Wildlife conservation refers to the preservation and protection of wild species and their habitats. In recent years, there has been an increasing awareness of the importance of wildlife conservation in Hong Kong. This article will trace the development of our legal framework in wildlife protection over the years to illustrate how it has reflected the changing values of our society.
BEFORE THE SECOND WORLD WAR
In spite of their limited scope, there were already attempts to protect certain plants and animals in Hong Kong through legislation before the Second World War. According to the Government Notification No.209 published in the Government Gazette dated 11th July 1913, the Governor-in-Council made regulations under Section 3 of the Licensing Ordinance (No.8 of 1887) to add conditions to the hawker’s licence so as to restrict the hawking of certain wild flowers and plants. The Plants Ordinance (No.11 of 1920) subsequently came into force in 1920 with the particular aim to protect the azaleas. Since they were cut for table and house decoration, their wild population had been decreasing rapidly. As per the Government Notification No.926 published in the Government Gazette dated 27th November 1936, our government later extended the protection under the Plants Ordinance (No.11 of 1920) to altogether 41 species of plants. No person shall without lawful excuse sell, offer for sale, or have in his possession or under his custody or control any portion of any of these plants.
As for the protection of animals, there was already legislation in the 1870s to regulate the practice of hunting in Hong Kong. Subsequent legislation like the Wild Birds Ordinance (No.15 of 1922) introduced further attempts to protect the wild animals by prohibiting absolutely the killing of birds which were neither game nor vermin. The Wild Animals Protection Ordinance (No.56 of 1936) came into force in 1936. It prohibited the killing, taking or possession of the pangolin, the otter and such other wild animals named in its Schedule by the Governor-in-Council. It also prohibited the sale, exposing for sale, or possession for sale, the carcass, flesh, fur, skin or scales, or any part thereof, of any such wild animal killed or taken in Hong Kong.
BETWEEN THE EARLY 1950s AND THE EARLY 1970s
After the Second World War, the indiscriminate slaughtering and capture of wild animals for sale to private zoos and collectors led to serious wildlife depletion not only in Hong Kong but also in other parts of the world. Hong Kong’s convenient location on the major air and sea routes of the Asia-Pacific region could easily be exploited for such trade. Hence, there were growing calls for our government to tighten up the legislation to discourage the trade and to protect the diminishing wildlife.
The Wild Birds and Wild Mammals Protection Ordinance came into force in 1954. It designated for the first time three wildlife sanctuaries in which hunting was absolutely prohibited as was also the carrying of firearms, except by the military and the police in the course of their duty. Subsequently, the Animals and Birds (Restriction of Importation and Possession) Ordinance (Chapter 187) came into force in 1970 to regulate the importation and possession of scheduled animals and birds through a licensing system so as to prevent an undesirable wildlife trade from developing through Hong Kong. As its name suggests, this Ordinance placed restrictions only on the importation and possession of animals and birds with no control over their export. Hence, the protection afforded by this Ordinance remained limited in scope.
THE CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES AND WILD FAUNA AND FLORA
In view of the growing concern around the world over the rapidly shrinking wildlife populations due to over-exploitation, an international agreement between governments known as the Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”) entered into force on 1st July 1975. The aim of CITES is to regulate the international trade in wild animals and plants to ensure that such trade will not threaten their survival.
Under CITES, trade in selected wildlife species are subjected to import, export and re-export controls. The species covered by CITES are listed in three Appendices. Appendix I is a list of species threatened with extinction and their trade is permitted only in exceptional circumstances. Appendix II is a list of species not necessarily now threatened with extinction, but their trade must be controlled so as to avoid utilization incompatible with their survival. Appendix III is a list of species that are protected in at least one party to CITES, which has asked other CITES parties for assistance in controlling the trade to prevent unsustainable exploitation.
Since CITES seeks to regulate and prevent illegal trade in endangered species rather than prohibiting wildlife trade entirely, it is not without its controversy. Some critics argue that all types of wildlife trade should be banned while others believe that the wildlife trade is an insignificant cause of species decline when compared with other causes like habitat destruction. In spite of its limitations, CITES is a milestone in wildlife protection since it has established an internationally recognized framework to regulate the wildlife trade.
The Animals and Plants (Protection of Endangered Species) Ordinance (Chapter 187) was enacted in 1976 to give effect to CITES. It repealed and replaced the Animals and Birds (Restriction of Importation and Possession) Ordinance (Chapter 187) of 1970. It rectified certain loopholes of the repealed legislation. For example, it extended control of the endangered species to their export as part of the international co-operation in wildlife conservation. It became the primary legislation in wildlife protection in Hong Kong for the next 30 years.
In Man Hing Express & Godown Co. Ltd. v The Queen [CACC 1025/1979], the appellant warehouse operator was convicted of the offence of possession of a scheduled species (namely 220 furskins of clouded leopard) without the relevant licence, contrary to section 6(1) and the second schedule of the Animals and Plants (Protection of Endangered Species) Ordinance (Chapter 187). On appeal, the appellant argued that it did not have the mental element necessary to possess a scheduled species. The appeal was dismissed.
In The Queen v Both Prime Company Limited [HCMA 1203/1995], certain medicines were seized at the appellant company premises. Their ingredient description suggested the presence of tiger bone or tiger penis. Upon examination, it was found that the tiger bone or tiger penis ingredient was not readily recognizable and neither could be chemically analyzed. Section 2B(b) of the Animals and Plants (Protection of Endangered Species) Ordinance (Chapter 187) provided that any medicine claimed or represented to be a controlled medicine shall be deemed to be such a controlled medicine. The appellant was therefore charged with offence contrary to section 6(3) and 6(4) of the Ordinance, i.e. having in its possession a controlled medicine without a licence. The appellant pleaded guilty and was fined $500,000 with two months to pay. On appeal, the fine was reduced to $200,000 with 1 month for payment.
In Ki Chor On v The Queen [HCMA 836-843/1996], the appellant was the proprietor of two traditional Chinese medicine shops and he was also a Chinese herbalist by occupation. The appellant pleaded guilty to a total of eight summonses issued against him under the Animals and Plants (Protection of Endangered Species) Ordinance (Chapter 187), including five summonses under section 6(1) and three summonses under section 6(3). The total fine was $425,000. Of the subject matter of the eight summonses, the pangolin scale, the musk grains, sea turtle scales and the bear gall bladder powders would be used in his medical prescriptions for his patients. The others were ready made medicines presumably produced in China. These medicines were analyzed and it was not proved conclusively that they actually contained the objectionable items, namely rhinoceros horns or tiger bone as their packaging claimed. However, by virtue of section 2B(a) and (b) of the Ordinance they were deemed to contain what had been claimed in their packaging. On appeal, the total fine was reduced to $95,000.
In The Queen v Tsoi Wai Ching [HCMA 27/1997], the appellant pleaded guilty to the offence of possession of endangered species, contrary to section 6(1) of the Animals and Plants (Protection of Endangered Species) Ordinance (Chapter 187). The appellant was alleged to be in possession of a scheduled animal part, namely one bear gall bladder. The appellant was fined $125,000. On appeal, the Judge found that there was no evidence that the bear gall bladder was in the appellant’s possession for commercial purpose so that section 13A of the Ordinance could be invoked. Thus, he reduced the fine to $40,000.
In order to clearly reflect the changes in CITES requirements and to improve the control regime, the Protection of Endangered Species of Animals and Plants Ordinance (Chapter 586) came into effect on 1st December 2006. It repealed and replaced the Animals and Plants (Protection of Endangered Species) Ordinance (Chapter 187). In 2018, it was amended to provide for a three-step plan to phase out the local ivory trade and to significantly increase the penalties for wildlife crime. Furthermore, pursuant to the amendments, the distinction of commercial and non-commercial offences was abolished and uniform penalties would be imposed to both types of offences. These amendments have reflected an increasing concern among the public over wildlife protection in recent years. Depending on the circumstances of the case, the punishment for wildlife crime now is usually immediate custodial sentence of several months or even years.
香港特別行政區 對 肖荣强 [CACC No.79 of 2020] is a recent caselaw regarding offences under the Protection of Endangered Species of Animals and Plants Ordinance (Chapter 586). The appellant was intercepted by customs officers at the Hong Kong International Airport. Upon search, customs officers found 224 saiga antelope horns weighing 49.9 kg in his luggage, which were estimated to come from not less than 112 saiga antelopes. The estimated value was between HK$719,000 and HK$1,188,000.
The appellant pleaded guilty before Ms. June Cheung, a Deputy Judge at the District Court (as she then was), to one count of importing specimens of Appendix II species otherwise than in accordance with the provisions of section 11(1) of the Protection of Endangered Species of Animals and Plants Ordinance (Chapter 586), contrary to section 11(1) and (3) of the same ordinance. Adopting a starting point of 30 months’ imprisonment and giving the appellant the one-third discount for his plea of guilty, Ms. June Cheung imposed a sentence of 20 months’ imprisonment. The appellant appealed against the sentence on the ground that it was manifestly excessive.
The Court of Appeal dismissed the appeal as it did not agree that the sentence imposed was manifestly excessive. It was of the view that the sentence imposed for offences relating to illegal trafficking of endangered species should have sufficient deterrent effect so as to enable Hong Kong to fulfil its obligations under CITES (para.27). The sentencing factors include how endangered the species in question is, its amount and value, the offender’s modus operandi, the offender’s motive, the level of harm done to the species in question, whether syndicate elements are involved in the case and the role played by the offender (para.30). If these offences remain prevalent, there is room to increase the starting point of the sentence (para.40).
Due to its strategic location, Hong Kong has long been a hub for the illegal wildlife trade. Despite our governmental efforts to enhance wildlife protection, a more comprehensive legal framework is necessary in order to afford better protection to the wildlife. For example, the enforcement for wildlife crime in Hong Kong is still largely focused on the mules (i.e. offenders caught red-handed when trying to smuggle in the animals). Yet, numerous reports suggest that crime syndicates are behind the lucrative wildlife trade. Furthermore, even though the ivory trade will soon be phased out in Hong Kong, fur trade is still thriving here despite numerous calls in the society to put the trade under stricter regulation or even to ban it outright.
*On 18th August 2021, the Organized and Serious Crimes Ordinance (Cap. 455) was amended to include certain wildlife trafficking offences under the Protection of Endangered Species of Animals and Plants Ordinance (Cap. 586). These provisions give the authorities more power for investigating such illegal activities and allowing them to go after the syndicates and leaders behind the illegal wildlife trade.*