R. v. TSOI WAI CHING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.27 OF 1997

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J U D G M E N T

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1. The Appellant pleaded guilty to the offence of Possession of Endangered Species, contrary to s.6(1) of the Animals and Plants (Protection of Endangered Species) Ordinance, Cap.187. The particulars of the charge alleged that the Appellant was in possession of a scheduled animal part, namely one bear gall bladder.

2. The Appellant was fined $125,000. She now appealed against sentence.

3. Section 6(1) provides as follows :

"Subject to section 18, no person shall, except under and in accordance with a licence issued under section 7(1), have in his possession or under his control any scheduled animal, scheduled animal part or schedule plant."

4. Section 6(2) provides as follows :

"Any person who contravenes subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine at level 5 and to imprisonment for 6 months."

5. "Scheduled animal part" is defined in section 2 to mean "an animal part or derivative specified in column 3, of an animal specified in relation to that part or derivative in column 1, of Schedule 2." According to the Schedule, a bear gall bladder is a scheduled animal part.

6. Section 13A of the Ordinance provides as follows :

"(1) Subsection (2) applies to an offence committed under section 4(2), 5(2) or 6(2) in respect of a scheduled species not being a highly endangered species.

(2) Where a person has been convicted of an offence to which this subsection applies and the court is satisfied that the act in respect of which the person has been so convicted was carried out, whether by him or another, for a commercial purpose, that person, instead of being liable to the penalty prescribed for being convicted of that offence, shall be liable to a fine of $500,000 and to imprisonment for 1 year."

7. Thus, the offence of which the Appellant was convicted was not in relation to a highly endangered species. She was only liable to a maximum fine at level 5 which is a maximum of $50,000 under the Criminal Procedure Ordinance. But if it is proved that possession of the bear gall bladder was for commercial purpose, the maximum fine would be $500,000.

8. The magistrate in his reasons for sentence, very fairly admitted that he was wrong in arriving at that sentence. He followed R. v. Both Prime Co. Ltd. MA1203/95 and adopted a starting point of a $150,000 fine but at the time he did not have s.13A in mind. He stated he should have considered it worth while holding a Newton enquiry as to the purpose of possession before he arrived at the fine imposed. Unfortunately he did not do so.

9. In the circumstances, there was no proof that possession was for commercial purposes so that s.13A could be invoked. The magistrate's fine of $125,000 could not be sustained.

10. Mr Leung for the prosecution asked me to remit the case back to the magistrate for an enquiry as to the purpose of possession. Mr McLanachan for the Appellant submitted that there was a mistake made in passing sentence and this mistake could be cured by the court in the appeal.

11. The admitted facts on which the conviction was based do not in anyway show that the bear gall bladder was in the Appellant's possession for commercial purpose. There was no evidence that the Appellant had it in his possession for that purpose. The proper way for this court in the circumstances is to set aside the fine and impose a fine under s.6(2). The present case is not one that warrants the maximum fine at level 5. Taking into consideration the plea of guilty, the fine should be one of $40,000.

12. Accordingly, the appeal is allowed and a fine of $40,000 is substituted.