Public Prosecutor v Sustrisno Alkaf
| Jurisdiction | Singapore |
| Judge | Danielle Yeow Ping Lin |
| Judgment Date | 30 August 2006 |
| Neutral Citation | [2006] SGDC 182 |
| Published date | 23 October 2006 |
| Court | District Court (Singapore) |
| Plaintiff Counsel | Yap Teck Chuan (AVA Inspector) |
| Defendant Counsel | Accused in person |
30 August 2006
District Judge Danielle Yeow Ping Lin
The Charge and Sentence
1. The Accused pleaded guilty to one charge of transiting in Singapore, onboard the vessel Sumber Alam Indragiri II, from Sumatra to Batam Island, with scheduled species, ie 2520 heads of live South Asian Box Turtles (Cuora amboinensis), without a valid CITES (Convention on International Trade in Endangered Species) export permit issued by the competent authority of Indonesia, in contravention of s 5(1) of the Endangered Species (Import and Export) Act 2006, punishable under s 5(2) of the Act.
2. He was sentenced the Accused to 5 months imprisonment and a fine of $20,000 in default 2 months imprisonment. The Accused, being dissatisfied with the sentence imposed, has appealed against it.
Prescribed Punishment
3. The offence is punishable with a fine up to $50,000 for each scheduled species in transit in Singapore (not to exceed in the aggregate $500,000) or imprisonment up to 2 years or both.
The Facts
4. The Accused, a 58 Indonesian national, was the captain of the vessel Sumber Alam Indragiri II which was on transit in Singapore from Sumatra to Batam Island. In response to a complaint by a local non-governmental organization, officers from the Agri-Food and Veterinary Authority (“AVA”) carried out an inspection on the said vessel when it arrived in Singapore on 13 June 2006.
5. Onboard the vessel, the officers found a total of 5,420 soft shell turtles, out of which there were 2,520 South Asian box turtle (Cuora amboinensis), which are scheduled species under the Endangered Species (Import & Export) Act. These are classified under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”) as an Appendix II species, ie threatened species.
6. The accused had loaded the soft shell turtles in Sumatra. He was in transit in Singapore at the Jurong Fishing Port, Singapore, in order to off-load 2,900 non-scheduled species of soft shell turtles to importers in Singapore. Thereafter, the accused was to ship the 2,520 scheduled species of South Asian box turtles to Batam, enroute to Hong Kong. However, the accused did not possess a valid CITES export permit and instead produced a fake CITES export permit originating from Indonesia for 1,800 Asian box turtles.
Mitigation
7. The Accused is a first offender. He promised not to repeat the offence. He informed the court that he was supporting 5 children and pleaded for leniency.
Prosecution’s Submissions on Sentence
8. The AVA prosecutor, Mr Yap Teck Chuan made both oral and written submissions on sentence, seeking a deterrent custodial sentence and fine.
9. The prosecution pointed out that the Act was enacted in order to give effect to CITES, which Singapore is a party to. The main purpose of this Convention is to protect certain species of wild fauna and flora against over-exploitation through international trade. One of the biggest threats to the survival of many endangered species is the illegal trade in wildlife species.
10. The amended Act came into effect in March 2006. Mr Yap submitted that one of the main changes was to allow enforcement action to be taken against illegal transshipment through Singapore of CITES-protected wildlife species.
11. The amendments greatly enhanced the penalties prescribed against illegal trade in wildlife through Singapore (ie the import, export or re-export of scheduled species prescribed in s 4 of the Act). This was in order to ensure an effective deterrent against illegal trafficking and trade of CITES-protected species. The same level of punishment was prescribed for offences under s 5 of the Act.
12. Mr Yap submitted that illegal trade in endangered species has not subsided over the years. Referring to a set of sentencing precedents, Mr Yap noted that there were many cases involving trade in endangered wildlife species. Despite the AVA having publicized most of the cases of illegal import of scheduled species, such illegal transactions continue to occur. He sought a deterrent sentence in order to prevent other like-minded individuals from committing similar offences.
13. In his written submissions, Mr Yap further argued that such offences are difficult to detect, particularly in transit cases. Singapore is one of the busiest ports in the world and is an attractive transshipment hub. He noted that Singapore is often criticized for by local and foreign non-government organizations for being lax in enforcing wildlife laws and for being a hub for illegal wildlife trade. Mr Yap submitted that Singapore’s international image is damaged by such criticisms, particularly with regard to wildlife from biodiversity-rich neighbouring countries.
Decision and Sentencing Considerations
14. The offence in question was prescribed in s 5(1) read with s 5(2) in the Act, which was recently amended and came into effect in March 2006. The term “import” is defined in the Act as “to bring or cause to be brought into Singapore by land, sea or air any scheduled species other than any scheduled species in transit in Singapore”: s 2(1). The Act further states:-
“(2) For the purposes of this Act, a scheduled species shall be considered to be in transit if, and only if, it is brought into Singapore solely for the purpose of taking it out of Singapore and —
(a) it remains at all times in or on the conveyance in or on which it is brought into Singapore;
…”
15. In this case, the accused had transited in Singapore with the scheduled species within the meaning of s 5(1) read with s 2(2)(a). He conveyed the scheduled species into Singapore by sea, solely for the purpose of taking it out of Singapore to Batam, enroute to Hong Kong. The scheduled species had remained at all times in or on the vessel on which it was conveyed into Singapore, prior to them being detected by AVA officers. Having considered the facts as revealed in the statement of facts which was admitted without qualification by the accused, I was satisfied that the charge was supported by the statement of facts and accordingly convicted the accused.
Approach in sentencing
16. In determining the appropriate sentencing option, this Court was guided by the approach discussed in PP v Tan Fook Sum
“The difficulty caused by the multiplicity of operative principles is that it makes conflicts inevitable. A complicating factor is that the principles have to be applied not only in determining which of several options made available by the legislature is the suitable punishment but also in determining whether a number of options can be combined together. … Moreover, after the proper option has been determined, it seems the foregoing principles must again be applied in order to ascertain what the amount of fine or the term of imprisonment should be. In the view of Tan Yock Lin, there is a better way:
… what will facilitate more rational and informed sentencing is recognition that there is a dichotomy between public interest and aggravating or mitigating factors. Generally speaking, only the public interest should affect the type of sentence to be imposed while only aggravating or mitigating circumstances affect the duration or severity of the sentence imposed.”
(emphasis added)
Public interest
17. On the question of the appropriate sentence, the first and foremost consideration in the balancing process is the question of public interest: see Sim Gek Yong v PP
18. In determining whether the considerations of public interest called for the offence to be dealt with by a fine, a custodial sentence or some other sentencing option, the court would consider the nature and gravity of the offence, its immediate consequences, other general detrimental repercussions to the public and State and the prevalence of the offence.
19. In this regard, the sentencing judge is duty-bound to properly take into account Parliament’s intent behind the offence creating provision and the punishment prescribed by law: see Farida Begam d/o Mohd Artham v PP
20. The amended Endangered Species (Import and Export) Act came into effect on 1 March 2006. The policy intent was stated by the then Minister of State for National Development, Mr Heng Chee How, during the Second Reading of the Bill. The Minister said at Hansard, 17 January 2006 Col 2184:
“Singapore is a party to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), which regulates trade in wildlife. Parliament passed the Endangered Species (Import and Export) Act (ESA) in March 1989 to give effect to CITES in Singapore. The Act was amended in 2002 to include a list of endangered species.
Since the last amendment, there have been substantive changes to the CITES enforcement obligations on member states and the interpretation of illegal trade. Thus, there is a need to update and realign the ESA to the changes in the CITES, and to enhance the deterrence against any illegal trade in wildlife through Singapore.
… The Endangered Species (Import and Export) Bill would repeal the ESA and re-enact with amendments the ESA. The key features of the Bill are as follows: Firstly, the Bill will strengthen the Agri-Food and Veterinary Authority's (AVA) enforcement powers. Changes will, for example, allow enforcement action to be taken against illegal transshipments through Singapore of CITES-protected wildlife species. Secondly, the Bill will raise the maximum level of penalties to ensure an effective...
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