Recording & Review Pt. 3: Are Parrots Bred in Captivity Still “Wild”?

Photo by Magda Ehlers from Pexels.

Common sense would answer no. But the Supreme People’s Court (SPC) disagreed—according to its interpretation of a Criminal Law provision that punishes trade in “rare and endangered wild animals.” A Shenzhen man, convicted in 2017 under this provision for buying and selling parrots he himself bred, contested this interpretation before the NPC Standing Committee’s Legislative Affairs Commission (LAC)—the body charged with reviewing judicial interpretations (among other types of documents) at the request of citizens for any inconsistency with statutes. The Commission recently informed the man that the SPC would amend the interpretation. Yet it is far from clear that he won this battle. In this third installment of Recording & Review, we will tell the story of Wang Peng [王鹏] and his parrots.

Relevant Legal Authorities

China’s Criminal Law punishes “illegally purchasing [or] selling rare or endangered wild animals under key State protection” (art. 341, para. 1). The default prison sentence lasts up to five years. But when “the circumstances are serious,” the sentence is increased to between five and ten years, and further to ten years or more when “the circumstances are especially serious” (id.). Because the Criminal Law leaves these terms undefined, the SPC issued a judicial interpretation in 2000 (Interpretation) to clarify their meaning.

Article 1 of the Interpretation, the provision in controversy, defines “rare and endangered wild animals” [珍贵、濒危野生动物] to include the following three categories of animals:

  1. Species listed in the Directory of Wildlife Under Key State Protection [国家重点保护野生动物名录], under either (stronger) grade 1 or (weaker) grade 2 protection;
  2. Species listed in Appendices I and II to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), to which China is a party;
  3. Individuals of species in the first two categories that are artificially bred.

The Directory is part the enforcement mechanisms for the Wildlife Protection Law (WPL), which regulates mostly domestic wildlife-related activities. The WPL as amended in 2009, the version applicable here, did expressly “encourage the domestication and breeding of wildlife,” though a permit was required for wildlife under key State protection (art. 17). Trade in artificially bred protected animals was also permitted, subject to less stringent requirements[1] than trade in wild protected animals (compare art. 22, para. 2 with art. 22, para. 1).

CITES (through its implementing regulations) governs the international trade in the species listed in its three Appendices. Appendix I species receive the strongest protection while Appendix III ones receive the least (see Arts. III–V). Moreover, Appendix I animals that are bred in captivity are treated as Appendix II animals (see Art. VII, para. 4). And for animals bred in captivity, CITES also waives the strict permitting requirements otherwise applicable to species listed in the Appendices (see Art. VII, para. 5).

Parrots are protected by both the Directory and CITES. As of this writing, all parrot species of the family Psittacidae receive grade 2 protection under the Directory. And all except four parrot species of the higher Psittaciformes order are listed in either Appendix I or II to CITES. Parrots thus qualify for criminal law protection as well. Under article 3 and the table appended to the Interpretation, purchasing or selling six or more parrots, regardless of species, constitutes “serious circumstances.” And the circumstances are “especially serious” when ten or more parrots are bought or sold, again regardless of species.

Wang’s Criminal Case

So how many parrots did Wang Peng buy and sell? The first-instance court found that, in early 2016, he sold two green-cheeked parakeets to his co-defendant and also had 45 other parrots—including 35 green-cheeked parakeets, nine monk parakeets, and one grey parrot—in his apartment waiting to be sold. The court thus convicted him of selling protected animals in violation of Criminal Law article 341. Those 47 parrots would have constituted “especially serious circumstances,” thus requiring a minimum of ten-year prison sentence for Wang. But because he only attempted to sell the 45 parrots in his residence, the court instead imposed a mitigated, five-year sentence within the next lower sentencing range.[2] The prosecution also charged him with buying the grey parrot found at his home, but the court found the evidence insufficient.

On appeal, the Shenzhen Intermediate People’s Court modified both the conviction and the sentence. It agreed with the prosecution that the grey parrot, as a type of large bird, would be “hard to obtain through other channels” if it was not bought. It thus convicted Wang of both selling and buying protected animals.[3] But the court also further reduced his prison sentence to two years, reasoning:

Given that most parrots involved in the case were artificially bred, [Wang’s] conduct caused less social harm than illegally purchasing and selling parrots that were bred and grew entirely in the wild; he therefore may be sentenced below the statutory range [of ten or more years].[4]

Because causing less social harm by selling and buying only artificially bred parrots was not a mitigating circumstance recognized by the Criminal Law, the court reported its verdict to the SPC for approval (see Criminal Law art. 63, para. 2). The latter approved the below-range sentence on the same ground.

A more lenient sentence, however, was far from what Wang sought. His core argument on appeal attacked the legality of article 1 of the SPC’s Interpretation, claiming that it violates the maxim nulla poena sine lege [罪刑法定]—Latin for “no penalty without a law,” sometimes also called the legality principle—by “treating artificially . . . bred animals the same as wild ones.” This expansive reading, continued Wang, is “beyond the understanding of the general public.” He urged the Shenzhen Court not to “inflexibly” apply the Interpretation and instead to read “artificially bred” animals to mean only those that were “bred directly from wild animals.” Plainly irked by this argument, the court stressed first that “[j]udicial interpretations have incontestable legal force.” It then reproached Wang’s defense counsel for “violating basic rule-of-law principles” by advancing this argument. And the rest is history.

LAC Review of SPC’s Interpretation

While the appeal was pending, Wang’s lawyers wrote to the LAC in October 2017, requesting review of the 2000 Interpretation. They renewed the legality principle argument, while also putting forward a few new ones (we of course express no opinion on the merits of these arguments).

First, they argued, by according artificially bred and wild animals the same degree of protection, the Interpretation “runs counter to CITES’s principles and is inconsistent with” the WPL. (They cited Hong Kong’s Protection of Endangered Species of Animals and Plants Ordinance as a model piece of legislation that faithfully follows CITES.[5]) Second, they argued that the SPC had itself questioned the propriety of the Interpretation’s expansive reading of the term “wild.” They used as evidence a 2016 letter from the SPC’s Research Office to the former State Forestry Administration, in which the Office recommended amending the Interpretation so as to decriminalize trade in artificially bred protected animals whose populations have grown significantly as a result of captive breeding. Lastly, Wang’s attorneys argued that because the WPL had already delegated to two State Council departments the task of determining the scope of “rare and endangered wildlife”—and because they did not include artificially bred animals—the SPC may not make provisions to the contrary.

The LAC replied to them eight months later. In a terse letter dated June 27, the LAC stated that it was informed that the SPC had “already started the drafting of a new interpretation on” wildlife crimes. The new interpretation would make clear that courts should adopt a “lenient stance” when the animals involved in a case were artificially bred, so as to “match the punishment with the crime.” As of this writing, the SPC has not yet released this interpretation.

Wang most recently filed a retrial petition with the Shenzhen Court on July 9, requesting that he be acquitted of all charges.[6] The petition is still pending.

Assessing the Outcome

Despite the media’s positive portrayal, it is unclear that the LAC’s response was a clear victory for Wang. On the broader policy issue—whether protected animals bred in captivity should be entitled to the same protection as wild ones—the SPC’s position as relayed by the LAC did not seem any different from the one expressed in the former’s judgment in Wang’s case. In approving the more lenient, below-range sentence, the SPC necessarily also found Wang’s conduct still deserving criminal punishment. Likewise, in proposing to treat offenders trading in artificially bred protected animals leniently under the new interpretation, it necessarily still believed that they should be criminally punished—rather than set free. In contrast, Wang is arguing that selling and buying animals bred in captivity should not be criminalized at all.

Further, the LAC’s response probably will not change the result in his own case. The Criminal Procedure Law requires a retrial where “the original verdict or judgment truly erred in applying the law” (art. 242, item 3), which the SPC has interpreted to include where “the sentence was clearly improper” (art. 375, para. 1, item 6). Wang’s sentence was approved by the SPC; it is thus practically impossible that a lower court will find it “improper.” As for the conviction, since the LAC apparently did not find the 2000 Interpretation in violation of any statute (otherwise it would say so), the panel deciding the retrial petition will no doubt apply the Interpretation again and uphold the conviction—unless Wang convinces it of his other arguments. This is no easy task, either.

(Thanks to Zhebin Huang for excellent research assistance.)

[1] Suffice it to say that Wang did not meet these requirements. He thus bought and sold his parrots “illegally” within the meaning of Criminal Law article 341.
[2]  Under Criminal Law article 23, paragraph 2, “those who attempt a crime” [未遂犯] may be given a “mitigated punishment” [减轻处罚]. And under Criminal Law article 63, paragraph 1, those eligible for a mitigated punishment shall be “sentenced within the sentencing range immediately below the statutory range,” if there are multiple sentencing ranges.
[3] See Supreme People’s Court Interpretation on the Application of the Criminal Procedure Law of the People’s Republic of China [最高人民法院关于适用《中华人民共和国刑事诉讼法》的解释] art. 325, para. 1, item 2.
[4] Note that the Court skipped the next lower range and instead sentenced Wang in the lowest sentencing range (five years or less). It did so presumably because this case presented multiple types of mitigating circumstances: voluntary admission of guilt (see Criminal Law art. 67, para. 3), unaccomplished sale of 45 parrots, and the fact that most of the parrots were artificially bred.
[5] For instance, under the Ordinance, “a specimen of an Appendix I species shall be treated as a specimen of an Appendix II species if . . . the animal is bred in captivity for commercial purposes” (§ 2(2)(a); accord CITES Art. VII, para. 4). In other words, individuals of species in Appendix I to the Ordinance, just as those in Appendix I to CITES, receive less protection if they are artificially bred.
[6] The petition raised a host of arguments, some novel and others simply repeating those already advanced on appeal and in LAC review. We won’t discuss these arguments here since the retrial petition is unrelated to the LAC review process.

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