R. v. CHONG PING TUNG

1996, No. 1505

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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J U D G M E N T

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1. This is an appeal against sentence passed by Mr White in Western Magistracy. The Appellant who ran a small chemist shop had a number of pills, 880 pills, which he claimed to contain Panthera tigris. He pleaded guilty and was sentenced to one month's imprisonment.

2. On the evidence, there is substantial doubt that the pills did contain anything to do with a tiger, but by virtue of s.2B any article which is claimed to be a scheduled species shall be deemed to be such a species. As Mr Lunn Q.C. put it, the Appellant might as well have described these pills as containing unicorn bone. Nevertheless if chemist shops sell pills which leads the public to think they contain part of an animal, they commit an offence.

3. The magistrate was at pains to point out, which I would support, the importance of it being made known to the public, particularly here in Hong Kong, that endangered species are to be protected. If people make available medicines or pills which contain parts of tigers or other endangered animals, which leads to the supply and no doubt the ultimate killing of these wild animals, then that is a very serious matter. How people could be so gullible in Hong Kong to imagine that taking a bit of tiger bone can do one any good, I fail to understand, but that happens and courts should be vigilant to ensure that the public are not exposed to these chemist shops that sell or deal in animal parts.

4. The range of offences under s.6 of the Animal and Plants (Protection of Endangered Species) Ordinance, Cap.187 can vary enormously. Further by virtue of s.13A increased penalties can be imposed. The magistrate made reference to R. v. Both Prime Co. Ltd. [1996] 1 HKC 641 and R. v. Ki Chor On Mag.Appeal 836-843 of 1996. In the first case, which was a commercial wholesaler company dealing in over 10,000 pills, Duffy J. reduced a fine of $500,000 to $200,000, and in the second Yeung J. dealing with 8 summonses involving a variety of animal parts in two shops reduced a fine of $425,000 to $95,000.

5. It can be seen therefore that, although it is a serious matter to stock these pills, the level of fine must be kept within reasonable limits. On the facts of this case, s.13A was not relied on, and the maximum fine was $100,000. The magistrate was wrong in principle to pass on these particular facts a sentence of imprisonment. The magistrate pointed out that he was "determined to uphold community standards" but his duty is not to pass a sentence which may please a particular section of the community, but to sentence on the criminality of the defendant and the facts of the particular case. A sentence of imprisonment was wrong in principle, the maximum fine here is $100,000. There must be some element of deterrence and so I allow the appeal and impose a fine of $50,000.