Malaysia: Stronger prosecution needed to deter wildlife crime

Natalie Heng The Star 12 Mar 13;

Stronger and thorough prosecution is needed to stem animal trafficking.

LAST February, a man was arrested in Alor Star, Kedah for possession of eight tiger skins and 22 whole tiger skulls and bones – what conservationists estimate to be 4% of Malaysia’s entire tiger population of 500.

Last month, Mohd Nor Shahrizam Nasir, who also had nine African elephant tusks when arrested, was sentenced a total of 60 months in prison for three charges of illegal possession: 24 months for the tiger skins, 24 months for the skulls and bones, and 12 months for the ivory. It was the heaviest penalty ever meted out under the Wildlife Conservation Act 2010. Yet, it created an uproar as the Alor Star Sessions Court judge had ruled for the three sentences to be served concurrently, which meant that Mohd Nor Shahrizam would in effect, only have to serve 24 months in prison.

“So it is 24 months, for 22 tigers … a little over one month in prison, for each tiger that Malaysia has lost forever,” said the Malaysian Conservation Alliance for Tigers.

Also, the judge did not issue a fine despite the Act providing for a mandatory fine of between RM100,000 and RM500,000. The prosecution is appealing against the sentence but the incident raises questions over the judiciary’s familiarity with wildlife crimes and legislations, and the competency of the prosecution.

The process of fighting wildlife crimes – be it arresting offenders, gathering evidence, or prosecuting the culprits in court – does not happen in isolation. Each successive stage builds on the work of previous stages. And as conservationists have pointed out, though gaining a strong wildlife legislation is an important first step, it will mean nothing unless we develop the capacity to use it.

Tasked with finding the ammunition to fight wildlife crimes are jungle-hardy enforcement officers from the Wildlife and National Parks Department (Perhilitan). They share the front line with police and Customs officers, who also have the authority to make arrests, investigate cases, and explore leads and tip-offs to gather information for submission in an investigation paper to the state prosecutors. The prosecution’s job is to figure out how best to use this information to build up a case in court.

Aside from the Wildlife Conservation Act 2010, the facts of the case may allow for other laws to be used. The offender could be charged under the Arms Act 1960 for carrying an unlicensed firearm. Or the prosecution could explore whether hidden compartments in a poacher’s vehicle contravene regulations under the Road Transport Act 1987.

But this rarely happens. Legal officer for TRAFFIC South-East Asia, Shenaaz Khan, points to the most obvious case – the high-profile trial of Anson Wong, who was caught with a suitcase full of baby boa constrictors, two venomous rhinoceros vipers, and a South American turtle at the Kuala Lumpur International Airport in 2010.

The prosecution brought forward only one charge against him: exporting 95 boa constrictors without a permit. Wong was sentenced to six months’ jail, and fined RM190,000 at the Sepang Sessions Court.

“There were a host of other charges that they could have used. Cruelty and the violation of international air travel requirements for transportation of live animals, for example,” says Khan.

Unhappy with the sentence, the prosecution launched an appeal. In late-2010, the Shah Alam High Court raised the jail sentence to five years (although the fine was withdrawn). It stated that the Sessions Court, in its sentencing, had not take into account the large number of snakes and the risks to both the flight and airport. However, the defence appealed and in February 2012, the Court of Appeal ruled that the High Court had erroneously taken certain facts into consideration. It said the presence of the two vipers had not been stated in the initial charge and therefore, was out of the ambit of the charge which warranted the Court of Appeal intervention. Wong walked free, having served 17 months and 15 days in prison.

When cases go to trial, any mistake, be it a simple mislabelling of evidence or a glitch in the forensics process, is fair game. A good defence lawyer thrives on such oversights to raise the element of reasonable doubt.

Khan, who regularly sits in on court proceedings, says wildlife criminals are hiring better defence lawyers. Under the previous legislation, the Protection of Wildlife Act 1972, cases rarely went to trial as 95% of the offenders would plead guilty. Since the enforcement of the new act – where the minimum penalty has increased from RM1,000 to RM10,000 and the maximum, from RM15,000 to RM500,000 – the number of defendants requesting trial has increased by around 20%.

TRAFFIC deputy director Chris Shepherd, who has been keeping tabs on the region’s illegal wildlife trade for over a decade, says one of the biggest flaws in our system is that our prosecutors are too often, poorly prepared for the fight.

“It (the Wildlife Conservation Act 2010) is a good law, but prosecutors must have the capacity to keep up with it. Also, wildlife crime is still not being looked at as a high priority. If that was a drug case or a murder case the prosecutors would be much better prepared.”

Shepherd would like to see stronger participation and coordination between agencies, with the police handling more wildlife cases, and Customs playing a stronger role too. He says efforts could be more focused on border entry points and paper-trail investigations, to pinpoint laundering routes.

“The new law can also be enforced by the police. Customs can search cargo and conduct random sampling. So it is important that there are efforts to help the police and Customs officers become acquainted with our wildlife acts too.”

In the United States, the separation of environmental prosecutions from other forms of crime revolutionised wildlife and environmental prosecutions. Wildlife investigators can take their cases directly to knowledgeable prosecutors based within the US Department of Justice’s Environmental and Natural Resources Division. There is no such division in Malaysia.

Here, the less serious cases are handled by prosecuting officers from Perhilitan, who may be well-versed in wildlife issues, but are not legally qualified. They undergo Basic and Advanced Prosecution Courses run by the Judicial and Legal Training Institute. The more serious cases are usually handled by deputy public prosecutors from the Attorney General’s Chambers. These prosecutors handle a wide range of cases and do not specialise in wildlife laws. There are three deputy public prosecutors based at the Natural Resources and Environment Ministry headquarters in Putrajaya.

One of them is the ministry legal advisor, senior federal counsel Faridz Gohim Abdullah.

“It is a (state) deputy public prosecutor’s job to be well-versed in the law but, of course, there are so many laws that you have to read, and so many cases that you have to deal with, only some of which are related to wildlife,” he says.

All cases go through Faridz and his team; they decide whether a prosecuting officer or a deputy public prosecutor will handle a case, and what charges should be pressed. Faridz was the prosecuting officer at Anson Wong’s initial trial, just after being transferred from the Attorney General’s Chambers to the ministry. Now, he says they try and file as many charges as the facts of the investigation paper will permit.

To counter wildlife crime, Perhilitan is beefing up its manpower. The Public Service Department recently approved the creation of 66 new posts to enhance networking and intelligence gathering, the setting up of additional Wildlife Crime Units and additional staffing for existing units.

Efforts are under way to green the judiciary, with the setting up of Green Courts in every district nationwide last year. The courts are not a physical entity. Rather, the term “Green Courts” refers to the dedicated slot which will be regularly allocated within 76 Sessions Courts (or in the absence of that in some districts, a Magistrate’s Court) to hear cases related to the environment such as wildlife crime, pollution, illegal logging and fishing, and land clearing. They will involve judges trained in environmental issues and laws.

Mohd Aizuddin Zolkeply, head of the corporate communications and internal relations unit at the Judicial Administration Division in the Federal Court explains that the benefits of a Green Court lie in the consistent exposure of environment issues to the same judges. This, combined with training sessions, will help the judiciary to better-understand the seriousness of environment and wildlife crimes, and thus, issue more deterrent sentences to offenders. Another advantage of having such cases being heard in one court is that it will make it easier to monitor the progress of cases and to compile statistics on them.

Mohd Aizuddin says the training for judges will be a continuous, yearly programme.

The judiciary had one training session during last year’s National Green Courts Seminar, which covered all kinds of environmental issues. The next session later this year will focus on improving the quality of decisions.

“Trainers will consist of non-governmental organisations, enforcement agencies, as well as judges from other countries. It will be mostly about sharing best practices, getting perspectives from other countries and learning about how previous judgements were made.”

Aside from general training for everyone, the Judicial Appointments Commission has also organised an outreach programme targeted at Superior Court judges.

“In June, we took them to Taman Negara, where they visited orang asli villages and the kelah sanctuary, and listened to briefings by Perhilitan. We also took them to Cameron Highlands in September, where they got to witness the impact of recent logging activities, and to Kundasang in Sabah, in December.”

The idea, he says, is to allow the judges to experience nature and get a tangible view of the subject matter that is being heard in court.

Arming wildlife warriors
The Star 12 Mar 13;

SHAMSUDDIN OSMAN used to be a tour guide in Sabah. Today, he heads the Wildlife and National Parks Department’s (Perhilitan) Institute of Biodiversity. Aside from coordinating research programmes, the institute runs courses to equip the department’s 310 field staff with knowledge about conservation, law and enforcement, ecotourism and protected area management.

It has been almost 10 years since Shamsuddin made the jump from tourism to government service. The move was prompted by his concerns over illegal hunting – if left unchecked, he thought, there might not be any animals left for him to show people as a tour guide.

For nine years, Shamsuddin served as a Perhilitan enforcement officer, checking consignments, making arrests, coming up with proposals and writing papers. Three years into it, he took on the additional role of prosecuting officer, going to court to press charges against wildlife criminals.

As a result, he knows the system well and believes the Wildlife Conservation Act 2010 will make a difference. “We will eventually see fewer cases, or fewer people at least, who want to venture into the illegal wildlife trade.”

Under the old legislation (Protection of Wildlife Act 1972), the risks of engaging in illegal wildlife trade generally only involved a compound. Shamsuddin explains why wildlife officers used to prefer issuing compounds over pressing charges: “If the case went to court, the criminal would get an even lower fine. However, the amount of compound we proposed was discretionary. For example, if the maximum fine was RM3,000, we could compound for RM1,500, because chances are, the court would only issue a fine of RM1,000.”

Under the new law, more cases are going to trial. In 2010, just before the new law was enforced, compounds made up 98% of the cases. Last year, 42% of the cases involved compounds, whilst 11% were court cases.

Shamsuddin says there are two deterrent factors at play now: the increased fine and possible jail time, and the threat of a court hearing. It is one thing to have to pay a fine, and quite another to end up with a criminal record. “Many people do not like that idea.”

He acknowledges that more court cases means added pressure on enforcement. He says the investigation paper is what will make or break a case. “If all the facts are complete and everything is in order and of the highest standard, the chances of winning is often very high. But if, for example, pictures taken of the evidence is not good, or the amount and composition of species are vaguely explained, then the chances of losing a case is there.”

In the past, when offenders were mostly issued with compounds, the requirements of an investigation paper were not always strictly observed. Now that more cases are going to trial, Shamsuddin places extra emphasis on making sure enforcement officers understand why they need to be meticulous – because court cases depend on it.

“Investigators got used to most cases involving only compounds. We want to erase that from their minds, and instill in them the mentality that 99 out of 100 cases will go to court, so there can be no room for challenges when they prepare the investigation paper.”

Perhilitan has 34 investigating officers and 18 prosecuting officers. The institute has in the past run environmental awareness programme on wildlife issues for deputy public prosecutors.