R. v. Nam Bak Enterprises Ltd. and Pang Date:, 2012 BCPC 506

Citation: R. v. Nam Bak Enterprises Ltd. and Pang Date: 20121009 2012 BCPC 0506 File No: 202398-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. NAM BAK ENTERPRISES LTD. YEUNG SANG PANG EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M. GIARDINI Counsel for the Crown: R. Roberts, T. Ferreira Counsel for the Defendant: R. Hira, QC Place of Hearing: Vancouver , B.C. Date of Hearing: October 9, 2012 Date of Judgment: October 9, 2012

[ 1 ] THE COURT: This case deals with a guilty plea to one count under the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act (which I will hereinafter refer to as "the Act "). [ 2 ] Nam Bak Enterprises Ltd. has pled guilty to importing into Canada plants or parts of plants, namely, American ginseng (Panax quinquefolius) and doing so otherwise than under the authority and in accordance with a permit issued under s. 10(1) of the Act. [ 3 ] The individual defendant, Yeung Sang Pang, was also charged, but the only plea entered is by the corporate defendant, Nam Bak Enterprises Ltd. [ 4 ] The Crown and the defence noted at the beginning of these proceedings that this is a joint submission made pursuant to a plea arrangement entered into between the Crown and the defence. [ 5 ] In the R. v.

Sun 2006 Import and Export Ltd. et al , Judge MacLean provided a brief

summary of how the Act works. It therefore would be useful to summarize from his observations to put this plea into context. [ 6 ] The Act sets out a degree of protection required for each of the species of flora and fauna of the species it covers. The degree of protection is set out in three appendices. Appendix I covers species that are threatened with extinction. Appendix II covers species which are not necessarily threatened with extinction but for which trade among nations is regulated. Last, Appendix III covers species about which there is concern but less so than the species listed in Appendix I and II.

In this case, my understanding from counsel's submissions is that American ginseng is covered by Appendix II. [ 7 ] The background of this case is as follows. Mr. Pang operates a store in Chinatown in Vancouver, British Columbia. The corporate defendant, Nam Bak Enterprises Ltd. is a limited company. Mr. Pang is the principal of that company, it is essentially a family business. The company provides employment to him and his wife. In one degree or another, his mother and his mother-in-law are also involved in the business. The company at the very least provides support for all Mr.

Pang's family, which includes two teenaged children. [ 8 ] In October 2008, or thereabouts, Mr. Pang, on the company's behalf, made arrangements with an exporter called Wa Nan [phonetic] to have delivered to him in Vancouver a shipment of various materials. In the paperwork accompanying the shipment, there was reference to a permit under the convention that, along with the Act , protects these various endangered species. That permit is called a CITES permit. [ 9 ] As a result of reference to the CITES permit, Environment Canada inspectors conducted an inspection of the shipment.

When they conducted the inspection, they found 25 cartons, approximately 1,150 pounds, of ginseng. They believed it was American ginseng. [ 10 ] The company, Nam Bak Enterprises Ltd., did not have a permit for those 25 boxes of American ginseng. I have been told these permits can be provided either by the country from which the plant or plant material is exported, in this case Hong Kong, or from the country to which it is sent, in this case Canada. Nam Bak Enterprises Ltd., did not have a permit from either one of those countries.

I am not certain if we can refer to Hong Kong as a country, but it is a separate entity from China, in any event. [ 11 ] I was further advised that the export broker Nam Bak Enterprises Ltd. dealt with did obtain a permit in Hong Kong for the shipment. However, because it was obtained after the fact, it was not of any assistance to Nam Bak Enterprises Ltd. as it could not apply retroactively. [ 12 ] The invoice that accompanied the shipment of ginseng showed that the shipment of ginseng was purchased by Nam Bak Enterprises Ltd. for $25,000 Canadian. Its retail value was approximately $80,000 Canadian. Mr.

Hira, on behalf of Nam Bak Enterprises Ltd., advised that his client had paid that amount. Accordingly, since he has not had the use of that ginseng, the company is out-of-pocket that amount. [ 13 ] The proposed sentence in this case is a fine, for a total of $50,000. The submission on sentence is that $5,000 would be paid immediately. Mr. Hira indicated he has the money in trust and requires two or three weeks for the appropriate paperwork to be done and for the cheque to clear the bank. The remaining $45,000 would be paid by monthly installments of $375 per month.

In order for the total fine to be fully paid, time to pay period of 10 years is requested. [ 14 ] As well, it is submitted there should be no victim fine surcharge. The Crown is asking for forfeiture of all the American ginseng seized. That was part of the plea arrangement. [ 15 ] In his submissions, Mr. Hira set out some of the history that resulted in the plea arrangement. I will not repeat that history in this sentencing decision. Suffice it to say that it appears, on the basis of the information I have been provided, that the Crown was going to have some challenges in dealing with the case.

It is not clear how or whether those challenges would have been resolved, but certainly, there were some challenges. [ 16 ] Mr. Hira also provided the court with financial information about the principal of the company, Mr. Pang, his family, and about the company itself. It is clear from the financial information provided that Mr. Pang and his wife, who both work in the business, do not make a lot of money. Their salaries between 2008 to 2011 ranged from as low as $12,000 a year to a high of $17,300 a year.

The company itself has modest net income substantially under $5,000 a year. [ 17 ] It has also been brought to my attention that this is a first offence for the company. The company has been in business for a number of years and has obtained permits in the past to import various items. Mr. Pang has lived in Canada since 1995. He obtained approval in 2002 to be a practitioner in traditional Chinese medicine. He and his wife have a home in Vancouver, albeit with a mortgage. They have worked and continue to work in the business.

[ 18 ] Before I deal with the issue of what the appropriate sentence is in these circumstances, I briefly want to touch on the issue of joint submissions. [ 19 ] There is significant case law in British Columbia on the issue of joint submissions. One case is R. v. Teleske , [2005] B.C.J. No. 258 , reasons for sentence of my brother Judge Skilnick. Another case is R. v. Furey , [2007] B.C.J. No. 1901 , a decision of the British Columbia Court of Appeal. There is even a more recent decision, R. v.

Cooper , 2009 BCCA 208 , which contains a good review of the law regarding joint submissions. [ 20 ] The case law makes it clear that a judge does not need to merely act as a rubber stamp when it comes to joint submissions.

However, the case law also makes it clear that, where counsel have made a joint submission resulting from a plea bargain, sentencing judges should consider those submissions with considerable deference. [ 21 ] Some cases suggest that trial judges should not reject joint submissions unless a joint submission is contrary to the public interest and the sentence would bring the administration of justice into disrepute. Other cases suggest that a sentencing judge is not bound by a joint recommendation from counsel as to the appropriate sentence.

The judge can reject a joint submission but ought to give reasons for doing so and not disregard the submission or overlook it. If the judge decides not to follow the joint submission, he or she should make plain the reasons for the concern with the joint submission. [ 22 ] I will deal first with the joint submission. I was provided counsels' authorities in advance and had an opportunity to review them. I have asked a number of questions during the course of the sentencing.

I am satisfied that what is being proposed by both counsel is in the range of sentences that have been imposed by other judges of this court for similar offences. [ 23 ] The range indicated in the cases is between $18,000 in a case involving the importation of ivory, and $50,000 ($25,000 each on two counts) for the importation of six endangered butterflies. There is also a case involving the importation of orchids where the total fine was about $100,000. [ 24 ] In this case, as I said, I am satisfied that the sentence proposed is in the range. I therefore accept the joint submission.

Accordingly, the sentence will be a fine of $50,000 against Nam Bak Enterprises Ltd. $5,000 must be paid no later than 4 p.m., October 31, 2012. The cheque must be made payable to the Receiver General of Canada. I will make an order that the $5,000 so paid will be directed to the Environmental Damages Fund which is administered by Environment Canada. I issue that order pursuant to s. 22(6) (

h) of the Act . [ 25 ] The remaining $45,000 will be paid in monthly installment of $375 a month. [DISCUSSION BETWEEN COURT AND COUNSEL OMITTED] [ 26 ] THE COURT: The victim fine surcharge is waived. (REASONS CONCLUDED)