HKSAR v. CHAN WAI KEUNG

[English Translation – 英譯本]
HCMA 305/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 305 OF 2013

(ON APPEAL FROM FLCC NO. 15092 OF 2012)

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REASONS FOR JUDGMENT

1. The appellant was convicted after trial of one count of ‘animal not on a leash or otherwise under control’, contrary to section 23(1)(b) of the Rabies Ordinance, Cap 421, Laws of Hong Kong, and was fined $2,500. He now appeals against conviction.

The charge

2. The charge alleged that the appellant, being the keeper of a dog, which on 17 July 2012 was not on a leash or under control and was found at Lakeside Path, Fairview Park, Yuen Long from which the said dog might reasonably be expected to wander into a public place.

The prosecution case

3. The prosecution called two witnesses. Witness (1) was a security guard of Fairview Park. On the afternoon of the day in question, he found the dog involved in the case wandering there when he patrolled past Lakeside Path of Fairview Park. No owner of the dog showed up within ten minutes. The witness therefore sent the dog to the dog cage of Fairview Park before informing the staff of the Agricultural and Fisheries Department to take it away.

4. Prosecution witness (2) was a Field Supervisor (sic) II of the Agriculture, Fisheries and Conservation Department, responsible for dealing with the return of the dog by the Agriculture, Fisheries and Conservation Department to the appellant on the day after the dog had been found.

Defence case

5. The appellant elected to give evidence besides calling one witness who was the contractor carrying out refurbishment work for him in his Fairview Park house on that day.

6. The appellant testified that he had to go to work and his house was still being refurbished, so, before he left home, he instructed the defence witness to keep watch and control his dog. But the dog, neither leashed nor caged, was allowed to roam freely in the backyard of the house. When he returned home at 6pm, he found that it had wandered off. The appellant called the defence witness to enquire about it but was told that he did not know. Later, upon making further enquiries, he learned that the dog had already been sent to the Agriculture, Fisheries and Conservation Department.

7. The defence witness testified that he arrived at the house of the appellant at 9 am on the day in question and was told by the appellant that the dog was at the backyard. The appellant asked him to keep watch and control it. As there were four or five decoration workers inside the house, the witness conveyed the said request to each of them. Later on, the appellant left the house and they began to work, during which workers went in and out of the backyard. The witness later left the above address between 2 and 3 o’clock. It was not until he received a phone call from the appellant at 6 o’clock that he learned that the dog had gone missing. He and his wife then looked for it inside Fairview Park. They were later told that it had already been sent to Agriculture, Fisheries and Conservation Department. He went with the appellant to claim the dog on the following day and bore all the costs. He felt that the dog went missing because his workers failed to keep a close eye on it. He admitted that while inside the house of the appellant, the dog was not being watched at all times. He agreed that it would be safer to tie the dog on a leash.

The findings of the magistrate

8. Nonetheless, the magistrate found the appellant guilty in the end. An extract of the relevant parts of his analysis of the matter is as follows:

‘14. I did carefully consider and note the contents of the evidence given by the two prosecution witnesses, and observe their demeanour in the witness box. It is my view that their evidence was very clear, firm, unevasive and unshaken during both examination-in-chief and cross-examination. There was nothing contradictory or inherently improbable in it. As a matter of fact, the appellant raised no dispute regarding the location at which PW1 found the dog and the condition of the dog at the time in question. He also did not deny that he claimed the dog back from Agriculture, Fisheries and Conservation Department. Therefore, it can be said that the prosecution case was basically not disputed. The only enquiries the appellant made of PW1 were whether or not Fairview Park and the market were enclosed and whether they were fenced off from the outside world, and whether or not PW1 was unaware if there was anyone trying his/her best to look for the dog. In my view, these do not affect the credibility and reliability of the evidence given by PW1 at all.

……

17.    As far as the evidence given by the appellant and DW1 is concerned, the appellant did not deny that the dog went missing from his house. What he disputed was he had already instructed DW1 to keep watch and control the dog for him, and DW1 in turn had instructed the workers to keep a close eye on the dog. Besides, one had to go through three doors to go from the backyard to the main entrance of the appellant’s house. The appellant had requested DW1 not to open all the doors at the same time. He therefore thinks that he had taken all reasonable measures to prevent the dog from going missing.

18.    An undisputed fact is, at the time of the offence, the house of the appellant was being refurbished. The appellant must know that there would be workers moving about in it. Besides, according to the evidence of DW1, at that time, apart from himself, there were four to five workers. In other words, there were altogether five to six people working or moving about inside the house of the appellant. The appellant only put the dog in the backyard without leashing it, allowing it to roam freely within the area of the backyard. Even if the appellant had really asked DW1 to keep a close eye on the dog, and DW1 had really told each worker to keep a close eye on the dog, this does not mean that the appellant had already taken reasonable measures. The reason is very simple: the appellant could not be sure at all if DW1 and/or the other workers was/were fobbing him off, just as DW1 had promised to keep a close eye on the dog but he himself was away from the appellant’s house between two and three in the afternoon, and when he was in the house, he did not watch the dog at all times. Since DW1 was away, how was he able to honour his promise to the appellant? If DW1 transferred to the other decoration workers the promise he made to the appellant, how could he ensure that the other decoration workers could divide their attention to watch and control the dog while working? As the appellant knew full well that there would be many workers moving about in the house, he could easily have put the dog in a cage or on a leash. None of these measures were very difficult or complicated. But the appellant did not do it. As DW1 had admitted, it would have been a lot safer to leash the dog, in particular according to the evidence given by DW1, there was in fact a dog cage in the backyard of the appellant’s house, and DW1 saw the dog going to the dog cage to drink water when it was thirsty. Based on the above analysis, even if the appellant had really instructed DW1 to keep a close eye on the dog, and requested him not to open all the doors at the same time, the measures the appellant had taken cannot be regarded as reasonable in preventing the dog from going out of the house.

19.    As regards the appellant’s claim that the charge in the summons was brought pursuant to section 23(1)(b) of the Rabies Ordinance, the prosecution therefore clearly accepted that the place where the dog was found was not a public place, or else the prosecution should have brought the prosecution pursuant to section 23(1)(a) of the Ordinance. The appellant holds the view that there was quite some distance from the location where the dog was found to the public place outside the gate of Fairview Park. He therefore thinks that the chance of the dog wandering from the spot where it was found to the public place was very remote, and not something that could reasonably be foreseen. I am of the view that this is a lame argument for the simple reason that the dog was not found near the appellant’s house. To say that the dog could go to the location where it was found unattended or unled but not further to the entrance/exit at the main gate of Fairview Park, the appellant is either avoiding the reality by deceiving himself and others or advancing a lame argument.

20.    As to whether the location where the dog was a public place or not, since the charge the appellant is facing was brought under section 23(1)(b) of the Rabies Ordinance, it is not important if the location where the dog was found fits the definition of a public place in law. Therefore, no discussion on this is necessary here.

21.    Coming to the evidence given by DW1. He at first said that the appellant did not say anything other than asking him to keep an eye on the dog. But when I asked him if the appellant had asked him not to open all the doors at the same time and not to let the dog enter the area where the door/s was/were opened, DW1 answered without the slightest hesitation that the appellant had.  I am of the view that if the appellant had really given such detailed instruction to DW1, there was no reason for DW1 to say initially that the appellant did not say anything other than asking him to keep an eye on the dog. It can be seen from this that DW1 felt guilt-ridden for losing the dog because of negligence on the part of him or his workers, so he attempted to make it up to the appellant for everything; otherwise, DW1 would not have been willing to pay for the expenses of claiming the dog for the appellant.

22.    Taking the above analyses together, I am of the view that neither the appellant nor DW1 was an honest and reliable witness. I reject their evidence.’

This appeal

Ground of appeal (1)

9. This ground still concerns the issue of whether the location in question was a public place. It had already been dealt with by the trial magistrate in his statement of findings.

10. The full text of section 23 of the Rabies Ordinance is as follows:

‘23. Part II animals to be kept under control

(1)    Unless it is on a leash or is otherwise under control, no Part II animal shall be in-

(a)    a public place; or

(b)    any place from which it may reasonably be expected to wander into a public place if it is not on a leash or otherwise under control.

(2)    Where a Part II animal is found in any place in contravention of subsection (1) the keeper of the animal and any person who caused, suffered or permitted the animal to be in that place shall each be guilty of an offence and liable to a fine of $10000.

(3)    It is a defence to a charge alleging a contravention of subsection (1) for the person charged to prove that he took all reasonable measures to prevent the contravention.’

11. The appellant argues that as section 23(1)(a) regulates dogs in ‘a public place’, ‘any place’ in section 23(1)(b) must mean private places. However, as everyone is free to roam in and out of Lakeside Path of Fairview Park, it is clearly not a private place. Therefore, the prosecution chose the wrong legal basis in bringing the charge against him under section 23(1)(b).

12. The problem is, the nature of ‘any place’ is not a main constituent element of section 23(1)(b) at all. The purpose of enacting section 23(1)(b) after section 23(1)(a) is obviously to expand the scope so as not to render it impossible for the authorities to take action against breaches of the relevant section when the nature of the location involved in a case cannot be proved. Therefore, the focus of section 23(1)(b) is not on ‘any place’ but on whether dogs will ‘wander into a public place’ from there.

13. This point was made by the magistrate in paragraph 20 of his statement of findings except that it was expressed in a relatively simplistic manner.

14. Further, if Lakeside Path of Fairview Park is proved to be a public place, then the magistrate or even this Court has the power to amend the charge to section 23(1)(a). Therefore, it is not in the least unfair to the appellant.

Ground of appeal (2)

15. In this ground, it was originally argued that the magistrate was in error in his assessment of the evidence given by the prosecution and the defence witnesses. But when the appellant learned that this argument had to be supported by transcript of the lower court proceedings, he withdrew it.

16. However, for the sake of completeness, I will point out that some of the problems arising from the cross-examination of PW2 are not crucial to this case at all; he only filled in the form for the release of the dog.

17. On the contrary, it could fully be anticipated that the magistrate would not believe that the appellant had given detailed instruction to the defence witness on how the doors should be opened and shut because the way it was to be done (when one door is opened, the other door must be shut first) is as strict as how the Correctional Services Department Officers guard prisons. It is very hard to imagine that an ordinary person will think of and execute this. Moreover, even if the appellant had really given such instruction, did he really think that the many decoration workers would do it? To say this is ludicrous.

Ground of appeal (3)

18. This ground concerns the interpretation of section 23 in two other aspects.

19. First, the appellant considers that the magistrate erred in holding the view that however slim the chances were, as long as there were chances for the dog in question to go outside the gate of Fairview Park, it fell within the scope of ‘the animal may reasonably be expected to wander into a public place’ as stipulated by section 23(1)(b).

20. The appellant argues that there are many road junctions from Lakeside Path before reaching the gate. Moreover, as entrusted by the owners, the management office of Fairview Park will no doubt hold the runaway dogs as they did on this occasion. It is therefore not possible for his dog to have gone to the gate.

21. None of the above arguments, some of which were already made in the lower court, can stand. ‘May reasonably be expected to wander into’ is by no means a matter of statistics. In other words, it is not a question of how many road junctions and roads there are. On the contrary, it is a finding of fact that the court has to make in all the circumstances of the case, taking into account, among other things, whether the dog owner was present and whether there was any effective barrier such as a wall between the ‘any place’ and the ‘public place’. To put it in the simplest way, the dog, alive and well, is bound to roam here and there when not being watched and controlled in a barrier-free environment. In any event, since it had already roamed from the appellant’s house to Lakeside Path, it would very likely roam to the gate entrance. This was what the magistrate meant. It is fully consistent with the explanation of ‘may reasonably be expected’ and beyond criticism.

22. As regard the appellant’s argument that the staff at the management office will carry out the duty of holding the dog is no doubt a piece of twisted reasoning. To employ sophistry to argue that a certain consequence will not result by relying on a third party to do something that he may not do must fail.

23. Finally, the appellant maintained that what he had done already amounted to a defence under section 23(3), that is, he had taken ‘all reasonable measures’. However, the magistrate had already discussed this point in detail and reached a conclusion that cannot be faulted. To put it in the simplest term, one finds it very surprising that instead of leashing the dog, the appellant chose to put all his hopes on the decoration workers to obey his instruction regarding the opening and closing of the doors (assuming he was telling the truth here). When I say this, I do not mean that dogs kept inside premises must be tied up or confined in a cage. However, when there is refurbishing work going on in the house with workers going in and out continually, it cannot in any event possibly be taking ‘all reasonable measures’ by just orally instructing other people to watch and control the dog.

Decision

24. There is no merit at all in the appeal. It is dismissed with costs of $1,000.