Kong Hoo v Public Prosecutor: Interpreting 'In Transit' under the Endangered Species Act
The Singapore Court of Appeal heard a criminal reference regarding the interpretation of Section 2(2) of the Endangered Species (Import and Export) Act (ESA) in the case of Kong Hoo (Private) Limited and Wong Wee Keong v Public Prosecutor. The applicants were convicted of importing Madagascan rosewood without a permit, arguing the rosewood was 'in transit.' The Court of Appeal allowed the appeal, clarifying the conditions for a species to be considered 'in transit' and quashing the convictions.
1. Case Overview
1.1 Court
Court of Appeal of the Republic of Singapore1.2 Outcome
Applicants' convictions quashed.
1.3 Case Type
Criminal
1.4 Judgment Type
Judgment
1.5 Jurisdiction
Singapore
1.6 Description
Singapore Court of Appeal clarifies the definition of 'in transit' under the Endangered Species Act concerning Madagascan rosewood import.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Public Prosecutor | Respondent | Government Agency | Appeal Dismissed | Lost | Tan Zhongshan of Attorney-General’s Chambers Sarah Shi of Attorney-General’s Chambers Tan Wen Hsien of Attorney-General’s Chambers Kwek Mean Luck SC of Attorney-General’s Chambers Zhuo Wenzhao of Attorney-General’s Chambers |
| Kong Hoo (Private) Limited | Applicant | Corporation | Appeal Allowed | Won | |
| Wong Wee Keong | Applicant | Individual | Appeal Allowed | Won |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Sundaresh Menon | Chief Justice | No |
| Andrew Phang Boon Leong | Judge of Appeal | No |
| Judith Prakash | Judge of Appeal | No |
| Tay Yong Kwang | Judge of Appeal | Yes |
| Steven Chong | Judge of Appeal | No |
4. Counsels
| Counsel Name | Organization |
|---|---|
| Tan Zhongshan | Attorney-General’s Chambers |
| Sarah Shi | Attorney-General’s Chambers |
| Tan Wen Hsien | Attorney-General’s Chambers |
| Kwek Mean Luck SC | Attorney-General’s Chambers |
| Zhuo Wenzhao | Attorney-General’s Chambers |
| Choo Zheng Xi | Peter Low & Choo LLC |
| Priscilla Chia Wen Qi | Peter Low & Choo LLC |
| Paul Tan | Rajah & Tann Singapore LLP |
| K. Muralidharan Pillai | Rajah & Tann Singapore LLP |
| Jonathan Lai | Rajah & Tann Singapore LLP |
| Kannan s/o Balakrishnan | Haridass Ho & Partners |
| Haridass Ajaib | Haridass Ho & Partners |
| Mohammed Haireez bin Mohameed Jufferie | Haridass Ho & Partners |
| Jason Lee Hong Jet | Peter Low & Choo LLC |
4. Facts
- Kong Hoo (Private) Limited and its director, Mr Wong Wee Keong, were charged with importing Madagascan rosewood without a permit.
- The applicants claimed the rosewood was 'in transit' in Singapore, en route to Hong Kong.
- AVA officers received information that the vessel carrying the rosewood was suspected of carrying illegally exported timber.
- The shipping documents listed Kong Hoo as the consignee, with Singapore as the port of discharge.
- The rosewood was unloaded at Jurong Port and moved to a yard within the port.
- The applicants did not have an import permit from AVA for the rosewood.
- The applicants presented documents purporting to authorize the export of the rosewood from Madagascar, but AVA doubted their authenticity.
5. Formal Citations
- Kong Hoo (Pte) Ltd and another v Public Prosecutor, Criminal Reference No 4 of 2017, [2019] SGCA 21
6. Timeline
| Date | Event |
|---|---|
| Convention on International Trade in Endangered Species of Wild Flora and Fauna signed | |
| Convention on International Trade in Endangered Species of Wild Flora and Fauna entered into force | |
| Singapore acceded to CITES | |
| Second reading of the Endangered Species (Import and Export) Bill | |
| Madagascan rosewood listed in CITES Appendix II | |
| Madagascar imposed a zero export quota on rosewood | |
| End of Madagascar's zero export quota period | |
| Bills of lading for the rosewood issued | |
| Notification sent to CITES member states extending Madagascar's zero export quota | |
| Pre-arrival notification submitted to the Maritime and Port Authority of Singapore | |
| Consignment of rosewood entered Singapore waters | |
| Vessel berthed at the Jurong Port in Singapore | |
| Unloading of rosewood logs from the vessel began | |
| AVA officers boarded the vessel and seized the rosewood | |
| Mr Ramparany Anthèlme from the Madagascan Forestry Ministry wrote to Ms Lye stating that the export documents were “established in due form by the signatories authorities during the period of transition” | |
| The Prime Minister of the Government of Madagascar sent a letter to the Solicitor-General of Singapore stating that “all export or export licence approvals are invalid since the implementation of [the rosewood export ban] on [24 March 2010]” and that the applicants’ documents “are in violation of CITES decisions and to national regulations” | |
| Prosecution sought to adduce Madagascan government correspondence obtained in January 2017 that ostensibly would prove that the evidence that the applicants provided in court as to their authorization to export the rosewood from Madagascar was false | |
| Hearing date | |
| Parties made further submissions | |
| Judgment reserved |
7. Legal Issues
- Interpretation of 'in transit' under the Endangered Species Act
- Outcome: The court clarified the conditions for a species to be considered 'in transit' under the ESA, emphasizing the need for a 'concrete present intention' to export the species and defining the scope of 'control' by authorized officers.
- Category: Substantive
- Sub-Issues:
- Sole purpose condition
- Control condition
- Burden of proof in establishing 'in transit' status
- Outcome: The court confirmed that the prosecution bears the burden of proving beyond a reasonable doubt that the scheduled species was not under the control of an authorised officer.
- Category: Procedural
8. Remedies Sought
- Quashing of Conviction
- Release of Seized Rosewood
9. Cause of Actions
- Importing Scheduled Species without a Permit
10. Practice Areas
- Criminal Litigation
- Regulatory Compliance
11. Industries
- Logistics
- Shipping
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Tan Cheng Bock v Attorney-General | Unknown | Yes | [2017] 2 SLR 850 | Singapore | Cited for the principles of statutory interpretation. |
| Public Prosecutor v Lam Leng Hung and others | Unknown | Yes | [2018] 1 SLR 659 | Singapore | Cited for the principles of statutory interpretation. |
| Chandler v Director of Public Prosecutions | Unknown | Yes | [1964] 1 AC 763 | England and Wales | Cited for the definition of 'purpose'. |
| Public Prosecutor v Sharikat Perusahan Makanan Haiwan Berkerjasama | Unknown | Yes | [1969] 2 MLJ 250 | Malaysia | Cited with approval for the definition of 'purpose'. |
| Yong Vui Kong v Public Prosecutor and another matter | Unknown | Yes | [2010] 3 SLR 489 | Singapore | Cited for the principle that domestic law should be interpreted harmoniously with international obligations. |
| Nam Hong Construction & Engineering Pte Ltd v Kori Construction (S) Pte Ltd | Unknown | Yes | [2016] 4 SLR 604 | Singapore | Cited for the operation of the principle against doubtful penalisation. |
| Public Prosecutor v Low Kok Heng | Unknown | Yes | [2007] 4 SLR(R) 183 | Singapore | Cited for the principle against doubtful penalisation. |
| Public Prosecutor v Wong Wee Keong and Kong Hoo Pte Ltd | District Court | No | [2015] SGDC 300 | Singapore | District Court's decision of no case to answer. |
| Public Prosecutor v Wong Wee Keong and another appeal | High Court | No | [2016] 3 SLR 965 | Singapore | High Court's decision remitting the case for the Defence to be called. |
| Public Prosecutor v Wong Wee Keong and Kong Hoo Pte Ltd | District Court | No | [2016] SGDC 222 | Singapore | District Court's acquittal of the applicants. |
| Public Prosecutor v Kong Hoo (Pte) Ltd and another appeal | High Court | No | [2017] 4 SLR 421 | Singapore | High Court's conviction of the applicants. |
13. Applicable Rules
| Rule Name |
|---|
| No applicable rules |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Endangered Species (Import and Export) Act (Cap 92A, 2008 Rev Ed) | Singapore |
| Endangered Species (Import and Export) Act (No 4 of 1989) | Singapore |
| Customs Act (Cap 70, 2004 Rev Ed) | Singapore |
| Customs Act | Singapore |
| Interpretation Act (Cap 1, 2002 Rev Ed) | Singapore |
| Wild Animals and Birds Act (Cap 351, 2000 Rev Ed) | Singapore |
| Fisheries Act (Cap 111, 2002 Rev Ed) | Singapore |
| Wholesome Meat and Fish Act (Cap 349A, 2000 Rev Ed) | Singapore |
| Free Trade Zones Act (Cap 114, 2014 Rev Ed) | Singapore |
| Regulation of Imports and Exports Act (Cap 272A, 1996 Rev Ed) | Singapore |
| Control of Plants Act (Cap 57A, 2000 Rev Ed) | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Endangered Species (Import and Export) Act
- In transit
- Sole purpose condition
- Control condition
- CITES
- Madagascan rosewood
- Import permit
- Export permit
- Authorized officer
- Free trade zone
- Concrete present intention
- Physical control
- Conscious oversight
15.2 Keywords
- Endangered species
- CITES
- Import
- Export
- Transit
- Rosewood
- Singapore
- Criminal law
- Statutory interpretation
17. Areas of Law
| Area Name | Relevance Score |
|---|---|
| Endangered Species Law | 90 |
| Environmental Law | 80 |
| Criminal Law | 70 |
| Statutory Interpretation | 60 |
| Penal statutes | 50 |
| Burden of proof | 40 |
| International Trade | 30 |
16. Subjects
- Criminal Law
- Environmental Law
- International Trade Law
- Statutory Interpretation