HKSAR v. GORON JOMAR OSAL AND OTHERS

DCCC 914/2019

[2021] HKDC 34

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 914 OF 2019

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REASONS FOR SENTENCE

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Charges

1.  The three defendants are convicted of the following charges after trial:-

“ 1st Charge (of which D1 is convicted)

Statement of Offence

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.

Particulars of Offence

D1, on 23/8/2019, at Customs Arrival Hall B, Hong Kong International Airport, No. 1 Cheong Tat Road, Chek Lap Kok, New Territories, in Hong Kong, imported specimens of Appendix II species, namely 0.56 kilogramme of dried seahorses (Hippocampus species) and 48.11 kilogrammes of scheduled dried shark fins (Carcharhinus falciformis), otherwise than in accordance with the provisions of section 11(1) of the Protection of Endangered Species of Animals and Plants Ordinance, Cap. 586.

2nd Charge (of which D2 is convicted)

Statement of Offence

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.

Particulars of Offence

D1 and D2, on 23/8/2019, at Customs Arrival Hall B, Hong Kong International Airport, No. 1 Cheong Tat Road, Chek Lap Kok, New Territories, in Hong Kong, imported specimens of Appendix II species, namely 63.47 kilogrammes of scheduled dried shark fins (Carcharhinus falciformis), otherwise than in accordance with the provisions of section 11(1) of the Protection of Endangered Species of Animals and Plants Ordinance, Cap. 586.

3rd Charge (of which D3 is convicted)

Statement of Offence

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.

Particulars of Offence

D1 and D3, on 23/8/2019, at Customs Arrival Hall B, Hong Kong International Airport, No. 1 Cheong Tat Road, Chek Lap Kok, New Territories, in Hong Kong, imported specimens of Appendix II species, namely 71.71 kilogrammes of scheduled dried shark fins (Carcharhinus falciformis), otherwise than in accordance with the provisions of section 11(1) of the Protection of Endangered Species of Animals and Plants Ordinance, Cap. 586.”

Introduction

2.  Upon arrival at the Hong Kong International Airport from the Philippines, the three defendants were intercepted by customs and exercise officers for inspection of their luggage, consisting of 25 black zip bags each containing a box of goods.  The boxes were opened and found to contain dried shark fins and dried seahorses, being items prohibited from importing into Hong Kong unless otherwise exempted or licensed. 

3.  Section 11 of Protection of Endangered Species of Animals and Plants Ordinance, Cap 586 provides as follows:-

“Restriction on import of specimens of Appendix II species and Appendix III species

(1) Subject to section 47, a person shall not import a specimen of an Appendix II species or Appendix III species—

(a) except as provided in section 17, 18, 19 or 22; or

(b) except under and in accordance with—

(i) a licence issued in respect of that specimen under section 23(1)(a) prior to the import; and

(ii) a Convention certifying document or certificate in lieu issued in respect of that specimen.”

Cap 586 Section 11 is a statutory offence which is silent or ambiguous as to mens rea.

Case as found by this Court at trial

4.  According to the two sets of admitted facts, the Philippine Airline computer system recorded the three defendants checked in for the flight in sequence, ie, without other passengers registered in the middle. At about 1140h on 23 August 2019, the three defendants arrived at the Hong Kong International Airport on flight PR 300 from Manila, Philippines.  They were intercepted by customs and exercise officers at the Customs Arrival Hall B for luggage inspection.  Their luggage, 25 pieces in total, all had baggage tags in the name of D1.

5.  They were arrested on 24 August 2019.

6.  The three pieces of luggage carried by D1 included 48.11 kg of dried shark fins (silky shark) and 0.56 kg of dried seahorses.  The estimated market values are about $40,000 and $8,400 respectively.

7.  The four pieces of luggage carried by D2 included 63.47 kg of dried shark fins (silky shark).  The estimated value is about $70,000.  

8.  The three pieces of luggage carried by D3 included 71.71 kg of dried shark fins (silky shark).  The estimated value is about $76,000.  

9.  The total estimated value was $194,400. 

10.  The shark fins and the seahorses were each listed in Appendix II of Cap 586 as an endangered species, hence prohibited from import into Hong Kong unless exempted or licensed. 

11.  The air-tickets the three defendants used were purchased by the same credit card.   

12.  The prosecution calls three customs and exercise officers (PW1 – 3) and one Agriculture and Fishery Department officer (PW4).  

13.  Officer Chu (PW1) intercepted the three defendants for luggage inspection.  Officer Chan (PW2) asked D3 if the luggage was his (D3’s).  D3 replied in the affirmative.  He asked D3 to put 3 boxes of his luggage onto the X-ray machine for inspection.  Officer Lo (PW3) asked D1 if the luggage was his (D1’s).  D1 replied in the affirmative.  D2 and D3 were together with D1.  PW3 unzipped the black bags and took out the boxes.  The boxes were very well-wrapped by plastic.  He used a cutter to cut the plastic wrapping of the boxes.  After opening the boxes, he asked D1 what was in the boxes.  D1 replied that there were shark fins and seahorses. 

14.  D1 “carried” three specific pieces of luggage that turned out to contain prohibited shark fins and seahorses.  D2 “carried” four specific pieces of luggage that turned out to contain prohibited shark fins.  D3 “carried” three specific pieces of luggage that turned out to contain prohibited shark fins. 

15.  The irresistible inference is that they each knew the contents of the specific pieces of luggage they each carried. 

16.  As regards the search of the luggage not in the presence of D2 and D3, paras 11 and 12 of the Admitted Facts cited hereinabove have already confirmed the contents of the specific pieces of luggage carried by D2 and D3 respectively to be shark fins.  There is no room to assert any act of tampering with the contents.  

17.  It is plausible that D1 had checked in all 25 pieces of luggage in his own name for convenience’s sake.  It is also plausible that he did not know the contents of the specific pieces of luggage carried by D2 and D3.  He is not liable for the 2^nd and the 3^rd Charges. 

18.  On the aforesaid basis, the prosecution has proved beyond reasonable doubt all elements of the charge against D1 on the 1^st Charge, against D2 on the 2^nd Charge, and against D3 on the 3^rd Charge.  D1 is acquitted of the 2^nd and the 3^rd Charges. 

Information provided to this Court before sentencing

19.  In order to assess how endangered the relevant shark and seahorses were, and their estimated values, I have considered all the statements dated 17 October 2019 of Dr Wong Kam-yan, the Endangered Species Protection Officer of the Agriculture, Fisheries and Conservation Department, pertaining to each defendant’s case.  I find his opinion credible, reliable, and authoritative.    

20.  Silk shark has been listed in Appendix II in line with the CITES[1] since 2017.  It means that trade in the species must be controlled in order to avoid utilization incompatible with their survival.  The species is highly vulnerable to over-exploitation in fisheries and very slow to recover from depletion due to its life history characteristics, slow growth, late maturity, and production of few young.  The extent and rate of decline of this population indicate stock depletion to some 10 – 30% of baseline levels.  In other words, 70 – 90% of its baseline population has been depleted.  These declines are primarily due to the supply of fin products for international trade.  This species is listed as “vulnerable” globally in the IUCN[2] Red List of Threatened Species.  

21.  There were 89, 129, and 127 pieces of first dorsal fins under Charges 1, 2, and 3 respectively, meaning that at least the same number of silky sharks were involved. 

22.  The species, body part, and size of a dried shark fin would affect its wholesale price.  The estimated wholesale price of the 48.11 kg of dried shark fins is about $40,000 under Charge 1, of the 63.47 kg of dried shark fins is about $70,000 under Charge 2, and of the 71.71 kg of dried shark fins is about $76,000 under Charge 3. 

23.  As regards seahorses, their numbers have declined in abundance in many range states that have seahorse fisheries.  There is strong evidence of both recruitment overfishing (declining numbers) and growth overfishing (diminishing size) among a number of the commonly traded species.  Threats to seahorses included over-harvest for commercial trade, bycatch in fisheries, and degradation and loss of habitat due to coastal development, destructive fishing practice, and pollution.  Global trade and demand are apparently growing despite localized stock depletions.  Due to a growing trade and heavy fishing pressure in many range states, seahorse supply no longer meets international demand.  In addition to the large, highly prized specimens that were exclusively harvested in past decades, a substantial proportion of the trade today consists of previously undesirable, small seahorses.  Seahorse populations are particularly vulnerable to over-exploitation due to their social and spatial organization and life history characteristics.  Furthermore, because seahorses have low mobility and small ranges, and they may require considerable time to recolonize an area from which they have been eliminated, localized extirpations are very likely in areas affected by heavy fishing pressure. 

24.  According to the [IUCN] Seahorses, Pipefish and Stickleback Specialist Group, there are 44 species of seahorses in the world. One of them is listed as “Near threatened”, 12 listed as “Vulnerable” and 2 listed as “Endangered” in the IUCN Red List of Threatened Species. 

25.  The price of dried seahorses is about $15,000 per kg in average.  There is 0.56 kg of it under Charge 1.  The estimated market value is about $8,400. 

Mitigation

26.  All three defendants are visitors from the Philippines.  D1 and D3 are married and have young children.  They are the sole breadwinners of their families.  D2 is single.  Each claims to earn a monthly income equivalent to about $3,500.   

27.  Counsel for D1 and D2 and solicitor for D3 all submit that they had been importing only lawful items into Hong Kong 6 days per week throughout the past 7 years in D1’s case, 2 years in D2’s case, and 2 months in D3’s case, and such movement records are not disputed by the prosecution, their sentence should be reduced because of such previous persistent compliance with the laws.  As I am to regard them first-time offenders herein, this submission has no merit. 

28.  Counsel for D1 further submits that D1’s bail condition did not allow him to be back to the Philippines pending trial since his arrest in July 2019.  Therefore, he has never seen his new-born son in the flesh in the Philippines.  He also missed his family.  This may be a humanitarian factor to reduce his sentence.  I have sympathy for him and his family but it remains that he and his family have to face the consequence of his decision to commit the present offence. 

29.  Counsel for D2 asks for a suspended sentence. 

Sentencing considerations

30.  The maximum sentence is a fine of $1,000,000 and 7 years on conviction of indictment. 

31.  The shark fins and the seahorses are vulnerable species that had to be effectively protected from harvest.  The numbers of silky sharks and seahorses killed herein are substantial.

32.  All three defendants are convicted based on each one’s knowledge of his import of dried shark fins, and, in D1’s case, dried seahorses as well.  This state of mind makes them more culpable than importing as a result of a careless mistake that the item could be lawfully imported. 

33.  The quantity and the value indicate wholesale trade of the shark fins.  Whilst D1 had imported less shark fins, he had made up by importing seahorses, which the other defendants had not done.

34.  As a party in the international convention for protection of endangered species, Hong Kong must take effective measures to ensure its compliance.  A sentence of sufficient deterrence has to be imposed. I take 18 months as the starting point for the defendant in each charge.  There is no mitigating factor.  There is no justification to suspend the sentence either.  The sentence is 18 months for each defendant in each charge.