7 May, 2019
About two weeks ago, the Court of Appeal released its decision in Kong Hoo (Pte) Ltd v Public Prosecutor, 1 a criminal reference matter relating to the interpretation of s 2(2) of the Endangered Species (Import and Export) Act2 (“ESA”). The Court acquitted the defendants of the charge of importing a scheduled species (Madagascan rosewood) without a permit under the ESA, an offence under s 4(1) of the ESA and ordered the release of the rosewood to the applicants, Kong Hoo (Private) Limited (“Kong Hoo”) and Wong Wee Keong (“Wong”) as soon as is practicable. The judgement sheds much light on the interpretation of section 2(2) of the ESA, but also raises some questions about Singapore’s implementation of its obligations under the 1973 Convention on International Treaty on Trade in Endangered Species of Wild Fauna and Flora3 (“CITES”), going forward.
Facts
Wong had purchased rosewood from Madagascar (the rosewood species is listed in Appendix II of the CITES) on behalf of Kong Hoo. On 28 February 2014, the consignment of rosewood entered Singapore waters on board the vessel MV Oriental Pride (“the vessel”) from Madagascar. While the vessel was berthed in the free trade zone of Jurong Port, and as the rosewood was being unloaded, officers of the then Agri-Veterinary Authority of Singapore, acting on a tip-off that the vessel was carrying rosewood illegally exported from Madagascar, boarded the vessel and seized the rosewood on board as well those which had already been offloaded.
Kong Hoo was subsequently charged with importing a scheduled species without the requisite permit, an offence; and Wong was charged for the same offence read with s 20(1)(a) as Kong Hoo, on the basis that Kong Hoo’s offence had been committed with his consent and connivance. Both were jointly tried in the District Court.
The applicants’ case was that the shipment was merely in transit in Singapore and the intended final destination for the rosewood was Hong Kong. However, they declined to provide any details of their buyer in Hong Kong and both Hong Kong and the buyer were not stated in any of the shipping or export documents. The bills of lading stated Singapore as the port of discharge and Kong Hoo as the “notify-party”; and the cargo manifest stated Singapore as the port of discharge and Jaguar Express Logistics Pte Ltd (“Jaguar Express”) as the consignees. In January 2014, Jaguar Express had provided the applicants with quotations for:
(a) transhipment cargo in Jurong Port to another port managed by the Port Authority of Singapore (“PSA Port”); and
(b) ocean freight charges from Singapore to Hong Kong and the possible vessels for that route.
However, the applicants had not selected a vessel departing to Hong Kong, and had not made any confirmed bookings for the voyage, so Jaguar Express’s task was limited to bringing the consignment from Jurong Port to PSA Port.
Procedural History
At the close of the prosecution’s case in the District Court, the Court dismissed the case and acquitted the applicants on the ground that there was no case to answer.4
The rosewood was in transit and had not been imported in Singapore. The prosecution appealed to the High Court. The High Court found that there was a case to answer as the rosewood had been imported rather than been in transit in Singapore, and allowed the appeal and remitted the case to the District Court.5 At the continuation of the hearing the defence elected to remain silent and offered no evidence in their defence. The District Court again acquitted the applicants at the end of the trial on the basis that the prosecution had not proven beyond reasonable doubt that the defendants had imported the rosewood.6 The prosecution appealed again to the High Court; and the Court found that the rosewood had indeed been imported, allowed the appeal and convicted the applicants, and ordered the rosewood to be forfeited.7 Sentencing followed thereafter.8
Criminal Reference Questions
The applicants obtained leave to file a criminal reference to the Court of Appeal, as to what constituted a scheduled species “in transit”. Specifically, the two questions in the reference were:
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(a) whether, in determining if a scheduled species is considered in “transit” within the meaning of s 2(2) of the ESA, it is necessary to prove that, at the time of entry of the scheduled species into Singapore, the scheduled species will leave Singapore at a defined date? (“Question 1”)
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(b) whether, in determining if a scheduled species – which was removed from the conveyance in or on which it was brought into Singapore – was kept under the control of an “authorised officer” as defined under s 2(2) of the ESA, it must be shown that the officer knew of the existence of the scheduled species and exercised conscious oversight over the scheduled species? In any event, who bears the applicable legal burden of proof? (“Question 2”).9
Decision
The Court of Appeal answered the questions as follows:
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(a) Question 1: No. In determining if a scheduled species is considered to be in “transit” within the meaning of s 2(2) of the ESA, it is not necessary to prove that, at the time of entry of the scheduled species into Singapore, the scheduled species will leave Singapore at a definite date, although it is a relevant consideration. This was not disputed by the parties. Although this question used the words “defined date”, in this judgment, we have used the term “definite date” instead.
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(b) Question 2: No. In determining if a scheduled species – which was removed from the conveyance in or on which it was brought into Singapore – was kept under the control of an “authorised officer” as defined under s 2(2) of the ESA, it is not necessary to show that the authorised officer knew about the arrival and the location of the scheduled species and was in a position to exercise conscious oversight over it.
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(c) Both parties agree that the prosecution bears the burden of proof in respect of the control condition, in that the prosecution has to show that there was no control over the scheduled species by any authorised officer. Given the parties’ agreement, we need say no more about this issue.
The case turned on whether the shipment was a transit or an import. Under the ESA, all shipments brought into Singapore are either imports or transits. As “import” is defined in the s 2 of the ESA as “bring or cause to be brought into Singapore … any scheduled species other than any scheduled species in transit in Singapore”; it was critical to the prosecution’s case to prove that the shipment was not a transit. A “transit” is defined in s 2(2) as follows:
(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 —
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(a) it remains at all times in or on the conveyance in or on which it is brought into Singapore;
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(b) it is removed from the conveyance in or on which it was brought into Singapore and either returned to the same conveyance or transferred directly to another conveyance before being despatched to a place outside Singapore, and is kept under the control of the Director-General or an authorised officer while being so removed, returned or transferred; or
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(c) it is removed from the conveyance in or on which it was brought into Singapore and kept under the control of the Director-General or an authorised officer for a period not exceeding 14 days, or such longer period as the Director-General may approve, pending despatch to a place outside Singapore.
Based on the fact that some of the rosewood had been offloaded from the vessel, and that the intention was to offload the entire shipment of rosewood, the Court of Appeal held that the two limbs of the ‘transit’ definition that were applicable were whether the scheduled species was “brought into Singapore solely for the purpose of taking it out of Singapore” (“the sole purpose condition”); and whether the rosewood was under the scheduled species under the control of an authorised officer for the duration that it had been offloaded from the vessel (“the control condition”).
The Court of Appeal noted that whether the sole purpose test is satisfied is a question of fact for the trial judge. Both parties accepted that the sole purpose condition did not require a definite date of departure of the rosewood. According to the Court, what was required was for the evidence to show that the trader has identified a final destination outside Singapore for the scheduled species and plans to ship the scheduled species to its final destination within a reasonable time. In this regard, there was no need to show finalised transport arrangements, but the trader should at least have set plans in motion to ship the scheduled species to its final destination within a reasonable period of time. Furthermore, the prosecution had the burden of proving a prima facie case that the goods were brought into Singapore and there was no evidence of any transhipment or transit. Only upon the prosecution showing this, would the applicants have to raise a reasonable doubt about importation by showing evidence that the goods were actually in transit.
The Court of Appeal also considered that the prosecution had failed to make out a prima facie case of importation. The evidence showed that Jaguar Express had made tentative bookings on vessels leaving for Hong Kong for Kong Hoo, and had provided Kong Hoo with ocean freight charges from Singapore to Hong Kong and possible vessels for its selection two months before the rosewood arrived in Singapore. The sole purpose test was satisfied, notwithstanding that there was no indication from the shipping or export documents that the rosewood was bound for any destination other than Singapore; and that there was no evidence of a foreign consignee who would receive the rosewood and no identification of a foreign buyer to whom the applicants owed a contractual obligation to deliver the rosewood by a specified time.
On the control condition, the Court of Appeal disagreed with the prosecution’s and the High Court’s view that for the condition to be satisfied, control had to be “conscious”, ie the authorised officer needed to know of the existence of the scheduled species, and exercise conscious oversight over the scheduled species. Instead, the Court of Appeal agreed with the applicants’ and District Court’s view that physical control in the sense of jurisdictional control is sufficient. The Court of Appeal reasoned that as both the ordinary meaning or a purposive interpretation of “control” led to genuine ambiguity, it would apply the principle against doubtful penalisation
to resolve the ambiguity in a way that did not attach penal consequences for the applicants; ie that only physical control was required, and this was satisfied as long as the authorised officer had the power to prevent the shipment from leaving the controlled zone without his permission and to restrict unauthorised persons from accessing the shipment, for example, by sealing the container holding the shipment. As the shipment was in a free trade zone, the control condition is satisfied.
Implications of Decision
The decision has important implications for traders who bring scheduled species into Singapore. It is now necessary for them to review their current understanding of the nature of their shipments of scheduled species into Singapore. What had previously been thought to be an import into and re-export out of Singapore of scheduled species (due to the naming in the shipping and CITES documentation of Singapore as the destination and of a Singapore consignee) may now be considered a transit under the ESA, and traders will no longer be able to obtain CITES import and re-export permits from the National Parks Board (“NParks”) in such cases. Where a shipment is considered a transit, traders will have to ensure that the CITES export permits from the States of export of these shipments correctly reflect in these permits that Singapore is a State of transit and not the State of import, and provide to the State of export details of the other State(s) that the shipments will enter into after leaving Singapore.
The decision will also make it more difficult for NParks to carry out its function. By deciding that a shipment of scheduled species into Singapore is an import only where there is no reasonable doubt that it is not a transit, the Court of Appeal has set the threshold for a shipment to be considered as a transit very low. As long as a trader who brings scheduled species into Singapore can identify a final decision and tentative plans for shipping the scheduled species to the next destination within a reasonable time, NParks would not be able to consider the shipment an import of scheduled species requiring an import permit. This puts NParks in the unenviable position of trying to implement CITES through the ESA, and in particular the CITES Conference of the Parties (CoP) Resolution Conf. 9.7 (Rev, CoP15) recommendation that,for the purpose of Article VII, paragraph 1, of the Convention, the phrase ‘transit or transhipment of specimens’ be interpreted to refer only to specimens that remain in Customs control and are in the process of shipment to a named consignee when any interruption in the movement arises only from the arrangements necessitated by this form of traffic (emphasis added) (“recommended interpretation”).10
While other parties give effect to the recommended interpretation in the course of implementing their obligations under CITES, NParks will now have to ignore this recommended interpretation. Under the Convention, the State of import often plays a different role from a State of transit in respect of specimens listed in the appendices in the Convention. Although, as part of a CoP resolution, the recommended interpretation is not legally binding per se, it has the effect of informing how the relevant existing legally binding obligations under the Convention itself are expected to be given effect to.11 Henceforth, where other parties may consider Singapore to be a State of import for the purpose of some trades of listed specimens, and expect Singapore to fulfil the roles expected of a State of import, eg issuing import permits; Singapore may, by virtue of its domestic implementing legislation, consider itself a State of transit in respect of some of these trades, and be unable to perform such expected roles, thereby diminishing its ability to cooperate internationally in the conservation of endangered wildlife threatened by illegal trade, and exposing itself to possible sanctions under the Convention. It is true, as the Court of Appeal pointed out, that Parliament could have at the time of enacting the ESA given effect to the recommended interpretation by mirroring in the legislation the recommended interpretation, but had chosen not to do so. However, it is inexplicable that Parliament would choose to define “transit” in a way that disregards the recommended interpretation and that does not at least give effect to the recommended interpretation. A more purposive explanation may be that Parliament may have intended through the ESA to adopt a stricter domestic measure regarding the conditions of trade than what is required under CITES; Article 14(1) of the Convention permits a party to do so. This means that for the sole purpose condition to be satisfied, it may be considered necessary but not sufficient to have a named consignee in the final destination outside Singapore. The absence of such a named consignee without any explanation from the applicants should give rise to the inference that a trader did not bring a scheduled species into Singapore solely for the purpose of taking it out. Indeed, such an inference had been drawn by the High Court.12
Although the Court of Appeal’s interpretation of “control” in s 2(2) and subsequent resort to the principle against doubtful penalisation cannot be faulted in legal terms, when coupled with the absence of any statutory requirement, express or implied; or any administrative mechanism, for a trader to notify the regulators of the transit of scheduled species will make it harder for NParks to detect transits of scheduled species into Singapore, making the implementation of Singapore’s obligations under CITES in respect of transit of scheduled species more difficult when traders can continue to report scheduled species in generic terms.
Operationally, NParks will have to review how it currently categorises shipments of scheduled species entering Singapore as imports and transits. Shipments which it used to consider imports under the ESA, in line with the recommended interpretation, may now have to be re-classified as transits and brought under the s 5(1) regime instead of under the s 4(1) regime, and administered and enforced differently. The requirement to weigh various factors before differentiating between a transit and an import of a shipment of scheduled species will only make it more difficult for NParks and Customs officers on the ground to make the differentiation.
In view of the difficulties posed by the Court of Appeal decision to the implementation of Singapore’s obligations under CITES, it may be that consideration should now be given to statutory reform to amend the definition of “transit” under the ESA to be better aligned with the requirements of the recommended interpretation. This may include providing for the absence of named consignee outside Singapore of a shipment of scheduled species to give rise to a presumption that a shipment into Singapore is an import of the scheduled species. Provision should also be made for a trader whose shipment of scheduled species enters Singapore, to notify NParks regardless of whether the shipment is a transit or an import.
Unanswered Questions
The Court of Appeal noted that as the shipment was a transit, a charge could have been brought under s 5(1) of the ESA which provides for liability where goods are in transit without the requisite export and import permits. It also noted that the prosecution’s application to amend the charge from one under s 4(1) of the ESA to one under s 5(1) of the ESA was rejected by the District Judge. Although the prosecution had appealed against the District Judge’s rejection, the High Court did not address the rejection because it had convicted the applicants on the s 4(1) charge. However, the High Court had criticised the District Judge’s reasoning for rejecting the application,13 and had the High Court reached the conclusion that the shipment was a transit, it may well have allowed the Prosecutor’s appeal against the District Judge’s decision not to amend the charge to one under s 5(1) of the ESA. The Court of Appeal decided to leave unanswered the question of whether the prosecution’s application to amend the charge should have been allowed because the question had not been submitted to it, although the Court could have decided the question anyway under s 398 of the Criminal Procedure Code (“CPC”)14. It is not clear why the Court of Appeal decided not to do either, in spite of the fact that it was not in dispute that no CITES export permit had been issued by Madagascar for the rosewood, and that the Court of Appeal had stated in its judgement that if the shipment was in transit, in Singapore, the ESA would have required that it be accompanied by a CITES export permit from Madagascar.
In this regard, the Court of Appeal could also, pursuant to s 15(2) of the ESA read with s 398 of the CPC, have ordered that the rosewood be forfeited to the Director‐General, Wildlife Trade Control, notwithstanding the acquittal of the applicants. However, the Court did not do so, and did not explain why it did not order a forfeiture. Instead, it ordered that the rosewood be released to the applicants as soon as is practicable. It is possible that the prosecution had not asked for a forfeiture order in the event of acquittal, so the Court of Appeal did not consider or see a need to consider making such an order.
Conclusion
In view of the Court of Appeal decision, traders of scheduled species and NParks should review their understanding of the nature of their shipments of scheduled species into Singapore, and make operational changes to their practices accordingly. The need for statutory reform to facilitate its implementation of Singapore’s obligations under CITES and its administration and enforcement of the ESA should also be considered. Lastly, the decision has also given rise to a number of unanswered questions that may impact Singapore’s international reputation as a CITES party, and international confidence in its domestic legal implementation of the CITES enforcement regime.15
1 [2019] SGCA 21, <https://www.singaporelawwatch.sg/Portals/0/Docs/Judgments/2019/[2019]%20SGCA%2021.pdf>.
2 Cap 92A, 2008 Rev Ed
3 993 UNTS 243.
4 Public Prosecutor v Wong Wee Keong and Kong Hoo Pte Ltd [2015] SGDC 300. See Burton Ong, Lye Lin Heng and Joseph Chun, “Regulating International Trade in Endangered Species—Transhipments of CITES-Listed Species via Singapore”, [2016] Singapore Journal of Legal Studies 277, for a commentary on this judgement.
5 Public Prosecutor v Wong Wee Keong [2016] SGHC 84.
6 Public Prosecutor v Wong Wee Keong and Kong Hoo Pte Ltd [2016] SGDC 222.
7 Public Prosecutor v Kong Hoo (Pte) Ltd [2017] SGHC 65.
8 Public Prosecutor v Kong Hoo (Pte) Ltd [2017] SGHC 129.
9 Kong Hoo (Pte) Ltd v Public Prosecutor [2019] SGCA 21, [4].
10 Conf. 9.7 (Rev. CoP15), para 1(a)(i), <https://www.cites.org/sites/default/files/document/E-Res-09-07-R15.pdf>. The resolution also recommended in para 1(c) that “to be considered as valid, any such [CITES] permit or certificate must clearly show the ultimate destination of the shipment”.
11 See Annecoos Wiersema, “The New International Law-Makers?: Conferences Of The Parties To Multilateral Environmental Agreements”, (2009) 31 Mich. J. Int’l L. 231.
12 See Public Prosecutor v Wong Wee Keong [2016] SGHC 84, [63].
13 Public Prosecutor v Kong Hoo (Pte) Ltd [2017] SGHC 65, [74].
14 Cap 68, 2012 Rev Ed.
15 See for example, Edward Carver, “Singapore Acquits Trader in World’s Biggest Rosewood Bust, Worth $50m”, (19 April 2019) Mongabay, <https://news.mongabay.com/2019/04/singapore-acquits-trader-in-worlds-biggest- rosewood-bust-worth-50m/>.
