Written by Harsimran Kaur and Neha Navalashini Sominadu from ECOLAWGY UM, University of Malaya.
Edited by Siti Sarah Ikmal Hisham.
Reviewed by Luc Choong and Celin Khoo Roong Teng.
Being home to an astonishing ecological legacy, wildlife-related crimes such as poaching, trafficking, smuggling and illegal hunting are no longer alien to us. Legislation has been enacted to circumvent these issues, but their ineffectiveness in deterring crime called for their inevitable demise, thus marking the birth of the Wildlife Conservation Act 2010 (WCA). Admittedly, the WCA has been celebrated to be the most progressive wildlife conservation act in Malaysia.
Malaysia is one of the seventeen megadiverse countries globally, home to a wide array of ecosystems, both marine and terrestrial. The core of its terrestrial biodiversity lies in tropical rainforests — a remarkable ecological legacy that has developed over 130 million years resulting in various flora and fauna. However, such rich biodiversity is no stranger to perilous situations. In Malaysia, countless species are threatened by poaching, trafficking, smuggling across national borders, hunting without a license for international trade and encroachment into protected areas. Illegally harvested wildlife from our rainforests may eventually make their way into pet trades or be consumed as exotic meat and traditional medicine.
Legislation enacted for the protection of terrestrial wildlife in Malaysia varies according to jurisdiction. In Malaysia, the Federal Constitution provides for the protection of wild animals and wild birds under the Concurrent List (List III of the Ninth Schedule). This means that both the federal and state government may enact laws to protect wildlife. The first attempt to harmonise wildlife laws on the federal level came in the form of the Wild Animals and Birds Protection Ordinance 1955. However, the Ordinance was afterwards updated and replaced by the Protection of Wild Life Act 1972 (PWLA) which applies to Peninsular Malaysia and the Federal Territory of Labuan. Wildlife in Sarawak and Sabah are respectively governed by the Wild Life Protection Ordinance 1988 and the Wildlife Conservation Enactment 1997.
After 34 years, the PWLA was repealed by the comprehensive Wildlife Conservation Act 2010 (WCA). The WCA primarily aims to regulate, protect, conserve and manage wildlife in Malaysia. Hence, this article seeks to analyse the development of the WCA and its impact on circumventing wildlife-related crimes.
II. LEGISLATIVE HISTORY OF THE WILDLIFE CONSERVATION ACT 2010
At the time of its enactment, the PWLA may have been sufficient to protect endangered species. However, the unrevised penalties, limited scope of enforcement and low risk of prosecution created an insufficient deterrent for various wildlife crimes for a vast duration of time. For instance, in 2005, a man in Kelantan caught with a dead tiger in his freezer was fined a mere RM7,000. This was in spite of the provisions under the PWLA prescribing a maximum penalty of five-year jail time and an RM15,000 fine. In stark contrast, a Malaysian man was sentenced to five years in prison for stealing a few cans of Tiger beer. The PWLA also contained limited provisions for animal welfare and management of enclosures.
Due to the loopholes in the PWLA, it was then repealed by a more comprehensive act — the WCA. When passed by the Parliament, WCA was hailed by many as ‘a vast improvement on the existing law’.
III. STRENGTHENING THE WILDLIFE CONSERVATION ACT 2010
In 2011, the Department of Wildlife and National Parks Peninsular Malaysia (PERHILITAN) raided a man’s house in Bukit Jelutong and found ivory items that were advertised in the classified advertisements of a well-known local website. He was charged under Section 68(b) of the WCA which warrants an RM100,000 fine or up to three years in jail, or both if found guilty. If the PWLA were still in force, the penalties imposed would have been significantly lower; the fine would not exceed RM3,000 and the term of imprisonment would not go beyond one year. The case above also spotlighted the issue of online illegal wildlife trade. The other provisions that were inserted into WCA include:
IV. THE IMPACT OF THE WILDLIFE CONSERVATION ACT 2010
The effect of the WCA is evident through cases decided ever since it came into force. A 2013 case involving Malaysia’s biggest seizure of trafficked tiger parts saw the conviction of a 29-year-old man who was sentenced to a total of 60 months in prison without a mandatory fine. However, a conviction under Section 68(2)(c) of the WCA involving tiger parts also carries a mandatory fine between RM100,000 and RM500,000 plus a jail term not exceeding five years. Trade Records Analysis of Flora and Fauna in Commerce (TRAFFIC) Southeast Asia Regional Director Dr William Schaedla expressed his disappointment that the mandatory fine was not included in the conviction despite being explicitly stated in the WCA.
In Public Prosecutor v Nguyen Thi Huong the following year, the Sessions Court in Sepang charged an accused under four separate charges for the act of smuggling trophies of wild animals protected under the WCA. The accused pleaded guilty to all the charges and was sentenced accordingly. Dissatisfied with the inadequacy of the sentence, the prosecution appealed. The court allowed the appeal in which the respondent received harsher punishments, with the duration of detention doubling in some of the charges. The court had also declared that one of the foremost considerations in sentencing policy is public interest. It is also in line with the overall concept of public interest that such rights or liabilities as are affected can be gleaned from a particular act that has been amended to reflect the intended public interest.
Nguyen Thi Huong was referred to in Public Prosecutor v Tran Van San, where the accused was charged before the Sessions Court for four cases involving 10 charges under the WCA. The Sessions Court convicted the accused for all the 10 charges and meted out imprisonment sentences from the date of arrest for each case. Therefore, a few considerations were made, including the listing in the International Union for Conservation of Nature (IUCN) Red List of the animals which were subject of the charges against the accused and the necessity for the court to send a strong message to the public. This was to ensure that the seriousness of adhering to the aims and objectives of parliamentary intention when introducing the WCA in 2010 was upheld. In compliance with the WCA, the court decided to include the mandatory fine as an addition to imprisonment in enhancing the sentence. Thus, the accused was sentenced to 19 years in jail and an RM850,000 fine after being found guilty of 10 charges. He was found to be in illegal possession of 273 wildlife parts including tigers, leopards, clouded leopards, sun bears and sambar deers (Rusa unicolor).
In October 2018, two ex-Customs officers were sentenced to five years in jail and an RM230,000 fine each on several charges of illegal possession of 31 black spotted turtles, a species under tremendous threat from the illegal international commercial trade. These men were arrested in 2016 with two bags containing 31 turtles listed in Appendix I of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) at Kuala Lumpur International Airport 2. They were both serving Customs officers at the time of the arrest. Dato’ Abdul Kadir Abu Hashim, Director-General of PERHILITAN expressed that ‘this is one success in a long battle and PERHILITAN, following this success, will continue to be vigilant against the use of Malaysia’s ports and airports to smuggle wildlife. The public can help by continuing to report wildlife crime’.
Provisions under Malaysian wildlife law for the species in question allow judges to penalise offenders using a combination of fines and detention. Judges usually sentence using both and at times only issue fines, making the sentence handed down by the Kuala Terengganu Sessions Court both a novel and hard-hitting one. In May 2019, the Kuala Terengganu Sessions Court sentenced two Vietnamese nationals to a fine of RM1.56 million and two years of jail each for illegal possession of threatened and protected animal parts. In March 2019, another Vietnamese national caught in the state of Perak was sentenced to a total of 19 years in jail and an RM850,000 fine after being found guilty of 10 charges under the same law.
Perhaps the effect of WCA as compared to the PWLA can best be observed through the lens of legal action that involved the Sumatran Serow, a mammal native to mountain forests of Peninsular Malaysia. A TRAFFIC analysis found that penalties meted out by courts in Peninsular Malaysia from 2017 to 2019 were greater than in the preceding period of 2005 to 2010. The highest penalty for a Serow-related offence was in 2017, with fines totalling RM1.2 million and 48 months of imprisonment given to two Malaysian men convicted of illegal possession of the animal’s head and other parts in a forest reserve in Pahang. Over 102 people have been arrested for wildlife trafficking and poaching offences since Malaysia launched a ramped-up enforcement campaign against wildlife crime in September 2019, with 43 of them being locals and the rest foreign nationals. It is the first time in Malaysian history that a fine of more than RM1 million was issued for a wildlife crime.
While there have been greater punishments, the dearth of punishments meted out can be observed through numerous instances. In 2017, a man was sentenced to an RM100,000 fine by the Ipoh Sessions Court, 22 months after his arrest for illegally possessing a Malayan tiger carcass in an oil palm estate in Gopeng, Perak on 2nd February 2016. In accordance with Section 68(2)(c) of the WCA, the man was punished with an RM100,000 fine, a month of jail and confiscation of his motorcycle. The prosecuting officer for PERHILITAN, Nor Shahrim Mohamed Noor, said the man had committed a serious offence. This offence was aggravated by the fact that only an estimated 250 to 340 tigers remained in the country and that the species faced tremendous pressure from poaching. The case was not only a matter of respect for the law but also one of national interest. He argued for a custodial sentence to set an example for other would-be offenders and urged the court to show that it viewed wildlife crime seriously.
In line with the evolution of the internet and social media, wildlife cybercrime issues have emerged over the years. In 2018, Malaysia seized over 680 wildlife and their parts in an operation against wildlife cybercrime linked to illegal online wildlife trade. Three men arrested in connection with the raids were believed to have played the role of wildlife suppliers who used social media to carry out their illegal trade. Furthermore, a 65-year-old local man was arrested after PERHILITAN found 385 wild animals and 30 eggs on his premises on 4th June. Adding on to that, PERHILITAN nabbed a local man in Seremban with a white-handed gibbon, for which he was sentenced in June 2018 to three years in jail — the maximum term for the offence. The Environmental Court in Seremban also fined the accused RM20,000 for the charge. PERHILITAN Director-General Dato’ Abdul Kadir Abu Hashim warned illegal online wildlife traders that the Department would pursue, catch and prosecute them. He also warned consumers that action would be taken against them should they be caught buying wildlife illegally.
The WCA has been cited by many as the most progressive wildlife conservation act, and on many fronts, it has been evolving positively as environmental laws have been taken more seriously. For instance, Inspector-General of Police Tan Sri Dato’ Seri Abdul Hamid Bador has recently directed all district police chiefs to report wildlife trade in their jurisdictions within a month. This is crucial now as various wildlife species in Malaysia are heavily endangered. Hence, enforcing and amending the WCA to fill loopholes is vital to further protect our wildlife species from smugglers and poachers.
There have been some proposals to amend the WCA, brought up by the Energy and Natural Resources Minister Datuk Seri Dr Shamsul Anuar Nasarah during a Parliament session in 2020. The amendments include enhancing enforcement efforts and increasing penalties against offenders. The amendments would also cover additional provisions on control over online wildlife trading and promotion, which align with today’s technology and current issues. The inclusion of provisions for the handling of wildlife and wildlife services along with provisions for enforcement agencies to curb trading and promotion of wildlife would also be seen in the amendments. Furthermore, the maximum jail term will be increased to 15 years and the maximum fine raised from RM500,000 to RM1 million.
These proposed amendments are a booming hope for environmentalists and wildlife welfare activists as they compel authorities to further prosecute perpetrators with harsher punishments and penalties for inhumane acts. It is optimistic that the efforts to diminish our nation’s reputation as a hub for poaching, wildlife and international trade are evolving quickly for the future of wildlife.
Disclaimer: The opinions expressed in this article are those of the author and do not necessarily reflect the views of the University of Malaya Law Review, and the institution it is affiliated with.
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 See footnote 10 above.
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 See footnote 13 above.
 See footnote 12 above.
 See footnote 13 above.
 See footnote 9 above, s 31.
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 See footnote 9 above, s 68(2)(c).
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 Public Prosecutor v Tran Van San  7 MLJ 762.
 See footnote 22 above.
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 See footnote 27 above.
 See footnote 27 above.
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