HKSAR v. SCHWENDINGER GLENN HARRY PATRICK

DCCC 923/2019

[2020] HKDC 148

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 923 OF 2019

-----------------------------------------

-----------------------------------------

-----------------------------------------

REASONS FOR SENTENCE

-----------------------------------------

1.  On 10 September 2019, the defendant, Mr Schwendinger Glenn Harry Patrick, holder of both a Canadian and an Austrian passport, arrived at the Hong Kong International Airport. On his hand-carried luggage, the customs officers found 97 pieces of what is commonly known as “pink conch pearls”, a rare non-nacreous pearl produced by as sea snail commonly known as “Queen Conch” of the species Strombus gigas.

2.  Queen Conch is a vegetarian marine snail with an external shell.  Its habitat stretches throughout the coastal waters of the Caribbeans, Bahamas, South Florida and Bermuda.  It is still unknown how the Queen Conch produces pearl.  The species have been harvested for food, their shells used as materials for making cameos.  The pearls are by‑products used because of their beauty and rarity.  They are used as jewelleries and highly valued.  To harvest the pearls, one has to kill the Queen Conch which may or may not bear any pearl.

3.  The pink conch shells are included as a specimen in Appendix II species under the Protection of Endangered Species  of Animals and Plants Ordinance, Cap 586.  They can only be imported legally with a valid export licence from its origin.

4.  As the defendant failed to produce the export licence under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”), he is charged with the offence 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”.

5.  He is convicted upon his plea and admission of facts.  He admitted the market value of the conch pearls in question is estimated to be HK$3,937,000.

6.  Under caution, the defendant admitted to have imported the conch pearls for sale at a friend’s request; he did it as a favour and expected no financial gain.  He also had no idea which species produced those pearls.

7.  The maximum sentence of contravention is a fine of $1 million and 7 years’ imprisonment.  The pink conch pearls, albert being such rare commodities, there is no sentencing guideline or even precedents for the offence of importing the same without the necessary documentation.  However, as has pointed out by Judge Duffy in R v Both Prime Co Ltd [1996] 1 HKC 641, the offence against such an Ordinance that sought to protect wildlife from slaughter and commercial exploitation is a serious offence and a deterrent sentence is called for; and the sentence must be set at a level with regard to the maximum penalty and to the general standard of living in Hong Kong in order to achieve the purpose of deterrence.

8.  To this, I would venture to suggest that the rarity of the species in question, the quantity of the offending items and the estimated market value should also be taken into consideration.

9.  The defendant is 61 years old.  He is now retired, living in Belize.  According to his counsel, the defendant is a strong supporter of environmental conservation.  He even set up an NGO to encourage sustainable production and harvesting of Queen Conch and to promote regulations to ensure its long-term survival.  He is also a “hobbyist” in conch pearls trade and created a website to promote the trading of the same.

10.  I accept that Queen Conch is not in danger of extinction and it has for millenniums been harvested by people living in the Caribbeans for their food and for their shells.  According to the prosecution and the information provided by the defence, I also accept that the legality of harvesting the species depends on the jurisdictions in which the activity took place.  In some parts of the world there are no regulations to control harvesting. However, owing to the unpredictability of their production and hence the rarity of the conch pearl, in addition to the fact that there is no way to produce them by artificial means in the manner of culturing pearls, the trading of conch pearls must be regulated in some form in order to discourage the indiscriminate and irresponsible harvesting of the magnificent marine snails.

11.  The defendant contended that he had no idea of the quality of the conch pearls in question, nor did he know that they were products from Queen Conch.  I found both contentions incredible.  He was a trader.  He actively promoted trading these pearls by creating and maintaining a website.  He even operates a NGO whose stated purpose is to ensure the continued survival of the species.  His plea of ignorance is implausible.

12.  Attempt has been made by the defence to give a more realistic evaluation of the pearls in question.  An estimate had been produced by what appeared to be from a Japanese trader of these pearls.  The prosecution does not agree to such an estimate and also note that the defendant has already admitted in the brief facts of the case on the market value as estimated by the expert witness of the prosecution.  I therefore have no choice but to adopt that the estimated value is in the region of HK$3.9 million.  I also note that there were a total of 97 pieces, a rather substantial quantity in view of the rarity of their production.

13.  In my view, it is important to set a fine that would be sufficient to reflect the value of the contraband pearls and also as a deterrent for the others for the unregulated trading of the same.  Having considered the total value of the conch pearls, the quantity and the fact that it was important to discourage the unregulated trading of the same, I would consider a fine in the region of $300,000 sufficient to serve the purpose of deterrence.

14.  I also take into account of the background of the defendant as revealed in the antecedents statement and in the submission by his counsel.  I found that there are no other factors which would justify the reduction of this amount.  I therefore order the defendant to pay $300,000 fine for the present offence.