Public Prosecutor v Kong Hoo (Pte) Ltd and another appeal

• Jurisdiction: Singapore
• Judge: See Kee Oon J
• Judgment Date: 30 March 2017
• Neutral Citation: [2017] SGHC 65
• Plaintiff Counsel: Kwek Mean Luck, Tan Wen Hsien, Sarah Shi, and Zhuo Wenzhao (Attorney-General's Chambers)
• Date: 30 March 2017
• Docket Number: Magistrates’ Appeals Nos 9192 and 9193 of 2016
• Hearing Date: 09 December 2016,01 March 2017
• Subject Matter: Trials,Endangered Species Act,Offences,Criminal Law,Criminal Procedure and Sentencing
• Year: 2017
• Defendant Counsel: K Muralidharan Pillai, Paul Tan, and Jonathan Lai (Rajah & Tann Singapore LLP) (instructed), Choo Zheng Xi (Peter Low LLC)
• Court: High Court (Singapore)
• Citation: [2017] SGHC 65
• Published date: 05 April 2017

See Kee Oon J: Introduction

The respondents were each charged on a single count of importing a scheduled species without the necessary permit, an offence under s 4(1) of the Endangered Species (Import and Export) Act (Cap 92A, 2008 Rev Ed) (“ESA”). At the close of the Prosecution’s case, the respondents entered a plea of no case to answer. This submission was accepted by the District Judge, who acquitted them without calling for their defence (see Public Prosecutor v Wong Wee Keong [2015] SGDC 300 (“No Case GD (DC)”). The Prosecution appealed, and the matter came before me (“the first appeal”). After reviewing the evidence and the arguments, I reversed the decision of the District Judge, set aside the orders of acquittal, and remitted the matter for the defence to be called (see Public Prosecutor v Wong Wee Keong and another appeal [2016] 3 SLR 965 (“No Case GD (HC)”).

At the continuation of the trial, the respondents elected to remain silent and offered no evidence in their defence. After hearing closing submissions, the District Judge found that the Prosecution had not made out its case beyond a reasonable doubt and acquitted the respondents (see Public Prosecutor v Wong Wee Keong and another [2016] SGDC 222 (“the Trial GD”). Against this second set of acquittals, the Prosecution have again appealed.

These appeals now before me present a situation which is unusual, but by no means without precedent. When I heard the first set of appeals, the Prosecution had just closed its case and the question before me was whether there was some evidence, not inherently incredible, that satisfied each and every element of the charges which had been framed. On that occasion, I decided that there was and remitted the matter for the defence to be called (see No Case GD (HC) at [101]). For present purposes, following the acquittal of the respondents at the close of trial, my task is to re-look at the same evidence which I first considered when I heard the first set of appeals but with different lenses. The question now before me is whether each and every element of the charges has been proven beyond a reasonable doubt. The respondents’ principal submission is that when the entirety of the evidence is considered on this latter “maximum evaluation” basis (as opposed to the “minimum evaluation” of the evidence which they say was what took place at the close of the Prosecution’s case), it is plain that the charges had not been made out and the orders of acquittal made by the District Judge were rightly granted.¹

I will state from the outset that I do not find the expressions “minimum evaluation” and “maximum evaluation” to be particularly apposite. As Chan Sek Keong CJ explained, sitting in the High Court of Singapore, in Re Nalpon Zero Geraldo Mario [2012] 3 SLR 440 (“Re Nalpon”) at [22], the use of these expressions “mischaracterises the nature of the judicial process in evaluating the evidence at that stage of a criminal trial.” As the Privy Council explained in Haw Tua Tau v Public Prosecutor [1981–1982] SLR(R) 133 (“Haw Tua Tau”) (a case on appeal from the Court of Criminal Appeal of Singapore) at [17], what has to be decided at the close of the Prosecution’s case is a question of law, namely, whether there is some evidence (not inherently incredible) which, if accepted as accurate, would establish each essential element in the charge either directly or inferentially (see No Case GD (HC) at [33]). This stands in contrast with what has to be decided at the close of trial, which is whether each and every element of the charge has been established beyond a reasonable doubt.

In short, the difference between what takes place at the close of the Prosecution’s case and at the close of trial is not one of degree (in terms of the intensity with which the evidence is scrutinised), but a difference in kind (the substantive question before the court is different). My task is now to consider whether, on an evaluation of the totality of the evidence given by the Prosecution’s witnesses and tested in cross-examination, together with any inferences as might be properly drawn upon the respondents’ election to remain silent, the guilt of the respondents has been proven beyond a reasonable doubt (see the decision of the Singapore Court of Appeal in Oh Laye Koh v Public Prosecutor [1994] SGCA 102 (“Oh Laye Koh”) at [15]).

Turning to the facts, it is undisputed that the respondents had caused 29,434 logs derived from Dalbergia spp. (Populations of Madagascar) (“Madagascan rosewood”) to be brought into Singapore onboard the MV Oriental Pride (“the Vessel”). Madagascan rosewood is specified in Appendix II of the Schedule to the ESA and is therefore defined as a “scheduled species”, which may not be imported into Singapore without a permit issued by the Director-General of the Agri-Food and Veterinary Services (“Director-General”), which the respondents did not have. Thus, the sole issue before me, as it was when I heard the first set of appeals, is whether the Rosewood had been imported into Singapore or whether it was merely “in transit” within the meaning of s 2(2) of the ESA. If it was the former, the respondents are guilty of the charges they face; if it was the latter, then the acquittals ordered by the District Judge based on the charges preferred would have been rightly granted.

Background

Both the undisputed background facts as well as a detailed narrative of the evidence given by the Prosecution’s witnesses can be found in my decision in the first set of appeals (see No Case GD (HC)”) at [6]–[24]). For now, I will only summarise that which is necessary to provide context for my decision here. Where necessary, I will set out the detailed evidence of the various witnesses in the course of my reasoning and analysis.

In March 2013, Madagascan rosewood was listed in Appendix II to the Convention on International Trade in Endangered Species of Wild Flora and Flora (3 March 1973) 993 UNTS 243 (entered into force 1 July 1975) (“CITES”). In May 2013, the Agri-Food and Veterinary Authority of Singapore (“AVA”) issued a circular to inform all traders about the inclusion of new species (including Madagascan rosewood) in the appendices of CITES (and, hence, its inclusion in the Schedule to the ESA) and about the regulatory requirements that this entailed. On 4 September 2013, the Secretariat of CITES informed the member states to the Convention that the Government of Madagascar had placed a zero export quota on Madagascan rosewood from 13 August 2013 to 13 February 2014. On 26 February 2014, another notification was sent to the member states to inform them that the Government of Madagascar had extended the zero export quota until 14 April 2014.² However, this second notification did not state whether the extension of the export embargo had taken effect immediately upon the expiry of the previous zero export quota period or if there had been a “break” between 13 February 2014 (when the zero export quota period specified in the first notification was to have expired) and 26 February 2014 (when the second notification was sent).³

Sometime in February 2014, the Vessel set sail from the port of Toamasina, Madagascar, with 29,434 logs of Madagascan rosewood (“the Rosewood”). On 19 February 2014, Singapore Customs received information from the Regional Intelligence Liaison Office Asia Pacific (“RILO AP”), a division of the World Customs Organisation, that they had a “strong suspicion” that an illegal shipment of Madagascan rosewood might soon be entering Singapore on board the Vessel. On 27 February 2014, Singapore Customs informed the AVA of what RILO AP had told them. On 28 February 2014, the Vessel arrived in Singapore waters and anchored in West Jurong Anchorage. A little over two weeks later, on 11 March 2014, the Vessel berthed at the Free Trade Zone of Jurong Port (“Jurong FTZ”). Singapore Customs obtained information on the vessel’s schedule and its cargo manifests from an online portal maintained by Jurong Port. In the cargo manifests, it was stated that the consignee was one “Jaguar Express Logistics Pte Ltd” (“Jaguar Express”) – a logistics company engaged by Kong Hoo – and that the port of discharge was Singapore.⁴ This information was shared with the AVA on the same day.⁵

That same day Jaguar Express began unloading the Rosewood and moved the unloaded logs to a yard in J16, another area within Jurong FTZ. Between 11 March 2014 and 14 March 2014, a total of 6164 rosewood logs was offloaded from the Vessel, leaving 23,270 logs on board.⁶ On 14 March 2014, officers from the AVA boarded the Vessel and seized the rosewood logs which were onboard as well as the logs which had been offloaded. It was subsequently ascertained that the seized logs were indeed Madagascan rosewood and also that no CITES export permit had accompanied the shipment.

During the course of investigations a set of nine documents (collectively marked “D5”) was given to the AVA by Mr Wong Wee Keong (“Mr Wong”), the respondent in the second of the two appeals before me (Magistrate’s Appeal No 9193 of 2016). The first two of these were the bills of lading which accompanied the shipment, both of which listed Kong Hoo (Private) Limited (“Kong Hoo”), the respondent in the first of the two appeals before me (Magistrate’s Appeal No 9192 of 2016), as the consignee of the vessel and the port of discharge as Singapore.⁷ The remaining seven documents related to the export of the Rosewood from Madagascar. Apart from a letter issued by the Ministry of Environment and Forests of Madagascar (the “Madagascan Forestry Ministry”) in 2010 authorising one “Zakaria Solihi” to export “about 5000 tonnes” of Madagascan rosewood, the rest of the documents were dated between 17 February 2014 and 18 February 2014.⁸

On 8 October 2014, the respondents were both charged for breaching s 5(1) of the ESA, which stipulates that scheduled species in transit in...