HKSAR v. LIU CHAK FUNG

DCCC 1076/2022

[2023] HKDC 1374

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1076 OF 2022

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Importing of specimens of Appendix II species". He accepted delivery (from overseas)  of a total of 15.29 kg of shark fins which belonged to 4 endangered species when he had no valid import licence.

Summary of Facts

2.  On 30 November 2021, at the Customs Examination Hall, Ground Floor, DHL Central Asia Hub, 6 South Perimeter Road, Hong Kong International Airport, Customs Officer 2109 examined a consignment with the following details ("the Consignment")  :-

(i)  Consignor: An entity in Brazil

(ii)  Consignee: Mr. Liao, contact number: 5490 4666

(iii)  Declaration: Salted Fish – Scientific name: Carcharhinus Plumbeus

3.  Upon examination, a total of 15.29 kg of scheduled shark fins (Exhibit P1), which belonged to Appendix II of endangered species, were found mixed with 21.81 kg of non-scheduled (i.e. lawful)  shark fins inside 2 carton boxes.  There was no import licence for Exhibit P1.

4.  A controlled delivery of the Consignment was arranged.

5.  About 6:00 p.m. on 1 December 2021, posing as DHL staff, Customs Officers 18288 and 18216 delivered the Consignment to a warehouse situated at DD125 849 S.B RP, Ping Ha Road, Lau Fau Shan ("the Warehouse").  The defendant accepted delivery and signed for it.  The officers revealed their identities and arrested him.  Under caution, the defendant admitted that he was instructed to collect the Consignment, knowing that it contained shark fins.  He had no licence to import them.

6.  In his video recorded interview, the defendant admitted that the Warehouse was rented by him.  He was the consignee Mr. Liao stated on the Consignment.  He claimed to have been collecting goods on behalf of a mainland customer named "Chung Yan" since October 2021.  Chung Yan would give him $20,000 per month for his service.

7.  The defendant's mobile phone was seized.  He disclosed the password and consented to unlocking his phone.  Contents of communication between him and Chung Yan from 15 April 2020 to 28 November 2021 were extracted.  Chung Yan had sent photos depicting DHL invoices to the defendant, informing him the details of consignments.  The defendant had also sent photos depicting shark fins to Chung Yan.

8.  According to an expert of the Agriculture, Fisheries and Conservation Department, Exhibit P1 contained shark fins which belonged to the following Appendix II species :-

(i)  0.96 kg – Isurus oxyrinchus (Exhibit P1A)

(ii)  6.03 kg – Carcharhinus falciformis (Exhibit P1B)

(iii)  7.27 kg – Sphyrna lewini, Sphyrna mokarran or Sphyrna zygaena (Exhibit P1C)

(iv)  1.03 kg of Carcharhinus longimanus (Exhibit P1D)

9.  The defendant had no licence to import any Appendix II shark fins.  The respective estimated market value of Exhibit P1A to P1D were $2,691, $30,573, $39,898 and $1,642 ($74,804 in total).

Mitigation & Sentence

10.  The defendant is 39 and has a clear record.  Defence counsel Mr. Ng informed me that the defendant is married with 3 children (aged 20, 18 and 12).  All his children are full-time students.  The defendant's wife is a homemaker; the defendant earns about $30,000 per month by providing warehouse service to his customers.

11.  In mitigation, Mr. Ng submitted that the defendant had mistakenly believed that shark fins are lawful commodities since they are still commonly sold at dried seafood stores and being served in restaurants in Hong Kong.  Mr. Ng further submitted that the defendant's role was to collect the Consignment and to provide warehouse service for Chung Yan.  He was not involved in the hunting or sale of endangered sharks.

12.  The present offence, upon conviction on indictment, carries a maximum sentence of a fine of $1 million and 7 years' imprisonment.  Mr. Ng has submitted several District Court sentencing cases and the Court of Appeal's decision in HKSAR v Xiao Rongqiang [2022] 4 HKLRD 764 for my reference.  At present, there is no sentencing tariffs for this type of offences.  In Xiao Rongqiang, the Court of Appeal made these comments:   "Human greed has endangered many species and brought severe adverse effect to the global environment and ecosystem.  All crimes that threaten the survival of endangered species must be deterred, the purpose of which is not only to comply with the Convention on International Trade in Endangered Species of Wild Fauna and Flora to which Hong Kong has acceded, but also to ensure that endangered species are properly protected from the risk of extinction[2]."

13.  All creatures and plants are precious to this planet.  Human beings do not own them.  They should be able to live and prosper as governed by nature rather than driven to extinction by humans.  It is difficult (and perhaps even cruel)  to put a "price tag" on each endangered species commercially or otherwise (including sentencing).

14.  A total of 4 Appendix II shark species were found in the present case.  I accept that Exhibit P1 was imported together with lawful shark fins.  I am also aware of the defendant's role as a warehouse service provider (as opposed to being a smuggler or seller).  Be that as it may, by providing warehouse service for the owner of Exhibit P1, the defendant still played a pivotal role in endangering certain species of sharks.  A deterrent sentence is required for people who play any role in the supply chain of shark fins of endangered species.