HKSAR v. FUNG TAK CHEUNG

CACC 160 /2020

[2021] HKCA 1273

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 160 OF 2020

(ON APPEAL FROM DCCC NO 399 OF 2020)

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J U D G M E N T

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1.  The applicant was charged with one charge of possession or control of specimens of Appendix I species otherwise than in accordance with the provisions of section 9(1) of Protection of Endangered Species of Animals and Plants Ordinance, Cap 586^[1] (“the Ordinance”).

2.  He pleaded guilty to the charge before Deputy Judge Emily Cheung (“the judge”) in the District Court on 21 August 2020.  On 10 September 2020, the judge sentenced the applicant to 24 months’ imprisonment.

3.  On 24 September 2020, the applicant filed a Notice of Application for Leave to appeal against conviction and sentence. Subsequently, he filed a Notice of Abandonment in relation to his conviction and his application for leave to appeal against conviction was accordingly deemed dismissed.

Summary of facts

4.  On 23 September 2019, a controlled purchase operation was conducted by an officer of the Agriculture, Fisheries and Conservation Department (“AFCD”) at a meeting arranged with the applicant in Room 408, 4/F, Cheong Wah Factory Building, Nos 39-41 Sheung Heung Road, To Kwa Wan, Kowloon (“the premises”).  The officer expressed his interest in buying from the applicant two religious statues (Exhibits E1-E2), for which the applicant said the price would be HK$23,000 and HK$5,000 respectively.

5.  The operation then turned overt.  Armed with a search warrant, the officer searched the premises and found various ivory items (Exhibits E1-E10) and one piece of raw tusk (Exhibit E11).  Exhibits E1 to E4 were carved ivory pieces.  Exhibits E5 and E6 were mahjong tiles and ivory seals.  Exhibits E7 and E8 were bracelets and necklaces.  Exhibit E9 were 7 pairs of chopsticks.  Exhibit E10 consisted of 5,504 pieces of small jewellery parts.  Exhibit E11 was a raw tusk weighing 35.27kg.

6.  The applicant did not have any licence for his possession under the Ordinance.  Further, the records of the AFCD revealed that the premises had not been issued with any licence under the Ordinance.  Under caution, the applicant admitted that he had rented the premises since early 2019 for his trading business.

7.  Exhibits E1-E11 were sent to an expert of the AFCD for examination.  The expert confirmed that they were elephant ivory.  All elephants come within Appendix I species under the Ordinance.  The market value of worked ivory was about HK$20,000 per kilogram, while that of raw ivory tusk was about HK$5,000 per kilogram.  The total estimated market value of Exhibits E1-E10 (weighing 20.04 kg in total) and E11 (weighing 35.27kg) was about HK$577,000.

8.  It was stated in the Summary of Facts, which the applicant accepted, that elephants have been one of the iconic species group in wildlife trade conservation.  Both African and Asian elephants are listed in Appendix I of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”), which means they are facing the threat of extinction, while there is a black market involving the supply of worked ivory. According to a recent report of “Elephant Conservation, Illegal Killing and Ivory Trade” prepared by the CITES Secretariat for the 70^th Standing Committee in 2018, Africa’s elephant population has seen its worst decline in 25 years, with a loss of approximately 111,000 elephants over the ten-year period between 2006 and 2015.  Asian elephants were estimated to have between 44,281 and 49,371 individuals remaining.

Mitigation

9.  The applicant was represented at his mitigation on 21 August 2020 by counsel, who produced a comprehensive 10-page written submission.  He was 45 years of age, divorced with a 13-year-old daughter and a 4-year-old son, for whom he provided financial support.  The applicant had been the sole proprietor of a wood carving and jewellery processing business for about 8 years.  His customers were mainly tourists from the Mainland.  He enjoyed a successful business and was said to be passionate about craftsmanship.

10.  The applicant had become keenly interested in ivory carving in 2015, at which time he purchased two complete ivory tusks with a CITES re-export certificate for HK$447,300.  The two tusks were “pre‑convention” ^[2], meaning that they were taken from elephants before CITES applied to ivory.  It was agreed between the prosecution and defence that it was a legal purchase at the time^[3].

11.  Between September 2016 and March 2018, the applicant resided in the Mainland in order to take care of his father, who was terminally ill.  He returned to live in Hong Kong in 2019.  His business had suffered substantially because of social disorder issues and the economic downturn.  Furthermore, his younger son had been diagnosed with Autism Spectrum Disorder; accordingly, the applicant stopped working to take care of his son. After selling his car, the applicant decided to put the worked ivory on sale to relieve his financial difficulties.

12.  It was said that the applicant personally had made the worked ivory items from one of the raw tusks in his possession in the premises since 2015 (save for exhibit E3 which he purchased in 2018).  He made them for his personal enjoyment and appreciation.  Only in 2019, because of financial difficulties, did the applicant decide to sell the worked ivory^[4].

13.  The crux of the mitigation advanced before the judge was that the applicant was ignorant of the amendments made to the Ordinance on 1 May 2018 (“the Amendments”).  Prior to the Amendments, possession of a licence was not a statutory requirement.  Unaware of the change in law, the applicant did not apply for a permit from the Director of AFCD.  It was submitted that the applicant was not one of the targets of the Amendments, who were essentially poachers and smugglers.  Since the applicant had never been an ivory trader registered with the AFCD, he had not been informed of the change in legal requirements.  It was also claimed that the applicant did in fact warn the officer during the controlled purchase operation that the latter could only possess, but could not export, the worked ivory items; which was said to demonstrate that the applicant was only aware of the legal requirements before the Amendments came into force.  Had the applicant known of the change in law, he would have applied for a licence from the AFCD, and would most likely have obtained one.

14.  It was also submitted that the applicant acted alone and not in association with others in a larger ivory trading scheme.  It was also said that none of the ivory in the applicant’s possession had gone onto the black market.  The worked ivory and tusk involved was from an African elephant, which, it was contended, was not the most vulnerable species of elephant.  There was said to be no chance of the applicant re-offending.

Reasons for sentence

15.  The judge found that the Amendments, which had drastically increased the maximum penalties, intended to provide sufficiently strong deterrence against the illicit ivory trade.  The fact that that none of the worked ivory in the applicant’s possession had entered the black market was not an effective mitigating factor because the ivory would have been sold but for the AFCD controlled purchase operation.  The judge also found the applicant’s assertion that the large number of worked ivory items seized were for household decoration unconvincing.  More importantly, the judge rejected the mitigation that the applicant committed the offence out of ignorance of the law^[5]. She considered that, if the applicant was indeed so passionate about ivory craftsmanship, he would have kept himself informed about the latest regulations in the industry.  The judge remarked that the applicant was already back in Hong Kong by March 2018, which was before the Amendments became effective. Furthermore, she considered that the applicant’s warning to the officer in the controlled purchase operation was his attempt to play down and hide the purported sale^[6].

16.  The judge noted that the applicant had 5 previous convictions, but since they were recorded more than 25 years ago and were not similar to the present offences, she resolved not to enhance the sentence for this reason.  Noting that the Amendments aimed to deter the commission of the present offence, taking into consideration the estimated market value of the ivory seized and declining to give weight to family hardship suffered by the applicant, the judge adopted a starting point of 3 years’ imprisonment.  Following a one-third discount for the applicant’s timely plea, the final sentence passed was 2 years’ imprisonment.

Grounds of appeal

17.  Mr Kwan Tong Lee, for the applicant, has advanced one ground of appeal against sentence, which complains that the judge failed to take into account, or did not give sufficient weight to, certain matters advanced in mitigation.

18.  Counsel submitted that the applicant’s assertions, particularly that of his ignorance of the change in law, were believable and that there was no evidence to rebut them.  In these circumstances, he complained that the judge failed to view the matters advanced in mitigation in a way most favourable to the applicant but instead engaged in conjecture; for example, that the applicant’s warning to the officer in the controlled purchase operation was to play down and hide the would-be transaction.  He pointed out that, in the first instance decision of HKSAR v Wei Binxue and Anor, the judge had considered sentence by adopting the lower of the estimated values of the smuggled pangolin scales, which was the most favourable to the defendants^[7]. The thrust of Mr Kwan’s argument was that the judge in the present case should have accepted the applicant’s mitigation.

19.  Mr Kwan relied on a number of cases at first instance and on appeal^[8], where the defendants were convicted of importing specimens of endangered species otherwise than in accordance with section 5(1) of the Ordinance, and were sentenced after the Amendments took effect.  His reference to these cases seemed to be on the basis that the offence of importing under section 5 and that of possession under section 9 of the Ordinance carry the same maximum penalty on indictment, namely, a fine of $10 million and imprisonment for 10 years, following the 2018 Amendments^[9]. In HKSAR v Xiao Rongqiang^[10], the Court of Appeal did not disturb the starting point of 30 months’ imprisonment for importing 224 Saiga antelope horns weighing 49.9kg with an estimated market price between $719,000 and $1,188,000.  Mr Kwan argued that the applicant in the present case merely put his collection of worked ivory on sale and should, therefore, be dealt with more leniently than those engaging in illegal importation.

The respondent’s submissions

20.  Ms Lisa Go, in written submissions on behalf of the respondent, referred to HKSAR v Xie Jinbin^[11], where the Court of Appeal set out the sentencing considerations for cases involving the exploitation of protected species of plants (incense wood in that particular case) and held that the quantity of the stolen protected plants was not the only or determinative factor; the focus should be on the protection of the protected species rather than their value^[12]. The aim of the sentence was deterrence in order to prevent the irreparable harm that these activities could cause to endangered species.  In Xie Jinbin, the sentencing considerations included the injury done to the endangered species by the offender, the offender’s profit motive, the manner of commission of the offence, the gravity of the offence taking into account the vulnerability of the endangered species, the number of specimens involved and their value.

21.  Ms Go submitted, and Mr Jones Tsui adopted her submissions, that the judge was correct to reject the mitigation that no worked ivory in the applicant’s possession had yet reached the black market.  Further, the large number of worked ivory items in the applicant’s possession, including 893 pieces of ivory seals (Exhibit E6) and 5,504 pieces of small jewellery (Exhibit E10), made the submission that they were for his enjoyment and household decoration an unconvincing claim.  It had been admitted that both African and Asian elephants were suffering from badly declining populations with the threat of extinction.   A sentence of 24 months’ imprisonment after plea could not be said to be manifestly excessive.

Consideration

22.  I am not impressed with the argument that the applicant did not know of the change in the law; even assuming that that is capable of being a mitigating factor in the present case.  The applicant was in fact given the opportunity to test the matter of what he knew at the time in evidence before the judge, but he declined to do so.  Moreover, I believe it is fair to say that every craftsman in every civilised part of the world must surely know of the restrictions and difficulties associated with importing, exporting, manufacturing and dealing with elephant ivory from his common knowledge.  Indeed, anyone arriving at Hong Kong International Airport would know of the restrictions or controls concerning the importation of ivory and endangered species.  I would expect any craftsman who was sincere about his business in fashioning ivory would have taken the trouble to find out what the law was before dealing in this commodity.

23.  When I look at the legislation, it becomes clear to me that elephant ivory is in a special category of restriction and control. Section 9(1)(a) of the Ordinance refers to section 20, which specifically limits the possession or control of pre-Convention specimens to ‘antique elephant ivory’ only.  ‘Antique elephant ivory’ is defined under paragraph 1(1) of Schedule 4 as meaning “a piece of ivory that was, before 1 July 1925 –

(i)  removed from the wild;

(ii)  significantly altered from its natural state for jewellery, adornment, art, utility or musical instruments; and

(iii)  acquired by a person after the alteration in such altered state that required no further carving, crafting or processing to effect its purpose;

          …”

It is significant that Schedule 4 is itself headed ‘Stricter Regulation of Elephant Hunting Trophies and Elephant Ivory’.

24.  This suggests to me that, for obvious reasons, which are set out in the Summary of Facts under the heading ‘Endangered Species’, elephant ivory is in a very particular category.  Furthermore, I note that under paragraph 10(1)(c) of Schedule 4, the Director may approve a possession licence application “only if the Director is satisfied that … there are exceptional circumstances justifying the approval”.  This provision suggests to me that a licence is by no means automatic or a formality, as Mr Kwan has suggested.

25.  There is little appellate authority on the subject of sentencing since the maximum sentences were increased for this offence in 2018.  However, by comparing this sentence with that which was said in Xiao Rongqiang to be “by no means manifestly excessive”, namely 20 months’ imprisonment following a plea of guilty, where the maximum sentence in respect of Appendix II species is 7 years’ imprisonment, I do not see that there are reasonably arguable grounds of appeal against sentence.

26.  Accordingly, I do not find any reasonably arguable grounds of appeal against sentence and the application for leave is refused.  The applicant is duly advised that he has the right to renew his application for leave to appeal to the Court of Appeal, but he is also warned that if he does so, the Court has the power to make an order for the loss of any time which the applicant has spent in custody pending his appeal, if it were to come to the view that there was no justification for the renewal of the application.

Appendix of cases referred to by the applicant

Case	Facts	Sentence
[Tab 1] HKSAR v Wei Binxue and Another [2019] HKDC 1162	D1 and D2 flew in from the Congo, carrying in their respective luggage 53.41 kg and 55.56 kg of pangolin scales with an estimated market value between HK$145,000 and $275,000, and between $151,000 and 286,000, respectively. It was noted that shortly before the commission of the offence, pangolin scales had been transferred from Appendix II to Appendix I offences, which attracted more severe penalties.	24 months’ starting point, discounted by 1/3 = 16 months’ imprisonment
[Tab 2] HKSAR v Yan Tianci [2019] HKDC 1433	D flew from Mozambique, carrying 1.32kg of cut pieces of rhinoceros horn in his luggage with an estimated market value between HK$351,000 and $723,000. The prosecution submitted that rhinoceros horn could be farmed and, even if not farmed, the taking of horn did not necessarily result in the killing of a wild rhinoceros. There was no evidence whether the horn in question was farmed or taken from the wild. The commission of the offence was driven by financial gain.	18 months’ starting point, discounted by 1/3 = 12 months’ imprisonment
Case	Facts	Sentence
[Tab 3] HKSAR v Lin Jinbao [2019] HKDC 616	D flew from the Congo, carrying 48.18kg of pangolin scales in his luggage with an estimated market value of HK$189,000. The scales were estimated to have come from 134 pangolins. Less than 2 weeks before the offence was committed, pangolin scales had been transferred from Appendix II to Appendix I offences attracting a more severe penalty. Therefore, the judge lowered the starting point by 6 months.	30 months’  starting point, discounted by 1/3 = 20 months’ imprisonment
[Tab 4] HKSAR v Muller Canlyn Yolande [2020] HKFC 630	D flew from South Africa, carrying in her luggage 15.93kg pieces of cut rhinoceros horn. Their estimated market value was between HK$4,228,000 and $8,704,000.	36 months’ starting point, discounted by 1/3 = 24 months’ imprisonment
[Tab 5] HKSAR v Xiao Rongqiang [2021] HKCA 23	D flew from Russia, carrying in his luggage 224 Saiga antelope horns weighing 49.9 kg with a market price between $719,000 and $1,188,000. Saiga antelope was an Appendix II species, the importation of which attracted a maximum penalty of 7 years’ imprisonment. D committed the offence for a reward of RMB 2,000.  The Court commented that the 224 antelope horns were taken from no less than 112 Saiga antelopes, which represented a substantial portion of the number of existing wild Saiga antelopes.	30 months’ starting point, discounted by 1/3 = 20 months’ imprisonment

[1] Contrary to section 9(1) and (2) of Protection of Endangered Species of Animals and Plants Ordinance, Cap 586.

[2] Section 1(2) of Schedule 4 of Protection of Endangered Species of Animals and Plants Ordinance, Cap 586.

[3] At the mitigation hearing, documentary proof was produced to show that the tusks were “pre-convention”.  See AB, pp 32Q-33T.

[4] AB, pp 36P-38F; pp 42M-45T.

[5] At the hearing on 10 September 2020, the judge inquired with the applicant whether he would give evidence in relation to his lack of knowledge in the change of law but the applicant declined to do so.

[6] AB, pp 19-21, at [22]-[24].

[7] HKSAR v Wei Binxue and Anor [2019] HKDC 1162, at [27].

[8] See “Appendix of cases referred to by the applicant” infra.

[9] Section 5(3)(b) and section 9(3)(b) of the Protection of Endangered Species of Animals and Plants Ordinance, Cap 586.

[10] HKSAR v Xiao Rongqiang [2021] HKCA 23.

[11] HKSAR v Xie Jinbin [2011] 2 HKLRD 631.

[12] Ibid., at [16].