DIRECTOR OF AGRICULTURE, FISHERIES AND CONSERVATION v. WING FUNG HONG

HCMP 789/2023

[2023] HKCFI 2776

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 789 OF 2023

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DECISION

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1.  On 3 June 2021, a 20-feet container containing dried shark fins shipped from Guinea arrived in Hong Kong, with the defendant as the consignee.

2.  On 7 June 2021, the container was inspected by Customs and Excise Department officers and 3,303kg of dried fins of Guitarfishes (Glaucostesgus spp.) species and Wedgefishes (Rhinidae spp.) species (“the Fins”) were found inside.

3.  The Fins belonged to giant guitarfishes/wedgefishes, which are species protected under Schedule 1, Part 2, Appendix II of the Protection of Endangered Species of Animals and Plants Ordinance, Cap 589 (“the Ordinance”). The importing of the Fins are hence restricted, and documentations are required to be produced or surrendered upon their landing in Hong Kong.  Failure to do so would constitute an offence triable either summarily or by way of indictment.

4.  No such required documentations for the Fins were produced, and they were seized and handed to the Plaintiff to be dealt with.

5.  The matter was referred to the Department of Justice, who eventually recommended that there be no criminal prosecution brought against the defendant for the import.

6.  The Plaintiff applied by way of Originating Summons dated 23 May 2023 for the forfeiture of the Fins, which is opposed by the defendant who sought their return.

7.  A hearing was conducted on 26 September 2023 with judgment reserved. The following is my decision and reasonings.

APPLICABLE LEGAL PRINCIPLES

8.  Parties are agreed on the applicable legal principles in relation to forfeiture as set out in the judgment of the Court of Final Appeal in the case of Wong Hon Sun v HKSAR (2009) 12 HKCFAR 877, at paragraph 65 and 66 quoted below:

“ 65. On a hearing [of the forfeiture application] the Commissioner bears the onus of establishing that the seized article is liable to forfeiture, namely that it is the subject of a contravention of the IEO (Import and Export Ordinance) or the regulations. Once this is established the Commissioner makes out a prima facie case for the order for forfeiture of the article and, in the absence of evidence to support an exercise of the discretion to order delivery of the seized article to the claimant, the court will make an order for forfeiture. That is the true position under the IEO follows from the fact that, in the circumstances supposed, the article is liable to forfeiture as an article which was the subject of the contravention of the IEO or the regulations.

66. It is therefore for the claimant, in order to avoid this outcome, to make out a case for an exercise of the discretion to order delivery of the article to him. He may do this by proving facts to the satisfaction of the court, according to the balance of probabilities, that show that he did not in any way participate in or facilitate, either by design or negligence, the contravention which has resulted in the article becoming liable to forfeiture. To say this is to say no more than that a party who seeks to have a judicial discretion exercised in his favour bears the burden of establishing his case. It is not for his opponent to negative the existence of such a case.” (Emphases added)

THE ISSUES

9.  It is for the plaintiff to prove that the Fins are liable to forfeiture, and then to make out a prima facie case for their forfeiture.  Since the defendant is seeking to avoid forfeiture, they have to prove on the balance of probabilities that they did not in any way participate in or facilitate, either by design or negligence, the importing of the Fins in a manner that was in contravention of the provisions of the Ordinance restricting their import.

10.  The facts relating to the importing and the landing of the Fins in Hong Kong are not in dispute.

11.  The plaintiff’s application to forfeit is made under S42 of the Ordinance:

“ 42. Return or forfeiture of things seized where no prosecution for offences

(1) If a thing has been seized under section 34(1) but no prosecution for an offence under Part 2 or 3 or section 29 or 44 has been brought in respect of that thing, an authorized officer may apply to the court or magistrate for an order in respect of that thing or any proceeds of sale of that thing.

(2) On an application under subsection (1), the court or magistrate may order the thing concerned or any proceeds of sale of that thing—

(a) to be returned to the person from whom it was seized or to its owner; or

(b) to be forfeited to the Government.

(3) If a thing seized under section 34(1)—

(a) is placed in the possession or under the control of the Director; and

(b) is abandoned by its owner, or appears to the Director to have been so abandoned,

an authorized officer may apply to the court or magistrate for an order in respect of that thing.

(4)    On an application under subsection (3), the court or magistrate may, if satisfied that the owner of the thing concerned is unknown or cannot be found, order that thing to be forfeited to the Government.”

12.  Section 34(1) empowers an authorized officer to seize a thing liable to seizure.  Under S34(2), a thing is liable to seizure if the officer reasonably suspects that the thing is being or has been imported in contravention of any provision of the Ordinance.

13.  There is no dispute that the Fins were things liable to forfeiture as at the day of their landing in Hong Kong on 3 June 2021, subsequent to the relevant amendments to Schedule 1 Appendix II of the Ordinance, which came into effect on 30 April 2021 (“the effective date”).

THE PLAINTIFF’S CASE

14.  The plaintiff’s case is supported by the 2 affirmations of Dr Lau, Forestry Officer of the Agricultural, Fisheries and Conservation Department (“AFCD”).

15.  According to Dr Lau, the invoice/packing list for the container which was prepared by the defendant dated 3 June 2021 failed to declare that the shipment contained the Fins.

16.  The declaration merely stated that the container had 2,000kg of dried fish maws and 4,125kg of dried fish fins, neither of which were restricted specimens in Schedule 1 of the Ordinance.

17.  The Fins were discovered only after Customs and Excise Department officers had inspected the contents of the container on 7 June 2021.

18.  Since the Fins’ import were restricted by the Ordinance as at the time of their landing in Hong Kong, S18 of the Ordinance applied and the defendant was required to produce a “Convention certifying document”, in addition to following the remaining provisions.  No such certificate was produced or surrendered to any authorized officer.

19.  The ‘Convention’ in S18 refers to the Convention on International Trade in Endangered Species of Wild Fauna and Flora signed in Washington DC on 3 March 1973, as amended from time to time and as applied to Hong Kong[1], hereinafter referred to as ‘CITES’.

20.  It is the plaintiff’s case that the defendant must have known as at 3 June 2021 that the Fins were part of the shipment that they had procured from Guinea and had landed in Hong Kong together with the rest of their order.

21.  The defendant also must have known that, as at the time of them making the declaration dated 3 June 2021, the Fins had been added into Appendix II of Schedule 1 of the Ordinance, and that the addition had come into effect on 30 April 2021, given that it is the defendant’s owner’s affirmation that he has been involved in this line of trading since 1987.

22.  The plaintiff refers to the fact that a circular letter was issued on 1 November 2019 to notify stakeholder merchant associations involved in the shark fins trade, including the defendant, to remind them to observe the relevant and latest CITES regulations, as well as to inform them of the pending amendments to be made to Schedule 1 and 3 of the Ordinance.

23.  The plaintiff also points out that although the amendments only came into effect on 30 April 2021, the export of the Fins from Guinea would have required an export permit, which the defendant did not appear to have.  As a matter of fact, commercial trade in CITES-listed species from Guinea had been suspended since 16 May 2013, rendering any export from Guinea of the relevant specimens to be in breach of CITES from that time onwards.

24.  The plaintiff says the combined effect of the above facts is that a prima facie case for the order for forfeiture has been made out, and that the defendant must have failed to prove on the balance of probabilities that they did not, either by design or negligence, brought about the illegal import of the Fins.

THE DEFENDANT’S CASE

25.  According to the owner of the defendant, Mr Tsui, at the time of the Fins leaving Guinea and to be shipped to Hong Kong, which was on 22 March 2021, the importation of the Fins were not yet illegal under the Ordinance.  Based on his experience of previous importation of goods from Guinea, the journey would usually take about 1 month, suggesting a likely landing date of around 21 April 2021, which would have been at least 9 days before the effective date, which meant that and the importation would not have been in contravention of the provisions of the Ordinance had they arrived as originally scheduled.

26.  The owner also affirmed that it would have taken the supplier in Guinea about 6 months to procure one container’s quantity of fish products, which means that the Fins, together with the rest of the products not subject to restriction under the Ordinance which were shipped together with the Fins, were all procured before the effective date.

27.  As a result of the COVID-19 pandemic, the journey was delayed, resulting in the Fins landing in Hong Kong after the effective date.

28.  It is the defendant’s case that since as at the time of the beginning of its journey the importation was not in contravention of the Ordinance, the defendant had not facilitated or participated in the subsequent contravention brought about only by the pandemic, something which was beyond the defendant’s control and could not have been foreseen.

29.  The pandemic had seriously impacted the defendant’s business, causing it to be in financial difficulties. The defendant says that “it goes without saying” that harsh impacts will definitely be imposed on the defendant if the Fins were forfeited.

30.  Given that the pandemic is over and global shipping regained normalcy, it is unlikely what happened would be repeated.  In any event, the defendant had stopped procuring the relevant controlled endangered specimen from Guinea so as to ensure compliance with the Ordinance, as well as to support the protection of endangered species.

DISCUSSION

31.  The defendant, through its sole owner Mr Tsui, had been conducting import and export business in Hong Kong since 1987.

32.  According to Dr Lau, the prohibition on the export and import of giant guitarfishes and wedgefishes had already been internationally implemented amongst CITES parties since 26 November 2019.

33.  Before the said implementation, the AFCD had on 1 November 2019 issued a circular to merchants associations involved in the shark fins trade, to remind them to observe the relevant and latest CITES regulations, as well as to inform them of amendments to Schedule 1 and 3 of Cap 586 to be made, with the inclusion of giant guitarfishes and wedgefishes.  This letter was also made available on the website of AFCD.

34.  By a circular dated 5 March 2021, the AFCD reminded them of the said amendment, provided a link to a PDF file, and informed them the amendments had been gazetted on 19 February 2021, and that they will come into force on 30 April 2021.

35.  According to Dr Lau, commercial trade in specimens of CITES-listed species from Guinea has been suspended since 16 May 2013, hence any export from Guinea during the period of 26 November 2019 and 29 April 2021 would have been in breach of CITES.

36.  The defendant had previously imported shark fins in contravention of the Ordinance on 2 different occasions from Kenya, being in January and September 2019.

37.  The defendant had also imported shark fins from Kenya in contravention of the Ordinance in May 2021, when 124.82kg of shark fins with the defendant as the consignee were seized.

38.  Based on the fact that the defendant had been involved in the import and export of related items since 1987, and the fact that the defendant was still involved in the trading of shark fin in May 2021, I find that there is prima facie evidence that the defendant must have been aware of the said amendments prior to the shipment of the Fins from Guinea, as well as of the effective date.

39.  Despite the fact that the defendant knew that the Fins were included in the consignment together with other articles not in contravention of the Ordinance, they chose not to declare their existence after the Fins had landed in Hong Kong.  This act of the owner done on behalf of the defendant tends to suggest that the owner knew about the amendment, that the effective date had passed, that the importation of the Fins was in contravention of the amended Ordinance, and that he had chosen to withhold that information from the Customs and Excise officers.

40.  Even with that knowledge, the defendant chose to procure for the export of the Fins, relying on the assumption that they will land in Hong Kong just 9 days before the effective date.

41.  Shipping delays, as the defendant’s counsel conceded, must be expected and be one of the factors considered by the defendant, especially when the shipment is to originate from Guinea, being at least 10,000 nautical miles and 1 month’s sailing away.  The defendant must have known that, if the consignment arrive 9 days later than the scheduled date, and if the defendant made a proper declaration of the contents of the consignment, the Fins will be forfeited. Yet, the defendant chose to take the chance.

42.  Although the delay was not the defendant’s fault, the decision to import goods that are recommended to not be bought from Guinea was theirs, the decision to have them arrive just days before it would be illegal to import them was theirs, and the decision to not declare them when they eventually did arrive in June was also theirs.

43.  Lastly, Dr Lau’s evidence is that, a CITES permit is a permit required to be issued by the exporting country, in this case Guinea, to establish that the provisions of CITES had been complied with. Yet, since trade with Guinea has been suspended since May 2013, all CITES permits from Guinea would have been deemed invalid even if presented, and so there was in fact no prospect for the Fins to have been imported legally.

44.  Given the circumstances of the importation of the Fins, on the balance of probabilities, the defendant was at least negligent in the importation of the Fins that resulted in the breach of the provisions of the Ordinance.

45.  Based on all the evidence, I find that the plaintiff had made out a prima facie case that the Fins are the subject of a contravention of the Ordinance and that they are liable to forfeiture.

46.  I find further that the defendant had failed to prove on the balance of probabilities that they were not negligent in the facilitation or participation of the contravention of the Ordinance.

47.  The defendant had not supported their claim of being in financial difficulties with any evidence. Even if they had, the fact that it would be in financial difficulties is not relevant to the consideration of the issues in relation to forfeiture under the applicable legal principles.

48.  As such, I order the Fins to be forfeited to the Government pursuant to s.42(2)(b) of the Ordinance.

COSTS

49.  Subject to submissions, I order that costs of this forfeiture proceedings be against the defendant, in the amount of $45,210 in favour of the plaintiff.  The defendant do have leave to file their statement in opposition within 14 days.  A ruling on costs to be by way of paper disposal.