HKSAR v. TSHIROBO CONFIDENCE AND ANOTHER

DCCC 318/2019

[2020] HKDC 210

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 318 OF 2019

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REASONS FOR SENTENCE

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Introduction

1.  Upon their own guilty plea, D1 and D2 are convicted respectively of the 1^st and the 2^nd charge of importing specimens of Appendix I species otherwise than in accordance with the provisions of section 5(1) of Cap 586.  The 1^st charge against D1 involved 20.17 kilogrammes of rhino horns and the 2^nd charge against D2 involved 20.41 kilogrammes of rhino horns.

Facts

2.  Both D1 and D2 are South African nationals.

3.  On 14 February 2019, D1 and D2 arrived at Hong Kong International Airport from Johannesburg, South Africa.  They were scheduled to go to Ho Chi Minh City on the same day via Hong Kong as transit.  Each of them had one check-in baggage in the form of a carton box.

4.  Upon baggage examination by the Hong Kong Customs officers, 12 rhino horns (Rhinocerotidae species) of totaling 20.17 kg (“Exhibit 1”) were found in D1’s check-in baggage whilst 12 rhino horns (Rhinocerotidae species) of totaling 20.41 kg (“Exhibit 2”) were found in D2’s check-in baggage.  Except for the rhino horns and the wrappings, there was no other contents in those check-in baggage.

5.  As D1 and D2 failed to produce any valid Convention of International Trade in Endangered Species of Wild Fauna and Flora (“CITES”) document, Exhibit 1 and Exhibit 2 were seized and both D1 and D2 were arrested.

6.  Exhibit 1 and Exhibit 2 are specimens of Appendix I species under the Protection of Endangered Species of Animals and Plants Ordinance (Cap 586).

7.  The estimated market value of Exhibit 1 is between HK$4,195,360 and HK$6,333,380.  The estimated market value of Exhibit 2 is between HK$4,245,280 and HK$6,408,740.

8.  Depending on the species, a rhino possesses one or two horns.  Exhibit 1 and Exhibit 2 came from at least 12 rhinos.

9.  At all material times, no exemption order has been granted pursuant to section 47 of Cap 586 to D1, D2 or in relation to Exhibit 1 and Exhibit 2, and no licence has been issued under section 23(1)(a) of Cap 586 in respect of Exhibit 1 and Exhibit 2 prior to the import.

10.  CITES is one of the largest international conservation agreements among governments of 183 parties.  Since 1977, all species of rhinos in the family of rhinocerotidae have been listed in Appendix I to CITES except for two populations of a subspecies which are included in Appendix II under exceptional circumstances. Appendix I includes species threatened with extinction and trade in specimens of these species is permitted only in exceptional circumstances.

11.  According to a report in 2016 of the status, conservation and trade of rhinos prepared by the International Union for Conservation of Nature Species Survival Commission (“IUCN SSC”) African and Asian Rhino Specialist Groups and TRAFFIC (the Wildlife trade monitoring network) for the 17^th meeting of the Conference of Parties of CITES, rhinos remain in serious crisis.  Since 2009, there has been an uninterrupted increase in rhino poaching in Africa and the number of rhinos reported to be poached in Africa increased to 1,342 heads in 2015 (the highest level since 2009).  Besides, a rapid increase in illegal acquisition of rhino horns has been documented since 2007.  The number of rhino horns annually sourced in Africa for illegal markets increased to 2,674 in recent years, reaching the highest level in over two decades.  In 2015, there were less than 30,000 rhinos left in the world.

D1 and D2’s Background

12.  D1 was born in South Africa in July 1990 and is now 29 years old.  He has no criminal record in Hong Kong.  He has a nursing diploma but had been working for 2 years as a customer service officer at Johannesburg Airport earning about US$200 per month.  Prior to his arrest, he lived with his wife, 8-year-old son and 4-year-old daughter.

13.  D2 was born in South Africa in November 1985 and is now 34 years old.  He has no criminal record in Hong Kong.  He was educated up to Grade 11.  Prior to his arrest, D2 lived with his girlfriend.  He has a 7-year-old daughter and a 5-year-old son.  Prior to his arrest, D2 used to work as a part-time security worker with a monthly income of around HK$800 to HK$900.

Mitigation

14.  In his “Skeleton mitigation for D1” dated 20 November 2019, counsel for D1 referred this court to the judgement of HKSAR v Zhao Zhengxin [2019] HKDC 223[1] in which a starting point of 15 months’ imprisonment was adopted for importation of 3 rhino horns weighing 2.94 kilogrammes and valued at HK$784,000 to HK$1.6 million.  It was submitted that any increase in sentence should not be linear.  A letter from D1 asking for leniency was also submitted to this court.

15.  In the written Mitigation dated 20 November 2019, counsel for D2 urged this court to take into account that it was the first time D2 committed such an offence and his early plea.  Letters from D2 and his brother respectively were submitted to this court.

Sentence

16.  In HKSAR v Zhao Zhengxin [2019] HKDC 223, HH Judge Stanley Chan said:-

“15. There is no dispute that the Legislature has increased the penalty substantially since May 2018. That effectively means that those sentencing cases of the pre-amendment era can bear less weight when the court considers the sentence in the present context. The authorities cited in Sentencing in Hong Kong 8th edition 2018 (at page 760 to 761), all related to cases of the pre-amendment period.

16. In the Legislative Council brief regarding the amendment bill of Cap 586, it is said: “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 to combat wildlife trafficking”, the proposed penalty was increased tenfold to a fine of $10 million and imprisonment for 10 years for indictable offences concerning Appendix I species.

17. This court is of the view that sentence of this kind of the offence should reflect the legislative intent of the Ordinance, which inevitably calls for a deterrent sentence. It is to convey a clear message to society that import and/or export of endangered species of Appendix I to III would attract heavy penalty.”

HH Judge Stanley Chan adopted a starting point of 15 months’ imprisonment for importation of 3 rhino horns weighing 2.94 kilogrammes and valued at HK$784,000 to HK$1.6 million.

17.  After the penalty for the offence under section 5(1) and (3) of Cap 586 has been increased in May 2018, there are several District Court judgments on sentence involving importation of rhino horns but the quantities involved were a lot less than 20 kilogrammes.  The seriousness and gravity of those cases are not at all comparable to the present case.

18.  In 香港特別行政區 訴 嚴天賜 DCCC 566/2019[2], HH Judge CP Pang adopted a starting point of 18 months’ imprisonment for importation of 1.32 kilogrammes of rhino horns.  Paragraphs 13 to 19 of the judgment in 嚴天賜[3] discussed the effects of rhino poaching in recent years. In paragraph 16 of the judgment, it was stated that two-third of the reported cases of Rhino poaching came from China (including Hong Kong), Mozambique, South Africa and Vietnam, and that priority actions had to be taken against those four countries in order to curb the illegal trading of rhino horns.

19.  In the present case, the 1^st charge involved 20.17 kilogrammes of rhino horns valued at between HK$4,195,360 and HK$6,333,380 and the 2^nd charge involved 20.41 kilogrammes of rhino horns valued at between HK$4,245,280 and HK$6,408,740.  I will adopt a starting point of 39 months’ imprisonment for each charge.

20.  At the hearing this morning, I discussed with counsel as to whether this case involved international element thereby justifying enhancing sentence.  Having heard submissions from counsel, I decided not to enhance sentence.

21.  I give 1/3 discount to each of the defendant for their timely indication of guilty plea.  In mitigation, it was submitted that that both defendants were sole breadwinners of their families.  However, family hardship is not a valid mitigating factor.  The defendants’ clear records in Hong Kong are not valid mitigating factor justifying further reduction in sentence either.  There being no further valid mitigating factors justifying further reduction in sentence, D1 is sentenced to 26 months’ imprisonment for the 1^st charge, and D2 is sentenced to 26 months’ imprisonment for the 2^nd charge.