HKSAR v. XIA QING

DCCC 1130/2025

[2026] HKDC 96

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1130 OF 2025

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REASONS FOR SENTENCE

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1.  Defendant has entered two pleas of guilty to the two charges on this indictment, the 1^st charge being importing specimens of Appendix I species otherwise than in accordance with the provisions of the relevant ordinance, and the 2^nd charge being a charge of cruelty to animals, contrary to Section 3(1)(g)  of the Prevention of Cruelty to Animals Ordinance, Cap 169.

2.  The facts, which have been accepted by the defendant, show that on 30 April 2025, the defendant arrived at Hong Kong International Airport from Mexico via Amsterdam.  He was carrying luggage.  He was intercepted at the Customs Arrival Hall and admitted he owned the luggage and opened it for inspection.  The photographs of the luggage can be seen inside the documents provided to me.  The luggage in question is a hold luggage and a metallic-appearing suitcase.

3.  Upon search of that suitcase, a total of six live turtles were found in the luggage.  The turtles were found in the pocket of five pairs of pants and a bag respectively.  This is the way in which the turtles have been transported.  These turtles were individually wrapped in a black long sock.  Each sock was tied with a knot in the middle and the opening of each sock was turned inside out to wrap the turtle placed therein again and the turtles of course placed in luggage then.

4.  The defendant immediately told the officers who were speaking to him the turtles were gifts from a friend in Peru with an estimated retail price of some RMB6,000 each.  The defendant planned to keep the turtles as pets in his home.  The defendant has maintained that as his position throughout the proceedings.  The defendant could not produce any valid documents under CITES so the turtles were seized and the defendant was arrested.

5.  The defendant’s explanation given under caution was that a friend in Peru had given him the turtles as gifts, told him to wrap them in socks for transporting them to China.  He had taken the turtles from Mexico to Hong Kong.  He was unable to provide water and food in the luggage for the turtles although that had been provided before the journey was commenced.  He was unaware of the relevant legal restrictions on bringing the turtles into Hong Kong.

6.  A witness from the Agricultural, Fishery and Conservation Department has identified these six turtles that were seized as Kinosternon Vogti, which is in Appendix 1 species under the Protection of Endangered Species of Animals and Plants Ordinance Cap 586.  The estimated value given by the witness for each turtle or retail sale presumably in Hong Kong would be $200,000 each, giving a total estimated market value for the six turtles of HK$1.2 million.

7.  Also, it has been opined that the turtles were kept in a cruel manner during their transportation because of the packing and transport conditions of the turtles which has caused them needless and avoidable suffering because they were deprived of free movement, were prone to tilting and turning upside down obviously when the suitcase is being moved and the packing was unsuitable for the transport of live turtles.  It is to be noted that all turtles survived the journey, currently I am told kept at Ocean Park.

8.  Now the status of these turtles are as follows:-

- According to the International Union for Conservation of Nature and Natural Resources Red List Assessment 2022, these turtles are endemic to Mexico, have a highly restricted range in the Ameca River Valley;

- The species is threatened by poaching and which is incentivised by the wild life trade as well as habitat loss;

- Estimated no more than a 1,000 mature individuals remain in the wild and the wild population has suffered a drastic decline of 18 per cent in the past 36 years and their population decline is still ongoing due to continued threats; and

- The state of the species is assessed to be critically endangered.

9.  Now those are the basic facts upon which this case has proceeded throughout.  I will turn to the position of the defendant within these proceedings.

10.  The defendant is now 39 years old.   He is a resident of the People’s Republic of China and citizen of that country.  He has been, it appears, cooperative with the investigation since his arrest and given an explanation at the earliest opportunity and he is pleading guilty in this court at the first opportunity.  The defendant expresses through his counsel that he is extremely remorseful what he has done and he presents below as being a person of a low risk of reoffending.

11.  The defendant is himself a holder of Bachelor’s Degree in Animal Science from the Beijing University of Agriculture.  He is married with a wife in Beijing.  He lives in Foshan City in Guangdong Province with his wife and two daughters.  He has a step-daughter who is 14 years old and another daughter who is one year old.

12.  The defendant has a clear record as far as we are concerned.  The defendant has been running since 2014 an agriculture business in Foshan, Guangdong Province.  It mainly concerns breeding and keeping freshwater aquarium fish such as the Silver Arowana and he has clear extensive knowledge of keeping freshwater specimens.  I am told by counsel that he also will keep turtles as pets.  He is what I think is described as a hobbyist in respect of the turtles.  The defendant has imported tropical freshwater fish from South America and has working knowledge of their transportation and the maintenance of such creatures.

13.  The background of the present case is the defendant as part of his business in Foshan goes to various South American countries to visit local tropical freshwater fish suppliers.  On this occasion in April of 2025 he went to Peru to meet with a supplier.  The supplier was, he said, kept turtles of the same species in his home and the Peruvian supplier gave six of these turtles to the defendant as a gift.  The defendant then planned to take them back to China, keep them as pets and hoped to breed them if possible and this is the explanation the defendant gave at the time of his arrest in his cautioned statement and has maintained throughout.

14.  The defendant says that he never intended to use the six turtles for commercial purposes.  There is evidence to support this proposition given, the number of turtles that the defendant was transporting and the fact that the defendant is a person who has been involved in agriculture business for a period of time.  He said that the retail price of these turtles, he believed, was some RMB$6,000, not the $200,000 that the Hong Kong authorities present as the figure.

15.  The defendant said he did not know the turtles belonged to the particular species and did not know they were endangered.  He thought they were a type of species call Musk Turtle that can be found in South America.  The defendant was unaware of the legal restrictions and I am told that the addition of the Kinosternon Vogti to the CITES List in Appendix 1 was made on 15 December 2023 so they were a fairly recent addition to the list.

16.  The defendant when dealing with the matter of transportation said he was following the guidance of the Peruvian supplier and his own experience with transporting live freshwater tropical creatures. He wrapped and secured them to prevent any damage to the six turtles during the journey.  He ensured they were individually wrapped in the black socks.  He was told this would minimise the tilting and turning to the creatures and allow them to obtain an optical temperature despite them being in the hold.

17.  The turtles themselves were capable of withstanding the cold conditions of the aircraft hold and also deprivation of food and water for some time and fortunately no damage to the turtles was caused by the actual journey that they undertook although they would have experienced discomfort.

18.  As far as the offences are concerned, charge 1 on conviction on indictment can lead to a fine of $10,000 and imprisonment for 10 years.  Charge 2 on summary conviction can lead to a fine of $200,000 and to imprisonment for 3 years.  There have been cases before the Court of Appeal in respect of both charges and in respect of both charges the Court of Appeal has declined to set out a sentencing tariff for either of the two charges for which I will make decisions on sentencing.  Clearly, the reason for not establishing a sentencing tariff is the many and varied ways in which these offences can be committed.  However, the Court of Appeal has set out in the case of HKSAR v Xiao Rongqiang [2022] 4 HKLRD 764 a number of factors that the court should take into consideration and these would be:

The conservation status of the subject species

19.  We know from the Agreed Facts that this is a critically endangered species.

The quantity and value

20.  Here we have six turtles valued at $1.2 million although the defence take issue with that figure and say these turtles can in fact be, or similar turtles can be obtained for a much lower value. Thirdly, the modus operandi, the way in which the turtles were transported and brought to Hong Kong.

The defendant’s motive for bringing the turtles in

21.  In this case, the motive would appear to be for personal enjoyment rather than any particular commercial motive and that can be evidenced by the limited number of turtles that has been brought in.

The damage done to the subject species by the defendant

22.  I am told that the turtles themselves are well and resident in Ocean Park.  And finally;

The presence or absence of a syndicated operation of the role of the defendant

23.  There is no evidence of a syndicated operation in this case.  It appears to be a personal decision made by the defendant to bring these particular turtles through Hong Kong and back to his agriculture business in Foshan.

24.  I have been told also that other factors are of relevance such as the fact that the offence is committed out of a commercial purpose, it is not in this case, and the fact that the animals are kept as pets can be considered as a mitigating factor.

25.  The most significant factor in terms of sentence will be the number of the animals that would be transported or brought into Hong Kong, and secondly, the conservation status of the animal themselves which in fact is more important than their value.

26.  In respect of the mitigation that has been put forward, I am told there is some if not disputed at least questioning of the valuation that has been put forward by the prosecution.  The valuation is accepted in the Admitted Facts admitted by the defendant so I do not need to go into this in any great detail.  In any event, in this case given that the importation of these species was not for a commercial purpose or part of a syndicate, the valuation of the turtles takes a lower significance in sentencing in this case.

27.  As far as the 2^nd charge is concerned, the question of cruelty to animals, that has also been considered by the Court of Appeal.  There is no sentencing guideline but one must look at factors such as the length of time the animal is subjected to the cruel behaviour, the use of violence or weapons, the causing of severe or persistent physical psychological harm, the way in which the offence is committed, whether there is premeditation, the degree of pain suffered and whether there is any breach of trust in relation to the animal victim.

28.  I have been referred to a number of cases that deal with sentences that have been passed in relation to both of these charges by other courts.  There is no guideline and I find that looking at other cases is of somewhat limited value because the facts of this case are peculiar to this case.

29.  Now taking into account the various factors that one must look at, firstly the fact that these are Appendix 1 species critically endangered in a population of probably less than a 1,000 living animals in the river in Mexico, means that it is a serious matter to take these creatures out of their natural habitat and take them somewhere else and that is a factor that I must consider in sentencing.

30.  Secondly, here there is no evidence of actual injury or physical damage to the turtles due to their transportation, and thirdly, the turtles are alive and resident in Ocean Park.  It is of importance that the defendant did not import the turtles out of any commercial purpose and was intending them to keep as pets.  It is relevant the turtles were a gift from a local Peruvian supplier and the defendant had not being involved, as it would appear in any actions, to capture the turtles from their natural environment.  There is no evidence of any syndicate operation in Peru in the movement of these turtles.

31.  I am asked to consider that these turtles have only been on the CITES List for one year and 4½ months prior to the date of this offence.  Although the defendant says that he had no knowledge of the fact that the importation of these turtles would breach any laws in Hong Kong, clearly the way in which he has brought them into the city is suggestive of him attempting to smuggle them through the authorities here and possibly in the PRC as part of his undertaking to take them to his own home.

32.  On the 2^nd charge, I should take into account the fact that there is a finding that the method of transportation of these turtles is cruel but the defence says I should also take into account that the case is based on the fact that this is an appropriate method of transportation rather than the infliction of deliberate cruelty to the animals, there is no element of violence, shock or torment, deaths or reported injury to the animals.

33.  Now taking all those factors into consideration, I have determined that the starting point for sentence for the charges should be as follows:

- For charge 1, I do take into account that this is serious offence involving a critically endangered species. I take into account all the other factors that I have set out. I will take starting point on charge 1 of 15 months’ imprisonment. I reduce that to 10 months’ imprisonment for the defendant’s plea of guilty.

- On charge 2, I take a starting point of 3 months’ imprisonment. I reduce that to 2 months’ imprisonment for the defendant’s plea of guilty.

- Having regard to the overall totality, the two charges are clearly linked in this case and I have decided that any sentence should be served concurrently to a total of 10 months’ imprisonment. That is the decision of the court.