SECRETARY FOR JUSTICE v. FUNG CHI HOI

[English Translation – 英譯本]

CAAR 4/2017

[2019] HKCA 391

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO 4 OF 2017

(ON REVIEW FROM ESCC 421/2017)

__________________

__________________

JUDGMENT

Hon Poon JA (handing down the judgment of the Court):

A.   Introduction

1.  On 8 June 2017, the respondent pleaded guilty before Mr Jacky Ip, a Deputy Magistrate (as he then was) (“the magistrate”) to a charge of cruelty to animals, contrary to section 3(1)(a) of the Prevention of Cruelty to Animals Ordinance[1]. The magistrate adopted a starting point of four months’ imprisonment which he reduced to three months after giving a one-quarter discount for the respondent’s guilty plea.  On 7 August 2017, upon the prosecution’s application for a review of sentence, the magistrate revised the starting point to six months’ imprisonment, but, having considered the respondent’s guilty plea, the pressure he had been subjected to in the course of the review and the enhancement of sentence near the end of his original sentence[2], the magistrate gave a reduction and eventually substituted the sentence with a term of imprisonment of four months.

2.  On 24 August 2017, the Secretary for Justice (“the applicant”) applied to the Court of Appeal under section 81A of the Criminal Procedure Ordinance[3] for a review of the sentence on the ground that the respondent’s sentence was wrong in principle and/or manifestly inadequate.  Moreover, the applicant also asked the Court of Appeal to lay down guidelines for the sentencing of the offence of cruelty to animals.  On 30 August 2017, Hon Cheung CJHC (as he then was) granted leave for the applicant’s application.

3.  The respondent is unrepresented. If the applicant succeeds in her application, he may be required to return to prison.  On the other hand, the applicant has asked this court to lay down sentencing guidelines for the offence of cruelty to animals committed in the non-commercial context, which involves complicated issues, and the judgment of this court in respect of the said offence may also serve as guidance.  In order to be fair to the respondent and to enable this court to have a more comprehensive analysis of the issues concerned, we have appointed Mr Derek Chan SC to be amicus curiae to assist this court.

4.  The respondent did not attend the hearing on 21 February 2019.  We thank Mr Chan SC and Miss Anna Lai SC, DDPP representing the applicant for the assistance they have given to this court.  At the end of the hearing, we reserved judgment, which is now handed down.

B.   Agreed facts

5.  At the material time, the respondent and a male surnamed Kwok (“Kwok”) were both inmates of the Shek Kwu Chau Rehabilitation Centre (“the Centre”). They both, as arranged by the Centre, were to take care of a mongrel gifted to the Centre by a voluntary organization.

6.  On the day in question, ie 10 August 2016, at around 5:30 pm, when the respondent and Kwok were attending to that mongrel, they kicked its body and also slapped its head and back for about one to two minutes in the washing area of the Centre.  Following this, the respondent tied one end of a rope around the mongrel’s neck and the other end to a tap in the washing area. Then he threw the dog down a slope and used a hose to shoot it with water for two to three minutes, and the dog lost consciousness as a result.  Subsequently, Kwok put the dog into a black plastic bag and took it away. Three days later, the extremely decayed carcass of the mongrel was found on the slope, some ten feet away from that washing area.

C.   Sentence and review

7.  The respondent had five previous convictions, none of which was related to the offence of cruelty to animals.  In mitigation, the duty lawyer said on behalf of the respondent that he committed the present offence because the mongrel had suddenly bitten his hand, and that he had tied it up with a rope just to control it and not to mistreat it.  The respondent claimed that he had witnessed Kwok attacking the mongrel with a spanner, and hence his liability was limited to failing to stop Kwok’s attack and to report the matter to the Centre.

8.  In passing sentence, the magistrate considered that the sentence was determined by the reason for which the respondent had treated the animal cruelly and whether such cruelty had lasted for a long time, thereby causing the animal to suffer.  The respondent claimed in the background report that he was bathing the mongrel at the material time, but the magistrate queried why he had to throw it down the slope.  The magistrate noted there was no evidence showing that the mongrel’s death was directly caused by the respondent’s acts, and there was also no evidence that the respondent had been involved in abandoning the carcass, however, the magistrate emphasised that even if the mongrel had bitten the respondent, he was still not justified in treating it as described in the facts.  The magistrate found the facts of the case serious and a deterrent sentence was warranted, but, after referring to the cases of Secretary for Justice v Iu Chi-yung [2008] 5 HKC 306 and HKSAR v So Pak Lam (transliteration) (unreported) HCMA 96/2014, he came to the view that the respondent’s culpability was not the most serious case of its type.  He also considered what the respondent had said in mitigation, including his guilty plea before the commencement of the trial.  Finally, the magistrate adopted a starting point of four months’ imprisonment which was reduced to three months for the respondent’s guilty plea.

9.  The applicant applied to the magistrate for a review of sentence.  In the review hearing, the applicant submitted that the prosecution and the defence had reached a consensus that the respondent agreed to the facts of the case and no Newton hearing was required. However, the respondent offered explanations in the background report and in mitigation that were different from the facts alleged by the prosecution.  The applicant contended that if the court had relied on the respondent’s background report and his submissions in court in sentencing, his culpability would have been substantively reduced. Furthermore, the applicant invited the magistrate to consider the legislative intent in respect of the offence of cruelty to animals and also submitted to the court five relevant cases for reference.  The applicant said in oral submissions that the facts of the present case were serious, and thus the court should adopt a starting point of at least 14 months’ imprisonment by reference to the sentence adopted in So Pak Lam.

10.  In his judgment, the magistrate pointed out that he had not accepted the respondent’s explanations stated in the background report when he first imposed the sentence, and he had also in his reasons for sentence questioned those explanations and the alleged reaction on his part after being bitten by the said mongrel.  The magistrate was of the view that the facts of the present case were obviously less serious than those in So Pak Lam; and of the five aggravating factors in So Pak Lam, only two were found in the present case[4]. The magistrate stressed that as there was no direct evidence on the cause and time of death of the mongrel in the present case, the evidence could only be considered in a way most favourable to the respondent, and therefore the duration that the mongrel had actually suffered was taken to be the one to two minutes of being kicked and slapped by the respondent and the two to three minutes of being shot with water.  The magistrate finally revised the starting point to six months’ imprisonment and after reduction substituted the sentence with a term of four months’ imprisonment.

D.   Sentencing principle and sentencing factors relating to the offence of cruelty to animals

11.  This court would first discuss the issue of sentencing guidelines. In fact, in her oral submissions, Miss Lai SC said that although the applicant had applied for a review of sentence, more importantly, she wanted to take the opportunity to invite this court to lay down sentencing guidelines in respect of the offence of cruelty to animals.  Miss Lai SC pointed out that although the penalties imposed by the lower courts in similar cases had become heavier and heavier in recent years, there is still a wide variation in the penalties imposed by different courts and there is no relatively consistent approach[5]. Moreover, save and except So Pak Lam which had stated the appropriate sentence for cases of medium level, there is no authority that discussed the tariff of sentence in cases of other levels.  Miss Lai SC suggested that the Court of Appeal should lay down clear guidelines on sentencing so that the lower courts could impose deterrent penalties in a well-organized manner and a clear message would be conveyed to the community for strengthening the protection of animals.  Therefore, the Court of Appeal should lay down sentencing guidelines for the offence of cruelty to animals for the reference of lower courts.

12.  The Prevention of Cruelty to Animals Ordinance was enacted back in 1935 in Hong Kong to prohibit and punish cruel treatment of animals.  It is provided in s 3(1)(a) or the Ordinance that:

“(a) cruelly beats, kicks, ill-treats, over-rides, over-drives, overloads, tortures, infuriates, or terrifies any animal, or causes or procures or, being the owner, permits any animal to be so used, or, by wantonly or unreasonably doing or omitting to do any act, causes any unnecessary suffering or, being the owner, permits any unnecessary suffering to be so caused to any animal; …

shall be liable on summary conviction to a fine of $200,000 and to imprisonment for 3 years.”

The maximum penalty under section 3 was amended in 2006 by raising considerably from the original terms of imprisonment for six months and a fine of $5,000 to the terms of three years’ imprisonment and a fine of $200,000.

13.  Section 3(1)(a) has a wide scope of application, and it can be described as intended to cover different kinds of circumstances.

14.  First, under section 2 of the same Ordinance, “animals” includes “any mammal, bird, reptile, amphibian, fish or any other vertebrate or invertebrate whether wild or tame”.  Therefore, section 3(1)(a) covers almost all animals whether wild or tame.

15.  Secondly, section 3(1)(a) covers many different ways in which the offence is committed (modus operandi):

(1)  physical harm, such as beats, kicks, ill-treats, over-rides, over-drives, tortures, etc;

(2)  psychological harm, such as infuriates, terrifies, etc;

(3)  directly harms or causes or procures harm;  

(4)  as against the owner of any animal, permitting the animal to be used in the circumstances stipulated in the provisions or, by wantonly or unreasonably doing or omitting to do any act, causing any unnecessary suffering, or permitting any unnecessary suffering to be so caused to the animal.

16.  Thirdly, section 3(1)(a) covers various kinds of harm caused to animals, which are, as provided, physical and psychological harm and also any unnecessary suffering.

17.  Fourthly, the offender to whom 3(1)(a) is directed at includes any person who directly treats animals cruelly, any person who causes [or] procures any animal to suffer, and the owners of the animals. 

18.  Finally, the location where the offence may take place includes not only a household, a rural or urban public area, but also places where animals are raised for commercial purposes.  The modus operandi involved in the facts of the cases which happen in commercial contexts or other venues may differ a lot in extent and variety.

19.  Accordingly, the circumstances of the commission of the section 3(1)(a) offence do involve a wide variation. As Mr Chan SC has emphasized, in each case of cruelty to animals, the relevant sentencing factors such as the nature of the facts, the circumstances of the crime, the modus operandi, the motive, the type of victimised animal, the harm done to the animal, the background of the offender and so on may be completely different.

20.  We are of the view that, within the framework of section 3, the court just cannot, based solely on certain sentencing factors or the harm suffered by the animal victim, lay down comprehensively various levels with respect to the gravity of the offence, such as high culpability, medium culpability and low culpability, etc.  Therefore, it is inappropriate and impossible for the court to lay down any sentencing tariff or any scale of sentence for the offence.  The court in sentencing has to consider the overall circumstances of the case and the relevant sentencing factors.

21.  Miss Lai SC has set out the penalties and sentencing guidelines under relevant statutes in respect of cruelty to animals in different common law jurisdictions such as the United Kingdom, Australia, New Zealand and Canada for our reference. We do not think that there needs to be any detailed discussion of the statutes and sentencing guidelines in these jurisdictions because, after all, how a place deals with the offence of cruelty to animals is definitely affected by factors such as its own culture, social circumstances, and the degree of public concern about the rights and protection of animals.  We only need to point out that the statutes in other jurisdictions appear to be more mature and precise than section 3 of our Prevention of Cruelty to Animals Ordinance, and their classifications of culpability are clearer and more specific.  For example, section 4 of the Animal Welfare Act 2006 provides that the culpability of and harm caused by the offender shall be classified as high culpability, medium culpability and low culpability, and as greater harm and less harm respectively with the relevant factors set out.  Questions like whether the practice in other jurisdictions is applicable to Hong Kong, whether Hong Kong shall review the existing legislation by making reference to the practice in those jurisdictions to inquire if there is room for improvement, and how the legislation should be perfected if there is such room should all be dealt with by the government and the Legislative Council. The court can only act pursuant to the existing provisions under section 3.

22.  All in all, within the framework of section 3, it is not appropriate and impossible for this court to lay down any sentencing tariff or scale of sentence for the offence of cruelty to animals, and a more desirable approach would be to reiterate sentencing principles and set out some usual aggravating factors for the sentencing court to impose the most suitable sentence after having regard to the overall circumstances in each case, including the offender’s culpability and his individual background.

D1.    Sentencing principle

23.  This court shall first reiterate the sentencing principles in respect of the offence of cruelty to animals.

24.  This court must emphasise that cruelty to animals is inhuman, causing not only physical injuries but also psychological pain and torment to the animal[6]. Such brutal behavior is extremely disgusting and not tolerated in any civilized community, and it is also a serious crime prohibited by law.  Because of its evil nature, the court in principle imposes a deterrent sentence in relation to the offence of cruelty to animals.

25.  As stated above, the maximum sentence for the section 3 offence was substantially raised on 15 December 2006 from a term of imprisonment of six months and a fine of $5,000 to a term of imprisonment of three years and $200,000 respectively.  At the time of introducing the amendment bill in the Legislative Council, the then Secretary for Health, Welfare and Food explained: 

“ We discussed with the Bills Committee the appropriate levels of penalty for cruelty to animals. We are convinced that the penalty levels should be comparable to those of other developed countries or international cities. Furthermore, a clear message should be issued to society, that under no circumstances will our society tolerate acts of cruelty to animals. Having considered the request of the members of the Bills Committee and evaluated all relevant factors, we have decided to further raise the maximum penalty under the Bill.

     Hence, clauses 2 and 3 of the Bill will be amended to raise the maximum penalty for the relevant offences under the Prevention of Cruelty to Animals Ordinance to a fine of $200,000 and imprisonment for three years.”

26.  It can be clearly seen from the explanations given by the then Secretary for Health, Welfare and Food that the Legislative Council raised the maximum penalty for the offence of cruelty to animals in order to reflect the gravity of the offence and adjust the maximum penalty upward to a level similar to those in other developed countries, thereby sending a clear message to the public that under no circumstances would our society in Hong Kong tolerate cruel treatment towards animals.  In order to reflect the intent of the legislature in amending the penalty provisions under section 3, the court should impose sentences carrying a greater deterrent effect in this kind of case so as to enhance public awareness of safeguarding animal welfare, to show that our society, like many other developed countries or regions, would never tolerate acts of cruelty to animals and would strive to prevent the occurrence of such offences.

27.  Apart from reflecting the intent of the legislature in amending the penalty provisions under section 3, there are two further reasons for which the court has to impose deterrent sentences in respect of the offence of cruelty to animals.

28.  First of all, although section 3 was amended in 2006, the offence of cruelty to animals occurred frequently over the past decade or so.  According to the figures provided by the Police and the Agricultural, Fisheries and Conservative Department (AFCD) on the number of cases of animal abuse between 2012 and 2018[7], there were up to 171 cases of abuse of animals in 2013, which was the most in quantity in recent years; it dropped to 116 cases in 2014 and further down to 77 in 2015, but since then it has risen again and reached 96 cases in 2017. These figures show that the trend has indeed resumed upward in recent years.  Miss Lai SC stressed that while most cases were not court cases, the rise was even more worrying because the reason why no criminal prosecution was brought in those cases was that the law enforcement officers could not identify the offenders, which explained the difficulty in punishing the offenders by law in this type of case, and the offenders might as well think that the crime they committed would not be detected easily and they hence would very likely take the chance to try their luck.  We agree with her view and see the need to impose a deterrent sentence in view of the growing prevalence of the offence.

29.  Second, Miss Lai SC has produced some recent academic studies which suggest that offenders who commit the offence of cruelty to animals tend to commit other common offences involving abusing human beings, such as domestic violence, as well[8].  We accept her view in that the acts of cruelty to animals are by themselves serious crimes, the offenders’ tendency to resort to violence and possibility to commit offences involving inflicting violence on other people must not be overlooked.  In our view, it is really necessary to impose strict sentences on the offenders of cruelty to animals so as to deter them from reoffending and also deter those who intend to try their luck so as to suppress their tendency to resort to violence.

30.  Miss Lai SC pointed out that an overview of other common law jurisdictions such as the UK, Australia, New Zealand and Canada indicates that the penalties under relevant statutes have already been increased in recent years. The strict attitude adopted by these jurisdictions towards the offence of cruelty to animals indicates that Hong Kong should also increase the overall penalty for the offence and adopt starting points for sentence with greater deterrence. Miss Lai SC emphasised that animal welfare concern groups in various countries were putting much weight on cruelty to animals and proactively suggesting to their respective judicial institutions that such offenders should be dealt with by heavier penalties. However, as this court has stated, how the offence is dealt with in other jurisdictions is inevitably affected by factors such as their respective culture, social circumstances and the degree of public awareness of the protection of animals.  In Hong Kong, what the court has to consider in sentencing remains section 3, the legislative intent in amending section 3 and the local circumstances in Hong Kong.  As the above analysis shows, in light of the purpose to be achieved by the amendments to section 3 and the current circumstances in Hong Kong, the courts in Hong Kong, as those in other jurisdictions, would in principle impose deterrent sentences for the offence of cruelty to animals.

D2.    Aggravating factors

31.  Factors to be considered in passing sentence in relation to the offence of cruelty to animals depend on the facts of the individual case, the court must have regard to the facts of the case in its entirety and all relevant factors.  In general, where an offence of cruelty to animals occurs in a non-commercial context, the aggravating factors include:

(1)  prolonged cruelty to the animal victim;

(2)  use of extreme violence;

(3)  use of a weapon;

(4)  causing serious, severe or persistent physical or psychological harm or suffering;

(5)  how the offence is committed increases or is aimed at increasing or extending the shock or torment suffered by the animal victim;

(6)  premeditation in the commission of the offence;

(7)  causing severe pain or suffering to the animal victim in a perverted manner or with a distorted mind, thereby gaining a sense of perverted gratification;

(8)  breach of trust in relation to the animal victim or abuse of power;

(9)  causing influence on third parties, such as the public who witness the course or result of the offence;

(10)  making use of technology, such as broadcasting the commission of the crime through social platforms on the Internet so as to publicize or promote cruelty to animals

(11)  repeated commission of the offence.

E.   Sentence in the present case

32.  In relation to the sentence imposed on the respondent, Miss Lai SC argued that the magistrate had failed to give sufficient consideration to the following matters and hence had erred in principle:

(1)  the intent of the legislature in amending section 3(1)(a) of the Prevention of Cruelty to Animals Ordinance in 2006;

(2)  the element of torture in the present case;

(3)  the lowest starting point of sentence; and

(4)  the respondent’s lack of remorse.

Miss Lai SC contended that a term of four months’ imprisonment was manifestly inadequate and could not properly reflect the gravity of the present case.  In view of the authorities and the serious circumstances in the present case, an appropriate starting point should be an immediate prison term of fourteen months.

33.  In respect of point (1), Miss Lai SC said that the magistrate appeared to have failed to give sufficient consideration to the legislative intent in amending section 3, which was dealing with cases of cruelty to animals more strictly.  We do not agree because the magistrate in para 12 of his first reasons for sentence specifically stated the weight he accorded to the legislative intent, and in para 15 suggested that the court should consider a deterrent sentence in the present case.

34.  Regarding point (2), Miss Lai SC cited paragraphs 20 to 22 of the judgment in Secretary for Justice v Iu Chi Yung, stressing that in similar cases of abusing animals, the motive of abuse was a determining factor in deciding the accused’s sentence, and in general a case would be classified as the most serious category only if the accused had tortured the animal in a mentally distorted or sadistic manner for a prolonged period, thereby gaining a misguided sense of gratification.  Miss Lai SC submitted that the respondent in the present case had tortured the mongrel in a sadistic manner, deliberately inflicting cruelty on it, with a distorted mind.

35.  In sentencing, the magistrate did in fact compare the circumstances in the present case with those in Iu Chi Yung in detail.  In Iu Chi Yung, theaccused attacked a barking deer with a metal spade and a wooden club, causing it to bleed and die as a result.  Although the Court of Appeal said that objectively it was “very shocking”, after accessing the facts, the court considered the case not to be in the most serious category and then confirmed as appropriate the sentence of six months’ imprisonment.  In the present case, the offence mainly involved the respondent hitting and tying up the mongrel and throwing it down a slope with no exceptionally special method or any weapon used.  The magistrate considered that the circumstances in the present case and Iu Chi Yung were similar, with similar modus operandi, degree of torture and long duration of suffering, and there was also no evidence showing the respondent had any misguided sense of gratification in the course of inflicting cruelty with a distorted and sadistic mind.  Therefore, the magistrate considered that the sentence in Iu Chi Yung was also applicable in the present case.

36.  In our view, the magistrate was entitled to find the respondent had not tortured the mongrel, which is a finding of fact and this court has no basis to intervene.

37.  As to point (3), Miss Lai SC submitted that before passing sentence, the magistrate had paid sufficient regard to the so-called “starting point for sentence” laid down in So Pak Lam by the Court of First Instance, and since the facts in the present case were more serious than those in So Pak Lam, a higher starting point should be adopted.

38.  In So Pak Lam, the Court of First Instance set out the following aggravating factors:   

(1)  The assailants did not commit the crime with premeditation or under the influence of alcohol;

(2)  There were multiple participants;

(3)  The kitten did not cause any danger or nuisance to any person;

(4)  Someone laughed, ignoring the suffering;

(5)  The kitten did not die instantly but eventually was put down after suffering for some time.

In the present case, Miss Lai SC advanced the following as aggravating factors:

(1)  The respondent did not commit the offence under the influence of alcohol;

(2)  Although there were not many participants, the respondent did not carry out the attack alone;

(3)  The prosecution did not dispute that the mongrel had bitten the respondent once near the thumb, but the respondent’s reaction was totally out of proportion;

(4)  As seen from what the respondent did in the present case, he just tortured the mongrel with total indifference to its suffering; and

(5)  The mongrel did not die instantly, but was instead kicked and punched, had its neck tied and was tortured for about three to five minutes before losing consciousness, and then was eventually put into a plastic bag and abandoned on one side.

39.  Furthermore, Miss Lai SC stressed that the following aggravating factors were also present in this case, and the magistrate just failed to give any confirmation or sufficient consideration:

(1)  The respondent tied that mongrel with a piece of rope, threw it down the slope and further shot it with water for a few minutes, torturing the mongrel in a perverted way with a distorted mind;

(2)  The respondent’s conduct caused the death of the mongrel eventually; and

(3)  At the time of committing the offence, the respondent had been entrusted with the care of dogs (including the mongrel victim in the present case) by the Centre, and thus his commission of the present offence was a breach of trust.

40.  In So Pak Lam, the judge of the Court of First Instance did mention that the sentencing magistrate had indicated that the case was one of medium level.  By saying so, the magistrate might have made reference to the sentencing cases which came after the implementation of the UK Animal Welfare Act 2006.  Nevertheless, as this court has pointed out, section 4 of the UK Act expressly provides that the culpability of and the harm caused by the accused have to be classified as high, medium and low levels whereas no such classification is provided in our section 3.  In all circumstances, as the above analysis shows, within the framework of section 3, we cannot lay down the scales for various degrees of culpability based solely on certain sentencing factors. As such, So Pak Lam should not be understood in terms that as long as the sentencing factors under that case appear in another case, the latter must then be of medium level and a starting point of fourteen months’ imprisonment must be adopted.  In passing sentence in the latter case, the court is still duty-bound to consider the facts of the case when sentencing, and although the term of fourteen months in So Pak Lam may certainly be taken as a reference, it is not necessary to adopt it as the starting point.

41.  There is no so-called “starting point for sentence” for the offence of cruelty to animals, and the sentence should depend on the nature and circumstances of each individual case.  The magistrate had considered the judgment in So Pak Lam before finding the present case to be obviously less serious.  He has also made reference to other relevant precedents, including Iu Chi Yung; HKSAR v Mok Chung Ting TMCC 3700/2012; and HKSAR v AN Haizhou TWCC 1418/13.  The magistrate considered that in respect of motive, modus operandi, degree of torture and duration of suffering, etc, the circumstances in the present case were not more serious than those in the above cases.  Since the sentence imposed by the magistrate in the present case does not obviously depart from the range of sentence in cases of the same nature, this court cannot intervene.

42.  As to other aggravating factors, our view is that the magistrate had sufficiently considered the facts, and he was entitled to give whatever weight he thought necessary to the sentencing factors.  Unless the sentence itself is manifestly inadequate, this court has no power to intervene.

43.  In relation to point (4), Miss Lai SC said that according to the background report, the respondent had indicated to the probation officer that he had only slapped the head and body of the mongrel while Kwok had attacked it with a spanner.  The report did not mention the respondent had used a rope or shot the dog with water.  The magistrate in sentencing did have regard to the respondent’s remorse but considered that it was limited and not genuine.

44.  In our view, how the magistrate considered the respondent’s remorse and how much weight he should give to it were matters within his discretion in sentencing.  There is no basis for this court to intervene.

45.  As to the totality of sentence, we consider that a starting point of six months may be said to be a bit light, and eight months may be more appropriate.  However, even if the starting point is increased to eight months, having considered that this is a review of sentence and the respondent has completed his sentence, if he has to return to prison now it will cause him trouble, the court would adjust the term of imprisonment down to 6 months.  Therefore, this court does not accept that 6 months’ imprisonment is manifestly inadequate.

F.   Conclusion

46.  In light of the above reasons, the application for review of sentence is dismissed.

Schedule 1

Modes and ranges of sentence in convicted cases

(data updated to September 2018)

Year		Fine	Community Services Order  (hours)	Binding over order	Superintendent caution	Hospital Order	Suspended Sentence	Immediate imprisonment
2012	Number	9	2	1	1	0	3	3
	Range	$1,000-5,000	80-140	/	/	/	2 days – 6 weeks	6 weeks – 16 months
2013	Number	9	3	1	0	0	3	10
	Range	$500-10,000	160-200	/	/	/	1 – 4 months	6 days – 4 months
2014	Number	10	3	1	0	0	3	5
	Range	$2,000-20,000	160-240	/	/	/	2 weeks – 2 months	2 weeks – 4 months
2015	Number	3	1	0	1	0	0	2
	Range	$2,000-3,000	100	/	/	/	/	2 – 4 weeks
2016	Number	6	6	1	0	2	2	7
	Range	$500-3,000	80-160	/	/	3 – 6 months	14 days – 2 months	2 weeks – 4 months
2017	Number	5	5	0	1	0	7	8
	Range	$500-8,000	100-160	/	/	/	6 weeks – 2 months	7 days – 12 months
2018	Number	1	1	0	0	1	2	0
	Range	$50,000	18			4 months	7 days – 4 weeks

Schedule 2

 

Cases from the Police and the

Agriculture, Fisheries and Conservation Department

Year	Court cases	Not court cases	Total
2012	20*	47	67
2013	34	137	171
2014	21	95	116
2015	8*	69	77
2016	21	64	85
2017	28*	68	96
2018 as at September 2018	8	74	82
Total: 2012-2018	140	554	694

(* one of the cases was dealt with by a police superintendent’s caution in this year)

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.