Wang Lei served over 200 days behind bars after he was prosecuted in 2020 for owning 14 artificially bred Hermann’s tortoises, an endangered species. He was set to serve another two years — until a notice from the country’s top court caused the local procuratorate to withdraw the charges.
Wang, a farmer in Yucheng, Shandong province, had purchased the captive-bred Hermann tortoises in 2018. Following his arrest two years later, Wang was initially sentenced to three years in prison and fined 40,000 yuan ($5,980) by a court in the city for illegally purchasing rare and endangered wildlife under national protection.
Traditionally, China has imposed heavy fines and sentences on wildlife traders and farmers. Critics say that the severity of the punishments are not proportional to the offenses involving protected animals which are also artificially bred and domesticated.
In response, the Supreme People’s Court and Supreme People’s Procuratorate published a new judicial interpretation reclassifying most wildlife trafficking cases as an administrative rather than criminal offense, relieving many from onerous sentences.
The “Interpretation of Several Issues Concerning the Application of Law in Handling Criminal Cases of Destroying Wild Animal Resources” turned around Wang’s case. It was announced on April 7 and went into effect two days later. This put an end to controversial matters regarding artificial breeding of endangered animals.
While some note that the new interpretation would reduce undue penalties, others have raised concerns whether lighter sentences would encourage more wildlife trafficking. There are also concerns that China’s administrative agencies would face more challenges, in increasing wildlife know-how and enforcement.
Artificial breeding controversy
Prior to the interpretation’s release, Chinese courts ruled on cases related to the unlicensed domestication of wild animals based on a “quantitative assessment” as opposed to considering the “value assessment” of the animal in question — an evaluation based on factors such as ecological value and the risk of extinction.
Take Shenzhen’s green-cheeked conure case, which the Supreme People’s Court nominated as one of the 10 most contentious lawsuits in 2016. During the trial, the court of first instance sentenced the defendant to five years in prison for raising 47 state-protected conures, even though 45 of the birds had not been sold. The draconian ruling enraged the public, who believed (albeit erroneously) that domesticated animals were not considered wild animals. Acknowledging the backlash, the Supreme People’s Court reduced the sentence to two years. The initial ruling, according to the judge who heard the appeal at the court of second instance, failed to recognize the difference between undomesticated and domesticated wild animals, “leading to punishments disproportionate to the offense and overwhelming the public perception of criminal justice.”
The new interpretation, by contrast, is more lenient. It stipulates that farming and trading endangered species which have been recovered by artificial reproductive technology does not constitute a criminal offense. For example, although green-cheeked conures are protected by the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), to which China is a signatory, the species has gone through over 30 years of assisted reproduction in China. “We should apply criminal penalties on cases like this with caution, prioritizing the use of administrative penalty,” said a spokesperson of the research office of the Supreme People’s Court.
Less severe punishment
In the past, selling or owning even a single protected animal would be treated as a breach of China’s criminal laws. Si Weijiang, a lawyer who advocated for the defendant in the conure case, pointed out that compared to other countries, China has imposed harsher punishments on the trafficking of animals listed in the Appendix I and II of CITES. Given the low threshold for criminal penalty, courts tend to order sentences disproportional to the value of animals traded. According to a paper published by the Supreme People’s Court’s research office, between 2017 and 2021, 46.07% of the cases involving trading protected animals or related products have led to severe criminal penalty, compared to an average of 10.7% of all criminal punishments considered severe.
Given the new interpretation’s position of determining punishment by taking value over quantity of trafficked animals, the research office’s paper suggests that wildlife trafficking would only be punishable when the total value exceeds 20,000 yuan. This reduces the rate of severe punishments because around 75% of protected animals will be evaluated differently in their value. For the remaining 25% of protected animals, the trafficking of these animals would still constitute a criminal offense as they come under Class-I conservation, which pegs breeds under this list at worth more than 20,000 yuan individually.
Many conservationists have expressed concerns that penalty abatement would encourage traffickers to take risks. “It’s unlikely that the court would sentence an offender to more than 10 years (i.e., severe punishment) in prison,” a spokesperson from Let Birds Fly, a conservationist non-profit, told Caixin. Whereas the previous law imposes severe punishment on trafficking 16 pangolins (a Class I species), the organization notes that the interpretation lowers the threshold, making trafficking anything less than 25 pangolins not eligible for incarceration. Likewise, trading more than 10 swans (a Class II species) would have warranted severe criminal sentences before the interpretation was rolled out. Now, it takes trafficking 134 swans for the court to apply severe penalties.
Others are less worried. Offenders who were not punished by criminal law would be subject to administrative penalties, said Huang Jiade, a lawyer who defended Wang. “Building a social order takes more than cruel and unnecessary punishments,” he added.
Enforcement challenges
The shift from quantity to value in determining sentences, under the interpretation, means that administrative divisions are now presented with a host of challenges when handling incidents previously deemed as criminal cases. This entails coordination between administrative and criminal law enforcement, which is no easy task. China’s forestry department staff are not only bogged down by bureaucratic red tape, but also lack basic knowledge about wild animals, with some unable to recognize local bird species, according to a manager at Let Birds Fly. The forestry department also may not effectively deter wildlife trafficking, as it “lacks the surveillance technology that the public security department has.”
In distributing licenses for the artificial reproduction of wild animals, the forestry department has had to contend with errant breeders. Last December, the police cracked down on an “animal laundering” case where a municipal zoo licensed to assist wildlife reproduction purchased golden snub-nosed monkeys (each worth between 70,000 yuan and 75,000 yuan) from animal traffickers. The zoo then overreported the number of monkeys to the forestry department to create the facade of successful artificial reproduction, before selling these illegally acquired monkeys to provincial zoos at a price of 500,000 yuan each.
Besides captive breeding licenses, another way to protect endangered animals is by assigning them “wildlife certificates.” Wild animals and related goods are given a unique identification code, which helps authorities trace the source via records on databases. On May 6, the National Forestry and Grassland Administration issued wildlife certificates for 19 endangered species, including gray parrots, monk parakeets, and African spurred tortoises.
But even this certification process is known to have been abused by profit-hungry companies, which would forge the documents and make a fortune from selling unlicensed wildlife products. One pharmaceutical company in Beijing, for example, had been found to have forged certificates for 50,000 pangolin and almost 1 million antelope horns.
Bruce Shen is a freelance writer.
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Caixinglobal.com is the English-language online news portal of Chinese financial and business news media group Caixin. Nikkei has an agreement with the company to exchange articles in English.
