HKSAR v. Cheung Mo Tak

HCMA 89/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 89 OF 2012

(ON APPEAL FROM ESCC 37 OF 2012)

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Before: The Honourable Mrs Justice V Bokhary in Court

Date of Hearing: 8 June 2012

Date of Judgment: 8 June 2012

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J U D G M E N T

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1.This is an appeal against sentence. The sentence is one of two months’ imprisonment. It was passed on the Appellant in the Magistrates’ Court for an offence, to which she had pleaded guilty, of possession or control of specimens of Appendix I species otherwise than in accordance with the provisions of s 9(1) of the Protection of Endangered Species of Animals and Plants Ordinance, Cap 586, contrary to s 9(1) and (2) of that Ordinance. The Appellant is a woman in her early 60s. Her one previous conviction, which was in May last year, is for a different type of offence, namely theft (for which she was fined $800).

2.The present offence was committed on 2 August last year.  The specimens concerned were two rhinoceros horns.  They had arrived in Hong Kong by air, declared as bronze statuettes.  The Appellant’s role was to receive them for a relative in the Mainland whom she was to contact either for him to collect them or for her to forward them to him.

3.For this offence, the maximum penalty is one year’s imprisonment.  The sentence of two months’ imprisonment passed on the Appellant was arrived at by taking a starting point of three months and discounting it by a third for her guilty plea.

4.How the Magistrate arrived at that starting point appears from the last four paragraphs of his Reasons for Sentence.  They read:

“7. As the appellant had not been to prison before I called for a background report before passing sentence. At the resumed hearing Mr Knight submitted that a suspended sentence of imprisonment coupled with a fine was appropriate (see page 7Q of the transcript).

8. In passing sentence I took into account, inter alia, the content of the report; that the appellant was 62 and had only one prior conviction for shoplifting in 2011; that the appellant spent two weeks in custody pending preparation of the report; the letter from the appellant’s brother; and everything said on her behalf by Mr Knight, in particular the appellant’s early life in China during the cultural revolution; how the appellant had worked hard in Hong Kong to bring up the family, in particular as her husband and one of their daughters suffered from mental illness; and the death of the appellant’s husband in the month before her arrest (see paragraphs 1-4 of the probation report and pages 6J-7H of the transcript).

9. I also took into account that the appellant did not know what was in the postal package before the package arrived but knew horns may be sent as she had handled horns for Wong Ho before (see inter alia answers 11, 12, 13, 21 and 25 in the record of interview and pages 8F-9R of the transcript).

10.  Having carefully considered all the circumstances, in particular the value of the horns being $1.3 million; and taking judicial notice of the fact the rhinoceros is a highly endangered species, I was satisfied that the proper starting point after trial was 3 months imprisonment.  Giving the appellant full credit for her plea of guilty I sentenced the appellant to 2 months imprisonment.  I was satisfied, notwithstanding the good background report and everything said by Mr Knight, that there were no exceptional circumstances warranting suspension of the sentence.”

5.Five perfected grounds of appeal have been filed on the Appellant’s behalf.  They read:

“1.    The learned Magistrate has erred to take judicial notice that “the rhinoceros is a highly endangered species” and on this basis the imposition of immediate custodial sentence was necessary in order to have adequate deterrent effect on the appellant. (underline added)

2.  The learned Magistrate has erred to give no or insufficient consideration to the “Departmental Records for Similar Convictions” kept and produced by the Agriculture, Fisheries and Conservation Department to achieve a uniformity in sentence of similar offence at the Magistracy level.

3.  The learned Magistrate has erred to require the production of “the statistics of all endangered species case that come before the court, and not the particular animal” in question for him to consider or determine whether the offence committed by the appellant was prevalent. (underline added)

4.  The learned Magistrate has erred not to have considered or considered sufficiently the personal circumstances of the appellant and her role in the commission of the offence.

5.  Overall speaking, the sentence passed was manifestly excessive.”

6.Whereas the Animals and Plants (Protection of Endangered Species) Ordinance, Cap 187, had drawn a distinction between “endangered species” and “highly endangered species”, the Protection of Endangered Species of Animals and Plants Ordinance, Cap 586, does not make that distinction.  But the maximum penalty in respect of Appendix I species under the present legislation is the same as the maximum penalty in respect of highly endangered species under the previous legislation.  In saying that the rhinoceros is a “highly endangered species”, the Magistrate was describing that animal as it had been categorised under the previous legislation.  It is notorious that the rhinoceros is in a high state of peril because of what is believed about rhinoceros horn, the resulting demand for the same and the poaching to which such demand has led.  Ground 1 is not a ground on which the Appellant can succeed.

7.As to grounds 2 and 3, I do not think that the Magistrate failed to do anything that he had to do.  What the Magistrate did, and rightly so, was to concentrate on the facts of the present case.  The criminal operation in which the Appellant had a role was elaborate and involved.  The horns concerned had a combined value of about $1.3 million.

8.As to grounds 4 and 5, it is clear that the Magistrate did have due regard to the appellant’s personal circumstances and her role.  Ultimately the Magistrate saw it as his duty to impose the term of imprisonment which he imposed.  While I have sympathy for the Appellant’s circumstances, as the Magistrate also appears to have had, I do not find any proper basis on which to interfere with the sentence which the Magistrate saw fit to pass.

9.Accordingly the appeal is dismissed.

Mr Michael Leung, instructed by Knight & Ho (assigned by the Legal Aid Department), for the appellant

Ms Noelle A Chit, of the Department of Justice, for the respondent