HKSAR v. PIYAARUNSIT PURIWAT

DCCC 592/2024

[2025] HKDC 78

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 592 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant (‘D’)  pleads guilty to two charges:

(i)  Importing specimens of Appendix I species (43 parrot eggs), otherwise than in accordance with the provisions of section 5(1)  of the Protection of Endangered Specimen of Animals and Plants Ordinance, Cap 586 (“the Ordinance”); and

(ii)  Importing specimens of Appendix II species (29 parrot eggs), otherwise than in accordance with the provisions of section 11(1)  of the Ordinance.

THE FACTS

2.  On 25 January 2024, D, a Thai passport holder, arrived at Hong Kong by air from South Africa via Ethiopia. D was intercepted by Customs officers at the green channel at the arrival hall.

3.  During baggage examination, a black thermal bag (with 2 power banks attached on the sides)  was found. There were 4 plastic boxes in the thermal bag containing in total of 72 eggs (the “Eggs”). When asked what those were, D said in Mandarin “parrot eggs”.

4.  Officers of the Agriculture, Fisheries and Conservation Department (“AFCD”)  were summoned to the scene. Upon enquiry, D could not produce any valid export document under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”). Thus the Eggs were seized and D was arrested.

5.  According to the forensic reports (by DNA analysis), the Eggs were found to be of the below species:

(a)  1 egg of Ara militaris (“E1”);

(b)  42 eggs of Psittacus erithacus (“E2”);

(c)  1 egg of Amazona albifrons (“E3”);

(d)  23 eggs of Ara ararauna ( “E4”);

(e)  2 eggs of Ara severus ( “E5”);

(f)  3 eggs of Diopsittaca nobilis (“E6”).

6.  Chan Hon-ki (“Chan”), an Endangered Species Protection Officer of the AFCD, identified E1 and E2 to be Appendix I species and E3, E4, E5 and E6 to be Appendix II species under the Ordinance.

7.  The estimated market values of the adult bird of these species are:

(a)  E1: $25,000 per head, subtotal $25,000;

(b)  E2: $13,000 per head, subtotal $546,000;

(c)  E3: $30,000 per head, subtotal $30,000;

(d)  E4: $23,000 per head, subtotal $529,000;

(e)  E5: $32,000 per head, subtotal $64,000;

(f)  E6: $8,000 per head, subtotal $24,000.

8.  The total estimated market value is $1,218,000.

Conservation status

9.  For the military macaw (Ara militaris, i.e. E1), the International Union for Conservation of Nature (“IUCN”)  assessed the red list status of this species as “Vulnerable” in 2020. The population trend is “Decreasing. It is estimated that there are no more than 7,000 mature birds in the wild”. The threat/status is “On-going habitat destruction and illegal hunting”.

10.  For the grey parrot (Psittacus erithacus, i.e. E2), the IUCN assessed the red list status of this species as “Endangered” in 2020. The population trend is “Decreasing. It suffered a substantive population decline over 50% over the last 43 years”. The threat/status is “On-going habitat destruction and illegal hunting”.

11.  For the white-fronted amazon (Amazona albifrons, i.e. E3), the IUCN assessed the red list status of this species as “Least Concern” in 2018. The population trend is “Increasing”. The threat/status is “No known threat”.

12.  For the blue and yellow macaw (Ara ararauna, i.e. E4), the IUCN assessed the red list status of this species as “Least Concern” in 2018. The population trend is “Decreasing. Population decline is estimated to be up to 25% over 38 years”. The threat/status is “Threated by exploitation for pet trade”.

13.  For the chestnut-fronted macaw (Ara severus, i.e. E5), the IUCN assessed the red list status of this species as “Least Concern” in 2018. The population trend is “Decreasing. Population decline is estimated to be up to 25% over 38 years”. The threat/status is “Threated by exploitation for pet trade”.

14.  For the red-shouldered macaw (Diopsittaca nobilis, i.e. E6), the IUCN assessed the red list status of this species as “Least Concern” in 2016. The population trend is “Stable”. The threat/status is “Threated by exploitation for pet trade”.

15.  Chan also added:

(a)  the most significant threat to parrots is poaching driven by pet trade. 76% of all parrot are known to have been kept in captivity, most of which are involved in pet trade. Parrots have the largest proportion (36%)  of endangered species among all groups of birds worldwide. In this connection, CITES has listed all parrots in Appendix II since 1981, with the exception of those more threatened species that are included in Appendix I and four common species that are excluded from the Appendices;

(b)  parrots’ populations have been decimated by illegal trade which incentivizes poaching in the wild. Poachers net parrots in flight or trap them by cage. Poachers also hack open tree cavities in order to obtain the parrot nestlings inside. Poaching not only removes parrots from the wild, but also destroys nesting sites for future breeding parrots;

(c)  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:

I. parrots, particularly those large-sized species as in this case, are long-lived and have a low reproductive rate. Any removal of breeding adults can have a rapid and grave impact on their population. Species classified as least concern today can become threatened or endangered tomorrow. It should also be noted that the IUCN red list assessment is not updated regularly. Hence, species that have become more threatened may not be promptly re-assessed to reflect their threatened status;

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

MITIGATION

16.  D is 35 years old, single and with no previous criminal record in Hong Kong. He lived with his mother in Thailand.

17.  D had received university education, majoring in Chinese Language and Culture. He worked as a free-lance interpreter in Thailand for 10 years before his arrest with a monthly income 20,000 Thai baht.

18.  During 2022 to January 2024, a Taiwan business lady named Li asked him to work for her on a free-lance basis to deal with import/export documents. The work did not involve birds’ eggs. Normally they contacted each other via phone message. Eventually, Li asked him to assist her in an import/export transactions relating to parrots in two or three international transactions between Thailand and Japan.  He had been paid for 3,000 Thai Baht each time.  There was nothing that could have suggested to him they were in any way unlawful at the time. He had to travel within Thailand for these transactions to courier documents for the import/export of the birds to the airport.  He never heard of anything regarding the CITES before, nor the relevant legislation.

19.  On 19 January 2024, Li contacted him regarding a consignment via phone messages.  He was then in Bangkok, and Li told him to fly to South Africa to fetch the eggs.  She paid for all the flights and told him to go to different farms to get the eggs.  She also kept a copy of his passport to confirm his identity.

20.  On 20 January 2024, he arrived at Johannesburg Airport.  He cleared through Customs.  He was met by the supplier.  They went to the farms to get the eggs which were packed in a special container. 

21.  D then went to the airport in South Africa and flew to Ethiopia, then Hong Kong.

22.  On 25 January 2024, he arrived in Hong Kong.  He was stopped by the Customs when he carried the special container with the Eggs.  He was never informed or warned about the restrictions in the transaction.  He was going to meet with someone at the Hong Kong airport after Customs. He did not know the identity of at that person, as the person would find him, according to Li.  He had no idea how that person would identify him, but probably by the passport photo, since Li had a copy of it.  D was then arrested and charged. He admitted his guilt in the interview.

23.  Mr. Tracy submits that Chan can only give an estimated valuation for an adult bird of the species.  In the light of common sense, he submits that it would be sensible and just to assume that an egg would be sold for at most half the price of a successfully reared, fully adult and marketable bird.  Value in cases of this nature is not a pre-dominant factor in sentence, but it is one relevant factor. 

24.  From the large quantities for E2 and E4, Mr. Tracy submits that these may well not be taken from the wild but “cultivated” under controlled conditions.  It is submitted that in dealing in “farmed” eggs, whist still seriously wrong, is not as heinous as directly taking the eggs or parrots in the wild. 

25.  Mr. Tracy refers to DCCC 128/2019, DCCC 294/2019, DCCC 44/2019, DCCC 513/2019 and DCCC 679/2019 and submits that these cases do not deal with protected birds; but they might possibly be of assistance.

26.  D has been in custody for almost a year.  Since both charges are identical factually save the species of egg, the sentence should be concurrent to enable D’s early release.  It is just a single transaction.

CONSIDERATIONS

27.  The maximum sentence upon indictment for the offence of importing endangered species under s.5 of the Ordinance is that of a fine of 10 million and to imprisonment up to 10 years. For s.11, the fine is one million and imprisonment up to 7 years.

28.  There are no guidelines when it comes to the sentencing of this type of cases because it is neither possible nor practical to fix a tariff given the varied circumstances in which these offences can arise.  For this reason, references in previous cases are often of limited assistance.  Each sentence would depend on the facts of each case.

29.  Endangered species of animals and plants are protected by CITES against exploitation through international trade.  The number of parrots has decreased sharply and faces the threat of becoming extinct due to illegal pet trade.  The court has responsibility to send message that endangered species should be protected and to take a firm stance against wildlife trafficking. In my view, Hong Kong must fulfill its international obligations under CITES and contribute to natural conservation. 

30.  There are 72 eggs in total in this case.  If they were to hatch, the total value of the parrots would be worth more than $1.2 million.  I accept Mr. Tracy’s argument that the value of an individual egg is not as high as that of an adult parrot.  However, it is the number of eggs and harm posed on the endangered birds that should be taken into consideration, not just the value alone.

31.  In HKSAR v Xie Jinbin 631 [2011] 2 HKLRD, which involves the theft of agarwood belonging to Appendix I of the Ordinance; the opinions of the Court of Appeal can be applied to our case:

“16. …the law seeks to achieve is protection of our endangered flora. Thus, the evil which the law seeks to prevent is not theft as such but injury to the protected flora. Unlike theft of ordinary goods, restitution is impossible. The recovered wood could not be restored to the plant. The focus, therefore, should be on protection of the plant rather than the value of the plant or part stolen. The factors to be taken into consideration are the injury done to the tree, profit-motive, the manner of commission and the gravity of the offence. ”

32.  Mr. Tracy accepted Chan’s report that poachers and pet trade are the source of evil for the endangered parrots.  He further argued that the large quantities for E2 and E4 may suggest that they may well not be taken from the wild but “cultivated” under controlled condition. 

33.  I disagree with Mr. Tracy that had the Eggs been sourced from the farm, then the situation would be less heinous.  In fact, D had no idea whether the Eggs were from the wild or bred in the farm.  The fact that the Eggs were taken from the farms cannot rule out the possibility that they were poached from the wild. 

34.  Even if the Eggs had been cultivated, it would mean that the parent adult parrots would have to be removed from the natural habitats for them to breed and be caged in captivity.  It can lead to a rapid and grave impact on the populations of parrots in nature. It is totally inhumane and reprehensible to breed endangered parrots in captivity for profits.

35.  Mr. Tracy further submits that D had only acted as a courier for the Eggs. His role was on the low scale of criminality compared to the poachers.  However, without the assistance of people like D, those who committed the illegal pet trade would have difficulty in disposing the Eggs.

36.  Any reasonable person would have realized flying to Africa to transport the eggs was peculiar. D should have stopped and realized that he was seriously and obviously wrong. It will cause irreversible harm to nature and cause the parrots to disappear from earth.  Future generations may only able to see these birds from photographs and videos.

37.  In sentencing, I have considered the nature and facts of the case, the personal background of D, his previous good character and the mitigation put forward on his behalf.

38.  Taking into consideration of the large number of eggs involved, I am of the view that there is evidence of a syndicate.  The setup was not sophisticated. However, their concerted effort is clearly for commercial gain.

39.  I also take into account of what Chan related in the Facts above. Presently, it involves 6 species of which 43 of them are classified as endangered and vulnerable.  The residual 29 eggs are categorized to be threatened by exploitation for pet trade.  I find that the only appropriate sentence is imprisonment.  

40.  I ask the prosecution the state of the Eggs as of today.  The prosecution informed the court that 71 eggs died except one of those was hatched.  However, probably due to the lack of parental care, the only chick died shortly afterwards.  This illustrates the devastating impact it has on endangered parrots.

41.  For the above reasons, I adopt a starting point of a 36 months’ and 21 months’ imprisonment for Charge 1 and Charge 2 respectively.

42.  There are aggravating factors in this case.  Firstly, D came to Hong Kong for the purpose of trafficking the Eggs. Secondly, D transported the Eggs on a long international flight with low temperature and humidity. I would say this manner of commission is one of the reasons leading to the demise of the Eggs. Therefore, I enhance the sentence by 9 months for each charge, leading to 45 months’ and 30 months’ imprisonment for Charge 1 and 2 respectively. 

43.  Apart from D’s guilty plea, there is no other valid mitigating factor which warrants further reduction.  His sentence will be given one third discount upon his guilty plea as follows:

Charge 1 – 30 months’ imprisonment; and

Charge 2 – 20 months’ imprisonment.

44.  Having taken into account of the totality principle, I order 9 months of Charge 2 to run consecutively to 30 months in Charge 1.

45.  The total sentence of D is 39 months’ imprisonment.