Public Prosecutor v Wong Wee Keong and another appeal

• Jurisdiction: Singapore
• Judge: See Kee Oon JC
• Judgment Date: 05 May 2016
• Neutral Citation: [2016] SGHC 84
• Plaintiff Counsel: Kwek Mean Luck, Tan Wen Hsien, Sarah Shi, and Zhuo Wenzhao (Attorney-General's Chambers)
• Docket Number: Magistrates’ Appeals Nos 9136 and 9137 of 2015
• Date: 05 May 2016
• Hearing Date: 19 February 2016,12 February 2016
• Subject Matter: Endangered Species Act,Criminal Law,Criminal Procedure and Sentencing,Trials,Offences
• Year: 2016
• Citation: [2016] SGHC 84
• Defendant Counsel: K Muralidharan Pillai, Paul Tan, and Jonathan Lai (Rajah & Tann LLP) (Instructed), Choo Zheng Xi (Peter Low LLC),Kelvin Koh Li Qun (TSMP Law Corporation) as amicus curiae.
• Court: High Court (Singapore)
• Published date: 08 July 2016

See Kee Oon JC: Introduction

Timber of the botanical genus Dalbergia – specifically, that from certain species found in Madagascar and commonly known as Madagascan rosewood or, in French, Bois de rose – has a rare and alluring beauty. Its heartwood possesses a deep and rich claret hue, making it highly prized by furniture makers the world over. It is also, for that reason, a prime candidate for illegal logging. For its protection, Madagascan rosewood is listed in Appendix II of the Schedule to the Endangered Species (Import and Export) Act (Cap 92A, 2008 Rev Ed) (“ESA”) and 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”).

On 28 February 2014, a consignment of 29,434 Madagascan rosewood logs, weighing approximately 3,235 metric tonnes and with an estimated market value in excess of US$50m, entered Singapore waters on board the MV Oriental Pride. I will refer to the MV Oriental Pride as “the vessel” and to its cargo of logs (either the whole consignment or a part of it) as “the rosewood logs” or simply “the Rosewood”. The cargo manifest stated that the cargo consisted of “Bois” – French for wood. In the bills of lading, it was stated that the port of discharge was Singapore and that the consignee was “Kong Hoo Private Limited” (“Kong Hoo”). On 11 March 2014, the vessel berthed at the Free Trade Zone of Jurong Port (the “Jurong FTZ”). Between 12 and 14 March 2014, 6,164 logs were offloaded and moved to a different area of the Jurong FTZ. On 14 March 2014, officers from the Agri-Food and Veterinary Authority of Singapore (“AVA”) boarded the vessel and seized the rosewood logs in the hold as well as those which had been offloaded.¹

Subsequently, Kong Hoo was charged with importing a scheduled species without the requisite permit, an offence under s 4(1) of the ESA. Its director, Wong Wee Keong (“Wong”), was charged under s 4(1) of the ESA read with s 20(1)(a) of the same on the basis that Kong Hoo’s offence had been committed with his consent and connivance. Wong and Kong Hoo were jointly tried before the District Judge and were subsequently the respondents in Magistrate’s Appeals No 9136 and 9137 of 2015 respectively (I shall refer to them jointly as “the respondents”). At the close of the prosecution’s case, the respondents invited the court to dismiss the matter on the ground that there was no case to answer. The District Judge agreed with the respondents and acquitted the respondents of the charges. The prosecution appealed to this court.²

As this matter concerned novel issues of statutory interpretation, particularly the manner in which the ESA was to be interpreted in the light of Singapore’s obligations under CITES, Mr Kelvin Koh Li Qun was appointed as amicus curiae to assist this court. From the outset, I should record my appreciation to Mr Koh, Mr Kwek Mean Luck, who appeared on behalf of the prosecution, and Mr Muralidharan Pillai, who appeared on behalf of the respondents, for the assistance and guidance they provided through their detailed and helpful submissions. They put forward a wide conspectus of material and while not all of it has been cited in this judgment, I examined it carefully in the course of reaching my decision.

After considering the submissions of the parties, I concluded that the District Judge had erred in finding that there was no case to answer. I therefore allowed the appeal, set aside the order of acquittal, and ordered that the matter be remitted to the trial court for the defence to be called. I now set out the grounds for my decision.

Background

CITES is a multilateral treaty which aims to regulate the international trade in wildlife to ensure that the trade does not threaten their survival in the wild. Species are listed in the appendices to CITES according to the extent of protection they require. Species listed in Appendix II of CITES are classified as those which may be threatened with extinction unless trade in specimens of such species is subject to regulation to avoid utilisation which is incompatible with their survival (see Art II(1) of CITES). CITES provides a broad framework for the regulation of the trade through a system of permits and certificates, but it leaves the implementation of this to each member state. Each country must designate an agency – known as the “Management Authority” – to administer the grant of CITES permits (Art I(g) of CITES). Madagascar and Singapore are both member states to CITES. The Management Authority in Madagascar is the Ministry of Environment and Forests (“Madagascan Forestry Ministry”) while the Management Authority in Singapore is the AVA.³

Singapore passed the ESA in 1989 to give effect to its obligations under CITES. The species listed in the Schedule to the ESA are known as “scheduled species” and they mirror those which are listed in the appendices to CITES. Under s 4(1) of the ESA, it is an offence to import or export any scheduled species without a permit from the Director-General, Agri-Food and Veterinary Services (“Director-General”). It is a separate offence to bring a scheduled species into Singapore for the purposes of transit without the requisite written permission having first been obtained by the country of export and, where necessary, from the country of import or final destination (s 5(1)).⁴ The original charges which were preferred against the respondents were framed under s 5(1) ESA, but they had been amended to s 4(1) charges involving import of the Rosewood by the time of the trial.⁵

Madagascan rosewood was first listed in Appendix II to CITES in March 2013. On 4 September 2013, the Secretariat to CITES issued a notification to all member states to inform them that the Government of Madagascar had imposed a zero export quota on Madagascan rosewood from 13 August 2013 to 13 February 2014.⁶ 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 2014.⁷ I pause here to note that one of the disputes which arose at the trial was whether there was any “break” in the zero export quota between 13 February 2014 (the expiry period stated in the 4 September 2013 notification) and 26 February 2014 (when the second notification was sent out).⁸ I will return to this subject later but it suffices to note for the present that it is undisputed that Madagascan rosewood has been listed in the appendix to CITES since 2013 and that it remained so at the time of the trial.

The prosecution’s case

The trial was heard over two days and the prosecution called a total of ten witnesses. Much of the evidence was led through the use of conditioned statements, which attests to the undisputed nature of most of what was presented. The disputes which did exist centred on the appropriate interpretation of the evidence. I will only summarise that which is germane to my decision.

The circumstances that led to the seizure

The first witness to take the stand was Deputy Superintendent Roy Tan of Singapore Customs (“DSP Roy”). He testified that on 19 February 2014, Singapore Customs received information from the Regional Intelligence Liaison Office Asia Pacific (“RILO AP”) of the World Customs Organisation that there was a “strong suspicion” that the vessel, which was bound for Singapore, might be carrying an illegal shipment of Madagascan rosewood. On 27 February 2014, Singapore Customs relayed this information to the AVA which requested further details. Pursuant to this, Singapore Customs wrote to RILO AP on the same day to request information on the container numbers in which the wood was stored or the identity of any Singaporean company involved. RILO AP wrote back the same day to state that they did not have the requested information.⁹

Meanwhile, Singapore Customs continued to monitor the location of the vessel and it noted that, on 11 March 2014, the vessel berthed at the Jurong FTZ. Singapore Customs proceeded to obtain 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”) and that the port of discharge was Singapore.¹⁰ This information was shared with the AVA on the same day.¹¹ On the morning of 14 March 2014, the AVA wrote twice to Singapore Customs asking, first, for clarification whether “the wood would be imported into Singapore or [whether it was] … meant to be a transhipment”; and, second, for the assistance of Singapore Customs to “target and detain (whether import or transhipment) for our investigations.” DSP Roy replied to state that his colleagues from the Risk Assessment Branch of Singapore Customs would follow up with the AVA regarding its request.¹²

During cross-examination, DSP Roy explained that what he meant was that his colleagues from the Risk Assessment Branch would assist the AVA with the detention of the shipment.¹³ However, he testified that he did not follow up on the AVA’s request for clarification concerning the purpose for which the wood was brought to Singapore. He explained that as far as he was aware, this was a matter that fell to be determined by reference to the bills of lading. He explained that if the name of a local consignee were listed in the bill of lading, then the matter would be “taken as an import and not a trans-shipment case.”¹⁴

When cross-examined, he confirmed that Singapore Customs had enforcement powers over goods stored in a free trade zone. When his attention was drawn to s 3(2) of the Customs Act (Cap 70, 2004 Rev Ed) (“the Customs Act”), which states that “[f]or the purposes of [the Customs Act], goods shall be deemed to be under customs control while they are deposited or held in any free trade zone”, he accepted that goods...