|
DCCC 896/2019
[2020] HKDC 170
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 896 OF 2019
____________
| |
HKSAR |
|
| |
v |
|
| |
RASOLONIRINA MARIE YVON ALJYMI |
|
| ____________ |
| Present: |
Mr Raymond Tsui, counsel on fiat, for HKSAR
Mr James Sherry instructed by Tanner De Witt, assigned by the Director of Legal Aid, for the defendant
|
| Offences: |
(1) Importing specimens of Appendix I species otherwise than in accordance with the provisions of section 5(1) of Cap. 586
(並非按照香港法例第586章第5(1)條的規定而進口附錄I物種的標本)
(2) Cruelty to animals (殘酷對待動物)
|
__________________
REASONS FOR SENTENCE
__________________
1. The defendant pleads guilty to one charge of importing specimens of Appendix I species, fifty seven live tortoises, otherwise than in accordance with the provisions of section 5(1) of Cap. 586, contrary to section 5(1) and (3) of the Protection of Endangered Species of Animals and Plants Ordinance[1] and one charge of cruelty to animals, contrary to section 3(1)(g) of the Prevention of Cruelty to Animals Ordinance[2].
2. Full particulars of the offences are set out in the facts admitted by the defendant on 30 March 2020. In summary on 28 September 2019 the defendant, a citizen of Madagascar, flew to Hong Kong from Moroni, the capital of Comoros, an archipelago between Africa’s East Coast and northwest Madagascar.
3. On arrival in Hong Kong the defendant was escorted to the Red Channel of Customs Arrival Hall A for customs clearance. The defendant opened his checked-in baggage inside which was two backpacks. The fifty-seven live tortoises were inside the backpacks. No personal belongings of the defendant were found in his checked-in baggage.
4. Subsequent examination confirmed fifty-five of the tortoises were Radiated tortoises (Astrochelys radiata) and two were Madagascar tortoises (Astrochelys yniphora), both Appendix I species under the Protection of Endangered Species of Animals and Plants Ordinance. The total estimated value of the tortoises is HK$816,555.
5. Astrochelys radiata and Astrochelys yniphora are listed in Appendix I of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”).
6. The defendant could not produce any valid CITES document for the tortoises. No exemption had been granted to the defendant to import the tortoises and no licence had been issued prior to the import.
Cruelty
7. The fifty-seven tortoises were each individually wrapped with plastic tape, diaper and carbon paper. The packaging was unsuitable for the transport of live tortoises according to the International Air Transport Association (IATA) standards adopted by both CITES and the World Organisation for Animal Health (OIE).
8. By reason of the unsuitable packaging Dr Bi, an expert on animal welfare, is of the opinion the tortoises were subject to unnecessary suffering and their health and welfare had been severely neglected, the tortoises being deprived of free movement and having no access to water or food.
9. In a cautioned interview, the defendant, inter alia, stated that he was asked by Mr Aly, a neighbour, to carry a suitcase to Hong Kong for a reward of US$1,000; that when he was about to board the plane Mr Aly gave him the suitcase and told him there was fifty-seven live tortoises individually packed inside the suitcase and that someone would pick up the suitcase from him when he arrived at Hong Kong International Airport.
Mitigation
10. In passing sentence, I have carefully considered the oral and written submissions of Mr Sherry, including that the defendant is an unsophisticated man who has never been in trouble with the police before and who did not appreciate the seriousness of his offending[3].
Sentence
11. Mr Sherry refers the court to three sentencing cases in the District Court, DCCC 1081/2018, DCCC 350/2019 and DCCC 194/2019 involving live turtles listed in Appendix I[4].
12. In DCCC 1081/2018 the court adopted a starting point of 12 months’ imprisonment for exporting 24 freshwater turtles.
13. In both DCCC 350/2019 and DCCC 194/2019 a starting point of 6 months’ imprisonment was adopted for importing one live turtle[5].
14. Both cases also involved endangered species listed in Appendix II. Starting points of 15 months and 18 months’ imprisonment were adopted for importing 220 and 209 live turtles listed in Appendix II.
15. In DCCC 1192/2018 a starting point of 21 months’ imprisonment was adopted for importing 60 live turtles listed in Appendix II[6].
16. Starting points of 12 months’ imprisonment were adopted in DCCC 98/2019 and DCCC 128/2019 for importing live European eels which are listed in Appendix II.
17. Mr Sherry submitted a starting point of between 6-9 months’ imprisonment is appropriate for the importation of the 57 tortoises[7]. This is lower than in DCCC 1081/2018 which involved 24 live turtles and lower than the starting point in DCCC 1192/2018 which involved the importation of 60 live turtles listed in Appendix II[8].
18. On a charge of cruelty to animals a starting point of 3 months’ imprisonment was adopted in both DCCC 350/2019 and DCCC 194/2019. Mr Sherry submits a 3 months starting point is also appropriate for the cruelty charge[9].
19. Starting points of between 6-9 months and 3 months do not in my view reflect the seriousness and gravity of the offences.
20. These tortoises are threatened with extinction. The International Union for Conservation of Nature (IUCN) Red List of Threatened Species has classified the tortoises as critically endangered.
21. By reason of habitat loss and exploitation, predominantly for domestic consumption, the population of radiated tortoises has drastically reduced. Population modelling indicates collapse and extinction in a period of on average 45 years[10].
22. By reason of habitat loss and exploitation, predominantly poaching for the illegal pet trade, the population of the Madagascar tortoise has also drastically reduced. If the current threats continue unabated the extinction of the Madagascar tortoise is expected within the next generation[11].
23. The maximum penalty for the importation of endangered species listed in Appendix I is a fine of $10,000,000 and to imprisonment for 10 years, which maximum was increased in 2018 from a fine at level 6 and to imprisonment for 1 year[12].
24. Hong Kong is a contracting party to CITES and has an international obligation to protect endangered species. This can only be done by imposing deterrent sentences which send a clear message to the international and local communities that the government is committed to the protection of endangered species and to combat wildlife trafficking whilst at the same time reflecting that the maximum sentence in cases of the upmost gravity (Appendix I) was significantly increased [13].
25. In my view the sentences to date can be said to have erred on the side of leniency, in particular after the increase in the maximum penalty to a fine of $10,000,000 and to imprisonment for 10 years.
26. By way of contrast theft of Aquilaria (agarwood), incense trees, which are listed as Appendix II species, attracts a starting point in the region of 3 years’ imprisonment depending on the quantity of the agarwood stolen[14].
27. I am satisfied a starting point of 2 years and 6 months’ imprisonment is appropriate for the importation of the fifty-seven tortoises.
28. The carrying of the tortoises in unsuitable packaging on a long international flight without food and water is a seriously aggravating feature of sentence. Photographs of the way the tortoises were packaged have been submitted to court. Fortunately, all except one tortoise has survived.
29. Mr Tsui informs the court that the tortoises are all healthy and are now being kept at Kadoorie Farm pending a decision whether to return the tortoises to their natural habitat in Madagascar or to a conservation programme in another country.
30. I am satisfied an enhancement of the starting point by 6 months’ imprisonment to 3 years’ imprisonment is appropriate.
31. Giving the defendant full credit for his plea of guilty reduces the sentence to 2 years’ imprisonment.
Cruelty
32. The maximum penalty is 3 years’ imprisonment. I am satisfied a starting point of 12 months’ imprisonment is appropriate.
33. Giving the defendant full credit for his plea of guilty reduces the sentence to 8 months’ imprisonment.
Totality
34. Having taken into account the cruelty as an aggravating feature of the importation I am satisfied concurrent sentences are appropriate.
35. The defendant is convicted and sentenced as follows:
Charge 1 – 2 years’ imprisonment; and
Charge 2 – 8 months’ imprisonment concurrent to charge 1.
36. The total sentence to be served by the defendant is 2 years’ imprisonment.
|
(D. J. DUFTON)
DISTRICT JUDGE
|
[1] Cap 586.
[2] Cap 169.
[3] See §§6-10 of the defendant’s written mitigation.
[4] See §§11-15 of the defendant’s written mitigation. All three sentences were delivered in Chinese. No agreed English translations as required by the Practice Direction were submitted to court. Mr Sherry informed the court that his purpose of referring to the cases was to show an indication of sentence only. On the basis that only the charges, including the number of turtles (listed in Appendix I and Appendix II) and the actual sentence imposed was to be relied on, I did not ask for agreed translations to be prepared.
[5] In §15 of the defendant’s written mitigation Mr Sherry stated that 210 tortoises were listed as Appendix I. According to the Reasons for Sentence only one tortoise was listed as Appendix I with the remainder listed as Appendix II. In court Mr Sherry amended the paragraph to read one tortoise was listed as Appendix I.
[6] After the court mentioned about a case involving Japanese tortoises and that there were also sentencing cases in the District Court involving Appendix II species in English Mr Sherry produced the Reasons for Sentence in DCCC 1192/2018.
[7] See §16 of the defendant’s written mitigation.
[8] In the course of his submission and after producing the Reasons for Sentence in DCCC 1192/2018 Mr Sherry submitted that a starting point of 21 months’ imprisonment would also be appropriate for 57 live tortoises listed as Appendix I species on the basis that there were three less tortoises than in DCCC 1192/2018.
[9] See §16 of the defendant’s written mitigation.
[10] See §§9-10 of the Summary of Facts.
[11] See §§9 & 11 of the Summary of Facts. In court Mr Tsui informed the court that a generation was about 42 years.
[12] The maximum sentence where the offence was committed for commercial purposes was a fine of $5,000,000 and to imprisonment for 2 years (see section 10 of the Ordinance). The distinction between offences committed for commercial and non-commercial purposes was repealed when the maximum penalty for importation was increased.
The maximum sentence for importation of Appendix II and Appendix III species is a fine of $1,000,000 and to imprisonment for 7 years, which maximum was increased in 2018 from a fine at level 5 and to imprisonment for 6 months.
[13] See for example HKSAR v Man Chun Pun [2019] 4 HKLRD 426 at §40.
[14] See for exampleHKSAR v. Wang Quanwen CACC 263/2014; HKSAR v Xie Jinbin [2011] 2 HKLRD 631 and HKSAR v Wen Zelang [2006] 4 HKLRD 460.
|