BOTH PRIME CO. LTD. v. R.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL
NO. 1203 OF 1995

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J U D G M E N T

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Duffy, J.:

1. This was an appeal against sentence. The facts of the case were that the Appellant company was a limited company incorporated in Hong Kong with its registered office in Hong Kong. On 15th May 1995, a party of A.F.D. Officers searched the Appellant company premises at 82 Wing Lok Street, Sheung Wan, Hong Kong. The following were found :

(a) 8,760 pills in 73 bottles labelled as "Sea Horse Genital Tonic Pills;

(b) 180 pills in 3 boxes labelled as Musk Chui Feng Tou Kuwan;

(c) 1,680 pills in 84 boxes labelled as Yang Zhi Bao Dan.

The ingredient descriptions of the said medicines suggested the presence of tiger bone or tiger penis. No valid licence for such goods was produced and they were seized.. The goods were submitted for examination and it was found that the tiger bone or tiger penis ingredient present in the medicines was not readily recognizable and neither could be chemically analysed. Section 2B(b) of Cap. 187, The Animals and Plants (Protection of Endangered Species) Ordinance provides that any medicine claimed or represented to be a controlled medicine shall be deemed to be such a controlled medicine. The Appellant company was therefore charged with offence contrary to ss.6(3) and 6(4) of the Ordinance, i.e. having in its possession a controlled medicine without a licence. The company pleaded guilty. The learned Magistrate fined the company $500,000, giving it two months to pay. It appeals against that fine.

2. Since January 1995, the penalties for this offence have been greatly increased. The maximum penalty when possession is for commercial purposes in terms of s.13A is a fine of $5,000,000 and imprisonment for two years. The learned Magistrate was quite correct when he said:

"The quantum of the increased penalties indicate that offences involving highly endangered species such as panthera tigris (tiger) are considered to be of the utmost gravity."

I was also of the view that the learned Magistrate was correct when he said this:

"In all the circumstances I was of the view that a small fine would not be appropriate and that any fine should be quantified so as to reflect an element of deterrence and to reflect the public view of such offences as indicated by the increased penalties."

3. In mitigation it was said that the Appellant's company is a wholesaler of Chinese medicines of over 2000 types. The offending medicine, it was submitted, was old stock and only worth slightly over $2,000. Mr Chan who appears on the appeal submits that though the fine should not correspond exactly to the value of the goods, the value of the goods should be taken into account as a factor in determining the extent of the fine. Mr Chan also submits that the learned Magistrate seemed to have been mistaken when he said:

"I was told that the Defendant Company was aware of the change in the law in January 1995 but was unable to remove the offending claims from the descriptions of the products because of the very large stock carried."

While the Appellant company did carry a large stock, Mr Chan points out that the large stock consisted of many other types of medicine than the one involved. Indeed, he said, the one involved was only a small percentage of the total stock. Mr Chan also submits that as this was a case in which the Appellant company was not actually selling the forbidden substance, but was merely claiming to sell it, a lesser sentence was appropriate.

4. The learned Magistrate was aware that there were no guidelines for sentences in cases such as this. He said :

"I took a fine of something less than HK$1 million, say $750,000 as being appropriate as a starting point in this case."

He gave no reasons for adopting this as his starting point. It seems to me that Mr Chan was correct when he submits that the learned Magistrate should have taken into account the relatively small amount involved, and the fact that the medicine did not actually contain the offending substance, as factors in mitigation, and that he was wrong to say that the only mitigation was the plea of guilty.

5. This is a case which falls within the lower range of offences of its type, and I do not think that it merits a fine as high as one of $500,000. I am advised that sentences being passed by other magistrates in respect of similar offences have not exceeded $45,000. I do not consider that they are an adequate reflection of the seriousness of the offences. Any offence against any ordinance which seeks to protect our wildlife from slaughter and commercial exploitation is a serious one indeed. It seems to me that the fine has to be pitched at a level which, having regard to the maximum penalty and the general standard of living in Hong Kong, would be regarded by all as a deterrent level. I consider that that level would be reached at $150,000. This being an offence within the lower range of offences of its sort, I feel that an adequate and proper penalty is a fine of $200,000. The appeal is allowed accordingly. I allow 1 month for payment.