Court: one that Parliament in a 1971 Act, which replaced the 1964 misuse of Drugs Act strictly construed by Warner, alleviated that strictness by providing a defence of proof of lack of knowledge Two: The Firearms Act provided defences such as possession for a lawful object, or that of lawful authority or reasonable excuse or reasonable belief, in respect of other offences under other sections of the Act.

39. Here the stated intention of the Ordinance is to restrict not prohibit. It is quasi criminal rather than full criminal liability. The wording of section 6 does not necessarily indicate the legislative intention that it be construed strictly. The danger to the community is not so obviously great that absolute prohibition against possession must have been the intention of the legislature.

40. This last is in no way to belittle the importance of the conservation of endangered species.

41. I do not therefore think that the presumption of mens rea being intended is rebutted: the offence is not an absolute one.

42. That being so I go on to consider the particulars of the grounds of appeal as set out in the document dated the 22nd December, 1979.

43. I accept that a warehouse man is in a different position to that of an exporter or importer. He receives goods for storage, does not inspect their actual contents and relies on the description of them given in the shipping documents - here "raw rabbit leopard skin" - or the description given by the exporter or importer - here "Raw Tortoise Leopard skin". If in fact the two bales received by the defendant in the ordinary course of business had contained, say, dangerous drugs, and were not, as is most likely, labelled as such there could in my view have been no mens rea.

44. This is not strictly a container case, such as Warner, If it were Mr. Wong's submission as to double possession - possession of the thing and possession of the scheduled species might well have some point.

45. It is not suggested that the words "Raw rabbit" or "Raw tortoise" leopard appear in the schedule to the Ordinance. The word leopard, with various additions, does.

46. Ignorance of the law is not a defence: mistake of law is, if it precludes a person from having the requisite mental element for a particular offence and provided that the mistake was honestly entertained.

47. Mistake of fact can be a defence provided that on the facts as the defendant believed them to be he did not have the mens rea required to constitute the offence charged. There must also be honesty.

48. The defendant here was not mistaken as to the contents of the bales: leopard skins. The law prohibits the possession of such skins whatever added description there may be - though the pletheora of descriptions may confuse. Their use, however, is understandable: to ensure that lack of descriptive technicalities do not provide a defence.

49. It is Mr. Chang's submission that the defendant did not know that which was in the defendant's custody was something which, as a matter of fact, was a species covered by the Ordinance: that the defendants did not know that all species were covered by the Ordinance: that each of these points is to be regarded as a matter of law and they preclude the defendants from having the mental element necessary to possess a scheduled species.

50. He argued, and without objection, that the skins were lawfully exported from China and were to be lawfully imported into Japan: Hong Kong being merely a transit point. Neither China nor Japan are parties to the Convention, to give effect to which the Ordinance was enacted in Hong Kong. This was not brought to the attention of the learned magistrate.

51. He further submit that there was nothing in the evidence to show a dishonest or unreasonable belief on the part of the defendants. He makes the point that the description "Raw rabbit leopard skin" ruled out the necessity for further enquiry leaving the defendant with no dishonest belief.

52. But, with respect to him, I think it was a "dishonest" belief in the context of which we speak. The defendants were on notice that the skins were of leopard, no enquiry was made as to whether they were or were not a scheduled species. I have no doubt that in a busy warehouse such enquiries would be something which might well be considered a waste of time.

53. But the Ordinance is there: it does restrict the possession of such skins. I think the learned magistrate to have come to the right conclusion - this offence was committed in ignorance of Law.

54. The sentence clearly reflects the position of the defendant in this matter. It was entirely correct. But an offence has been committed and the appeal is dismissed.

Representation:

Mr. Denis Chang (Hastings & Co.) for appellant

Mr. Frank Wong for Crown

(1) [1968] 2 ALL E.R. 356 (H.L.)

(2) [1970] A.C. 132

(3) [1975] H.K.L.R. 271

(4) [1977] H.K.L.R. 214

(5) [1977] 2 W.L.R. 716