HKSAR v. SCHLÖGL LEOPOLD

DCCC 98/2019

[2019] HKDC 879

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 98 OF 2019

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Reasons for Sentence

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1.  The defendant pleaded guilty to one count of importing specimens of Appendix II species unlawfully and was convicted accordingly.

The Prosecution case

2.  On 1 December 2018, the defendant, an Austrian national, came to Hong Kong from Lisbon, Portugal via Moscow. He was intercepted by Customs and Excise (C&E) officers at the airport. The officers discovered 20 bags of live European eel fry (Anguilla Anguilla) (Exhibit P1) in water in 2 checked-in baggage belonging to the defendant. The total weight was reduced to 15.03 kg after the water in these bags was removed. The 2 checked-in baggage only contained these 2 bags.

3.  40 samples of Exhibit P1 were randomly selected for a quick DNA test. It was revealed that these samples showed positive result indicating that the species is very likely to be European eel.

4.  The defendant failed to produce any valid Convention of International Trade in Endangered Species of Wild Fauna and Flora (CITES) document for P1. The defendant was arrested.

5.  Subsequently, random samples were taken from each of the bags. As a result of that, a total of 30 samples of the eels were selected and sent to the laboratory in the City University of Hong Kong for DNA testing. The test result confirmed that all the 30 samples are Anguilla Anguilla.

6.  It is confirmed that Exhibit P1 is specimens of Appendix II species under the Protection of Endangered Species of Animals and Plants Ordinance, Cap 586. It is estimated that the market price of Exhibit P1 was from HKD $161,000 to $201,000.

7.  At the material time, no exemption order has been granted to the defendant in relation to Exhibit P1 under Cap 586, and there is no licence granted under the Ordinance for the import of Exhibit P1.

8.  Under caution, the defendant admitted, inter alia, that:

(1) He came to Hong Kong to deliver the bags from Lisbon via Moscow.

(2) He knew that he was transporting fish and said a male passed the bags to him in Lisbon.

(3) That male put the big bag onto the luggage belt and then showed him where to get the air tickets.

(4) The defendant said Exhibit P1 might belong to a Chinese male in Vienna.

(5) The defendant would be picked up by a person at the Hong Kong Airport, and someone would get the bags.

(6) He got free tickets in Vienna and Lisbon and would receive a free return ticket after delivering Exhibit P1 in Hong Kong.

(7) He would also get some reward in Vienna but he did not know the amount.

(8) He did not have any permit for P1.

9.  According to the expert, European eel is exposed to a range of potential threats including habitat loss and modification, migration barriers, pollution, parasitism, fluctuating oceanic conditions, exploitations, all of which have resulted in a significant depletion of stock across the species’ range. The status of European eel stock reached a historical low in most of its distribution area during the last decade and can be regarded as critical.

10.  The species is listed as “critically endangered” on the International Union of Conservation of Nature (IUCN) Red List of Threatened Species. In 2009, the species was listed in Appendix II of CITES which means that the species may face threat of extinction if the trade is not regulated. Since December 2010, the EU has banned the export from and the import of European eel into the EU.

Mitigation

11.  The defendant had a clear record in Hong Kong. He is now aged 60, divorced and has 2 twin children who are unfortunately need to be confined to wheelchair because of certain genetic disorder. The defendant is the breadwinner of the family, and apart from hearing problem, the defendant has certain eye and knee problems. The defendant has retired since 2010 and previously he worked as a butcher. 

12.  It was submitted that the defendant had a Chinese friend in Austria surnamed Luo who asked the defendant to transport the bags of fish to Hong Kong from Lisbon via Moscow. When asked why the defendant needed to travel to Hong Kong on such indirect route, Defence counsel could not give me a clear answer. It was submitted that the defendant would get 2 wheelchairs as a reward, on top of the air tickets on economy class.

13.  The estimated market value of the endangered species amounted to about HKD $160,000 to $200,000. It was submitted that the offence is not prevalent. 

14.  It was also submitted that the defendant is remorseful and would like to return to Austria as soon as possible. To that effect, Defence counsel asked for leniency and hoped the court can impose a term that can allow the immediate release of the defendant.

15.  Defence counsel referred to some cases, including HKSAR v Diao Rui HCMA 606/2013, but agreed that those unreported cases are cases before the amendment. A court case report on SCMP dated 8 May 2019 relating to a sentence imposed by a Deputy District Judge was mentioned. But the actual sentence so imposed was not clear, and there was no information as to the category of the endangered species as specimens of Appendix I carries a heavier sentence than that of Appendix II and III.

Sentence

16.  Since May 2018, the Legislature in Hong Kong has substantially increased the penalty for those who contravened certain provisions in the Ordinance. The sentencing authorities cited in Sentencing in Hong Kong, 8^th edition (2018) at page 760 related to cases of those pre-amendment period. The Legislature was determined 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 penalty was then increased ten-fold to a fine of $10 million and an imprisonment term for 7 years on conviction on indictment for those offences relating to Appendix II or III species. That also means that the Court is entitled to impose a deterrent sentence to make sure the message can be heard loud and clear.

17.  When asked, I was told all the European eel so seized died eventually. The present seizure has an estimated market value of about HKD $160,000 to $201,000.

18.  The defendant came to Hong Kong to deliver the endangered species with a reward. The present case has some sort of international element, and it also involved not just the defendant as other culprits were involved in one way or another. 

19.  In my view, the estimated value is only one of the factors to consider for sentence, as I have made it clear in HKSAR v Zhao Zhengxi DCCC 1119/2018, after considering another DC case HKSAR v Wei Bin DCCC 680/2018.

20.  From the travel record (MFI‑1), the defendant had come to Hong Kong on 15 November 2018 and then left Hong Kong on the next day. The defendant returned to Hong Kong on 1 December 2018 and was arrested for the present offence. The travelling route to Hong Kong from Lisbon via Moscow is a bit strange, but this Court can only sentence the defendant based on the facts that he admits.

21.  Taking all factors into account, I would adopt a starting point of 12 months. I will give a full one-third discount for the defendant’s plea, and sentence the defendant to a term of 8 months, and that effectively would allow the defendant to be discharged quite soon.