R. v. PANG HONG YAM

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1337 OF 1996

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J U D G M E N T

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1. The appellant appeals his sentence in respect of four summonses upon which he was sentenced on his own plea on 23^rd October 1996. The first was possession of scheduled animal parts as was the second; the third was possession of endangered species, namely two pieces of elephant hide; and the last possession of controlled medicine, namely pills and powder claimed to contain tiger bone and rhinoceros parts.

2. The appeal against the first three sentences has been abandoned and the appeals are dismissed in respect of those summonses. The remaining matter before me is the last summons upon which the appellant was fined the sum of $150,000. Mr Tong raises two matters before me : firstly, that the magistrate did not adequately consider the means of the appellant in reaching his decision, and secondly, that he imposed a fine in excess of that permitted by the Ordinance.

3. The fines in respect of the section under which the appellant was charged, i.e. s.6(3) and s.6(4) of the Animals and Plants (Protection of Endangered Species) Ordinance are kept at $100,000 by way of fine unless, as is provided for in s.13(a) of the same Ordinance that the powder and pills were for commercial purpose. It is common ground between the appellant and the respondent that the appellant was the proprietor of a medicine shop and that these prohibited items formed part of the stock albeit claimed by the respondent as old stock, but they were possessed by the appellant for commercial purposes.

4. It is not necessary that s.13(a) be referred to in the summons, nor is it necessary for the magistrate to specifically refer to that section. I find that it is proper where the magistrate finds and accepts, as he did here, that the prohibited substances were part of the stock in a commercial enterprise and for sale commercially to the public and that he should be in a position to impose fines on the higher scale permitted by s.13(a) rather than the lesser scale for non-commercial activities.

5. The learned magistrate did have before him some details of the financial circumstances of the appellant. The appellant was in person in the court below and the material placed before the magistrate was sketchy, to say the least. I have now, through Mr Tong, have the benefit of seeing the profit and loss accounts and the bank accounts (both private and part of the company accounts) in respect of the appellant who was a sole trader. I am satisfied, upon those accounts, that whilst the appellant has a reasonably substantial turnover, his net profit is low. Had the magistrate the benefit of seeing that documentation, it may well have been that he would have taken a view that the means of the appellant were not sufficiently substantial for him to pay a fine in the sum of $150,000 in respect of this offence.

6. The appeal is allowed to the extent that a fine of $80,000 is imposed in lieu of that of $150,000.