R. v. KONG CHI YUE

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.1405 of 1996

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J U D G M E N T

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1. This is an appeal against sentence imposed by Mr Tam in the Sha Tin Magistrate's Court. This was another of the chemist shops that are selling either claimed animal parts or actual animal parts.

2. The Appellant is the sole proprietor of a business in Ma On Shan and in last April officers went in and found that he had a number of articles that are protected under the Animals and Plants (Protection of Endangered Species) Ordinance, for example, he had some pangolin scale, some elephant scraps, a number of pills which were claimed to contain parts of tiger or sea pig teeth.

3. It has been said by me and other judges that it is important to protect endangered species. Hong Kong is a signatory to the Convention of International Trade in Endangered Species and can pass substantial sentences, sometimes imprisonment, on those that are really trading in animal parts. These chemist shops pose particular problems to judges and magistrates because often the persons involve do not have much money.

4. There have been a number of instances which I have recently referred to in a decision of mine R. v. Chang Ping Tung, MA1505/96 where High Court judges appear consistently to reduce fines imposed by magistrates. This must not be misunderstood by the public and I had press reports when High Court judges reduce sentences, and it is said that the Judiciary is not protecting the conservation of wild animal. This is quite wrong. The duty of a judge is to sentence for the criminality of the person involved. If a fine is imposed, there is a legal duty cast upon a judge to ensure that the fine is within the means of the person to pay within a reasonable period of time, so for example, Duffy J. reduced a fine of $500,000 to $200,000 for a commercial wholesale company, Yeung J. has reduced a fine of $425,000 to $95,000 and I reduced a one month's prison sentence for a non-commercial operation to a fine of $50,000. But I emphasize, as I have emphasized before, and other judges have emphasized that from a public point of view, endangered species must be protected. Nevertheless, what has happened here appears to be wrong in principle. It is accepted by Mr Veltro that the duty of the magistrate should have been to pass a sentence on each summons separately and then at the end of the day to look at the totality of the sentence and to see whether that was within the means of the defendant. No examination of means took place here.

5. I think quite frankly on the facts of this particular case the magistrate might have been justified in passing a suspended sentence of imprisonment in view of the number of genuine animal parts that were found in the shop. There is a difference, in my judgment, between pills which are claimed to contain things like tiger bone and often do not and in essence the criminality is obtaining money by false pretences, and this person who clearly was having in his possession genuine animal parts such as elephant scraps and pangolin scale. That sort of activity does lead to the trading in animal parts and judges should stop it. Had the magistrate here passed a suspended sentence of imprisonment, I would not have interfered with it. It has crossed my mind as to whether I should myself pass such a sentence upon this man as there are a number of items which appear to me to be genuine animal parts.

6. Magistrates may well be justified in passing an immediate or suspended sentence of imprisonment on anyone who operates a commercial business which trades in genuine animal parts and members of the public are being invited to purchase genuine animal parts.

7. There is a difference, however, with so-called animal pills which often are nothing more than a complete try-on. I have said it before and I say again how anyone can think by swallowing a piece of tiger bone does one any good, I fail to understand. Unfortunately this is the culture in Hong Kong and members of the public appear to think that if you take a piece of elephant of anything else, it does you good and that must be stopped. So although on the facts of this particular case I consider that the amount of the fine was wrong in principle because no inquiry was undertaken as to the means to pay it. Had there been other factors, I would have altered this to a suspended sentence of imprisonment. Magistrates will be justified in passing short sentences of imprisonment on people who operate commercially for gain out of endangered species. On the facts of this particular case, there has to be a substantial fine because some of these parts were genuine. What I intend to do is to pass a fine but backed up by a prison sentence should it not be paid. The fine will be based mainly on the genuine animal parts, that is for possession of 17 gm of pangolin scale a fine of $40,000, for the musk pod, a fine of $40,000 and for the elephant scraps a fine of $40,000 which makes a total of $120,000. Although the other summonses are important, I do not intend to impose a separate sentence.

8. The appellant will have three months to pay and if the fine is not paid, he will go to prison for two months.