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Us v bengis and others


The United States of America appeals from two orders of the United States District Courtfor the Southern District of New York whichdenied its applications for a restitution award in favor of the Republic of South Africa, pursuant to, first, the Mandatory Victims Restitution Act of 1996 (MVRA),and second, the Victim and Witness Protection Act of 1982(VWPA). The Appeals Court ruled that South Africa: (1) has a property interest in rock lobsters unlawfully harvested from its waters, and (2) is a victim, as defined by the MVRA and VWPA, eligible to receive restitution. Accordingly, the Appeals Court said, "restitution is owed to South Africa."
The case involves the fact that from 1987 to 2001, Arnold Bengis, Jeffrey Noll and David Bengis (defendants) engaged in an elaborate scheme to illegally harvest large quantities of South Coast and West Coast rock lobsters in South African waters for export to the United States in violation of both South African and U.S. law. The district court heldthat South Africa had no property interest in either the lobsters that the defendants took from South African waters; that the governmentfailed to prove that the illegally harvested lobsters were the property of South Africa; and finally thateven if restitution was permissible as a matter of law, "the complication and prolonging of the sentencing process resulting from the fashioning of the order of restitution under this section would outweigh the need to provide restitution to the Republic of South Africa."
The Appeals Court reversed and remanded the district court orders and said, "?we hold that South Africa: (1) has a property interest in rock lobsters unlawfully harvested from its waters, (2) is a victim for restitution purposes, as defined by the MVRA and VWPA, and (3) whatever the complexity in fashioning a restitution order in this case, it is insufficient to preclude entry of suchan order under the MVRA. Accordingly, the judgments of the district court are vacated and the case is remanded to the district court for further proceedings consistent with this opinion."

Peter Mcintyre and others v the King


All three appellants have appealed against their convictions. There is no appeal against the sentences, because of the mandatory provisions of the legislation in casu. The representative of the Crown conceded Accused No. 5's appeal, due to the unsatisfactory nature of the evidence against him, specifically. Since Accused No. 5 spoke a different language than the others, the evidence lacked clarity concerning what he said. This was found to be proper and fair, and Accused No. 5 was accordingly found not guilty and discharged.
The next issue of contention was whether the aforesaid rhino horns possessed by Accused No. 1 and trafficked by Accused No. 6 were of an animal "indigenous of Swaziland". In his judgement the Chief Justice rejected this contention that the Crown had to prove this, as legislation includes rhinoceros of all species, no matter if indigenous or not. However, Mr. Kuny, representing the Crown, was convinced that proof is needed and thus the appeals of Accused Nos. 1 and 6 were upheld.
So, scientific studies, including migration flows, probability calculations, DNA-testing, etc., were completed to establish that the horns in question were of a white rhino, which are indigenous to Swaziland. However, the Judge, quoting past cases Miller v Minister of Pensions 1957(2) and R v Mlambo 1957(4), concluded that the Crown discharged the onus of proving beyond reasonable doubt that the horns in question were those of a white rhino, and animal indigenous to Swaziland. Therefore, the appeal cannot be upheld on these grounds.
Two other grounds of appeal, which the Counsel contended, constituted irregularities.
During the investigation described above, a tape recorder was used to gather evidence, which was subsequently presented as such in the court proceedings to convict Accused Nos. 1 and 6. The Counsel was of the view that there are unsatisfactory features concerning the evidence:
1. Recorded on a small recorder operated manually, as well as kept in possession, by one of the rangers up until the trial. This included two transcriptions of the tape recording done at different dates, which differed in many respects from each one another.
2. The Crown counsel consulted with two of the Crown witnesses, one of whom was still under cross-examination. This conduct was "unethical, irregular and unwise". It was contended that Accused No. 1 was therefore prejudiced and had not received a fair trial.
Concerning these issues, the trial court held that "while the proper procedure had not been followed, the purpose for which the consultation had taken place was a bona fide one and no sinister inference could be drawn and no real possibility of prejudice could be envisaged". The Judge reflected this view as well.
Court judgement:
In the first place it is clear that the evidence of Accused No. 1's possession of the horns was overwhelming. The evidence was presented in a consistent fashion and no real criticism can be leveled at their credibility because of material contradictions. Concerning Accused No. 6, it was taken into account that the court clearly relied on the evidence put forth (tape recording), convicting Accused No. 6, and that it erred in doing so and that this constituted an irregularity. The Judge reasoned however, that the court can still convict if on the evidence and the findings of credibility, unaffected by the irregularity, there is proof beyond reasonable doubt. Both appeals are dismissed and their convictions and charges are confirmed. (Provided by: UNODC SHERLOC)

R v Moore 2001 QCA 431


A company and two of its directors were charged with offences under the Environmental Protection Act in relation to the disposal of abrasive blasting product from a ship cleaning business in Brisbane. This case study concerns an application for leave to appeal by Moore, one of the directors.
Part of the company’s business involved the collection, stockpiling, and cleaning of spent sandblasting material from shipyards. The hulls of ships are commonly painted with a paint containing Tributyltin which is extremely effective at killing marine organisms. Ships are dry docked to have the old paint removed by sandblasting and fresh paint applied. The blasting material contained quantities of Tributyltin and other chemicals ((lead, zinc, copper, arsenic, chromium, cadmium and selenium) which would be extremely harmful if released into the environment.
In September 1998, it was discovered that the company had been releasing liquid waste of heavy metals (lead, zinc, copper, arsenic, chromium, cadmium, selenium and biocide tributyltin) into a storm water drain connected to the Brisbane River from its premises in Bulimba. The company had also stored abrasive blasting material adjacent to the stormwater drain in a manner contravening its licence conditions. Shortly thereafter the company lost the lease on the premises at Bulimba and its commercial activities were transferred to a site at Thornlands near Eprapah Creek. Stockpiles of contaminated material were dumped on the Thornlands property and some of the contaminated material was buried. The property at Thornlands was adjacent to Eprapah Creek, an area of high environmental value. EPA investigations identified excessively high concentrations of tributyltin, zinc, copper, lead and arsenic in water and sediment samples relating to both sites. In some samples, heavy metals concentrations were more than one million times the standard.
When discovered, orders were issued requiring the proper removal of the materials. There was a failure to comply with these orders. The company and its two directors were charged with willfully and unlawfully causing material and serious environmental harm, and willfully contravening conditions of authorities, licenses and environmental protection orders.
The applicant, Moore, applied for leave to appeal against these sentences.

R v Lamouche


The accused has plead guilty to one count of selling walleye contrary to the Alberta Fishery Regulations thereby contravening section 78 of the Canada Fisheries Act. Undercover operations had established Mr. Lamouche as part of a group of mainly family members who poached and trafficked in fish and wildlife.The undercover operator wanted to identify the accused's clients and bought a large amount of walleye from associates of the accused. He then asked the accused to assist him in selling the walleye as his usual buyers "backed out".
The undercover operator provided evidence of the accused's general involvement in this trade. The pattern of illegal trafficking in both fish and wildlife was evident, as well as the accused claiming his treaty rights as a justification for his actions.
During the hearing, a walleye expert was invited - Mr. Sullivan - who informed the Court about the nature and dynamics of resources of walleye and their depletion. Almost 80% of the walleye fisheries in Alberta collapsed by poor management, monitoring, and jurisprudence. This factor was important in considering an appropriate punishment for the accused, as actions such as these gravely contribute to the situation of walleye resources, which are under protection of relevant legislation.
The judge concluded that the offence must be viewed as serious. The commercial nature of the accused's conduct, the precarious position of walleye in Alberta, the accused's lack of insight and remorse and his abuse of the special status that he enjoys to the detriment of other native people and persons not enjoying that status, all are factors which could justify a significant prison term.
However, the Crown was not seeking a prison term on an offence, which would not in the usual case attract a prison term. Furthermore, taking into account the failure of the government to put in place regulations to properly manage this and other species of fish and wildlife, the Court decided not to impose a prison term. Rather, the Court asked for a $7,500 (Canadian Dollar) fine. This amount however, is beyond the accused's reasonable ability to pay, and considering those circumstances a fine of $3,000 (Canadian Dollar) was imposed, in default statutory manner. (Provided by: UNODC SHERLOC)

R v Potts


Mr. Potts was convicted of 11 counts under the Wildlife Act, R.S.A. 200, c.W-10. The issue for consideration is what is a fit and appropriate sentence given all the proper considerations.
Mr. Potts was the subject of an undercover operation - Operation Chinook, aimed at illegally trafficking in wildlife. The 11 counts that Mr. Potts was convicted of included unlawfully hunting wildlife, unlawful trafficking in wildlife, unlawful guiding, unlawfully discharging a firearm from a vehicle and contravening an order of the Court made under the Wildlife Act.
He was aware his actions were illegal and in defense attempted to hide behind his aboriginal rights. These rights have been well defined over an extended period of time and there should have been no uncertainty in mind of Mr. Potts as to his righs and obligations in this regard.
Counts 1, 2, 3, 4:
For the most part these activities involved Mr. Potts travelling around with an undercoverofficer culminating in the shooting and sale of deer. An appropriate fine for these offences is $4,000.00 plus surcharges as follows:
Count 1 - $1,000.00 plus surcharge of $150.00 in default 16 days
Count 2 - $1,000.00 plus surcharge of $150.00 in default 16 days
Count 3 - $1,000.00 plus surcharge of $150.00 in default 16 days
Count 4 - $1,000.00 plus surcharge of $150.00 in default 16 days
Counts 7, 8 and 9:
These charges involve the hunting for and sale of elk meat previously shot.On each of these charges, Mr. Potts will be fined the sum of $1,000.00 plus a surchargeof $150.00 in default 16 days, concurrent to each other, but consecutive to Counts 1, 2, 3, and 4.
Counts 10 and 12:
These counts involve Mr. Potts guiding without a license. It occurred over an extended period of time and Mr. Potts earned money and received other benefits. On each of count Mr. Potts will be fined the sum of $2,000.00, together with a surcharge of $300.00 each, with a default time of 33 days on each, concurrent to each other,but consecutive to the other sentences.
Count 11:
This involves the hunting of a bird of prey which is a protected animal. Mr. Potts did not shoot at any animal on the day in question, but he was hunting within the meaning of the Wildlife Act and this behaviour must be deterred. Mr. Potts will be fined the sum of $1,000.00. A surcharge of $150.00 will apply, in default 16 days consecutive.
Count 5:
This involves the flagrant breach of a Court order under the Wildlife Act. The Crown is correct in submitting that this would often require a period of incarceration. I am satisfied however that the ends of justice and in particular the principles of deterrence can be met byimposing a fine, particularly in light of the other convictions and sentences imposed herein.Accordingly, Mr. Potts will be fined the sum of $2,000.00 plus a surcharge of $300.00, in default33 days consecutive. (Provided by: UNODC SHERLOC)

R v Marsland


This is a case of appeal. The respondent was accused on three charges listed above. The question was, whether the permits the respondent (at that time: the accused) carried were technically valid for the actions he committed.
The accused was transporting five white-tailed deer from his ranch in Alberta to an outfitting and game farm operation in Saskatchewan. The animals the accused was transporting were deer born and raised on the accused's game farm. The accused was in possession of an export permit from Alberta, issued by the Canadian Food Inspection Agency (CFIA). Separately, in the Saskatchewan Environment Resource Management Department, a meeting of senior members was held, where it was decided to have a policy change and begin laying charges against individuals importing game farm deer without a Saskatchewan import permit.
When the accused was stopped and charged, he was in possession of the above-mentioned CFIA Export Permit and a Poundmaker Cree Nation Import Permit, which is the goal farm in Saskatchewan where the accused was planning to bring the white-tailed deer to, as was previous practice.
The summary offence ticket given to the accused by the relevant authorities, was for the provincial offence of importing white-tail deer without an import permit contrary to s. 31(1)(b) of the Wildlife Act. To operate a hunt farm, the specifications require a license by the Province of Saskatchewan, which the owner of the goal farm could not obtain as his hunt farm was located on a First Nation reserve (native peoples' reserve) and came under federal jurisdiction. This is also the reason why it was impossible for the accused to receive a Saskatchewan Import Permit.
A duty was imposed on the accused under s.15 of the Domestic Game Farm Animal Regulations to obtain an important licence pursuant to s.31(1). A failure to meet this duty may have given rise to a charge under the DGFAR, s.15, and not under DGFAR s.31(1) of The Wildlife Act. However, the accused was not charged under the DGFAR s.15, so was possibly charged under the wrong legislation. From this the learned trial judge concludes that no culpability can be found in not having obtained a license which was not obtainable.
Further, it was noted that the accused had shown due diligence in attempting to meet any obligations under the law, as well as followed past practice of federal officials allowing the importation practices.
The Crown, (represented by the Attorney General of Saskatchewan) argued however, that there was very little evidence that the accused made efforts to obtain information as regards his legal responsibilities for importation of the deer in question. Further, the fact that the authorities in this matter "allowed" the accused to import deer on previous occasions without charge, cannot be said to be officially induced error. In R. v. Shiner 2007, the court set aside a judicial stay and entered a conviction against a seal hunter from unlawfully selling blue back seal pellets. In that case, the accused has argued that the Department of Fisheries' failure to act to curtail the illegal harvest of blue back seals led him to believe he could continue to do so. This was rejected by the court. The court held that the accused "inferred" that his actions were legal. In the matter before me, the accused "inferred" that his actions were legal when he was not previously stopped. However, it does not establish officially induced error.
For the reasons set out above, the decision of the learned trial judge must be overturned, and the appeal allowed. The Attorney General requested that a conviction be entered and a sentence be imposed (see above, under "Sentence"). (Provided by: UNODC SHERLOC)

The Peoples Procuratorate of Guangzhou City Guangdong Province v. Chen Yonglin and Chen Zupei


On November 3 1987, the People's Procuratorate of Guangzhou City, Guangdong Province instituted a public prosecution in the Intermediate People's Court of Guangzhou City against the defendants, Chen Yonglin and Chen Zupei, on charges of smuggling of giant panda pelt. On November 11 of the same year, the Intermediate People's Court of Guangzhou City legally formed a collegiate bench, and conducted an open trial. In this trial it was found that:
In December 1986, the defendants, Chen Yonglin and Chen Zupei, jointly bought a powerboat called “Baoan 54013.” On January 12 1987, Chen Yonglin went to Shenzhen to meet Chen Yaofu (at large), a smuggler from Hong Kong. Chen Yaofu wanted Chen Yonglin to smuggle a pelt of rare animal to Hong Kong. Chen Yonglin agreed. On that day, Chen Yonglin told what was required of him by Chen Yaofu to Chen Zupei, who agreed to help. At about 9 o'clock that night, Chen Yonglin and Chen Zupei went to the Shenzhen Bay Hotel to meet Chen Yaofu. After plotting, they agreed on the time and place for handing over the contraband.
At noon on January 13, Chen Yaofu put a panda pelt into a nylon bag at Shekou, Shenzhen, and gave it to Chen Yonglin and Chen Zupei. Chen Yonglin instructed Chen Zupei to hide the nylon bag in the hidden cabinet between the decks of the powerboat to evade the customs inspections. The two persons drove the boat out of the country, away from the Pearl River Estuary. When the boat reached the sea area near Dachan Island, they and the contraband were captured and seized by the Guangzhou Customs.
The aforesaid facts were ascertained by witness testimonies, as well as through evidence of the captured illicit goods. In addition to this, both defendant, Chen Yonglin and Chen Zupei, confessed to their acts. (Provided by: UNODC SHERLOC)

The Second Peoples Procuratorate of Beijing v. Zhang Yi


On October 19, 2000, at 10:40 pm, the defendant Zhang Yi (a united Arab emirates passport holder) was contacted by Customs and Border Protection officers in the passenger inspection area of Beijing Capital International Airport. The inspectors asked him to open his bag, but the defendant refused to cooperate initially. Then the bag was searched , and 8 saker falcons were found inside (4 died). The Saker Falcon is a strictly protected species in China, which is not allowed to be exported without the necessary licence.

The Peoples Procuratorate of Shanghai City v. Li Wenjian and Liang Zhiqiang


In December 2001, two Chinese businessmen planned to smuggle a large amount of ivory out of Africa by containers. They contacted defendants Li Wenjian and Liang Zhiqiang and asked them to arrange import declaration documents and to rent a warehouse in Guangdong Province.
In August 2002, Liang Zhiqiang arrived in Shanghai and handed over the bill of landing, receipt, sanitary and phytosanitary certificates, and other relevant documents to Li Wenjian. Then Li signed an import agency agreement with two other companies and entrusted an agent declaration enterprise to declare a 20 inch container carrying rosewood panels to Shanghai Waigaoqiao Customs.
On August 30 2002, the smuggled elephant tusks hidden in African wood were discovered by customs officers. The sized items included 303 African elephant tusks and 1013 pieces of elephant tusks which can be sliced into 408 whole tusks and 17 others in pieces. Shanghai Customs officials estimate the weight of this giant seizure at 3334.6kg, the items had a retail value of more than 178,275,000 RMB. (Provided by: UNODC SHERLOC)