Amanda Whitfort Advises Legislative Panel on New Measures Needed to Address Wildlife Crimes and the Ivory Trade in Hong Kong

At a meeting of the Legislative Council (LegCo) Panel on Environmental Affairs on 6 June 2017, Associate Professor Amanda Whitfort addressed LegCo members on the Administration’s proposal to phase out the ivory trade in Hong Kong and enhance penalties for wildlife crimes. Legally, Hong Kong has an obligation to observe the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) (to which China is a signatory) and the UN Convention on Biological Diversity (CBD), extended to Hong Kong in 2011. Trade in pre-CITES ivory is prohibited, but Hong Kong traders continue to sell ivory stocks they claim to have been legally imported before the CITES ban in 1990. A recent investigation by the Agriculture, Fisheries and Conservation Department of a shop selling ivory purported to be pre-CITES found that the ivory for sale was in fact illegal. 

     Whitfort argued that allowing any market for ivory in Hong Kong encourages poaching and smuggling, and permits traders to argue their stock is ethically sourced. The African elephant population is now at its lowest numbers in history and continued poaching threatens to cause their extinction. Whitfort told legislators that only when the trade is banned completely can Hong Kong claim to have played a role in ensuring a sustainable future for Africa’s elephants.

     Whitfort also addressed the Administration’s proposal to raise the maximum penalty for trade in endangered species, under the Protection of Endangered Species of Animals and Plants Ordinance Cap 586. The intention to raise the maximum penalty for trade in endangered species to 7 years’ imprisonment presents an opportunity to bring Hong Kong’s sanctions in line with overseas jurisdictions. Globally, wildlife crime is the fourth most lucrative black market, after drugs, people and arms smuggling. In Hong Kong, the average value of seizures in endangered species is currently second only to seizures under the Dangerous Drugs Ordinance, Cap 134. 

     However, Whitfort cautioned that raising penalties will not be enough to address the problem in Hong Kong. Studies repeatedly show Hong Kong to be a regional hub for trade in endangered species. Whitfort urged the government to officially recognize wildlife crime as organized and serious crime, permitting investigators to access the full range of powers provided under the Organised and Serious Crimes Ordinance, Cap 455. These include the use of coercive investigative powers to gather intelligence, the right to confiscate the proceeds of crime in the District Court and the Court of First Instance and the power to seek enhanced sentences in cases involving criminal gangs. Classifying illegal trade in endangered species as a form of organized and serious crime would also allow the Hong Kong government to identify, freeze and forfeit the significant assets of criminal enterprises involved in the illegal wildlife trade (as is the case with drug trafficking).  A video of Whitfort's oral deputations in LegCo can be viewed here.

Amanda Whitfort on Hong Kong's Biodiversity Strategy Consultation

The consultation period ended on 7 April 2016 for input by the public on the HK government's Biodiversity Strategy Action Plan. The Convention on Biological Diversity, which was extended to Hong Kong in 2011, requires the HK government to develop an action plan for HK promoting local biodiversity and reducing the territory's large ecological footprint. Three years ago, a HKU led study "A Review of Hong Kong's Wild Animal Protection Laws" (Whitfort, Cornish, Griffiths and Woodhouse, 2013) identified 15 areas of legislation in need of urgent amendment if HK is to comply with its obligations under the Convention. These included the need to:

• create a “List of Hong Kong Species of Conservation Concern” which included fauna and flora at risk in the HKSAR, and which can be periodically updated and used to inform lists of protected species under all relevant Ordinances (including the Environmental Impact Assessment Ordinance).

• provide legal protection to freshwater fishes, and marine fishes and invertebrates, which currently are excluded from protection under the Wild Animals Protection Ordinance because fish are not defined as "animals" under that law.

• improve measures to manage invasive alien species which threaten local biodiversity.

• increase controls for the possession of protected wild animals, and

• provide protection for endangered plant species on private land.

     It is also important to recognise that HK's obligations under the Convention require the government to ensure HK trade does not negatively impact on endangered species in other jurisdictions. In other words, there is a duty to enact law and policy that effectively combats wildlife crime. On 19 March the HKU Law Faculty hosted a seminar in conjunction with ADM Capital entitled: "Wildlife Crime- What more can Hong Kong do?" At that seminar John Sellar (ex CITES chief of enforcement) spoke about the pivotal role Hong Kong plays as the gateway to China in trade in endangered and vulnerable species. His Op Ed on the problem was featured in the SCMP on 7 April 2016. 

     In this year's policy address, the Chief Executive stated that government would explore the introduction of a legislative ban on trade in ivory and would consider enacting stricter measures to combat trade in endangered species. While a ban on ivory sales is an important and long overdue step for Hong Kong, it is clear is that current laws are not doing enough to deter trade in other endangered species and their derivatives, such as rhino horn, tortoises, shark fin, humphead wrasse, pangolins, sea horses and fish maw. The answer to the problem will not be as simple as raising the penalties for trade in endangered species under Cap 586. The courts are already only using about 10 per cent of their current sentencing powers to address the problem. What is needed is a new strategy for tackling the crime through enhanced enforcement. The derivatives of endangered species are often worth more on the black market than dangerous drugs yet the HK police currently have no role to play in the investigation and prosecution of the trade. The time has come for government to get serious with wildlife crime enforcement and apply the same white collar prosecution principles it uses to deter other forms of organised and serious crime. Wildlife crime has been repeatedly linked to money laundering and the drug trade and, in the UK and the USA, specialised police units and prosecutors are now tasked with the investigation and prosecution of wildlife crime. Internationally, Interpol has an environmental security unit dedicated to the detection and investigation of wildlife crime. 

      It is high time our government began treating wildlife crime as the serious criminal activity it is.  Written by Amanda Whitfort.