Rosewood logs seized in March 2014 worth US$50 million (S$70 million). (PHOTO: AVA)

Apex court’s final say in criminal reference: Businessman not guilty of importing Madagascan rosewood

In a series of twists and turns over legal posers, 57-year-old Singaporean businessman Wong Wee Keong and his firm, Kong Hoo (Private) Limited, had been acquitted twice of importing rare Madagascan rosewood logs by the District Court, before being found guilty by the High Court.

On Monday (8 April), their charges were finally cleared for the third time by a five-judge Court of Appeal. The decision by the highest court of the land on this matter is final, thereby ending the legal dispute that lasted more than 4 years.

In March 2014, a consignment of 29,434 rosewood logs weighting 3,235 tonnes and worth US$50 million entered Singapore waters, with its vessel berthed at Jurong Port in Singapore. While the logs were being unloaded by Jaguar Express Pte Ltd, the transportation and warehousing company engaged by Mr Wong, the Agri-Food and Veterinary Authority of Singapore (AVA) seized the entire shipment of rosewood.

While Mr Wong and Kong Hoo were charged for importing scheduled species without an import permit, being an offence under the Endangered Species (Import and Export) Act (Cap 92A, 2008 Rev Ed) (“ESA”), their defence was that the rosewood was not imported but was merely in transit in Singapore to their final destination in Hong Kong.

After being acquitted twice by the District Court, Mr Wong and Kong Hoo were found guilty of the charges by Justice See Kee Oon in March 2017 when the Prosecution appealed. Wong was then handed a three-month jail term and, together with Kong Hoo, slapped with a fine of S$1 million in total.

In August 2017, a three-judge Court of Appeal granted leave to Mr Wong and Kong Hoo to refer two questions of law of public interest for its determination:

(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?

(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?

In the written judgment penned by Judge of Appeal Tay Yong Kwang on behalf of the court – led by Chief Justice Sundaresh Menon and which also included Judges of Appeal Andrew Phang, Judith Prakash and Steven Chong, both questions were answered in the negative. They also held that the Prosecution bears the burden of proof in respect of the second part of question (b).

At the hearing of the criminal reference in July last year, the Prosecution and Defence both agreed, contrary to what Justice See decided (and which he ruled against the Defence’s favour), that there was no need to prove a definite date of departure for the scheduled species in determining whether the scheduled species were in transit.

The consensus therefore disposed of the first question which deals with the “sole purpose” condition, i.e. that the scheduled species must be “brought into Singapore solely for the purpose of taking it out of Singapore”.

In respect of the second question, the Prosecution team, led by Solicitor-General Kwek Mean Luck, had argued that the authorised officer must have known that the scheduled species had entered his zone of authority, apart from being able to exercise control over the scheduled species. This is known as the “conscious control” approach.

Mr Murali Pillai, leading two teams of lawyers from Rajah & Tann and Haridass Ho & Partners as instructed by Mr Choo Zheng Xi, argued for Mr Wong and Kong Hoo that the authorised officer only needed to be able to exercise control over the scheduled species, and that the knowledge of entry is not required. This is known as the “physical control” approach.

To this, the court held that both approaches promote the purpose and objectives of the ESA. In this light, the court invoked a principle against “doubtful penalisation”, to prefer the Defence’s “physical control” approach.

The principle against doubtful penalisation is invoked in situations where there are two plausible interpretations of statutes, even after they had been interpreted purposively. In such a situation, the interpretation that would not give rise to penal consequences should be the preferred one.

The court then went on to find that the Rosewood logs were in transit, as both conditions for such a finding had been satisfied on the facts and evidence under a less stringent test, compared to the stricter test taken by the High Court. Hence, Mr Wong’s and Kong Hoo’s convictions and sentences were set aside.

The court also ordered that the rosewood, which was forfeited to the Director-General upon conviction, to be released back to Mr Wong and Kong Hoo “as soon as practicable”.