HKSAR v. SHU NGAI FUNG

HCMA431/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 431 OF 2008

(ON APPEAL FROM ESCC 1709 OF 2008)

_______________

Dates of Hearing:  25 July 2008 and 30 September 2008

_______________

J U D G M E N T

_______________

1.  The Appellant in this case pleaded guilty to two offences of cruelty to animals by failing to provide sufficient water, contrary to section 3(1)(b) of the Prevention of Cruelty to Animals Ordinance, Cap. 169, and one offence of cruelty to animals by failing to provide adequate shelter from the sun and rain, contrary to Regulation 5(21) of the Prevention of Cruelty to Animals Regulation 5, Cap. 169A; to one offence of cruelty to animals by failing to provide a large enough cage, contrary to the Prevention of Cruelty to Animals Regulation 2(21), Cap. 169A; and two offences of keeping a dog without a licence, contrary to the Rabies Regulation, section 20(1) and (2), Cap. 421A.

2.  He was sentenced to concurrent terms of community service for 100 hours on Charges 1 and 2.  On Charges 3 and 4 he was fined $5,000 each.  He was fined $1,000 each on Charges 5 and 6.  In addition to that, the Magistrate made an order under section 5(2)(a) of the Prevention of Cruelty to Animals Ordinance, returning the animals to the care and control of the SPCA.

3.  The animals affected were four dogs and three cats.

4.  On 22 February 2008 an inspector from the SPCA went to the rooftop, where the Appellant had his premises.  He found the animals confined in three cages.  In one there was a golden retriever, a mongrel dog and a terrier cross.  In the second was a French bulldog and three cats.  The dogs were soaking wet.  The cage having the three dogs was too small for its purpose.  The inspector caused the animals to be taken away.

5.  There was no question of there being any deliberate cruelty by way of physical abuse or mistreatment by way of beating of these animals.  They showed no fear of humans and they had healthy appetites.  But the impression was one of overall neglect.

6.  The Magistrate assessed the Appellant to be someone who was in fact caring and good-natured, but unable properly to organise his life to care for so many animals.  The Magistrate said he was obsessed with his animals.  That is a view I share.

7.  This is the second hearing of this appeal in front of me.  At the first hearing, the Appellant turned up wearing a neck brace.  On inquiry from me as to what had happened to him, it turned out that he had tried to take his own life through being upset by the loss of his dogs whom he regarded as his children.  When he first appeared in front of me, the focus of his appeal was to try to maintain contact with his dogs and to have them, or some of them, back.  Accordingly, I then adjourned the case, and I ordered that the care and control of the bulldog, which was his favourite and had long been his, should be returned in the meantime to the Appellant.  That has happened; but unfortunately in the adjournment - it has been a long one, and designedly so - that dog has passed away.  It collapsed when he was taking it for a walk. 

8.  I have got a letter from the SPCA telling me about the circumstances of the death and a veterinary’s opinion.  No one blames the Appellant for the death.  So nature has taken part of the care of this appeal in respect of the bulldog.

9.  As regards the other animals, the Appellant now says that he is happy that the SPCA keep them and dispose of them, so I am not going to disturb the order the Magistrate made in that respect.  I should just add that of those dogs, he tells me - and I have no reason to disbelieve him; he is a sincere man - that he was looking after some of them for friends and that of the two dogs that were unlicensed, one of them he was looking after because its elderly owner had fallen over and had broken his leg and was unable to look after the dog, and one he had found in the street and merely taken in out of the goodness of his own heart.

10.  The fact is that the Appellant tried to take on some animal welfare when he just simply was not equipped to do it, because he had a job at the time as a lorry driver that kept him away from the dogs for many hours.

11.  As regards the day in question when the inspector found the animals in the circumstances I have described, he said that he had asked his brother to exercise the dogs and so look after them, but he had not done that, and that coincided with him being delayed in his return from work.  His mitigation in respect of the small cages was unworldly.  What he said was that he wanted them to stay warm and happy together in a small cage, and if he had been back in time, he would have taken them in, and they would not have been exposed to the elements.

12.  The Magistrate who passed the sentences is a very experienced one, and he said it was not an easy case to sentence.  I agree with him.

13.  This is a rehearing, and I do not in any way say the Magistrate was wrong.  No one has to demonstrate error on his part before I am allowed to sentence on the basis of my view of the facts.  My view is slightly different from his.  I would not have been quite as severe as he was.

14.  What I propose to do is this.  In substitution of the 100 hours of community service, I shall impose 50 hours.  In relation to the fines of $5,000 each on Charges 3 and 4, I shall there reduce those fines to $3,000 each; and the fines of $1,000 for not having a licence, I reduce to $500 each.

15.  The reduction of the fines reflects the mitigation I have already related in respect of those charges as related to me today by the Appellant; and I shall add this:  that he had not said that to the Magistrate, because in front of the Magistrate his central concern was trying to keep the bulldog or some of the other dogs and not have them taken away from him, and that was the focus of these proceedings from the beginning until, in fact, today.

16.  No one should think that my view of the sentence, being a less grave one than the Magistrate’s, is any indication that these courts will be anything other than rigorous when it comes to treating cruelty to animals.  But I regarded this as an unusual case where the Appellant was a man who loved the animals in his charge, and it was merely inadequacy that led to the situation that developed, and that inflicting cruelty was very far from his intent.

Representations: