PP v Kong Hoo (Pte) Ltd

• Jurisdiction: Singapore
• Judge: See Kee Oon J
• Judgment Date: 26 May 2017
• Court: High Court (Singapore)
• Docket Number: Magistrates' Appeals Nos 9192 and 9193 of 2016
• Date: 26 May 2017

Public Prosecutor

and

Kong Hoo (Pte) Ltd and another appeal

[2017] SGHC 129

See Kee Oon J

Magistrates' Appeals Nos 9192 and 9193 of 2016

High Court

Criminal Procedure and Sentencing — Sentencing — Principles — Respondents convicted of importing 29,434 logs of Madagascan rosewood without requisite import permit — Statute providing for mandatory forfeiture of seized goods and imposing liability for storage and miscellaneous charges incurred — Value of wood seized estimated to be at least $15m and storage charges quantified at $3.5m — Whether impact of forfeiture was relevant sentencing consideration — Whether case could be classified as instance of transnational organised wildlife crime — Whether there was conscious attempt to evade detection — Whether decision to remain silent was aggravating factor

Words and Phrases — “[F]or each such scheduled species” — Respondents liable to fine not exceeding $50,000 “for each such scheduled species”, up to $500,000 in aggregate — Whether separate fine might be levied in respect of each log imported or whether single fine might only be imposed as all logs belonged to same species — Section 4(1) Endangered Species (Import and Export) Act (Cap 92A, 2008 Rev Ed)

Held, sentencing Kong Hoo to a $500,000 fine and Mr Wong to three months' imprisonment and a fine of $500,000:

(1) The “per species” interpretation was inconsistent with the specific definitions ascribed to the expression “scheduled species” in the ESA and was therefore legally untenable. Furthermore, the “per specimen” interpretation better achieved the object of the EA, which was to deter the illegal trade of wildlife, as it allowed a fine to be imposed in respect of each specimen to better reflect the actual gravity of the infringement. The extraneous material served a confirmatory function and bolstered the conclusion that the “per specimen” interpretation was to be preferred. Thus, the maximum fine which could be imposed on each respondent was $500,000: at [17] and [19].

(2) This could not be characterised as a case of transnational organised wildlife crime. While the Rosewood had been brought into Singapore in contravention of the ESA, there was no evidence that this was deliberate or that some more nefarious motive underlay the breaches. The Rosewood had been legally exported from Madagascar and it was undisputed that Hong Kong did not have any prohibition against the import of Rosewood at the time. However, the Respondents' submission that this was a mere regulatory oversight and that they had acted at all times with a genuine belief in the legitimacy of their actions could not be accepted. The Respondents offered no testimony in their defence and the evidence showed that they had not secured a buyer and had brought the Rosewood into Singapore in the hope that it might be shipped to Hong Kong if a suitable Hong Kong buyer could be found but with the intention that until and unless this came to pass, it was to remain within Singapore: at [25] and [27] to [29].

(3) In so far as forfeiture contributed to the attainment of a sentencing objective, it might lessen the need for a more severe sentence. To that extent, a court could and should properly have regard to the effect of any forfeiture order in deciding on an appropriate sentence. Everything turned on the facts and the statutory context. The task for the court was to properly balance the four classical principles of sentencing (retribution, deterrence, prevention and rehabilitation) and decide, first, on the appropriate weight to be given to each principle in the context of the particular offence; second, the purposes(s) of the forfeiture provisions in the statute in question; and, third, on the proper weight to be accorded to the effect of any forfeiture order in the light of that analysis: at [33], [35] and [36].

(4) The ESA provided (a) for the mandatory forfeiture of a seized scheduled species in the event of a conviction and (b) that any expenses incurred in relation to the detention and storage of the scheduled species would be chargeable against the owner/importer of the scheduled species. These provisions were intended to punish offenders who had breached the ESA and to deter would-be offenders. The forfeiture of the Rosewood would constitute a substantial punishment. While not strictly a mitigating factor, there was a compelling case for taking the punitive consequences of the forfeiture into account in determining the totality of the punishment: at [37], [39] and [40].

(5) The Respondents' decisions to claim trial and then to remain silent when called on to enter their defence were not aggravating factors. This was not a case where the Respondents had elected to contest the charges in the face of overwhelming evidence nor was it a case where a patently untenable defence had been mounted. The most that could be said was that the Respondents were not entitled to claim any credit in mitigation as they had neither co-operated fully in the investigations nor demonstrated any genuine remorse: at [45] and [46].

(6) The present case differed from the unreported precedents cited. First, it did not involve an instance of “smuggling” in the usual sense. Secondly, there was no evidence of transnational syndication. Thirdly, there was no evidence of deliberate concealment. Lastly, there was no evidence of cruelty to any living animals. Thus, the lengthy custodial term of 18 months' imprisonment suggested by the Prosecution, having regard to the precedents, did not provide a suitable frame of reference. In this case, the combined effect of an appropriately-calibrated imprisonment term, heavy fines and forfeiture were adequate to drive home the message that the offences were serious: at [26], [42], [43] and [47].

Case(s) referred to

AG v Ting Choon Meng [2017] 1 SLR 373 (refd)

Chang Kar Meng v PP [2017] 2 SLR 68 (refd)

K Saravanan Kuppusamy v PP [2016] 5 SLR 88 (refd)

Lee Foo Choong Kelvin v PP [1999] 3 SLR(R) 292; [1999] 4 SLR 318 (distd)

Luong Thi Trang Hoang Kathleen v PP [2010] 1 SLR 707 (refd)

Macri v The State of Western Australia [2006] WASCA 63 (refd)

Madras Electric Supply Corp Ld v Boarland (Inspector of Taxes) [1955] AC 667 (refd)

Magnum Finance Bhd v PP [1996] 2 SLR(R) 159; [1996] 2 SLR 523 (refd)

Ng Kean Meng Terence v PP [2017] SGCA 37 (refd)

PP v Goh Lee Yin [2008] 1 SLR(R) 824; [2008] 1 SLR 824 (refd)

PP v Hoang Xuan Quang District Arrest Cases Nos 2044 and 2045 of 2014 (refd)

PP v Jaiswal Arun Harish Chandra District Arrest Case No 902791 of 2015 and Magistrate's Arrest Case No 900579 of 2015 (refd)

PP v Kong Hoo (Pte) Ltd [2017] 4 SLR 421 (refd)

PP v Kwong Kok Hing [2008] 2 SLR(R) 684; [2008] 2 SLR 684 (refd)

PP v Pavlychek Maksim District Arrest Case No 927181 of 2015 (refd)

PP v Pham Anh Tu District Arrest Case No 1503 of 2014 (refd)

PP v Sustrisno Alkaf [2006] SGDC 182 (folld)

PP v Wong Wee Keong [2016] 3 SLR 965 (refd)

R v Brough [1995] 1 NZLR 419 (refd)

R v Craig [2009] 1 SCR 762 (refd)

R v James Henry Sargeant (1974) 60 Cr App R 74 (refd)

R v McLeod (2007) 16 VR 682 (refd)

Shell Eastern Petroleum Pte Ltd v Chief Assessor [1998] 3 SLR(R) 874; [1999] 1 SLR 441 (refd)

Facts

The respondents (“the Respondents”) – a company, “Kong Hoo” and its director, “Mr Wong” – were each charged on a single count of importing Madagascan Rosewood (“Rosewood”) without the necessary permit, an offence under s 4(1) of the Endangered Species (Import and Export) Act (Cap 92A, 2008 Rev Ed) (“ESA”). Rosewood was a scheduled species protected under the ESA. It was common ground that the Respondents, who did not have an import permit, had caused the Rosewood to be shipped into Singapore and that a portion of it was offloaded. The Respondents argued that the Rosewood had not been imported as it was en route to Hong Kong and only in transit in Singapore. At the close of the Prosecution's case, the district judge found that the Respondents had no case to answer. On appeal, this decision was reversed and the matter was remitted for the defence to be called. At the continuation of the trial, the Respondents elected to remain silent. The district judge acquitted the Respondents and the Prosecution appealed. On appeal, the High Court found that the two conditions that had to be shown in order for a scheduled species to be considered to have been “in transit” within the meaning of the ESA had not been satisfied and convicted the Respondents.

Section 4(1) of the ESA provided that a person convicted of an offence under that section would be liable to a fine “not exceeding $50,000 for each such scheduled species (but not to exceed in the aggregate $500,000)”. The Prosecution submitted that the expression “scheduled species” should be construed as a reference to a single specimen (that is to say, any individual animal or plant or recognisable part or derivative thereof) of a species listed in the schedule to the ESA. On this “per specimen” interpretation, the Respondents would be liable to be fined up to $50,000 per Rosewood log and a maximum of $500,000 for the whole lot. The Respondents submitted that the expression “scheduled species” should instead be construed as a reference to a type or group of organisms. On this “per species” reading, the Respondents would only be liable to a maximum fine of $50,000 because all of the logs belonged to the same species specified in the schedule to the ESA.

Legislation referred to

Animals and Birds Act (Cap 7, 2002 Rev Ed) ss 41C(2), 41C(3)(b)(i), 42(1)(e)

Endangered Species (Import and Export) Act (Cap 92A, 2000 Rev Ed) s 4

Endangered Species (Import and Export) Act (Cap 92A, 2008 Rev Ed) s 4(1) (consd); ss 2(1), 4, 5, 5(1), 11(4), 15, 15(1), 15(7), 15(8), 15(9), 15(10)

Interpretation Act (Cap 1, 2002 Rev Ed) ss 9A, 9A(2)

Misuse of Drugs Act (Cap 185, 2008 Rev Ed) s 28(2)

Penal Code (Cap 224, 1985 Rev Ed) s 420

Controlled Drugs and Substances Act, SC 1996, c 19 (Can) ss 16, 19

Proceeds of Crime Act...