HKSAR v. FUNG TAK CHEUNG

DCCC 399/2020

[2020] HKDC 778

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 399 OF 2020

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REASONS FOR SENTENCE

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Background and Facts

1.  The defendant pleads guilty to one charge of possession or control of specimens of Appendix I species otherwise than in accordance with the provisions of section 9(1) of Cap 586, contrary to section 9(1) and (2) of the Protection of Endangered Species of Animals and Plants Ordinance, Cap 586 (“the Ordinance”).

2.  The subject matters are 20.04 kilogrammes of worked ivory and 35.27 kilogrammes of raw tusk (both are ivory of Elephantidae spp.)

3.  The facts admitted by the defendant revealed that:-

(a)  On 23.09.2019, a control-buy operation was conducted by arranging a meeting at Room 408, 4/F, Cheong Wah Factory Building, No. 39-41 Sheung Heung Road, To Kwa Wan, Kowloon, Hong Kong (“the Premises”). PW1, Officer of the Agriculture, Fisheries and Conservation Department (“AFCD”) met the defendant and expressed interest in buying the 度母雕像 and 觀音頭像. The defendant offered the selling price at HK$23,000 and HK$5,000 respectively.

(b)  Search warrant was executed inside the Premises. Various ivory items (ie Exhibits El to El0) and 1 piece of raw tusk (ie Exhibit E11) were found at the Premises. Details of E1 to E11 are as follow:-

No.	Ivory item	Quantity	Remarks
1	度母雕像	1 pcs/0.812kg	Offered at $23,000 on the date of seizure
2	觀音雕像	1 pcs/0.178kg	Offered at $5,000 on the date of seizure
3	象牙球塔	1 pcs/0.205kg
4	青瓜牙雕件	1 pcs/0.261kg
5	Mahjong tiles	9 pcs
6	Ivory seals	893 pcs
7	Bracelet	16 pcs
8	Necklace	3 pcs
9	Chopsticks	7 pairs
10	Small jewelry parts	5504 pcs
11	Raw tusk	1 pcs/35.27kg

(c)  The defendant did not have any possession licence under the Ordinance. The record of the AFCD revealed that the Premises has not been issued with any possession licence under the Ordinance.

(d)  On 04.11.2019, a cautioned interview was conducted with the defendant. He stated that he rented the Premises since early 2019 and he was doing trading business.

(e)  Exhibits E1 to E11 were sent to Wong Kam Yan, PW4, an expert of the AFCD, for examination. PW4 identified E1 to E11 (20.04kg of worked ivory and 35.27kg of raw tusk) were ivory of Elephantidae spp. (common name: elephant, all elephants are Appendix I species under the Ordinance). According to a market survey conducted by the Endangered Species Protection Division of AFCD in 2015, the market value of worked ivory is about HK$20,000 per kg and that of raw ivory tusk is about HK$5,000 per kg. Based on these figures, the estimated market value of E1 to E11 is about HK$577,000.

(f)  Elephants have been one of the iconic species group in wildlife trade conservation. Both African and Asian elephants were listed in Appendix I of Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”) which means they are facing the threat of extinction, and illegal trade is to supply the black markets of producing worked ivory. According to a recent report of “Elephant Conservation, Illegal Killing and Ivory Trade” prepared by CITES Secretariat for the 70^th Standing Committee in 2018, it was highlighted that Africa’s elephant population has seen the worst declines in 25 years, with a loss of approximately 111,000 elephants over the ten-year period 2006-2015. Asian elephants were estimated to have between 44,281 and 49,371 individuals.

Mitigation

4.  Defence Counsel Mr Chow submitted the mitigation bundle (“the bundle”) which includes:-

(a)  Written submissions;

(b)  3 mitigation letters, from the defendant, his ex-girlfriend (i.e. the mother of defendant's son)  and the current cohabiting girlfriend respectively;

(c)  The defendant's travel records between 2016 and 2018;

(d)  The defendant's son medical records;

(e)  Receipt and invoice of the purchase of 2 ivory tusks in 2015; and

(f)  A table of recent District Court cases on sentencing under the Ordinance; which includes the following 3 cases,

(i)  In DCCC 737/2019, the court adopted a starting point of 3 years imprisonment of importing some 50 kg of scale of Pangolin (defence LA3);

(ii)  In DCCC 318/2019, the court adopted a starting point of 39 months imprisonment for importing some 20 kilogrammes of rhino horns (defence LA4);

(iii)  In DCCC 294/2019, the court adopted a starting point of 4 years imprisonment for importing some 3 kg of helmeted hornbill (defence LA9).

Defendant's personal background

5.  The defendant is a 45 year old Hong Kong citizen.  He is divorced with 2 children, a 13 year-old daughter and a 4 year-old son.  In 2018, the son has been diagnosed to have Autism Spectrum Disorder and is receiving treatment. The defendant does not live with his children but provides financial support to them.

6.  The defendant, being a sole proprietor, has been engaging in wood carving & jewellery processing business for some 8 years.  His main source of customers was from Mainland China and he used to have good income.  He is described as a successful businessman and passionate with craftsmanship.

Background of the Offence

7.  Mr Chow submitted that since 2015 the defendant has developed a keen interest in ivory carving.  For the purpose of collection, he bought 2 complete Portugal-imported ivory tusks with a CITES re- export certificate at HK$447,300 (certificate at tab 5 & the related invoice at tab 4 of the bundle).  Prosecution also provided to court the same documents (i.e. MFI-1 & MFI-1a) and agreed that it was a legal purchase.

8.  Although it is mentioned in paragraph 20 of the written submissions that the defendant decided to make some ivory products out of the ivory tusks and put them on sale in 2019, it was Mr. Chow’s oral submission that the worked ivory were made by the defendant since 2015.  The defendant also mentioned in his mitigation letter that he carved the ivory tusk after purchase for household decoration when he was free.

9.  Between September 2016 and March 2018, the defendant resided in Mainland China for about 19 months in order to take care of his ill father.  He was unaware of the amendments to the Ordinance introduced in HK in 2018.

10.  In 2019, the defendant moved back to Hong Kong.  However, his business suffered losses and his income reduced substantially due to social disorder and economic downturn.

11.  Besides, the defendant had to stop working so as to look after his autistic son.

12.  It was out of financial difficulty that the defendant decided to put the worked ivory on sale to generate income.

13.  Defence claimed that all the ivory artworks seized at the Premises were made by the defendant himself.

14.  Prosecution informed the court that Exhibit E3 (象牙球塔) has a serial number and it was owned by a company and therefore it was not made by the defendant.

15.  Defence then clarified that the defendant bought Exhibit E3 from a company in 2018 for self-learning purpose.

Mitigating Factors

16.  In defence written submissions, Mr Chow set out various mitigating factors which include but not limited to the followings:-

(a) Because of the control-buy operation conducted by AFCD, therefore no ivory has entered into the market.

(b) Defence maintained that the defendant was acting alone in selling his own collection of ivory artworks made by himself.

(c) The defendant committed the present offence out of negligence and ignorance of the law. He did warn PW1 during the control-buy operation that PW1 could only possess the worked ivory but not to export them. Therefore, it reflects that defendant's knowledge of the law was still at stage 1 of the 3-stage plan to phase out local trade in ivory.

(d) The defendant should apply for a permit from AFCD before putting the items for sale.

(e) It is not a large scale trading scheme and no international element was involved.

(f) The African elephants belong to the “Vulnerable” category which is less serious than Asian elephants which belong to the ‘Endangered’ category.

(g) The (Amendment) Ordinance introduced in 2018 mainly aims to punish those who are in the ivory trade, including poachers, smugglers. The defendant merely tried to sell his collection, which was legally possessed by him. He did not apply for a permit only because he was not aware of the requirement.

Sentencing considerations

17.  With the commencement of the (Amendment) Ordinance on 1 May 2018, the maximum sentence for the current offence carries a fine of HK$10 million and 10 years’ imprisonment upon conviction on indictment.  Even though the amendments to the Ordinance have been in force for 2 years, when one looks at the Legislative Council brief regarding the (Amendment) Bill of the Ordinance, one would understand the legislative intent in drastically enhancing the maximum penalty.

18.  I quote the statement from the brief:-

“In order to provide a sufficiently strong deterrent against illicit wildlife trade including ivory, and to send a clear message to the international and local communities that the Government is committed to the protection of endangered species and combating wildlife trafficking, an enhanced scheme of penalties have been provided for in the (Amendment) Ordinance.”

19.  Here, we see the government has spoken loudly and clearly that it values on protection of the endangered species and the government is determined to stop the trafficking activities.

20.  The defendant admitted that elephants have been one of the iconic species group in wildlife trade conservation.  Both African and Asian elephants are facing the threat of extinction, and illegal trade is to supply the black markets of producing worked ivory.  The elephant populations are badly declining.

21.  The defendant should not take the control-buy operation of AFCD as his mitigation factor claiming no ivory has entered into the black market. If AFCD had not stopped him from selling Exhibit E1 and Exhibit E2, it would be the natural consequences that the remaining worked ivory would be sold by the defendant subsequently.

22.  Amongst the worked ivory, Exhibit E6 and Exhibit EI0 are 893 pieces of ivory seals and 5,504 pieces of small jewellery parts respectively.  The making of such a large amount of these items by the defendant for the purpose of household decoration is hardly convincing.

23.  In respect of defence submission that the defendant committed the offence out of negligence and ignorance of law, I have informed defence counsel at the beginning of this hearing that I am not inclined to accept this assertion.  After inviting defence to make further submissions on this point, I was informed by Mr Chow that defendant decided not to give evidence in respect of this assertion and Mr Chow has nothing to add on his written or oral submissions made during last hearing.

24.  (a)  The defendant spent HK$447,300 to buy the 2 ivory tusks in 2015, which is a substantial amount of money. In addition, defence submitted that the defendant, as a     craftsman, has always been passionate about ivory art works since 2015.  As such, the defendant should be very concerned to the latest information relating to the local ivory industry. In particular if there are any drastic amendments to the existing law in regulating ivory trade.

(b)  The (Amendment) Ordinance operated on 1 May 2018, that is, after defendant’s 19 months stay in Mainland China which ended in March 2018.

(c)  Even though the defendant seemed to have warned PW1 in whatsapp message that PW1 could only possess the ivory work pieces but not to export them during the control-buy-operation, it is obvious that the defendant tried to play down and hide the purported sale and purchase, to prevent it from being exposed in future.

(d)  Therefore, I do not accept at all that the defendant committed the offence out of negligence and ignorance of the Ordinance.

Defendant's Criminal Conviction Records

25.  From 1992 to 1994, there are 4 records of “Possession of goods for sale to which a forged trade mark was applied” and the defendant was fined for 4 times.  In 1993, there is a record of “Possession of Part 1 Poison” and the defendant was sentenced to a probation order.  As these records are more than 25 years and they are not similar to the present offence faced by the defendant, I would not consider enhancing the defendant’s sentence by reason of his previous convictions.

Sentencing the Defendant

26.  I have read carefully each and every letter prepared by the defendant, the defendant's ex-girlfriend and his current girlfriend.

27.  I should say at the outset that, from all the letters I received, I have no doubt that the defendant is a highly self-motivated businessman, and working hard for his career and family.

28.  His present conviction is a heavy blow to his family and the plight in which his children will be put is not difficult to understand.

29.  However, not only has the court said time and again that family hardship is a matter which an accused has to seriously consider before and not after embarking on his criminal conduct, and which is part of the price he must pay for his crime.

30.  The estimated market value of the worked ivory and the raw tusk (Exhibits E1 to E11) is about HK$577,000.

31.  But the market value is only one of the factors for sentencing consideration.

32.  With the operation of the (Amendment) Ordinance, the maximum sentence for the present offence, upon conviction on indictment, has increased substantially, namely the fine is HK$10 million and the prison term of 10 years.

33.  This remarkable increase in maximum sentence shows the Government’s strong commitment to protect the endangered species and to stop illegal trading.

34.  In order to reflect the legislative intent, it would be appropriate to recognise the importance of a deterrent sentence.

35.  Having considered all the circumstances of the case, all that was said on the defendant’s behalf in mitigation, and the defendant’s personal and family circumstances, in my view, the appropriate starting point for the defendant's sentence should be 3 years imprisonment.

36.  The defendant would be given the full one-third discount for his timely plea of guilty.  The sentence is therefore reduced to 24 months.

37.  I do not see any other powerful mitigation which would warrant a further reduction.

38.  Defendant, you are to serve 24 months’ imprisonment.