CHAU CHI HUNG v. THE QUEEN

IN THE HIGH COURT OF HONG KONG

( APPELLATE JURISDICTION )

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MAGISTRACY APPEAL NO. 3 OF 1988

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J U D G M E N T

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1. Both appellants were convicted of an offence under Regulation 18(1) of the Prevention of Cruelty to Animals Regulations, Cap.169, namely that they did place more than 40 pigs in one pen in a vessel and that the pigs were all over 40 kilogrames each and each occupied less than 0.7 square metre. Each appellant was fined $300. They appealled against their conviction.

2. Miss Evena CHAN, Counsel for the Crown, very properly informed the Court that she could not argue in support of the conviction.

3. There was no evidence before the learned magistrate that the appellants had "placed" the pigs on board the two vessels - indeed the evidence indicates the pigs were loaded in Cheung She Wan and there was no evidence whatsoever that the appellants were present in Cheung Sha Wan at the time of the "placing" of the pigs on board the two vessels.

4. There is a presumption under the Prevention on Cruelty to Animals Ordinance, Cap.169 (section 8(2)) in respect of the master of a vessel, while he is on board the vessel, of any contravention of the Ordinance. However, it was conceded by the Crown at the trial that the appellants were not the masters of the two vessels in question, although they admitted they were in charge of the two vessels, one being an engineer and the other's post in the vessel was unknown.

5. Speaking for myself, I think the relevant statutory provisions could be improved but that is not a matter for this Court. Both appeals are allowed. The convictions are quashed and the sentences set aside. Fines, if paid, to be returned to the appellants.