Case Summaries

Kong Hoo (Private) Limited v Public Prosecutor

SUPREME COURT OF SINGAPORE

8 April 2019

Case Summary

[Kong Hoo (Private) Limited v Public Prosecutor]     

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Decision of the Court of Appeal (delivered by Judge of Appeal Tay Yong Kwang)

Outcome: Court of Appeal determines that Madagascan rosewood logs brought by the applicants into Singapore were not imported but instead were in transit, and accordingly quashes the applicants’ convictions for importation without valid permits

Pertinent and significant points of the judgment

  • Court of Appeal sets out the proper interpretation of the term “transit” in s 2(2) of the Endangered Species (Import and Export) Act (Cap 92A, 2008 Rev Ed)

  • Court of Appeal applies the principle of doubtful penalisation in adopting the applicants’ arguments that the requisite control that has to be exercised by authorised officers is only physical control, ie, the power to prevent the shipment leaving a controlled zone, without the officers having to know that the shipment contained a scheduled species

     

Background to the criminal reference

  1. The applicants, Kong Hoo (Private) Limited and its director, Mr Wong Wee Keong, were charged and convicted for importing Madagascan rosewood, a scheduled species under the Endangered Species (Import and Export) Act (Cap 92A, 2008 Rev Ed) (“ESA”), without a permit. This was an offence under s 4(1) of the ESA.

  2. It was not disputed that Mr Wong had, on behalf of Kong Hoo, agreed to purchase the rosewood from a business associate in Madagascar. His intention was to ship the rosewood to Singapore and then on to Hong Kong. For that purpose, he engaged a Singapore transportation and warehousing company, Jaguar Express Pte Ltd (“Jaguar Express”), to unload the rosewood when the vessel berthed in Singapore, repack them into containers, and truck them to another port in Singapore.

  3. On 28 February 2014, the consignment of 29,434 logs of rosewood entered Singapore waters. On 11 March 2014, the vessel berthed at Jurong Port in Singapore. Jaguar Express unloaded 6164 rosewood logs from the vessel and moved them to a yard within Jurong Port. Before more logs could be unloaded, officers from the Agri-Food and Veterinary Authority of Singapore (“AVA”), acting on a tip-off, boarded the vessel on 14 March 2014 and seized the entire shipment of rosewood, including the unloaded logs.  

  4. The applicants’ defence was that they did not need an import permit because the rosewood was not imported but was only in transit in Singapore to the final destination of Hong Kong. They did not provide the particulars of their buyer in Hong Kong but relied on quotations they had requested from Jaguar Express for the costs of transhipment of the cargo from Jurong Port to PSA Port and for the ocean freight charges from Singapore to Hong Kong, as evidence that they had always intended to import the rosewood into Hong Kong and not Singapore.

  5. The applicants were acquitted in the District Court but convicted on the Public Prosecutors’ appeal in the High Court.

  6. The applicants obtained leave to file a criminal reference to the Court of Appeal as to what constituted a scheduled species “in transit”. The two questions in the criminal reference were (at [4]):

    (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”)

    (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”)

Answers to the criminal reference

  1. Upon consideration of the parties’ arguments, the Court of Appeal answered the criminal reference as follows (at [7]):

    (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 on a definite date, although it is a relevant consideration. This was not disputed by the parties.

    (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.

    (c) Both parties agreed 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.

The proper interpretation of the transit provision, s 2(2) of the ESA

  1. The Court of Appeal considered that there were two parts to the transit provision, s 2(2) of the ESA. The first part was the “sole purpose condition”, which stated that the scheduled species must be “brought into Singapore solely for the purpose of taking it out of Singapore”: at [74]. The Court of Appeal determined that this condition required that the purpose had to be the only object intended by the act of bringing the scheduled species into Singapore and precluded any subsidiary or incidental purpose: at [75]. Further, the purpose had to have been present at the time the scheduled species was brought into Singapore and could not be formed only after the scheduled species had been brought in: at [76]. This purpose also had to continue throughout the time the scheduled species was in Singapore until it was brought out of Singapore: at [78]. It was not necessary, however, to show that there was a definite date of departure in order to prove the sole purpose, although this would be relevant to show what the trader’s purpose was. This was because the sole purpose required by the section did not relate to time: at [80]. Thus, a definite date of departure was not a necessary element of the sole purpose condition: at [80]. Instead, what was required was evidence pointing towards some final destination outside Singapore for the scheduled species and existing plans to ship the scheduled species to its final destination within a reasonable time: at [110]–[112].

  2. The second part to s 2(2) of the ESA was the “control condition”. The issue before the court was whether control under s 2(2) required an authorised officer to have known that the scheduled species had entered his zone of authority and to be in a position to exercise conscious oversight over the scheduled species: at [82]. The Prosecution argued that such “conscious control” was required: at [115]. In contrast, the applicants argued that it was sufficient that the authorised officer was in a position to exercise control over the scheduled species by preventing it from leaving the controlled zone, even if the authorised officer did not know that a scheduled species had been brought into the zone. The applicants contended that this form of “physical control” was sufficient: at [129].

  3. The Court of Appeal considered that both approaches had their merits. The Prosecution’s approach would promote the purposes of the ESA in regulating the trade and movement of endangered species, as an authorised officer would be able to ensure the scheduled species was truly in Singapore only because it was in transit and to ensure that the species was treated in a manner comporting with the ESA’s objectives, if he knew that the scheduled species was within his zone of control: at [119]. The applicants’ concerns that this would cause unfairness to the trader were also somewhat overstated, as there were multiple opportunities for the honest trader to declare that he was bringing in a scheduled species: at [124]–[127].

  4. The applicants’ approach, however, also allowed the purpose and objectives of the ESA to be achieved. In the exercise of physical control, the authorised officer would have the power and authority to prevent the scheduled species from leaving the zone of control and from being imported into Singapore surreptitiously. This accorded with the general purpose of the ESA in regulating the trade and movement of endangered species: at [131]. Further, the applicants’ approach was supported by the fact that there was no evidence to show that there was a regulatory scheme in place that would allow traders to declare that they were bringing in scheduled species. A trader who could not identify the appropriate regulatory avenue to declare such activity even after applying reasonable effort might reasonably have been misled into believing that there was no such obligation: at [139].

  5. As both the Prosecution’s and the applicants’ proposed interpretations were equally plausible, the Court of Appeal applied the principle against doubtful penalisation and adopted the applicants’ proposed interpretation of physical control instead. This principle applied where penal consequences attached to a person’s liability under a provision of a statute, and there were two plausible ways of interpreting the provision even after it had been purposively interpreted, which had occurred in this case: at [141], [145] and [146].

Application to present facts

  1. The applicants satisfied the control condition. The requisite physical control was present because the Jurong Port free trade zone was a secured area for the temporary storage of goods and Customs officers at the Port were empowered to prevent unauthorised persons or goods from entering or leaving the zone: at [153]–[154].

  2. The applicants also satisfied the sole purpose condition. The Prosecution had not made out a prima facie case of importation: at [161]. Evidence put forward by the Prosecution’s own witness, Mr Alan Tan from Jaguar Express, raised a reasonable doubt that the rosewood was imported. Mr Alan Tan’s evidence was that well before the rosewood arrived in Singapore, the applicants had communicated to him their intention for the rosewood to be shipped out of Singapore to Hong Kong. Thus, he had prepared quotations for transhipment of the rosewood from Jurong Port to PSA port and also for ocean freight charges for transportation of the rosewood from Singapore to Hong Kong. His evidence was also that Jaguar Express had made a tentative booking for 30 containers on a vessel bound for Hong Kong on 16 March 2014, which could contain approximately 6,000 logs or a fifth of the entire consignment. This detracted from the Prosecution’s case on importation: at [164]–[169].

Conclusion

  1. Because the applicants had satisfied both the control condition and the sole purpose condition in s 2(2) of the ESA, the result was that the rosewood was in transit and not imported. Accordingly, the charge of importation without a valid permit under s 4(1) of the ESA was not made out. The Court therefore quashed the applicants’ convictions and set aside their sentences. The Court ordered that the rosewood be released to the applicants as soon as was practicable and in such manner as might be arranged between them and the relevant authorities: at [171] and [174]. 

    This summary is provided to assist in the understanding of the Court’s grounds of decision. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s grounds of decision.

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