HKSAR v. LAU KWAN LING

DCCC 251/2023

[2024] HKDC 1566

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 251 OF 2023

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REASONS FOR SENTENCE

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1.  The 1^st Defendant pleaded guilty to Charges 1 to 5, namely:-

(a)  Charge 1: Possession or control of a specimen of Appendix I species, contrary to section 9(1)  and (2)  of the Protection of Endangered Species of Animals and Plants Ordinance, Cap 586 (hereinafter referred to as “Cap 586”);

(b)  Charge 2: Possession or control of specimens of Appendix I species, contrary to section 9(1)  and (2)  of Cap 586;

(c)  Charge 3: Possession or control of specimens of Appendix II species, contrary to section 15(1)  and (2)  of Cap 586;

(d)  Charge 4: Sale of a protected wild animal taken in Hong Kong without special permit, contrary to section 9(1)(a)  and 18(1)(a)(i)  of the Wild Animals Protection Ordinance, Cap 170 (hereinafter referred to as “Cap 170”);

(e)  Charge 5: Possession of protected wild animals taken in Hong Kong without special permit, contrary to section 8(1)(a)  and 18(1)(a)(i)  of Cap 170.

Charges 1 and 4

2.  A controlled meeting was arranged for 29 April 2022.  At the meeting, the 1^st Defendant approached the Agricultural, Fisheries and Conservation Department officer (hereinafter referred to as PW1), and enquired whether PW1 needed turtles.  The 1^st Defendant then brought PW1 to the first offence location, and offered to sell a live big-headed turtle to PW1 at $3,900.  The operation then turned overt, and the 1^st Defendant was arrested.  The turtle seized was a protected wild animal taken in Hong Kong.

Charges 2, 3 and 5

3.  On 17 May 2022, at another controlled meeting, the 1^st Defendant asked the police officer under decoy (hereinafter referred to as PW2)  if purchase of wattle-necked turtles was desired.  Before the transaction was proceeded with, the 1^st Defendant was arrested.

4.  Search warrant was executed at the 2^nd offence location, whereby 21 live turtles and a turtle specimen were found at the Premises.  They were 6 live Appendix I turtles and 1 specimen Appendix I turtle (Charge 2), and 15 live Appendix II turtles (Charge 3).  13 of the live turtles seized at the Premises were protected wild animals taken in Hong Kong (Charge 5).  Under caution, the 1^st Defendant admitted that he possessed the exhibits seized.

5.  No exemption order had been granted pursuant to section 47 of Cap 586 to the 1^st Defendant, the Premises or in relation to the exhibits seized at the Premises, and no licence had been issued under section 23(1)(e)  of Cap 586 concerning the seized exhibits.  No special permit was granted to the 1^st Defendant.

Total Market Value of all Live and Specimen Turtles Seized

6.  The total market value of all live and specimen turtles seized at the 2 offence locations in relation to Charges 1 to 5 is estimated at $165,500. 

The 1^st Defendant’s Antecedent Statement and Mitigation

7.  The 1^st Defendant is 37 years old, divorced, and lived with his elderly parents.  His 5 year old daughter, whom the 1^st Defendant had raised as a single parent, had been living with the Defendant’s ex-wife in Taiwan since early this year.  The 1^st Defendant was a renovation worker.  He financially supported his parents and elder sister and her family.

8.  The 1^st Defendant has 4 previous conviction records mostly related to dangerous drugs, and his last conviction was in 2013 for 8 charges of trafficking in dangerous drugs and conspiracy to traffic in dangerous drugs, for which he was sentenced to a total term of 9 years and 2 months’ imprisonment.  He was released in April 2018.

9.  The Defence submitted that the 1^st Defendant lost his job during the pandemic. He tried to sell some of the turtles he had raised as pets to support his finances.  He had kept turtles for over 30 years, and had taken part in chat groups relating to turtles breeding, as well as providing tips and foster care to owners of injured or sick turtles.

10.  In his mitigation, Defence submitted that the 1^st Defendant knew that a licence is required for him to keep the turtles, but he had followed the practice of others by simply transferring the licence relating to a previous owner along with the turtle to the new owner.  That was the case for some of the seized turtles.  3 of the turtles seized were in his care for treatment.

11.  It is also submitted that there is no evidence that the Defendant had poached the turtles himself.  He had also taken part in voluntary work concerning animal welfare. 

Sentencing Considerations

12.  The present case involves 6 types of turtles, which comprised of 7 Appendix I live turtles, 1 Appendix I turtle specimen, and 15 Appendix II turtles.  Of the 22 live turtles, 15 were sourced from the wild, 17 were from Hong Kong.  The total market value of all live turtles and turtle sample seized amounted to $165,500.

13.  Amongst the turtles seized were Big-headed turtle, which has been listed as Critically Endangered on the International Union for Conservation of Nature (“IUCN”)  Red List.  This species occurs in China including Hong Kong and Southeast Asia. This species is under ongoing intensive poaching pressure worldwide due to wildlife trade. As this species does not readily breed in captivity, the trade relies on wild caught individuals.  The population is estimated to have declined drastically over 90% over the past 90 years according to the IUCN assessment in 2018.  It is estimated that the largest population of Big-headed turtle in Hong Kong to have 10 adult females, so the poaching of 2 adult female Big-headed turtle in the present case would represent 20% of the female in the population.  Such a loss is highly significant and is believed to have a strong negative long-term impact on the population.  Continued poaching at this rate will drive Hong Kong species to extinction.

14.  Golden coin turtles were also found, and they have been listed as Critically Endangered on the IUCN Red List.  This species occurs in Vietnam and China, including Hong Kong.  It is one of the most valuable turtles due to its high demand in trade for pet and medicinal use. This species is heavily poached in the wild.  Its population is estimated to have declined over 95% over the past 66 years according to the IUCN assessment in 2018.  This species has been extirpated from virtually all of its global range, except for Hong Kong and some well-protected areas on Hainan Island.  Hong Kong represents one of the last few wild populations of this species worldwide, yet its local population is under threat of ongoing illegal poaching and the population size remains small and fragmented.  An individual in the wild had not been seen in 7 years of work of the expert witness in Hong Kong.

15.  Yellow-margined box turtle is listed as Endangered on the IUCN Red List.  This species occurs in China and Japan.  It is threatened by illegal poaching and habitat degradation.  While the populations in Taiwan and Japan remain small but stable, the population in Mainland China is considered critically endangered with an estimated decline of over 90% within the past 100 years according to the IUCN assessment in 2000.

16.  Beal’s eyed turtle is an endemic species in China including Hong Kong.  According to the assessment published in the Red List of China’s vertebrate in 2016, this species is listed as Endangered.  The population size of this species is small and therefore is particularly susceptible to poaching.  This species has a low fecundity since female turtles lay only an average of 2.2 eggs per clutch.  The removal of any individual by poachers would be deleterious to its population.

17.  Wattle-necked softshell turtle is listed as Critically Endangered on the IUCN Red List.  This species occurs in China, Laos and Vietnam.  It is threatened by ongoing poaching and habitat loss.  It is estimated to have lost 80% of its population within the past 50 years according to the assessment of IUCN in 2018.  The introduced population in Hong Kong is increasingly naturalized and has established breeding populations in the wild, albeit in low number.  The population in Hong Kong is critical for the survival of this species.

18.  Radiated tortoise is an endemic species in Madagascar and is listed as Critically Endangered on the IUCN Red List.  It is 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.  It is estimated that this species has declined by over 80% over a period of 100 years according to the IUCN assessment in 2008.

19.  Hong Kong represents one of the last few wild populations of Big-headed turtle, Golden coin turtle and Beal’s eyed turtle worldwide.  If hunting continues, they will be extirpated from Hong Kong.  Their disappearance will lead to global extinction.

20.  The disappearance of turtles from the wild will negatively affect the entire ecosystem.  Turtles are known to perform important jobs such as facilitating energy flow in between ecosystems, cycling minerals, and dispersing seeds and enhancing germination. The disappearance of turtles would result in unhealthy and less diverse forests with poor water quality.

21.  Turtles have a special role in the ecosystem because they use both terrestrial and aquatic environments.  They serve as an important link between these two ecosystems, moving resources between land and water.  If turtles are lost, the linkages are also lost which result in unhealthy and less resilient ecosystem.  This would affect the forests and streams of Hong Kong.

22.  It is unlikely that a poached turtle can be returned to the wild.  Wild turtles often do not adjust to captive conditions and die.  There are risks in reintroducing seized individuals including introduction of new diseases to the wild population, low survival rate of the returned species, and damage to environment if species had been released in unsuitable locations.

23.  I have considered the 1^st Defendant’s guilty plea, his criminal record, the facts of this case, the absence of ill treatment of the turtles, the authorities and table of sentences submitted by the Defence, and all mitigation advanced on his behalf.  It is of extreme importance that endangered wildlife should be protected, in order to preserve the delicate ecosystem that these wildlife promotes and fosters.  It is also an important role of the Court to enable Hong Kong to perform its duties under the relevant International Conventions.  I am therefore of the view that in order to have a sufficiently strong deterrent effect, an immediate imprisonment term is the only suitable sentence, and that CSO is not a feasible option.

24.  I do not find that the lack of evidence concerning direct poaching by the 1^st Defendant is a mitigation.  It is the demand, which is manifested in the desire to possess and control, and to sell endangered species, that cause rapid depletion of the population. 

25.  Even though not all of the seized turtles came from the wild, the ultimate source leads to wildlife that had been taken away from their natural habitat.   The mitigation in this regard may not be a strong one.

26.  There is no sentencing guideline concerning this type of cases.  For Charge 1, I shall adopt a starting point of 9 months’ imprisonment.  Considering the 1^st Defendant’s guilty plea, I shall allow a discount of 1/3, and therefore the sentence for Charge 1 is 6 months’ imprisonment.

27.  For Charge 2, I shall adopt a starting point of 15 months’ imprisonment.  Considering the 1^st Defendant’s guilty plea, I shall allow a discount of 1/3, and therefore the sentence for Charge 2 is 10 months’ imprisonment.

28.  For Charge 3, I shall adopt a starting point of 12 months’ imprisonment.  Considering the 1^st Defendant’s guilty plea, I shall allow a discount of 1/3, and therefore the sentence for Charge 3 is 8 months’ imprisonment.

29.  For Charge 4, I shall adopt a starting point of 3 months’ imprisonment.  Considering the 1^st Defendant’s guilty plea, I shall allow a discount of 1/3, and therefore the sentence for Charge 4 is 2 months’ imprisonment.

30.  For Charge 5, I shall adopt a starting point of 6 months’ imprisonment.  Considering the 1^st Defendant’s guilty plea, I shall allow a discount of 1/3, and therefore the sentence for Charge 5 is 4 months’ imprisonment.

31.  As the 1^st and 4^th Charge occurred on the same day and related to the same animal, I shall order that the sentences of the 1^st and 4^th Charges to run concurrently.

32.  As the turtles concerning the 5^th Charge overlap to a certain degree with the other charges, I shall order that the sentence of the 5^th Charge to run concurrently with all other charges.

33.  Considering totality of sentence, I shall order that 6 months of Charge 2 and 3 months of Charge 3 shall run consecutively to all other charges.  The 1^st Defendant is sentenced to a total imprisonment term of 15 months.