HKSAR v. HIRAGUCHI NAOKI

DCCC 1192/2018

[2019] HKDC 625

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1192 OF 2018

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REASONS FOR SENTENCE

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Background and facts

1.  The defendant pleaded guilty to one count of importing specimens of Appendix II species otherwise than in accordance with the provisions of section 11(1) of Cap 586, contrary to section 11(1) and (3) of the Protection of Endangered Species of Animals and Plants Ordinance, Cap 586 (“the Ordinance”).

2.  The subject matter is 60 heads of live Ryukyu black-breasted leaf turtles.  The academic name is Geoemyda japonica (“the turtles”). 

3.  The facts admitted by the defendant revealed that on 26 October 2018 the defendant was intercepted by the Customs officers at the Customs Arrival Hall of the Hong Kong International Airport.  Baggage examination was conducted on the check-in baggage of the defendant and officers found the turtles (exhibit E1), which are Appendix II specimen under the Ordinance. 

4.  As the defendant failed to produce any valid Convention of International Trade in Endangered Species of Wild Fauna and Flora (CITES) export document for E1, the defendant was arrested.

5.  Subsequently a cautioned record of interview was conducted with the defendant and the defendant stated, inter alia, the following:-

(1) he was intercepted by the Hong Kong Customs on 26 October and 60 live Ryukyu black-breasted leaf turtles were found inside his suitcase;

(2) his friend in Okinawa sent exhibit E1 in carton boxes to him by post and he knew that his friend in Okinawa would send him Ryukyu black-breasted leaf turtles beforehand;

(3) he intended to pass exhibit E1 to his friend in Hong Kong. He received no reward for taking them to Hong Kong;

(4) he refused to disclose the details of his friend in Okinawa;

(5) he placed the carton boxes which contained exhibit E1 into his suitcase; and

(6) he did not possess any permit in respect of E1.

6.  Dr Wong Kam Yan, Endangered Species Protection Officer of the Agriculture, Fisheries and Conservation Department (AFCD) confirmed that exhibit E1 was Ryukyu black-breasted leaf turtles (Geoemyda japonica).  The species of Ryukyu black-breasted leaf turtles (Geoemyda japonica) may face the threat of extinction if the trade is not regulated.  Ryukyu black-breasted leaf turtles are endemic to Japan.  Japan is not known to have produced significant quantities of freshwater turtles and Ryukyu black-breasted leaf turtles have no known successful commercial captive breeding.  Zero quota had been assigned by the Japanese government for exporting live specimens of this species for commercial purpose in 2015 to 2017.  According to IUCN Red List of Threatened Species, Ryukyu black-breasted leaf turtles were classified as “endangered” and its populations are judged to be badly declining.  However, there is no known estimation of its population size.

7.  The estimated market price of the 60 live Ryukyu black-breasted leaf turtles (E1) was between HK$510,000 and HK$2.4 million.

Mitigation

8.  Mr Douglas, defence solicitor, submitted the defence mitigation bundle during the hearing on 3 May 2019.  The bundle includes:-

(a) a written mitigation submissions;

(b) seven mitigation letters from the defendant, his family members and his employer;

(c) the medical reports of defendant’s wife; and

(d) two cases, namely HKSAR v Diao Rui [2015] 4 HKLRD 187, and HKSAR v Wei Bin, DCCC 680/2018.

9.  During today’s hearing, Mr Douglas has submitted the third case, HKSAR v Ling Guofu, DCCC 1081/2018.

Defendant’s personal background

10.  Defendant is 43 years old, married with one son aged 10.  He and his family live in Shizuoka of Japan.  He had worked as a waterproof engineering technician and his monthly salary was JPY250,000, about HK$17,500.  He was the sole breadwinner of the family.  He was educated up to lower secondary level. He has a clear record in Hong Kong.  The defendant’s wife has been suffering from brain cancer since 2016 and she is receiving medical treatment in Japan.

11.  In respect of the background of the offence, Mr Douglas submitted that the defendant was only doing a favour to help his close friend in Japan in the name of “Yasuo Inomata” to bring the 60 black-breasted leaf turtles to a friend in Hong Kong.  The defendant has known Yasuo for about six to seven years and Yasuo was the defendant’s fishing guide when defendant visited Okinawa two to three times a year.  They became friends and would have drinks and meals together. There was no reason that defendant should distrust Yasuo and therefore the defendant committed the present offence out of naivety.

12.  It is maintained that the defendant did not know that the turtles were endangered species and that it was illegal to import them into Hong Kong.  It was further submitted that the defendant played no part in carrying on a business of trading or smuggling endangered species.

13.  On 12 April 2019, the defendant provided the full name, the telephone number and an incomplete address of Yasuo in a witness statement to the AFCD for further investigation. 

14.  It is submitted that the defendant has voluntarily provided information to the authority to combat illegal trade and to make amends for his actions. It is submitted that the defendant has learnt a lesson and he is remorseful and unlikely to re-offend.  It is submitted that the defendant is eager to return to Japan to look after his family. 

15.  It was urged upon me that defendant has been in custody for more than six months now.  His personal and family circumstances may render it appropriate to pass a term of sentence which would allow him for immediate release from custody.

16.  In the course of mitigation submissions during the last hearing on 3 May 2019, I have informed Mr Douglas that I was not inclined to accept the defence assertions that the turtles were not for commercial purpose.  Therefore, the case has been adjourned to today for the defendant to give evidence.

17.  However, I have been notified subsequently by defence solicitor that the defendant decided not to adduce evidence on this.

18.  Mr Douglas today has further submitted that defendant would not challenge the court’s observation that the turtles were for commercial use. However, Mr Douglas asserted that defendant had no knowledge that the turtles were for commercial use.

Sentencing considerations

19.  With the commencement of the (Amendment) Ordinance of Cap 586 on 1 May 2018, the maximum sentence for the current offence carries a fine of HK$1 million and 7 years’ imprisonment upon conviction on indictment.  When one looks at the Legislative Council brief regarding the Amendment Bill of Cap 586, one would understand the legislative intent in drastically enhancing the maximum penalty.

20.  I quote the statement from the brief:-

“In order to provide a sufficiently strong deterrent against illicit wildlife trade including ivory, and to send a clear message to the international and local communities that the Government is committed to the protection of endangered species and combating wildlife trafficking, an enhanced scheme of penalties have been provided for in the (Amendment) Ordinance.”

21.  Here, we see the government has spoken loudly and clearly that it values on protection of the endangered species and the government is determined to stop the trafficking activities.

22.  The defendant admitted that the species of Ryukyu black-breasted leaf turtles may face the threat of extinction if there is no regulation on its trade.  Its populations are judged to be badly declining and there is no known estimation of its population size.  Obviously, these turtles are diminishing in their native place.

23.  Prosecution has submitted to court a photo album marked as “MFI-1”, in which there are pictures of the turtles’ packing materials, namely cotton socks and newspapers, the two carton boxes which contained the turtles, and the suitcase which contains the two carton boxes.  All 60 turtles are of similar size; that is, about 7 to 8 inches (or 19 cm) long.

24.  Mr Douglas agreed that each turtle was placed inside a cotton sock, which was used as a packing material.  The 60 turtles were placed inside two carton boxes.  I have been informed by Prosecution that one carton box contains 25 turtles, whereas the other one contains 35 turtles.

25.  Prosecution also informed the court that the measurement of each carton box is 35 cm x 25 cm x 19 cm.  There are ventilation holes on the top cover of the carton box.  The two carton boxes were placed inside the defendant’s check-in suitcase and the measurement for the suitcase inner compartment is 58 cm x 38 cm x 20 cm.

26.  Photo number 24 of MFI-1 shows that the suitcase could only accommodate the two carton boxes.  One would imagine the 60 live turtles were placed in a crowded condition in the two small carton boxes.  They were also exposed to a high risk of extinction when being carried in such manners; that is, being placed in the check-in luggage compartment of the aeroplane for a number of hours during the flight from Japan to Hong Kong.  It is purely out of luck rather than good management that all these 60 live turtles were able to survive during their aeroplane journey.

27.  I have considered there are altogether 60 heads of live turtles, which is a huge number.  I have also considered the way that each turtle was packed by a piece of cotton sock and covered by newspapers inside the small carton boxes.  The carton boxes were placed inside a check-in suitcase and I have considered the defendant’s assertion in his mitigation letter that he knew the turtles were for breeding by Hong Kong people.

28.  Having considered all the circumstances of the case, I do not accept that the defendant was only doing a favour for his Japanese friend for importing the 60 turtles into Hong Kong, and I am satisfied that the 60 turtles were for commercial purpose.

29.  Defence solicitor had submitted altogether three cases for my reference.  In respect of HKSAR v Wei Bin, DCCC 680/2018, the Deputy District Judge accepted the subject rhinoceros horns was not for commercial use, whereas the other case, HKSAR v Diao Rui was decided before the (Amendment) Ordinance.  Therefore, these two cases do not have much relevance in sentencing the defendant.

30.  In respect of the case HKSAR v Ling Guofu, DCCC 1081/2018, the endangered species concerned is 24 pieces of turtle, much less than the 60 turtles in the defendant’s case. 

31.  What is more, every case has its own special features and the District Court sentence decisions do not bind on me.

32.  I have been informed by prosecution that the information disclosed by the defendant about the Japanese friend Yasuo has been passed to the Japanese authority for follow-up investigation.  However, I must say, as we can see, the information is limited and not complete.

Sentencing the defendant

33.  I have read carefully each and every letter prepared by the defendant, the defendant’s wife, the defendant’s family members, and his employer. 

34.  I should say at the outset that, from all the letters I received, I have no doubt that the defendant is a loving husband and a responsible father, being very dutiful towards his family, his parents and his parents-in-law.  He was also described by his employer as an indispensable staff.  His present conviction is no doubt a heavy blow to the family and the plight in which his family will be put is not difficult to understand.

35.  However, not only has the court said time and again that family hardship is a matter which an accused has to seriously consider before and not after embarking on his criminal conduct, and which is part of the price he must pay for his crime.

36.  Having said that, I have noted that the defendant’s wife has been suffering from anxiety disorder and panic disorder resulting from the defendant’s case.  I accept that defendant’s family, in particular his wife and his son, would be put in extreme hardship after defendant was sentenced to prison.

37.  The estimated market price of the 60 live turtles was between HK$510,000 and HK$2.4 million.  Undoubtedly, these turtles have a very high market value.

38.  But the market price is only one of the factors for sentencing consideration.  With the operation of the (Amendment) Ordinance of Cap 586, the maximum sentence for the present offence, upon conviction on indictment, has increased substantially, namely the fine increased from HK$50,000 to HK$1 million (that is, 20 times more) and the prison terms increased from 6 months to 7 years (that is, 14 times more). 

39.  This remarkable increase in maximum sentence shows the government’s commitment to convey a clear message to the society that there is a strong determination to combat illegal trafficking of endangered species.

40.  In order to reflect the legislative intent to protect the endangered species and to stop illegal trafficking, it would be appropriate to recognise the importance of a deterrent sentence.

41.  Having considered all the circumstances of the case, all that was said on the defendant’s behalf in mitigation, and the defendant’s personal and family circumstances, in my view, the appropriate starting point for the defendant’s sentence should be 21 months’ imprisonment.

42.  The defendant would be given the full one-third discount for his timely plea of guilty.  The sentence is therefore reduced to 14 months.

43.  I take into account of the defendant’s peculiar personal and family circumstances, and I am prepared to exercise my discretion to give a further reduction of 2 months.  That brings the sentence down to 12 months’ imprisonment.

44.  I do not see any other powerful mitigation which would warrant a further discount.

COURT: Defendant, stand up please. You are to serve 12 months’ imprisonment.