ENQUIRE PROJECT DETAILS BY GENERAL PUBLIC
|Funding Scheme :||General Research Fund|
|Project Number :||17655316|
|Project Title(English) :||A Comparative Evaluation of Hong Kong's Legislative Powers to Regulate Trade in Endangered Wild Animals|
|Project Title(Chinese) :||香港規範野生瀕危動物貿易的立法職權之比較研究|
|Principal Investigator(English) :||Ms Whitfort, Amanda Sarah|
|Principal Investigator(Chinese) :|
|Department :||Department of Professional Legal Education|
|Institution :||The University of Hong Kong|
|E-mail Address :||firstname.lastname@example.org|
|Co - Investigator(s) :||
|Panel :||Humanities, Social Sciences|
|Subject Area :||Social and Behavioural Sciences|
|Exercise Year :||2016 / 17|
|Fund Approved :||370,500|
|Project Status :||Completed|
|Completion Date :||31-12-2018|
|Project Objectives :||
|Abstract as per original application
As signatory to the Convention on International Trade in Endangered Species (CITES), Hong Kong has long had an obligation to implement and enforce legislation which effectively prevents illegal trade in endangered wild animals into and through the Territory.
With the extension of mainland China’s membership of the United Nation’s Convention on Biological Diversity to Hong Kong, in 2011, the government is now further obligated to provide effective controls to protect international biodiversity by regulating the movement of endangered species through Hong Kong, whether the species is listed in CITES or not.
The majority of trade in endangered species in Hong Kong is unregulated. The only law targeting the protection of endangered species is the Protection of Endangered Species of Animals and Plants Ordinance, Cap 586 which regulates the import, export and possession of CITES listed species; a small percentage of the wildlife trade.
Endangered animals not subject to CITES restrictions can be traded freely in the Territory. Such animals may be vulnerable in their country of origin and sourced illegally or unsustainably but are not protected under Cap 586. Due to this omission, Hong Kong acts as a gateway to China and other Asian countries where such animals are sought for food, medicine and sometimes exotic pets.
This project will study whether Hong Kong’s legislation intended to protect endangered species from illegal trade is effective. In particular, it will consider whether Cap 586 is effective to control the trade in CITES listed species and examine the legal loophole which currently allows Hong Kong to act as a major trade route for endangered and vulnerable species not prohibited for trade under CITES.
The Agriculture, Fisheries and Conservation Department and the Customs and Excise
Department are charged with enforcement of the legislation to control trade in wildlife. The project will consider the powers provided to those enforcement agencies and evaluate whether they are fit for purpose, through interviews with various stakeholders involved with the trade.
The project will study the legislation in place in overseas jurisdictions that have been effective in controlling trade in endangered species and, where appropriate, make recommendations for similar legislative reform in Hong Kong.
The project will consider whether effective sanctions on the illegal trade in wild animals are being provided by Hong Kong’s courts. The project will review recent sentencing decisions taken by local judiciary and make comparisons with international sentencing practices for similar wildlife crimes.
|Realisation of objectives:||The objectives of the project were fully achieved. A full review of the Hong Kong government's obligations under the CBD and the effectiveness of Cap 586 and Cap 60 was undertaken. The adequacy of licensing conditions and sentences were reviewed and a comparative study of sentencing in comparable jurisdictions made. The practicality of applying the USA Lacey Act (and similar European legislation) to Hong Kong was fully considered. We found that between 2013 and 2017, Hong Kong Customs and Excise Department (CED) had made over 2,000 seizures of illegal wildlife, valued at over $560 million. However, legislative control of the trade was lenient. At the commencement of our project, trafficking in endangered species was able to be punished with a maximum sentence of two years’ imprisonment. In many cases, traders of high value, critically threatened species got off with low fines or very short terms to imprisonment The initial findings of the research on penalties was conveyed by the PI to the Legislative Council (LegCo) Panel on Environmental Affairs on 6 June 2017 and assisted the Environmental Bureau in securing amendments to Cap 586, in May 2018, which raised the maximum penalties for smuggling and possession of endangered wildlife to an indictable offence of 10 years' imprisonment and banned continued trade in ivory from 2020. The Agricultural Fisheries and Conservation Department (AFCD) are charged with providing permits for legal trade in endangered species and with ensuring trade is compliant with local licensing requirements. Where permits are found to be irregular (e.g. the wrong species is listed), the Department can refuse to issue import or possession permits and may seize animals possessed in contraband of CITES restrictions. Our research found that, as has been the case with ivory, permitting licensed trade in shark and live reef fish has allowed legitimate permits to be widely used to launder illegally obtained specimens, amongst legally sourced animals. We found that the problem was compounded by legislative changes in 2006. At that time, in an effort to remove what was regarded by government to be excessive control of the trade, Cap 187 was replaced with Cap 586. Cap 586 now permits AFCD to issue import permits based on individual consignments, or keeping premises, regardless of the number of species involved. Companies trading in controlled species may seek possession licenses for multiple species, which are valid for 5 years. Without requirements for individual tagging of animals which identifies their origin, this licensing practice has provided opportunities for unscrupulous traders to launder illegally sourced animals. Low inspection rates for sea vessels, lax controls on locally registered fishing boats, readily provided permits for import and export of CITES listed species, and Hong Kong’s generally open attitude to commerce have all assisted in making the Territory an epicenter for trade in endangered species. We found that Hong Kong has made no legislative changes to comply with the extension of the UN Convention on Biological Diversity to Hong Kong in 2011. This is despite the fact that Article 3 of the CBD places a duty on Hong Kong to ensure that local trade in wildlife does not negatively impact on vulnerable species in other jurisdictions. We recommended that a list of positive species for import and a review of local fauna and flora, along with a marking system for import, breeding and sale of endangered species be introduced. In determining the powers of CED, under Cap 60, to deter wildlife smuggling we found a significant problem with the Department's use of the Ordinance to pursue wildlife crimes. Although the offences of importing or exporting unmanifested cargo (section 18, Cap 60) and assisting in carriage of prohibited articles and money laundering are specified offences under Cap 455 of the Organised and Serious Crimes Ordinance, Cap 455, no use of OSCO provisions by CED has ever been made in connection with wildlife crime and very few cases involving wildlife crimes have been pursued as smuggling under Cap 60. This has resulted in most cases involving wildlife smuggling being prosecuted by AFCD, under Cap 586. However as Cap 586 offences are not included in Schedule 1 to OSCO as ‘specified crimes’ neither CED nor AFCD can utilise the special and necessary investigative powers under section 4 of OSCO to gain access to materials related to the proceeds of wildlife crime. Where a person has been convicted of a wildlife crime, the Courts are not empowered to use section 8 of OSCO to confiscate the proceeds of that crime, nor can judges use OSCO to issue restraint or charging orders over property representing the benefits of wildlife crime. Where a person has been convicted of a wildlife crime which the prosecution allege to have been organized, the Courts are not permitted to pass enhanced sentences under Cap 586. We have recommended that these problems are rectified with an amendment to Cap 455's Schedule of specified offences. We also reviewed the controls used in the USA (Lacey Act) and the EU (Council Regulation (EC) No 338/97). Under the Lacey Act, importers to the USA must show they took precautions to ensure the import was legally sourced: they must submit an import declaration stating the country of origin, the supplier, species, volume and value. The EU utilise a similar system with the EU Timber Regulations. We surveyed current import controls in Hong Kong and found that for Appendix 1 species, limited details of supplier are required and only where an Appendix II specimen is live and wild caught, is an import permit required. By way of comparison in the USA, all specimens must be shown to be legally sourced to allow for import permits. The same is required under EU Basic Regulation Annex A and B species (effectively requiring import permits for CITES App I, II , some III and non-CITES species to the EU). We recommended Hong Kong reform its licensing requirements and require import permits for all Appendix 1 and II species and proof of legal take, before entry.|
|Summary of objectives addressed:||
|Major findings and research outcome:||Our evaluation of Hong Kong's obligations under the Convention on Biological Diversity (CBD) and Cap 586 found that the current licensing conditions are lax and permit trade of endangered species in contravention of the spirit of the CBD and the Convention on International Trade in Endangered Species (CITES). Our evaluation of international legislation in Europe, the USA and Australia found that Hong Kong sentencing practices were well below international standards and our maximum penalties required significant reform. During the course of our study, government acted on our early findings and passed amendments raising the penalties for illegal wildlife smuggling and possession to 10 year's imprisonment and permitting wildlife crimes to be prosecuted as indictable offences. Finding that the District Court judiciary would need assistance with the application of new penalties, the PI prepared 50 victim impact statements for Hong Kong's most smuggled species and was invited to conduct the Hong Kong Judicial Institute's first online training series to train judges to more effectively sentence wildlife crime. The PI was also invited to train prosecutors in the Dept of Justice, CED and AFCD in more effective prosecutions and investigations of wildlife crime. The PI's victim impact statements have been used by judges and prosecutors in 25 cases since the amendment to Cap 586 in 2018 and have resulted in significantly improved sentences for wildlife smugglers in Hong Kong. Her victim impact statement for rhinoceros, used by prosecutors to advise the District Court in HKSAR v Wei Bin, in October 2018, resulted in the highest sentence ever passed in Hong Kong for the smuggling of rhino horn. Two articles detailing the project's findings (one published and one in press) were accepted in international journals and two Knowledge Exchange reports prepared: one published with collaborators in December 2018: 'Trading in Extinction' and a supplementary report reflecting new practices since the 2018 amendments to Cap 586 to be published in February 2020. These reports have not only resulted in an ongoing dialogue with the HK administration and legislators about the need for further reforms but have generated public interest in and attention to wildlife crime. The PI has been invited to participate in radio and press interviews about the research and was invited to prepare an article on the project's findings for 'The Hong Kong Lawyer', by the Law Society of Hong Kong, published in June 2019.|
|Potential for further development of the research
and the proposed course of action:
|Our further report focusing on the need for amendments to The Organised and Serious Crimes Ordinance, (Cap 455) will be released to the government and the public in February 2020. This second report will supplement our findings in the 2018 Report 'Trading in Extinction" and the two journal articles. The 2020 report will be used to support our recommendation to make legislative amendments to Cap 455, to define wildlife crime as an 'organised and serious' criminal offence in Hong Kong. With the assistance of staff from the Kadoorie Farm and Botanical Garden and KE funding from HKU and outside donors we are continuing to add to and update the Victim Impact Statements we prepare for Hong Kong's most smuggled endangered species. The PI has been invited to provide further training to the judiciary in 2020.|
|Layman's Summary of|
|Every year millions of live animals, plants and their derivatives are illegally trafficked into and through Hong Kong, by transnational companies and organised crime syndicates. There is an urgent need for the Hong Kong government to enhance its current enforcement strategy against wildlife smuggling. Over the last decade, the diversity of endangered species imported into Hong Kong has increased by 57%. At the same time, the estimated value of the trade has increased by 1,600%. Since 2013, seizures of illegal ivory, pangolin scales and rhino horn have been made by Hong Kong authorities, potentially equating to the deaths of 3,000 elephants, 96,000 pangolins and 51 rhinoceros. Our research addresses the legal shortcomings which have permitted Hong Kong to become a wildlife trade hub. We analysed the legislative gaps and have made recommendations to government to improve law and policies which impact of wildlife smuggling. Our initial findings supported the 2018 amendment to Cap 586, significantly raising the penalties for wildlife smuggling and possession and closing the ivory trade. Our further recommendations include an amendment to the Organised and Serious Crimes Ordinance which would allow wildlife crimes to be prosecuted as the organised and serious crimes they are.|
|Peer-reviewed journal publication(s)
arising directly from this research project :
(* denotes the corresponding author)
|Recognized international conference(s)
in which paper(s) related to this research
project was/were delivered :
(e.g. award of patents or prizes,
collaboration with other research institutions,
technology transfer, etc.):
|SCREEN ID: SCRRM00542|