DAO THI BOI v PUBLIC PROSECUTOR
12 cases cited
Catchwords
Practice Areas
Counsel (8)
Parties (2)
Case Significance
In Dao Thi Boi v Public Prosecutor [2024] SGHC 290, decided on 8 November 2024, the General Division of the High Court heard Magistrate's Appeal No 9030 of 2023, with Sundaresh Menon CJ, Tay Yong Kwang JCA and Steven Chong JCA sitting and Tay Yong Kwang JCA delivering the grounds of decision. The appellant, Ms Dao Thi Boi, appealed against her conviction by the District Court on one charge under section 4(1) read with section 20(1)(a) of the Endangered Species (Import and Export) Act (Cap 92A, 2008 Rev Ed), and against her sentence of ten months' imprisonment. The charge concerned the import on 5 March 2018 of a 40-foot container holding 1,787 pieces of elephant tusks, derived from the Family Elephantidae and weighing a total of 3,480 kilograms, brought from Apapa, Nigeria to the Pasir Panjang Scanning Station without a permit from the Director-General of Agri-Food and Veterinary Services. The catchwords record issues of mens rea and the sentencing appeal. The District Court's decision was reported as Public Prosecutor v Dao Thi Boi [2023] SGDC 257.
Summary
SUPREME COURT OF SINGAPORE
8 November 2024
Case summary
Dao Thi Boi [2024] SGHC 290
General Division of the High Court/Magistrate’s Appeal No 9030 of 2023
General Division of the High Court/Magistrate’s Appeal No 9030 of 2023
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Grounds of Decision of the General Division of the High Court (delivered by Justice Tay Yong Kwang):
Outcome: The General Division of the High Court (the “Court”) dismisses the appellant’s appeal against conviction, holding that proof of knowledge of the nature of the thing being imported was not necessary in order to make out the offence of importing a scheduled species under s 4(1) of the Endangered Species (Import and Export) Act (Cap 92A, 2008 Rev Ed) (the “ESA”), and that the appellant could not avail herself of the statutory defence under s 6 of the ESA. The Court also dismisses the appellant’s appeal against sentence, holding that it was not manifestly excessive.
Pertinent and significant points of the judgment
• Importation under s 4(1) of the ESA is made out where a person physically causes the thing in question to enter Singapore, and it is not necessary for the Prosecution to prove that the person also knew the nature of the thing being imported. To require such proof of knowledge would render otiose the statutory defence under s 6 of the ESA, which also mitigates any harshness which may arise from the offence under s 4 being one of strict liability: at [69]–[73].
• Under s 20(1)(a) of the ESA, liability for an offence committed by a corporate entity may be imputed to an officer of that entity where that officer knows of the material facts constituting the offence and consents to the conduct of the business of the corporate entity on the basis thereof. Where knowledge is not required to make out the primary offence, it will also not be necessary for imputation of liability under s 20(1)(a) of the ESA: at [74]–[75].
• The defence under s 6 of the ESA imposes upon persons a positive duty to take all reasonable precautions and to exercise due diligence to avoid the commission of an offence, the content of which will necessarily be highly context-dependent: at [78].
Background to the appeal
1 The appellant is a director of Song Hong Trading & Logistics Pte Ltd (“Song Hong”), which had been named as the consignee of a container (the “Seized Container”) which had been seized by the Immigration and Checkpoints Authority on 3 March 2018 and found to contain a large quantity of elephant tusks.
2 The appellant claimed that the Seized Container had belonged to one of her clients, Su Thien, to whom she regularly provided import and re-export services. The appellant had given Su Thien permission to name Song Hong as the consignee of containers which he would ship to Singapore, and would make the necessary arrangements to have them unstuffed in Singapore, restuffed, and re-exported to Vietnam, which included applying for import permits. As Su Thien did not have a license to import food items into Vietnam, she would change the description of the goods in the export bills of lading to reflect only goods which Su Thien purchased in Singapore and stuffed into the export containers, but claimed that she did not find this dishonest as she had correctly declared the imported and exported goods in Singapore. The appellant was also aware that Su Thien did so because he wanted the exported goods to appear to have originated from Singapore rather than their true port of origin, but claimed that this was “regularly done in the industry”. She also claimed that, while originally concerned that Su Thien might have been importing illegal goods, she was reassured after Su Thien promised not to do anything dishonest.
3 In respect of the Seized Container, the appellant’s case was that she was unaware that it had contained elephant tusks. She claimed that Su Thien had told her it contained groundnuts, and that she had no way of checking the contents of the Seized Container from the point at which it was stuffed in Nigeria until it arrived in Singapore.
4 In the court below, the District Judge (the “DJ”) held that it was not necessary to prove knowledge of the contents of the Seized Container in order to make out importation under s 4(1) of the ESA. The DJ also held that the appellant could not rely on the statutory defence provided for under s 6 of the ESA, as in view of the numerous “red flags” in the appellant’s past dealings with Su Thien, the appellant could not be said to have taken all reasonable precautions or exercised all due diligence to avoid the commission of the offence under s 4(1) of the ESA. The DJ thus convicted the appellant under s 4(1) of the ESA and sentenced her to ten months’ imprisonment.
5 The appellant then appealed against her conviction, arguing that proof of knowledge was a necessary element to make out importation under s 4(1) of the ESA, and seeking to avail herself of the statutory defence under s 6 of the ESA on the basis that she had no way of checking the contents of the Seized Container before it arrived in Singapore. She also appealed against her sentence of 10 months, arguing that it was manifestly excessive.
The court’s decision:
6 It was not necessary for the Prosecution to prove knowledge of the nature of the thing being imported in order to make out the offence under s 4(1) of the ESA. The social concern attaching to illegal wildlife trade and its consequences justified a departure from the presumption of mens rea. Moreover, if knowledge was an essential element of s 4(1) of the ESA which the Prosecution bore the burden of proving, then as long as the accused was not proven to have actually known that the goods brought into Singapore were protected species, there would be no offence regardless of whether sufficient due diligence was done or care was taken. This would for all practical purposes render the statutory defence under s 6 of the ESA otiose, which serves to prevent the potential harshness or unfairness which might result from a reading of s 4(1) of the ESA as creating a strict liability offence: at [62]–[73].
7 In attributing liability to officers of a body corporate for offences committed by the body corporate under s 20(1)(a) of the ESA, the test was whether the officer can be shown to have known the material facts constituting the offence by the body corporate, and to have agreed to its conduct of the business on the basis of those facts. Where the primary offence does not require proof of knowledge or mens rea, the Prosecution need only prove that the secondary offender has knowledge of the act which later turns out to constitute the offence: at [74]–[75].
8 The appellant had consented to Song Hong’s importation of the elephant tusks. Song Hong was a one-person operation, and whatever Song Hong knew or did, was known or done by the appellant. She had given her consent for Song Hong to be named consignee, took active steps to facilitate the import of the Seized Container and made full payment of the invoices relating to the Seized Container: at [76]–[77].
9 The defence under s 6 of the ESA requires a person to have taken all reasonable precautions and exercised all due diligence to avoid the commission of the offence under s 4(1) of the ESA by themselves or by any person under their control. This is a positive duty, the contents of which will necessarily be highly context-dependent: at [78].
10 The appellant could not avail herself of the defence under s 6(1) of the ESA. Su Thien had given her instructions to misrepresent the contents of his containers and to conceal their origin. Given that Vietnam was a producer and exporter of nuts, this ought to have raised questions about why Su Thien was going through so much trouble to import nuts into Vietnam. This should have led the appellant to be especially cautions and to make an extra effort to check the contents of Su Thien’s shipments. Instead, she was completely indifferent to what was happening as long as Song Hong was paid for its role in facilitating these shipments, allowing Song Hong to be named as the consignee and providing other services necessary to facilitate the transshipment of Su Thien’s shipments. She could not be said to have taken all reasonable precautions or exercised all due diligence: at [78]–[79].
11 Given the vast quantity of the elephant tusks found in the Seized Container, the cruelty to the animals which their procurement would have entailed, the vulnerability of the species concerned and the appellant’s utter indifference to the numerous red flags in her dealings with Su Thien, the sentence of ten months could not be said to be manifestly excessive: at [83]–[84].
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.
What was the charge in Dao Thi Boi v Public Prosecutor [2024] SGHC 290?
Ms Dao Thi Boi was convicted on one charge under section 4(1) read with section 20(1)(a) of the Endangered Species (Import and Export) Act for importing a container holding 1,787 elephant tusks weighing 3,480 kilograms from Nigeria without a permit, and was sentenced to ten months' imprisonment.
Which court and judges heard the Dao Thi Boi endangered species appeal?
The General Division of the High Court heard Magistrate's Appeal No 9030 of 2023, comprising Sundaresh Menon CJ, Tay Yong Kwang JCA and Steven Chong JCA. Tay Yong Kwang JCA delivered the grounds of decision on 8 November 2024 in Dao Thi Boi v Public Prosecutor [2024] SGHC 290.
Statutes Cited
Cases Cited (12)
SG (3)
[2006] SGDC 182 [2017] SGHC 305 [2023] SGDC 257
SLR (9)
[2002] 2 SLR(R) 122 [2010] 1 SLR 874 [2016] 1 SLR 753 [2017] 2 SLR 850 [2017] 4 SLR 1153 [2017] 4 SLR 1291 [2019] 1 SLR 536 [2019] 5 SLR 554 [2019] 5 SLR 654
Referenced in
Statutes interpreted in this judgment
Judgment
Read the full judgment on the official Singapore Courts portal.
Read on eLitigationSource: eLitigation ([2024] SGHC 290)