Rethinking Criminal Justice Responses in Hong Kong to Wildlife Trafficking

In recent years, there has been a dramatic surge in wildlife trafficking around the world. Record numbers of rhino, elephant and tiger have been poached in Africa and India. Around 300 pangolin are poached every day for their meat and scales (used in Traditional Chinese Medicine), making them the most trafficked mammal in the world. All eight species of pangolin were listed in Appendix I of the International Convention on Trade in Endangered Species of Wild Flora and Fauna (CITES) in 2016, despite many people still not knowing what a pangolin looks like. The low risk of detection and high profit to be made from wildlife trafficking has made it attractive not only to opportunistic poachers but to transnational criminal syndicates who oversee supply to growing markets in Asia. Wildlife trafficking is now regarded as the fourth most lucrative black market in the world, after the trafficking of drugs, people and arms. A recent U.S. Government Accountability Office report estimated the annual value of the illegal wildlife trade at US$23 billion. Gram for gram, rhino horn is now more valuable than platinum.

The Organised Nature of Wildlife Crime

Increasingly governments across the globe are recognising that wildlife trafficking is not only threatening the survival of species but breeding corruption, undermining the rule of law, claiming human lives, and depriving local communities of the income that can be derived from conserving their natural resources. Wildlife crime is threatening security in Africa, where militia and terrorist groups are partially funded by the illegal trade. Interpol recently warned its member countries: ‘A significant proportion of wildlife crime is carried out by organised crime networks, drawn by the low risk and high profit nature of wildlife trafficking crime. The same routes used to smuggle wildlife across countries and continents are often used to smuggle weapons, drugs and people. Indeed environmental crime often occurs hand in hand with such offences as passport fraud, corruption, money laundering and murder’.

The UN Convention against Transnational Organised Crime recognises wildlife trafficking as a form of transnational organised crime in need of greater response. In 2016, the European Commission developed an action plan to combat illegal trade in wildlife as part of its wider initiative to strengthen the fight against terrorist financing. This includes tackling corruption, enforcing CITES through stronger criminal sanctions and increasing the awareness of organised crime specialists in wildlife trafficking. At a recent Illegal Wildlife Trade conference in London, over 50 countries adopted the ‘London 2018 Declaration’ committing to increased action to protect endangered species around the globe, and recognition of illegal wildlife trade as organised and serious crime.

Seizures in Hong Kong

Studies repeatedly show Hong Kong to be a hub for the illegal trade in endangered species. While some species are smuggled for local consumption, most are destined for the Mainland. Between 2013 and 2017, customs officers seized over HK$560 million in trafficked wildlife. These included over 20 metric tonnes of ivory, 43 metric tonnes of pangolin (scales and carcasses), 1,366 metric tonnes of illegal wood and 27 metric tonnes of other endangered species (mainly reptiles). Those quantities are conservatively estimated to equate to the deaths of over 3,000 elephants, 51 rhinos and 65,000 pangolins. Depending which pangolin species are targeted, (they vary greatly in maximum size), between 345 and 2,777 animals must be killed to produce one tonne of scales.

In Hong Kong, the Agriculture, Fisheries and Conservation Department (“AFCD”) and the Customs and Excise Department (“CED”) share joint responsibility for combatting wildlife crime. Wildlife smuggling investigations have escalated substantially in recent years and large scale illegal shipments, particularly from shipping containers, are increasingly seized. The average value of these seizures is rising and now ranks second only to dangerous drugs. This reflects the increasing profit to be made from wildlife smuggling. A vicious circle has been created. As endangered species become rarer, their value on the black market rises, fuelling poaching and driving species closer to extinction.

CITES Obligations

The Protection of Endangered Species of Animals and Plants Ordinance, Cap. 586, reflects Hong Kong’s obligations, as part of China, under CITES. The Convention obligates member states to enact domestic legislation to penalise the unauthorised import, export and re-export of its appendix-listed species.

CITES controls trade in over 30,000 species of fauna and flora. The Convention incorporates three Appendices which reflect the level of threat to endangered species from commercial trade. Appendix I lists those species considered by scientists to be most at threat. Commercial trade in some species is not considered to be sustainable and trade in wild specimens of Appendix I listed animals and plants is prohibited internationally. The only permitted trade in wild caught Appendix I species is for conservation purposes, however captive bred Appendix 1 animals and plants may be traded, with appropriate certification guaranteeing provenance.

Appendix II species are those not necessarily threatened with extinction, but for which controls are still required to ensure continued sustainability. Appendix II species may be traded with certification, from exporting countries, that the animals/plants concerned were harvested legally and that the trade is not detrimental to the species concerned. Importing countries rely on the validity of this certification in order to determine whether the import should be permitted.

Appendix III listed species are those which have been identified by a member state as requiring legislative regulation of populations, within their own jurisdiction, and for which they seek international co-operation to regulate trade internationally. While there is no requirement for a non-detrimental finding to export Appendix III species, trade requires certification of origin.

To ensure the welfare of live animals in trade, before issuing permits for animals listed in any of the three Appendices, the management authority of the state of export/re-export must be satisfied they will be prepared for transport and shipped so as to minimise the risk of injury, damage to health and cruel treatment.

Cap. 586 provides for criminal offences in relation to the unauthorised import, export, re-export and possession of certain scheduled species. The Ordinance has three Appendices (reflecting the three Appendices under CITES). Licences are required to import Appendix I listed species, and App II live animals and plants which were taken from the wild. Licences are required to possess Appendix I listed species within Hong Kong or an Appendix II live animal or plant taken from the wild (for commercial purposes). Licences are also required to export or re-export Appendix I, II or III listed species.

Recent Reform

In the Chief Executive’s 2016 Policy Address it was announced that the Hong Kong government would take legislative steps to ban the Territory’s domestic ivory trade. At the same time, the government announced an intention to amend Cap. 586 to introduce heavier penalties for the smuggling and illegal trade of endangered species. The amendments to Cap. 586, which took effect on 1 May 2018, increased the maximum penalty for the unauthorised import, export, re-export and possession of Appendix I listed species to 10 years’ imprisonment and a fine of $10,000,000. The maximum penalty for offences involving Appendix II and III listed species was raised to seven years’ imprisonment and a fine of $1,000,000. Previously a distinction was made between commercial and non-commercial purposes of use but that has now been removed. According to the Legislative Council brief, the purpose of the increased sentences is to provide a stronger deterrent against the smuggling and illegal trade of endangered species.

The amendment was long overdue. Compared with overseas practice, Hong Kong’s sentences for illegal wildlife smuggling have been low, with sentences of imprisonment rare and most offenders fined less than the 10 percent of the value of the contraband they have smuggled. Where imprisonment has been ordered, sentences have been short. Until the amendments to Cap. 586 took effect last year, the tariff for smuggling rhino horn to Hong Kong was just three months’ imprisonment.

Another issue undermining criminal justice responses to wildlife offending is the failure to recognise the significant costs incurred in caring for and rehabilitating animals seized live from smugglers. In a recent case, 658 hatchling Indonesian Pig Nosed Turtles, (a CITES Appendix II listed species), with an estimated value of over half a million dollars, were discovered hidden in an incoming traveller’s luggage. The turtles were extremely fortunate in that they were eventually returned to their natural range in West Papua, Indonesia. However their repatriation came at a financial cost of $197,000 and required extensive collaboration between the Hong Kong and Indonesian governments, and the Kadoorie Farm and Botanic Garden, which cared for the animals for eight months prior to their return. The costs incurred by rescue organisations, such as the Kadoorie Farm, in caring for animals seized from smugglers may be substantial. Although CITES provides channels for the return of smuggled wildlife, the complexity in achieving wild repatriation means many animals must remain in captivity for the rest of their lives. The defendant in this case was fined $20,000.

Organised Wildlife Crime and OSCO

Lack of deterrence in sentencing is not the only significant problem plaguing the effective prosecution of wildlife crime in Hong Kong. When large seizures are made, AFCD are routinely tasked with investigating the offences, under Cap. 586, despite having insufficient legislative powers to tackle the organised networks behind the smuggling. The primary piece of legislation used to combat organised crime in Hong Kong is, the Organised and Serious Crimes Ordinance (“OSCO”), Cap. 455. Unlike the police and CED, AFCD officers are not empowered to utilise OSCO’s enhanced powers to investigate wildlife offending. The CED may do so, but not to investigate Cap. 586 offences. Unlike serious offences under the Dangerous Drugs Ordinance or the Theft Ordinance, offences under Cap. 586 are not classified as ‘specified offences’ in Schedule 1 of OSCO. This is a significant omission, given the organised nature of the transnational trade in endangered species. The Customs and Excise Department has a Syndicate Crimes Investigation Bureau which may utilise OSCO to combat smuggling offences, under the Import and Export Ordinance, but enforcement for wildlife crime in Hong Kong has traditionally focused on the mules in the supply chain, when offenders have been caught red-handed trying to smuggle in the product. However, the United Nations Office on Drugs and Crime and Interpol endorse a ‘follow the money’ approach focusing on the syndicates behind wildlife smuggling. Failure to include Cap. 586 offences in Schedule 1 of OSCO also means our courts are not empowered, under the Ordinance, to confiscate the proceeds of organised crime wildlife trafficking.

In 2017, the United Nations General Assembly passed a resolution urging its members to adopt laws classifying wildlife crimes as offences which can trigger money laundering investigations and allow assets to be seized, confiscated and disposed of. The 2018 amendments to Cap. 586 have re-classified some wildlife offences as ‘dual’ offences, allowing them to be prosecuted as either summary or indictable crimes. Theoretically this change would allow for money laundering charges to be brought against wildlife traffickers for dealing with the proceeds of Cap. 586 offences. However, in order to lay charges for money laundering, there must be evidence that the defendant ‘dealt’ with the proceeds of crime. It is easy to envisage a situation where a defendant may have been party to a Cap. 586 offence but investigators are unable to show the defendant dealt with the proceeds of the crime. In such a case, while a conviction may be possible for the offence under Cap. 586, it would not be possible for money laundering charges to be laid. If Cap. 586 offences were included in Schedule 1 to OSCO this problem would not arise, as the benefit obtained by wildlife trafficking could still be confiscated.

While raising the maximum penalties for offences under the Protection of Endangered Species of Animals and Plants Ordinance is an important first step, the legislature must go further if Hong Kong is to effectively deter the criminal networks funding extinction. Given the transnational nature of wildlife crime and Hong Kong’s role as a wildlife trafficking hub, Cap. 586 offences should be included in Schedule 1 of OSCO, as a matter of urgency. 

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Faculty of Law, The University of Hong Kong

Amanda Whitfort is an Associate Professor in the Department of Professional Legal Education, Faculty of Law, The University of Hong Kong and a member of the Hong Kong Bar. She teaches, researches and publishes on animal welfare law and wildlife crime and is a member of the Hong Kong government’s Animal Welfare Advisory Group’s Legal Working Party and Police Animal Watch Scheme. She is part of an international expert panel validating tertiary study materials on criminal justice responses to wildlife crime for the United Nations Office on Drugs and Crime.