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Grounds publishedDecided 8 Apr 2019
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Court of Appeal

Kong Hoo (Pte) Ltd and another v Public Prosecutor

[2019] SGCA 21Case no. Criminal Reference No 4 of 2017

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  1. Introduction

  2. [1] This criminal reference concerns the interpretation of s 2(2) of the Endangered Species (Import and Export) Act (Cap 92A, 2008 Rev Ed) (“ESA”). The said s 2(2) defines what it means for a scheduled species to be “in transit” in Singapore. If a scheduled species is in transit, pursuant to the definition provisions in the ESA, it would not be considered to be imported into or exported from Singapore when it enters or leaves Singapore. The legal consequence is that a permit from Singapore for import or export is not required. If it is imported into or exported from Singapore, a permit from the Director-General of the Agri-Food and Veterinary Authority of Singapore (“AVA”) would be required under s 4 of the ESA. If a scheduled species is in transit in Singapore, although no permit from the AVA is required, the trader must possess permits from the country of export and the country of import (if so required by the country of import).

  3. [2] The applicants, Kong Hoo (Private) Limited (“Kong Hoo”) and its director, Mr Wong Wee Keong (“Mr Wong”), were charged and convicted of importing Madagascan rosewood (“the rosewood”), a scheduled species under the ESA, without a permit, an offence under s 4(1) of the ESA. Their defence was that they did not need an import permit because the rosewood was in transit in Singapore. They were acquitted in the District Court but convicted on appeal in the High Court on the basis that the rosewood was imported into Singapore rather than being in transit here. Leave was granted subsequently for the applicants to file this criminal reference on what constitutes a scheduled species “in transit”.

  4. [3] There are two conditions in s 2(2) of the ESA to be satisfied for a scheduled species to be considered to be in transit. First, it is brought into Singapore for the sole purpose of taking it out of Singapore (“the sole purpose condition”). Second, it remains in the conveyance at all times while in transit but if it is taken off the conveyance, it has to be under the control of an authorised officer (“the control condition”).

  5. [4] The two questions in this reference relate to each of these conditions respectively. They read:

  6. (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”)

  7. (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”)

  8. [5] In the High Court, the Judge held that the answers to the questions were both yes, primarily because such an interpretation would promote the purpose of the Convention on International Trade in Endangered Species of Wild Flora and Fauna (3 March 1973) 993 UNTS 243 (entered into force 1 July 1975) (“CITES”), which Singapore is a party to. The ESA was enacted to give effect to CITES, which aims to protect endangered species by regulating their movement and trade.

  9. [6] Before us, the parties agree that Question 1 should be answered in the negative but they differ on Question 2. The applicants submit that Question 2 should also be answered in the negative but the Prosecution contends the opposite. However, both parties agree that the applicable legal burden to prove the absence of the control condition in Question 2 is on the Prosecution.

  10. [7] For the reasons given below, we answer the questions as follows:

  11. (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 at a definite date, although it is a relevant consideration. This was not disputed by the parties. Although this question used the words “defined date”, in this judgment, we have used the term “definite date” instead.

  12. (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.

  13. (c) Both parties agree 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. Given the parties’ agreement, we need say no more about this issue.

  14. [8] In determining the questions raised in this reference, it is helpful to have some knowledge about the history of CITES and of the ESA.

  15. CITES

  16. [9] CITES is a multilateral treaty which aims to protect endangered wildlife by regulating its movement and trade. It entered into force in 1975. All the countries mentioned in this case (Madagascar, Singapore and Hong Kong) are parties to CITES.

  17. [10] The premise of CITES is that peoples and states are and should be the best protectors of their own wild fauna and flora. Therefore, the regulation of movement and trade of endangered species is carried out through domestic permits issued by member states. Protected species are listed in Appendices I to III to CITES depending on the level of protection they require, with those in Appendix I requiring the most protection. The regulation of the species in the Appendices differs in respect of the permits that are required for their trade. For example, Appendix I species can only be exported with a permit, known as a CITES export permit, issued by the country of export and can only be imported with another permit, known as a CITES import permit, issued by the country of import: Art III of CITES. Appendix II species also require a CITES export permit for their export but CITES does not require specifically that an import permit be obtained before they are brought into the country of import. However, this does not prevent the parties to CITES from adopting stricter domestic measures (Art XIV(1) of CITES) and some countries do require such import permits.

  18. [11] Madagascan rosewood was listed in CITES Appendix II in March 2013 and therefore requires an export permit from Madagascar if exported for trade. CITES does not require the country of import to issue an import permit for this species but Singapore law nevertheless requires it: s 4(1) of the ESA.

  19. [12] The parties to CITES meet regularly every two to three years to review the implementation of the treaty. This is known as the Conference of the Parties. Resolutions are passed at the Conference of the Parties which are essentially non-binding recommendations to improve the effectiveness of CITES (Art XI(3)(e) of CITES). A particular resolution, namely Conf 9.7, was relied upon heavily by the High Court Judge (“the Judge”) and the Prosecution for the interpretation of s 2(2) of the ESA and we consider it in detail below.

  20. ESA

  21. Legislative history

  22. [13] Singapore acceded to CITES in November 1986 with no reservations as to any listed species. In 1989, it enacted the Endangered Species (Import and Export) Act (No 4 of 1989) (“ESA 1989”) to give effect to CITES. As explained by then Senior Minister of State for National Development, Dr Lee Boon Yang, at the second reading of the bill, up until then, Singapore had been enforcing the CITES requirements through existing Acts such as the Wild Animals and Birds Act (Cap 351, 2000 Rev Ed) and the Fisheries Act (Cap 111, 2002 Rev Ed). However, these Acts were limited in reach as they were primarily intended for disease control and general animal welfare rather than for the trade in endangered species. The ESA 1989 was thus enacted to “effectively control the trade in endangered species to meet CITES’s requirements” (Singapore Parliamentary Debates, Official Report (26 January 1989) vol 52 at cols 561–562).

  23. [14] Under the ESA 1989, a permit from the then Primary Production Department (now the AVA) was required for the import, export, re-export or introduction from the sea of scheduled species. Specimens in transit would not be considered to be imported or exported and therefore did not require such permits. The definition of transit was provided in s 2(2) of the ESA 1989 as follows:

  24. [15] In 2006, the ESA 1989 was repealed and re-enacted with amendments. The explanatory statement to the Endangered Species (Import and Export) Bill (Bill No 43 of 2005) stated that the re-enactment sought to (a) increase the penalties for certain offences to deter illegal wildlife trafficking; (b) enhance AVA’s enforcement powers; and (c) update and streamline the Act. There were two notable changes in this re-enactment. First, the first line of s 2(2) of the ESA (emphasised in [14] above) was changed such that a “scheduled species shall be considered to be in transit if, and only if” the attendant requirements were met, rather than “deemed to be in transit” as in the ESA 1989. Second, a new offence was created. The new s 5 stated that every shipment of a scheduled species in transit had to be accompanied by a CITES export permit and/or CITES import permit (if required by the country of import) or comparable documentation. It would be an offence if no such permits accompanied the shipment. It was therefore only in 2006 that the transit of scheduled species in Singapore was regulated with criminal sanctions under the ESA.

  25. The current scheme of the ESA

  26. [16] Currently, the trade of scheduled species is regulated under the ESA through a permit system. Two offence-creating sections, ss 4 and 5, cater to the import/export of scheduled species into/from Singapore and the transit of scheduled species in Singapore respectively. The two sections thus regulate two mutually exclusive situations, although they provide for the same penalties of a fine of $50,000 per scheduled species up to a maximum of $500,000 and/or imprisonment up to two years. In summary, the legislation requires as follows:

  27. (a) The import and export of scheduled species into and from Singapore require a permit from the Director-General of the AVA. Failure to do so would be an offence under s 4(1) of the ESA. Therefore, if the rosewood was imported from Madagascar into Singapore (which the applicants deny), an import permit from Singapore would be required. There is no express domestic legislative requirement that an export permit from the country of export (here, Madagascar) is required for import into Singapore but this is one of AVA’s requirements before an import permit can be issued in Singapore. The CITES factsheet produced by AVA’s witness Ms Lye Fong Keng (“Ms Lye”) states that the applicant for an import permit has to enclose the CITES export permit from the country of export.

  28. (b) If the scheduled species is not imported into or exported from Singapore but is merely in transit, the ESA still requires that the scheduled species be accompanied by a CITES export permit or other written permission and a CITES import permit (if required by the country of import). Failure to do so would be an offence under s 5(1) of the ESA. Therefore, if the rosewood was exported from Madagascar and was intended for import into Hong Kong but transited in Singapore (which the applicants claim), when it is in transit in Singapore, it must be accompanied by a CITES export permit from Madagascar and a CITES import permit from Hong Kong (if required by Hong Kong).

  29. [17] Whether a species is in transit is determined by s 2(2) of the ESA. As mentioned above, there are two conditions required by the ESA:

  30. (a) First, the scheduled species has to be brought into Singapore solely for the purpose of taking it out of Singapore; and

  31. (b) Second, it either has to remain in or on the conveyance at all times or if it is removed from the conveyance, it has to be kept under the control of an authorised officer. An “authorised officer” is defined in s 2(1) of the ESA and includes any police officer, any customs officer within the meaning of the Customs Act and any public officer, AVA officer or officer of any other statutory authority appointed by the Director-General under s 3(2) of the ESA.

  32. Facts

  33. The rosewood

  34. [18] It is not disputed that Mr Wong had, on behalf of Kong Hoo, agreed to purchase the rosewood from a business associate in Madagascar. He had also engaged Jaguar Express Logistics Pte Ltd (“Jaguar Express”), which provides transportation and warehousing services, to unload the rosewood when the vessel berthed in Singapore, repack them into containers and truck them to another port managed by the Port of Singapore Authority (“PSA Port”).

  35. [19] On 28 February 2014, the consignment of rosewood entered Singapore waters on board the vessel MV Oriental Pride (“the vessel”) from Madagascar. Around that time, AVA officers received information that the vessel was believed to be carrying an illegal export of timber from Madagascar. The relevant shipping and customs-related documents contained the following information:

  36. (a) The rosewood was shipped under two bills of lading. The port of discharge was stated as Singapore and the consignee and notify-party was “Kong Hoo Private Limited”. The cargo particulars furnished by the shipper was “pieces de BOIS”, the French word for wood.

  37. (b) The cargo manifest stated that the vessel was carrying a total of 30,657 logs of wood and the port of discharge was Singapore. The consignee was Jaguar Express. The manifest was submitted to Jurong Port’s online system by Jaguar Express’s stevedore, B.S.K. Stevedoring Pte Ltd, before the vessel berthed in Singapore. The Harmonised System Code (“HS Code”) entered for the goods to be shipped was “44(01–05)”, which related to wood generally instead of the specific HS Code for rosewood (which would be 44039990).

  38. (c) The pre-arrival notification stated that the vessel was carrying logs. It was submitted to the Maritime and Port Authority of Singapore (“MPA”) by Mr Ernest Wee Pan Ann (“Mr Wee”) on behalf of the vessel’s manager, AMMShips Pte Ltd, on 26 February 2014, two days before the vessel entered Singapore waters.

  39. [20] On 11 March 2014, the vessel berthed at the Jurong Port in Singapore. Over the next three days, Jaguar Express unloaded 6,164 rosewood logs from the vessel (“the unloaded rosewood”) and moved them to a yard within the Jurong Port (J16). It is not disputed that the rest of the logs (“the remaining rosewood”) were also intended to be unloaded to the yard but before this could be done, AVA officers boarded the vessel on 14 March 2014 and subsequently seized all the unloaded and the remaining rosewood. The shipment was subsequently ascertained to comprise 29,434 logs of rosewood in total, and not 30,657 logs as indicated in the export documents (see [23] below).

  40. [21] The applicants’ case is that they had intended to import the rosewood into Hong Kong. They did not provide any details of their buyer in Hong Kong and the country and the buyer was not stated in any of the shipping or export documents. However, two months earlier in January 2014, Jaguar Express had provided them with quotations for (a) transhipment of cargo from Jurong Port to PSA Port (including unloading, repacking, transportation) and (b) ocean freight charges from Singapore to Hong Kong and the possible vessels for that route. It is not disputed that the applicants had not selected a vessel departing to Hong Kong, had not made any confirmed bookings for the voyage and Jaguar Express’s task was limited to bringing the consignment from Jurong Port to PSA Port.

  41. AVA’s investigations

  42. [22] AVA commenced investigations into the seized rosewood. The rosewood did not have the following import permits:

  43. (a) An import permit from AVA to import the rosewood into Singapore; and

  44. (b) An import permit from the Hong Kong authorities for import of the rosewood. Hong Kong had not regulated this and thus did not require an import permit for rosewood at the material time. This is not disputed by the parties.

  45. [23] As for country of export permits, during the investigations, the applicants passed AVA a set of documents ostensibly showing that they had been authorised to export the rosewood from Madagascar (collectively the “Madagascan export documents”). These comprised:

  46. (a) a letter from the Director-General for the Madagascan Forestry Ministry dated 10 March 2010 authorising the export of 5,000 tonnes of rosewood (“the 2010 authorisation letter”). This was the only document that mentioned rosewood specifically instead of “wood”;

  47. (b) two documents dated 17 and 18 February 2014, purportedly from the Madagascan Forestry Ministry authorising a total of 3,065 cubic metres (30,657 logs) of “wood” (the type of wood was not specified) to be exported for commercial purposes (“the 2014 authorisation documents”);

  48. (c) two certificates of declaration and verification on forest products for export for a total of 3,065 cubic metres of “wood” dated 17 and 18 February 2014 (“verification for export documents”);

  49. (d) two certificates of origin for 3,065 cubic metres of “wood” dated 17 and 18 February 2014 (“certificates of origin”); and

  50. (e) two phytosanitary certificates for 30,657 pieces of “wood” dated 17 and 18 February 2014 (“phytosanitary certificates”).

  51. [24] AVA doubted the authenticity of the Madagascan export documents for two main reasons. First, the documents did not comply with CITES procedure. Second, Madagascar had imposed a zero export quota on rosewood and it was unclear whether this was still in force. If so, the applicants could not have been authorised to export the rosewood. After Madagascan rosewood was listed in CITES Appendix II in March 2013, the Madagascan government imposed a zero export quota on rosewood from 13 August 2013 to 13 February 2014. On 26 February 2014, about two weeks after the end of the zero export quota period, a notification was sent to the CITES member states stating that the Madagascan government had extended the zero export quota until 14 April 2014. However, the notification did not clarify whether the interim period between the end of the first quota period and the notification date (14 to 25 February 2014) was subject to the export embargo. This was relevant because the two bills of lading for the rosewood were issued on 19 February 2014 and they stated that the cargo was shipped on 18 February 2014. Further, most of the Madagascan export documents produced by Mr Wong were dated 17 and 18 February 2014.

  52. [25] During AVA’s investigations, the following events occurred:

  53. (a) On 19 March 2014, Ms Lye wrote to the Madagascan Forestry Ministry to seek clarification on the authenticity of the export documents. A Mr Jean Claude, bearing the title of Director-General in the Ministry, replied to say that the documents were not authentic.

  54. (b) On 28 March 2014, Ms Lye received an email from the Madagascan Forestry Ministry’s web domain that referred to her request for authorization and stated that “Mr… Soilihi has been exceptionally allowed to export these merchandises under the bill of lading”. Mr Soilihi was listed as a shipper in the bills of lading and was also the person ostensibly authorised to export the rosewood in the 2010 authorisation letter ([23(a)] above). Later, Ms Lye was informed by the CITES Secretariat that the Ministry’s email account had been hacked.

  55. (c) On 4 November 2014, the Madagascan Forestry Ministry wrote to the CITES Secretariat (with copy to Ms Lye) to say that Madagascar would send a “significant delegation to the countries that seized [rosewood], for negotiation…”

  56. (d) On 20 January 2015, after a Madagascan delegation visited Singapore, 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”.

  57. (e) On 10 February 2016, 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”. The Judge declined to decide whether the letter should be admitted as it was irrelevant to the charge.

  58. (f) On 3 February 2017, after the hearings before the Judge had concluded, the 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. The Judge did not allow the evidence to be admitted.

  59. [26] Ultimately, the Madagascan documents have limited relevance to the s 4(1) charge that the Prosecution pursued against the applicants, which was the lack of an import permit from AVA. The applicants agree that they do not have such an import permit. They are therefore relevant only in so far as they shed light on whether the rosewood was in transit or was imported into Singapore.

  60. Criminal proceedings

  61. [27] Subsequently, the applicants were charged for importing 29,434 logs of rosewood. Kong Hoo was charged under s 4(1) of the ESA, which makes it an offence to import any scheduled species without a permit. Mr Wong was charged under s 4(1) read with s 20(1)(a) of the ESA, which states that where an offence under the ESA is committed with the consent and connivance of an officer, that officer would also be guilty of the offence.

  62. [28] There are two sets of court proceedings for this matter. In the first set of proceedings, at the close of the Prosecution’s case, the Defence submitted that there was no case to answer because the Prosecution had not adduced sufficient evidence to show that the rosewood was not in transit. The District Judge agreed and acquitted the applicants in Public Prosecutor v Wong Wee Keong and Kong Hoo Pte Ltd [2015] SGDC 300 (“No Case GD (DC)”). The Prosecution appealed and in Magistrate’s Appeals Nos 9136 and 9137 of 2015 (“the first MA”), the Judge held that the Prosecution had adduced evidence which was not inherently incredible and which satisfied each and every element of the charge and remitted the case for the Defence to be called in Public Prosecutor v Wong Wee Keong and another appeal [2016] 3 SLR 965 (“No Case GD (HC)”).

  63. [29] This led to the second set of court proceedings. When the Defence was called upon, the applicants elected to remain silent and offered no evidence in their defence. The District Judge found that the Prosecution had not proved its case and acquitted the applicants in Public Prosecutor v Wong Wee Keong and Kong Hoo Pte Ltd [2016] SGDC 222 (“Acquittal GD (DC)”). The Prosecution appealed again and in Magistrate’s Appeals Nos 9192 and 9193 of 2016 (“the second MA”), the Judge convicted the applicants on the charges in Public Prosecutor v Kong Hoo (Pte) Ltd and another appeal [2017] 4 SLR 421 (“Conviction GD (HC)”).

  64. First set of proceedings (No case to answer)

  65. Evidence led by the Prosecution

  66. [30] All the evidence for this case was adduced by the Prosecution in the first set of criminal proceedings in the District Court. There were ten witnesses, namely:

  67. (a) Mr Roy Tan Leng Kiong (“Mr Roy Tan”) from Singapore Customs, who received the tip-off about the rosewood and did the investigations.

  68. (b) Ms Lye from AVA, whose duties include implementing and enforcing the ESA and who received notice of the tip-off from Mr Roy Tan and carried out the investigation.

  69. (c) Ms Ong Ai Khim (“Ms Ong”) from AVA.

  70. (d) Mr Tan Song Koon Alan (“Mr Alan Tan”) from Jaguar Express, which was engaged by Kong Hoo to unload, containerise and truck the rosewood to PSA Port.

  71. (e) Mr Leong Yew Chung (“Mr Leong”), Mr Raghbir Singh, Mr Kee Boon Hwei and Mr Vincent Cheong (collectively “the AVA Officers”) from AVA, who inspected the vessel at Jurong Port and seized the shipment.

  72. (f) Mr Wee, who managed the vessel and arranged for the vessel to carry the rosewood from Madagascar to Singapore.

  73. (g) Capt Henry Heng (“Capt Heng”) from MPA, who provided the vessel’s port movements and pre-arrival notification to AVA.

  74. [31] We will discuss briefly the evidence adduced at trial. This can be classified broadly into two categories – the circumstances surrounding the arrival of the rosewood and the declarations and permits required from the various authorities for the rosewood’s arrival and stay in Singapore.

  75. (1) Arrival and seizure of the rosewood

  76. [32] Mr Roy Tan gave evidence that he received a tip-off from the Regional Intelligence Liaison Office Asia Pacific of the World Customs Organisation (“the tip-off”) that the vessel was suspected to be carrying illegally exported timber from Madagascar and requested Singapore to monitor the vessel and to take any necessary action. Singapore Customs sought further information by obtaining the cargo manifest from the Jurong Port online system. Mr Roy Tan then informed AVA about the tip-off and the vessel’s movements. On Ms Lye’s instructions, the AVA Officers boarded the vessel and went to the yard where the unloaded rosewood was located and seized the entire shipment of rosewood.

  77. [33] Ms Lye handled AVA’s investigations which included instructing the AVA Officers to detain and seize the rosewood, liaising with the applicants and the CITES Secretariat. When Mr Wong handed her the Madagascan export documents, she doubted their authenticity because of the existing zero export quota, the unusually large shipment and the tip-off. Pending the conclusion of the investigations, she asked Mr Wong to apply for a TradeNet permit (an electronic system managed by Customs for customs declarations) to bring the rosewood out of Jurong Port to be stored at Jaguar Express’s warehouse.

  78. [34] Ms Ong affirmed Ms Lye’s evidence as to AVA’s receipt of the tip-off from Customs, the domestic regulation of rosewood from May 2013 and the lack of any CITES import permit for the shipment. The Defence chose not to cross-examine Ms Ong on her conditioned statement.

  79. [35] Mr Alan Tan took the stand next. He testified that he was engaged by Kong Hoo to unload the cargo to the landing area when the vessel reached Jurong Port and to re-stuff the logs into containers for transhipment. His job scope only included ensuring that the logs were discharged, containerised and transported to PSA Port. He was not responsible for the cargo’s management after it reached PSA Port. He testified that because of the size and nature of the shipment, it would have taken two weeks from the date of berthing of the vessel for all the rosewood to be unloaded, as opposed to the two days that he had originally envisioned. The containerisation and transport of the rosewood and its onward journey from PSA Port was to be done in batches. For the rosewood’s onward journey, Mr Alan Tan had made tentative bookings on vessels leaving for Hong Kong and had provided Kong Hoo with ocean freight charges from Singapore to Hong Kong and possible vessels for its selection in January 2014, two months before the rosewood arrived in Singapore.

  80. [36] The AVA Officers were responsible for seizing and detaining the rosewood on 14 March 2014. They testified that they arrived at Jurong Port, confirmed the vessel’s presence and boarded it. They found many logs in the vessel, took photographs and collected samples. They were informed that some of the cargo had been unloaded already and this was confirmed by the vessel’s manager, Mr Wee. The AVA Officers seized the entire shipment. Mr Wee gave evidence that his company had agreed to convey the rosewood on the vessel from Madagascar to Singapore and that its role ended when the logs were discharged. He testified that he learnt from his interaction with Jaguar Express that the cargo was intended to be transhipped from Singapore.

  81. (2) Declarations and permits required

  82. [38] We note that Ms Lye’s evidence in this regard only consisted of her oral testimony and a factsheet prepared by the AVA, annexed to her conditioned statement. Samples of such declarations or permits were not submitted to the court. However, the accuracy of her evidence was not challenged by the applicants.

  83. [39] Mr Alan Tan similarly provided evidence on the declarations and permits required for the cargo’s stay in Singapore. In relation to the cargo manifest, he stated that his stevedore was responsible for submitting it online to the Jurong Port system and its main purpose was to ensure that berthing and other service charges for using Jurong Port would be correctly billed to the account holder, in this case Jaguar Express, which was listed as the consignee. His stevedore also applied to the MPA for the berthing of the vessel. He also testified that before the cargo could leave Jurong Port for PSA Port, a transhipment permit from Customs was required. To obtain this permit, Jaguar Express had to “declare to Singapore custom the permit of all the containers, whatever inside, and the cargoes inside before we can then out from Jurong Port”.

  84. [40] On the MPA’s part, Capt Heng gave evidence on a pre-arrival notification that was submitted to the MPA before the vessel berthed in Singapore. The notification was done by the agent on behalf of the master and listed the vessel’s last port and the cargo being carried, which again was stated as “logs”. When asked whether it was a requirement to declare the cargo in the notification, Capt Heng said yes but only information on the type of cargo being carried was required, not the details of the cargo.

  85. [41] Therefore, on the evidence adduced, the following declarations and permits would have been required for the rosewood’s stay in Singapore:

  86. (a) a cargo manifest submitted to Jurong Port before the vessel berthed in Singapore (Mr Alan Tan at [39] above);

  87. (b) a pre-arrival notification submitted to the MPA before the vessel berthed in Singapore (Capt Heng at [40] above);

  88. (c) if the rosewood was imported, a CITES import permit from the AVA’s LicenceOne system (Ms Lye at [37] above);

  89. (d) a TradeNet declaration for its import into or transit in Singapore (Ms Lye at [37] above);

  90. (e) a TradeNet cargo clearance permit from Customs and AVA if the rosewood left Jurong Port (Ms Lye at [33] above); and

  91. (f) a customs transhipment permit if the rosewood left Jurong Port for PSA Port (Mr Alan Tan at [39] above).

  92. [42] However, the terminology used by the main witnesses, Mr Alan Tan and Ms Lye, were not consistent and they were not asked about each other’s evidence. It is therefore unclear whether some of the permits and declarations listed above are the same, in particular, the TradeNet declarations and permits from Customs. There was also no evidence led as to the various types of customs declarations that were required for the movement of cargo in Singapore. Therefore, after the hearing in Court, we directed the parties to make further submissions on this issue. They did so in late August 2018. We consider the applicants’ legal obligations to obtain certain permits and/or to make certain declarations later in this judgment.

  93. The decisions

  94. [43] At the close of the Prosecution’s case, the District Judge held that there was no case to answer as the Prosecution had not led sufficient evidence to show that the rosewood was imported. For the sole purpose condition, the District Judge held that the evidence showed that the rosewood was brought into Singapore for the sole purpose of containerising them for shipment and to be transported from one port (Jurong Port) to another (PSA Port) (No Case GD (DC) at [53]). She relied on the evidence of Mr Alan Tan, who had been engaged to unload, repack and transport the rosewood, a process which he described as transhipment (No Case GD (DC) at [35] and [50]). Mr Alan Tan had also tentatively booked some vessels departing to Hong Kong. For the control condition, the District Judge held that the rosewood was under the control of an authorised officer, namely a customs officer, because Jurong Port, where the vessel had berthed, was a free trade zone within customs control (No Case GD (DC) at [60]).

  95. [44] The Judge disagreed with the District Judge on both counts. For the sole purpose condition, the Judge found that the District Judge erred in relying almost exclusively on Mr Alan Tan’s evidence. He pointed out that the fact that (a) Kong Hoo was listed as the consignee on all the Madagascan export documents provided by the applicants and (b) the applicants did not provide any information about their Hong Kong buyer was evidence showing that the applicants might not have brought the rosewood solely for the purpose of taking it out (No Case GD (HC) at [59], [60], [71]). He declined to hold that if the export documents accompanying the shipment did not contain details of the ultimate destination of the shipment and a named consignee in that destination country, the shipment would be considered to have been imported, as he felt that this would rewrite the terms of the ESA (No Case GD (HC) at [70]).

  96. [45] For the control condition, the Judge held that the District Judge erred in law in treating the rosewood as being under the control of an authorised officer simply because the rosewood was in a free trade zone which was “deemed to be under customs control” by s 3(2) of the Customs Act (Cap 70, 2004 Rev Ed) (“Customs Act”). This was because, first, the deeming provision in the Customs Act was restricted to that Act and could not be expanded to the ESA. Second, the ESA was enacted for the conservation of endangered species and the interpretation of “control” in the ESA ought to be interpreted to guard against abuses of the transit exception. The Judge therefore interpreted “control” actively, in the sense that the officer (a) knows of the existence of the goods and (b) is in a position to determine how these goods should be used or moved (No Case GD (HC) at [94]). He also held that if the scheduled species were not in the physical custody of the authorised officers, it must usually be shown that they had taken precautions to secure the integrity of the shipment (No Case GD (HC) at [95]). Applying this in the present case, there was no evidence that any authorised officer was aware that the rosewood was being unloaded, let alone controlling the rosewood or the process (No Case GD (HC) at [97]).

  97. [46] The Judge thus set aside the acquittals and remitted the case to the District Judge for the defence to be called.

  98. Second set of proceedings (Conviction)

  99. [47] Accordingly, the District Judge called on the defence. However, the applicants chose to remain silent and to lead no evidence. The District Judge acquitted the applicants again. On appeal to the High Court, the Judge set aside the acquittals again and convicted the applicants.

  100. The sole purpose condition

  101. [48] The District Judge held that the Prosecution had not proved that the sole purpose condition was not met, for the following reasons:

  102. (a) It was not conclusive for the sole purpose condition that Kong Hoo was named the consignee in the shipping and commercial documents and that there was no named consignee in the destination country. AVA was itself unsure at the material time whether the shipment was for import or transhipment (Acquittal GD (DC) at [19]).

  103. (b) It was not disputed that the rosewood was brought into Singapore in a break bulk cargo vessel and Mr Alan Tan’s evidence, which was unchallenged, was that he was engaged for transhipment services and his job was to truck the containers with the rosewood to the PSA Port. This was consistent with the quotation that he had provided to Kong Hoo. He had made only tentative bookings for vessels leaving Singapore because he was unable to estimate how many containers were needed, not because Kong Hoo had no real intention to ship the rosewood out of Singapore (Acquittal GD (DC) at [21]–[24]).

  104. (c) No adverse inference ought to be drawn because there was nothing that the applicants were required to contradict or to explain. Mr Alan Tan’s unchallenged evidence as to the nature of his job (ie, for transhipment) established beyond reasonable doubt that the rosewood was to be transported from Jurong Port to PSA Port for shipment to Hong Kong (Acquittal GD (DC) at [28]).

  105. [49] In the High Court, the Judge disagreed for the following reasons:

  106. (a) All the export documents from the Madagascan Forestry Ministry listed Kong Hoo as the consignee without stating Hong Kong as the country of import or any other buyer. If the Madagascan Foreign Ministry had authorised the export, it would stand to reason that it would comply with standard CITES procedure in listing the ultimate destination of the shipment, ie, Hong Kong, in the document (Conviction GD (HC) at [41]). Ms Lye had testified that CITES permits were issued “back-to-back” meaning that the named consignee on the permit had to be the country of ultimate destination. The listing of Kong Hoo as the consignee was thus highly probative of Singapore being the country of import for the rosewood.

  107. (b) There were no details as to what would happen to the rosewood after it left Singapore. There was no information about the Hong Kong buyer, no documentation of sale to a party in Hong Kong and no confirmed bookings for the onward shipment of the rosewood (Conviction GD (HC) at [44]).

  108. (c) Mr Alan Tan’s evidence was that tentative bookings had been made for onward transport of the rosewood. Jaguar Express’s main job was to transport the rosewood from Jurong Port to PSA Port. Once that was done, its job was completed. This therefore did not show that Kong Hoo had a “confirmed present intention” to ship the rosewood out of Singapore (Conviction GD (HC) at [48]). Even after the first batch of rosewood had been unloaded, the applicants did not confirm the booking of the containers and arrange containerisation for shipment out of Singapore (Conviction GD (HC) at [51]).

  109. (d) An adverse inference should be drawn because the facts above clearly called for an explanation which the applicants would be in a position to give, such as the identity of the Hong Kong buyer and details of the plan to tranship the rosewood (Conviction GD (HC) at [54]).

  110. [50] On the evidence, the Judge held that the Prosecution had proved beyond a reasonable doubt that the applicants did not bring the rosewood in for the sole purpose of bringing it out of Singapore.

  111. The control condition

  112. [51] The District Judge held that the legal and evidential burden was on the Prosecution to prove that the entirety of the rosewood was not kept under the control of an authorised officer while it was at Jurong Port (Acquittal GD (DC) at [30]) and the Prosecution had not fulfilled this burden. The Prosecution did not call any customs officer in charge of the free trade zone at Jurong Port to testify on the systems in place to regulate and to supervise the activities and operations therein. The District Judge hence relied on the legal requirements for goods in free trade zones. She found that (a) the free trade zone at Jurong Port was a secured area for the storage of goods; (b) container stuffing and unstuffing had to be supervised by a customs officer; and (c) all containers would be sealed before leaving the free trade zone and it was an offence to break the seal before it reached its next destination (here, the PSA Port). There were thus controls in place to supervise the goods within Jurong Port which amounted to active control (Acquittal GD (DC) at [31]–[40]).

  113. [52] In the High Court, the Judge repeated that control by an authorised officer required the officer to have (a) knowledge of the goods and (b) the power to determine how the goods should be used and moved. The touchstone was conscious oversight (Conviction GD (HC) at [63]). On the facts, he found that (b) was fulfilled because it was not disputed that the Director-General of Customs (and by extension, the customs officers) had the power to control the movement of goods within the Jurong Port free trade zone (Conviction GD (HC) at [64]).

  114. [53] The only question was therefore (a) whether the officers were aware of the existence of the goods. The Judge held that the customs officers or AVA were clearly unaware of the presence of the rosewood or that it was being unloaded from the vessel for the following reasons. First, just because permission had been sought from Jurong Port to discharge the cargo from the vessel and Jurong Port had assigned an area for its discharge did not mean that Singapore Customs knew of the existence of the cargo. The two entities were different. Second, even if seeking permission from Jurong Port for the discharge of the cargo was sufficient, Jurong Port was itself unaware that the cargo was rosewood. The cargo manifest only stated that it contained logs. Third, the unchallenged evidence of the AVA officers was that they were unaware that some of the rosewood had been unloaded until after they boarded the vessel (Conviction GD (HC) at [66]–[68]). The Judge also found that knowledge could not be inferred from the tip-off given to AVA because the fact that the cargo contained rosewood could not be confirmed until the officers boarded the vessel (Conviction GD (HC) at [71]).

  115. [54] The Judge therefore convicted the applicants. He sentenced Mr Wong to three months’ imprisonment and the maximum fine of $500,000. The Judge imposed the same maximum fine on Kong Hoo. The applicants then filed this criminal reference.

  116. The criminal reference

  117. The questions

  118. [55] The two questions in the criminal reference are:

  119. (a) Question 1: 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?

  120. (b) Question 2: 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?

  121. [56] The questions relate to the criteria in s 2(2) of the ESA for a scheduled species to be considered to be in transit. The provision is reproduced below:

  122. [57] There are thus two limbs in s 2(2) and Questions 1 and 2 correspond to them respectively. First, the scheduled species has to be “brought into Singapore solely for the purpose of taking it out of Singapore”. Question 1 relates to this limb and essentially asks whether this sole purpose condition requires, at the date the scheduled species enters Singapore, proof of a definite date on which the scheduled species will leave Singapore.

  123. [58] Second, when the scheduled species is in Singapore, it has to fall within one of the situations in s 2(2). Either it (a) remains in its conveyance at all times, (b) is removed and returned to its conveyance or is transferred directly to another conveyance and is kept under the control of the Director-General or an authorised officer during the removal, return and/or transfer, or (c) it is removed from its conveyance and kept under the control of the Director-General or an authorised officer for a period of not more than 14 days unless the Director-General approves a longer period pending despatch to a place outside Singapore. On the facts the applicable situation was (c) but Question 2, which relates to the scheduled species being under the control of an authorised officer, applies to (b) and (c) generally. It asks whether it is a requirement of such “control” that the Director-General or any other authorised officer knows about the existence of the scheduled species and exercises conscious oversight over the scheduled species. More generally, it also asks who bears the burden of proof for the control condition.

  124. The Judge’s decision

  125. [59] The Judge answered both questions affirmatively and gave detailed reasons for doing so.

  126. Question 1

  127. [60] For the sole purpose condition, the Judge held that “there must be proof that the scheduled species is definitely to leave Singapore at some defined date(s)” as part of showing that there was a concrete present intention to bring the scheduled species out of Singapore at the time the scheduled species entered Singapore (Conviction GD (HC) at [57]).

  128. [61] His interpretation was intended to give effect to the objects of CITES (since that was the purpose for which the ESA was enacted). Based on the extraneous materials, he identified two potential avenues for abuse in transit cases. First, it would allow middlemen to keep scheduled species in regulatory limbo in a transit country while they shopped for a buyer in another state (No Case GD (HC) at [67], [68] and [91]). Second, it would open the door for smugglers to circumvent CITES protections by disposing of their scheduled species en route (at [91]). Requiring proof of a definite date of departure would aid in ensuring that the scheduled species would not remain indefinitely in transit and/or not provide more opportunities for smugglers to dispose of their specimens during transit.

  129. Question 2

  130. [62] For the control condition, the Judge explained what would amount to being under the control of an authorised officer (Conviction GD (HC) at [63], citing the No Case GD (HC)):

  131. The parties’ positions

  132. [63] Question 1 is no longer in issue before the court as the parties have agreed that the answer is no, ie, it is not necessary to prove, at the time of the entry of the scheduled species into Singapore, that it will leave Singapore on a definite date. Both parties also agree that in relation to the second part of Question 2, the Prosecution bears the applicable legal burden of proof.

  133. [64] Therefore, the only issue disputed by the parties is whether, for control to be present under s 2(2)(b) and (c) of the ESA, the authorised officer needs to (a) know of the existence of the scheduled species and (b) exercise conscious oversight over the scheduled species.

  134. Question 1

  135. [65] Both parties disagree with the Judge’s views on Question 1. They submit that although a firm intention to bring the goods out of Singapore is required, proof of a definite date of departure is not necessary to fulfil the sole purpose condition. The applicants contend that this is because:

  136. (a) Reading in this requirement is inconsistent with the plain wording of s 2(2) of the ESA and constitutes impermissible judicial amendment. It is also inconsistent with the scheme of s 2(2), where the only time limit imposed is in s 2(2)(c).

  137. (b) The purpose of the ESA is to comply with CITES and there are no requirements in CITES that there must be a definite date of departure.

  138. (c) The extraneous materials relied on by the Judge, namely the CITES resolutions, are non-binding documents that shed no light on the obligations envisaged when CITES was prepared and are thus of limited interpretive use.

  139. (d) Parliament has already addressed the potential for abuse, not by modifying the criteria for transit but by enacting s 5 of the ESA and conferring greater powers of enforcement on the authorities.

  140. (e) The Judge’s requirement poses enormous practical difficulties for traders, who are often unable to confirm a date of departure until the cargo has landed and has been assessed by a local consignee in Singapore.

  141. [66] The Prosecution agrees with the applicants that proof of a definite date of departure is not necessary, although the presence of such a date would be relevant for the purpose of demonstrating intention. It submits that the appropriate test should be that of a “concrete present intention” and there must be clear and unequivocal evidence of such an intention. The Prosecution contends that a concrete present intention can be proved by the following scenarios:

  142. (a) proof of a definite departure date from Singapore;

  143. (b) proof of a named consignee outside Singapore;

  144. (c) proof of valid import documentation (such as a CITES import permit) from the destination country; and/or

  145. (d) proof of an obligation to deliver the species outside Singapore, such as a signed contract.

  146. Question 2

  147. [67] The parties agree that the Prosecution bears the burden of proving beyond a reasonable doubt that the scheduled species was not under the control of the authorised officer under s 2(2)(b) and (c). The Judge held the same (No Case GD (HC) at [41]).

  148. [68] On the question of control, the Prosecution submits that the Judge was correct in interpreting “control” as requiring active physical and legal control, in that the authorised officer needs to (a) know of the existence of the scheduled species and (b) exercise conscious oversight over the scheduled species. The practical implication is that a trader is required to declare to or to seek permission from an authorised officer for the transit of scheduled species in Singapore. The Prosecution contends that this definition of control promotes the objects of CITES and the ESA by targeting two problems in the illegal trade of endangered species. First, specimens would be smuggled into and out of non-customs zones without having to comply with CITES requirements. Second, a trader could keep specimens in transit while seeking a buyer in another country. Such abuse can be curbed only if the authorities know that a scheduled species is to be brought within their territorial domain and know the details of its arrival. It would be meaningless to speak of control over something that one does not know exists. Further, the disclosure obligation is consistent with the practice in other CITES signatories.

  149. [69] In response, the applicants submit that “control” should be understood with reference to the Customs Act. This is because an authorised officer under the ESA includes a customs officer under the Customs Act: s 2 of the ESA. The reference to the Customs Act means that Parliament intended for the two Acts to be read together. Section 3(2) of the Customs Act, in turn, states that goods shall be deemed to be under customs control when they are held in any free trade zone, among other matters. The notion of control should therefore be interpreted in line with “customs” control in the Customs Act, meaning that goods placed within a free trade zone or any other zone listed in s 3(2) of the Customs Act would be treated as being controlled by customs for the purposes of the ESA. This is supported by the following:

  150. (a) Art VII of CITES refers to the “transit or transhipment of specimens through or in the territory of a Party while the specimens remain in Customs control” and “customs control” is the exact phrase used in our Customs Act.

  151. (b) Parliament intended to harmonise the terms, definitions and provisions used in CITES, the ESA and “other relevant legislation” and the most relevant legislation is the Customs Act.

  152. (c) Acts relating to the same subject-matter should be construed together and Customs plays a dominant operational role in the ESA.

  153. [70] The applicants contend further that the Prosecution’s submissions and the Judge’s holding of “active” control is inappropriate for the following reasons:

  154. (a) there is no specific requirement of knowledge in the ESA and no requirement for an authorised officer to be informed of scheduled species in transit. This can be contrasted with other legislation such as the Wholesome Meat and Fish Act (Cap 349A, 2000 Rev Ed) (“the Wholesome Meat and Fish Act”), where permits are required when meat and fish products are transhipped.

  155. (b) there is no specific mechanism for traders to provide information to the authorities about when scheduled species are in transit. This was a factual finding by the District Judge that was not overturned on appeal. The trader is therefore being asked to ensure that the authorised officers have specific knowledge where no mechanism or scheme exists for him to make the specific declarations to comply with his purported disclosure obligations.

  156. (c) the requirement is additionally unfair as the trader’s criminal liability turns on the mental state and the acts of a third party unrelated to him. This would also impact Singapore’s status as a transhipment hub since the trader will not be able to ascertain at the outset whether or not the scheduled species is in transit.

  157. (d) Parliament had chosen to comply with CITES requirements not by changing the ESA’s criteria for transit but by enhancing AVA’s enforcement powers. Further, the scheduled species would also be under control requirements in the Customs Act and Free Trade Zones Act (Cap 114, 2014 Rev Ed) (“Free Trade Zones Act”), which allow Customs to have real physical control over the scheduled species.

  158. (e) the principle of doubtful penalisation should apply, ie, if there are two reasonable constructions of a penal provision, the benefit of the more lenient one should be given to the accused.

  159. Our decision and the structure of our analysis

  160. [71] The core question is therefore how s 2(2) of the ESA should be interpreted. The Judge and the parties have approached this question by interpreting the sole purpose condition and the control condition separately. In our view, the interplay between the two conditions is important in reaching a correct understanding of the meaning of s 2(2) of the ESA.

  161. The meaning of s 2(2) of the ESA

  162. [72] The principles of statutory interpretation are well-established. The court should first ascertain the possible interpretations of the text, next ascertain the legislative purpose or object of the statute and finally compare the possible interpretations of the text against the legislative purpose: Tan Cheng Bock v Attorney-General [2017] 2 SLR 850 (“Tan Cheng Bock”) at [37] and Public Prosecutor v Lam Leng Hung and others [2018] 1 SLR 659 (“Lam Leng Hung”) at [67]. Extraneous materials can be referred to in (a) confirming the ordinary meaning of the provision (taking into account its context and purpose); (b) ascertaining the meaning of the provision where it is ambiguous or obscure; or when (c) the ordinary meaning leads to a manifestly absurd or unreasonable result: s 9A(2) of the Interpretation Act (Cap 1, 2002 Rev Ed) (“the Interpretation Act”).

  163. Ordinary meaning

  164. [73] Section 2(2) of the ESA defines what it means for a scheduled species to be in transit. It states that a scheduled species shall be considered to be in transit “if, and only if” the requirements in the section are met. The emphatic words mean that the twin requirements in the section, namely the sole purpose condition and the control condition, are to be construed strictly.

  165. Sole purpose condition

  166. [74] The sole purpose condition states that the scheduled species must be “brought into Singapore solely for the purpose of taking it out of Singapore”. This can be broken down into two related aspects.

  167. [75] A “purpose” refers to a state of mind and can be explained as an intention or an object which one knows will probably be achieved by an act: Chandler v Director of Public Prosecutions [1964] 1 AC 763 at 805 (per Lord Devlin), cited with approval in Public Prosecutor v Sharikat Perusahan Makanan Haiwan Berkerjasama [1969] 2 MLJ 250. The purpose must be the only object intended by the act of bringing the scheduled species into Singapore and precludes any subsidiary or incidental purposes.

  168. [76] The second relates to the time at which the sole purpose must exist. The purpose must already be present at the time the scheduled species is brought into Singapore. It must not be formed only after the scheduled species has been brought in. This accords with what the Judge said when he referred to a “concrete present intention” (Conviction GD (HC) at [57]):

  169. [77] We agree that the trader must possess, at the time of arrival of the scheduled species into Singapore, a “concrete present intention” to bring it out of Singapore. What this means is that the trader cannot intend to keep the scheduled species indefinitely in Singapore or make its departure from Singapore contingent on certain events, such as the presence of a buyer. This was referred to by the Judge as a “contingent future intention”. This is consonant with a strict construction of the sole purpose condition. To bring the scheduled species into Singapore without knowing with reasonable certainty whether the species will leave Singapore leads to the inference that the trader does not intend to bring the species out of Singapore at all or has brought it into Singapore with some other purpose in mind. Both these situations would contravene the sole purpose condition.

  170. [78] The purpose must also be continuing, meaning that it must not exist only at the time of arrival of the scheduled species but must continue until the time the scheduled species leaves Singapore. This means that if a trader brings the scheduled species into Singapore with the sole purpose of bringing it out but subsequently finds a buyer in Singapore for delivery in Singapore while the species is in transit in Singapore, the sole purpose test would not be satisfied and the scheduled species would no longer be considered to be in transit. This is consonant with the statutory context, in particular the ordinary meaning of “transit”, which is a continuous state and, as the Prosecution submits, conveys the meaning that the goods are merely passing through Singapore without entering.

  171. [79] Whether such a sole purpose exists is a question of fact to be determined by the trial judge. This was accepted by the Judge who went on to hold that the presence of some definite date of departure was necessary to prove such an intention (Conviction GD (HC) at [57]):

  172. [81] We therefore agree with the parties that a definite date of departure is not a necessary element of the sole purpose condition although it may be relevant evidence of purpose or intention. The factors that may be considered as pointing to such a sole purpose depend partly on the purpose of the ESA in general and of s 2(2) in particular and we consider this in detail later in this judgment.

  173. Control condition

  174. [82] We now discuss the control condition. The core question is whether control in s 2(2) of the ESA requires knowledge and conscious oversight of the scheduled species. The Prosecution submits that this is required and the applicants disagree. There is a further question as to who bears the legal burden of proof in relation to this condition but both parties agreed in their submissions that the Prosecution bears this burden.

  175. [83] The preliminary issue is the relevance of the deeming provision in s 3(2) of the Customs Act to our interpretation of control in s 2(2) of the ESA. Section 3(2) of the Customs Act states that all goods located in free trade zones (among others) are deemed to be under customs control:

  176. [84] As a result, the applicants contend that all scheduled species arriving in free trade zones such as Jurong Port are deemed to be under the control of customs officers, who are authorised officers under s 2 of the ESA, and there is no need to engage in further interpretation of this condition.

  177. [85] The applicants argue that the ESA was amended to harmonise its definitions with relevant legislation such as the Customs Act and the definition of control is one of them. In our judgment, on a textual analysis, it is apparent that s 3(2) of the Customs Act is not determinative of the requirement of control in the ESA for the reasons given by the Judge (No Case GD (HC) at [77]–[84]), which we summarise here. First, s 3(2) of the Customs Act states explicitly that the deeming provision is for “the purposes of [the Customs Act]”. The plain wording of the provision limits its reach to the parameters of the Customs Act. Second, the use of the phrase “customs control” in the Customs Act is specific and indicates areas where goods are not to be removed without payment of duties. It does not address the particular concerns that the ESA was enacted to guard against and does not provide for the control of the movement of goods beyond the primary interest of whether the goods are dutiable or not. The composite expression “customs control” also has a different meaning from “control” even in the Customs Act itself (No Case GD (HC) at [80]–[81]).

  178. [86] The question of what “control” in the ESA entails therefore has to be decided independently of s 3(2) of the Customs Act. We reproduce s 2(2) of the ESA again for easy reference:

  179. [87] We make a few broad points on the plain wording of this section. First, the control requirement appears in only s 2(2)(b) and (c), where the scheduled species is removed from the conveyance and not (a), where the scheduled species remains in or on the conveyance. It is therefore reasonable to assume that the control condition is targeted at some problem or mischief that arises when the scheduled species is removed from the conveyance.

  180. [88] Second, we agree with the Judge that the meaning of control is flexible and must be derived from the context in which it is used. In relation to goods, it can mean anything ranging from physical possessory control to abstract legal control in the sense of a legal authority directing the manner in which the goods are to be dealt with depending on the context (No Case GD (HC) at [85]).

  181. [89] The meaning of control therefore takes its flavour from the statutory context and purpose. As this is a case involving the ESA, the requirement of control is used in a regulatory context in the sense of an authorised officer supervising endangered species. The Prosecution’s submissions on the “ordinary” meaning of control as active control were derived from statutes imposing criminal liability for control of substances such as dangerous fireworks and arms and explosives. The purpose of imposing criminal liability in certain factual situations may justify a more active form of control.

  182. [90] In our view, the essence of control, in its ordinary meaning, is the power to determine whether, when and how to move or otherwise deal with the scheduled species. However, the concept of control can also be interpreted to require the following:

  183. (a) actual physical custody of the scheduled species;

  184. (b) the authorised officer’s knowledge of the arrival and the whereabouts of the scheduled species; and/or

  185. (c) actual steps taken by the authorised officer to secure the scheduled species or an active exercise of the power to determine use and movement (which is implicit in the Judge’s touchstone of “conscious oversight”).

  186. These possible permutations of the meaning of control in s 2(2) of the ESA should be looked at in the light of the statutory purpose.

  187. Purpose of the statute

  188. The relevance of CITES

  189. [91] The ESA was enacted to give effect to CITES by controlling the import and export of certain endangered species. The long title of the ESA declares that it is “an Act to give effect to [CITES] by controlling the importation, exportation … of certain animals and plants…”. Dr Lee Boon Yang, then-Senior Minister of State for National Development’s statement at the Second Reading of the Endangered Species (Import and Export) Bill (Bill 4 of 1989), stated that “the aim of CITES is the long-term protection of wild fauna and flora” (see Singapore Parliamentary Debates, Official Report (26 January 1989) vol 52 at col 561).

  190. [92] CITES is therefore relevant in determining the purpose of the ESA. It is a function of our dualist system that international treaties and law do not give rise to rights and obligations until transposed into domestic legislation. Within the limits of statutory interpretation, domestic law should be interpreted harmoniously with and to give effect to our international obligations: Yong Vui Kong v Public Prosecutor and another matter [2010] 3 SLR 489 at [59]. This is especially so when domestic legislation is enacted specifically for the purpose of complying with our international obligations, as was the case for the ESA. The court should adopt an interpretation that would promote such a purpose. In doing so, the court may refer to any treaty or other international agreement referred to in the written law to ascertain the meaning of a provision in certain circumstances: s 9A(3)(e) of the Interpretation Act (Cap 1, 2002 Rev Ed) (“the Interpretation Act”) and the principles in Tan Cheng Bock.

  191. [93] The framework of the regulatory regime spelt out in CITES is relevant to our interpretation of the ESA’s purpose and the meaning of its provisions. The travaux préparatoires may also be useful but they were not adduced by either party. The Judge relied on two main sources in considering the purpose of CITES. The first was the recommendations in the resolutions passed by the Conference of the Parties. In particular, he relied on Conf 9.7. This resolution has its roots in Conf 4.10, which was adopted in 1983. In Conf 4.10, the parties recognised the “potential for abuse of [the transit] provision by the keeping of specimens in the territory of a Party while seeking a buyer in another country”. It hence recommended, among other things, that the phrase “transit or transhipment of specimens” be interpreted narrowly and to cover only specimens in the process of shipment (a) to a named consignee and (b) with the ultimate destination of the shipment clearly listed. Conf 4.10 was later amalgamated with Conf 7.4 and currently finds expression in Conf 9.7, which was adopted in 1994 and updated subsequently without any material changes. Conf 9.7 reads:

  192. [94] The Prosecution contends that an interpretation of CITES is relevant to an interpretation of the ESA and Conf 9.7 is useful in understanding what the terms “transit” and “transhipment” mean in Art VII of CITES. This is because they constitute some form of subsequent agreement or practice among the convention parties that establishes consensus as to the interpretation of the treaty, as per Art 31(3)(a) and (b) of the Vienna Convention on the Law of Treaties (23 May 1969), 1155 UNTS 331 (entered into force 27 January 1980), which read:

  193. [95] “Transit” is defined in the ESA and this would be the starting point for interpretation by the court. Given the statutory criteria set out in the definition of “transit”, the CITES materials shed little light on whether Parliament intended to implement these recommendations in the ESA or made a conscious decision not to do so. Conf 9.7 itself is a good example. As explained above, the recommendations in Conf 9.7 appeared first in Conf 4.10, which was adopted in 1983 and which pre-dated the ESA 1989. Singapore acceded to CITES in 1986 and was not present at the Conference of the Parties when Conf 4.10 was adopted. Even if Parliament had considered Conf 4.10 in enacting the ESA 1989, it appears that it had chosen not to adopt the narrower criteria of transit. The requirement of sole purpose adopted in s 2(2) of the ESA is similar to that in other local legislation such as the Animals and Birds Act (Cap 7, 2002 Rev Ed) and the Wholesome Meat and Fish Act. This is in contrast to foreign legislation referred to us by the Prosecution, which expressly provides for Conf 9.7’s recommendations. For example, Council Regulation No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein, EC Regulation 338/97, [1997] OJ L 61 at Art 2(v) defines “transit” to mean “the transport of specimens between two points outside the Community through the territory of the Community which are shipped to a named consignee and during which any interruption in the movement arises only from the arrangements necessitated by this form of traffic” [emphasis added]. This tracks the wording of Conf 9.7 and reflects a clear legislative intention to adopt the recommendations therein. The same cannot be said of s 2(2) of the ESA.

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