HKSAR v. Chang Kwai Ming

[English Translation – 英譯本]
HCMA 559/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 559 OF 2014

(ON APPEAL FROM KTCC 1240 OF 2014)

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BETWEEN

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REASONS FOR JUDGMENT

1.The appellant pleaded guilty to two charges of cruelty to animals, contrary to sections 3(1)(a) and 3(1)(g) respectively of the Prevention of Cruelty to Animals Ordinance, Cap 169, Laws of Hong Kong, and was sentenced to a total of 4 months’ imprisonment[1].  He appeals against the sentences.

Charges

2.Charge (1) (section 3(1)(a)) alleged that the appellant, on the second floor of 101 Tung Chau Street, Tai Kok Tsui, Kowloon “by unreasonably omitting to provide 86 dogs and 31 cats with veterinary care, caused unnecessary suffering to the animals”, and the date was 4 November 2013.

3.Charge (2) (section 3(1)(g)) alleges that the appellant, at the same place, “kept on your premises animals, namely 102 dogs and 34 cats, in a way which might cause the animals needless or avoidable suffering”, and the date was also 4 November 2013.

Facts

4.In view of its detailed account, I wholly adopt the summary of facts prepared by the prosecutor for this hearing[2], the content of which is essentially the same as that of the agreed facts prepared for taking the plea of the appellant:

“3. The appellant [began to] keep cats and dogs in the flat where the offences were committed, which was about 800 square feet in area and was located in a Chinese tenement building, for breeding and for sale 5 years before he was arrested in the present case . The appellant was the sole tenant of the flat. The police received complaints from his neighbour that horribly foul smells emitted from the flat and they went there to investigate. At that time the appellant returned to the flat. The police found that the sanitary conditions inside the flat were appalling. Everywhere on the floor there were animal wastes, animal hairs and animal feed. Ventilation in the flat was inadequate. All the windows were shut except one transom window half foot by half foot, and there was one electric fan which was turned on. The flat was filled with strong smells of faeces, urine, rubbish and things that had gone mouldy. In addition, there were lots of insects (cockroaches, spiders and flies).

4. Officers of the Society for the Prevention of Cruelty to Animals and the Agriculture, Fisheries and Conservation Department arrived at the scene to make assessment. They found that in the flat there were a total of 102 dogs and 34 cats (all were ‘purebred’, with ages ranged from newly born to old age), which were locked up in 76 cages (charge (2)). Most of the dogs were infested with external parasites, suffered from skin diseases and had long toenails. Some dogs had eye diseases and nasal or eye discharge. A few of them were very emaciated and appeared dull. The cats were, on the whole, in a better condition.

5.  All the cages in the flat had rusted.  They were stacked up into 2 or 3 tiers, so that they were not secure, and they were covered with mats of hair, spider webs and dust.  On the floor and in the plastic trays placed in the bottoms of the cages there were several layers of dried faeces.  The bottom of a cage was only fastened with metal wires, but was not covered by a solid surface.

6. After the appellant was arrested, he admitted under caution that:

(1)  He did not look after the animals in the flat properly.

(2)  5 years ago he began to keep dogs in the flat for breeding, later he also kept cats.  He had cumulatively sold 30 animals and given away 20.

(3)  Everyday from 8.30 am to 6.30 pm he would be in the flat looking after the animals. Upon his arrival at the flat and before he left he would give the animals food and water.

(4)  When an animal fell sick, he would take it to a veterinary surgeon for treatment.

(5)  Owing to his old age and weak health and because he was suffering from frozen shoulder, he was not able to clean the flat properly.  Besides, his business was running at a loss and he could not afford the cleaning expenses.

7. Subsequently, veterinary officers certified that of the 136 animals in the flat only 19 the health condition of which was normal.  All the remaining 117 animals were suffering from various diseases and had various health problems of different degrees of seriousness [charge (1)], including:

(1)  Skin diseases which were highly contagious but could be easily prevented, such as ringworm and the condition caused by sarcoptes scabiei mites—— the main cause was a combination of malnutrition, overcrowded environment and poor management, resulting in the weakening of the animals’ immunity.

(2)  Pododermatitis—— the main cause was that the bottom of a cage was only fastened with metal wires, but was not covered by a solid surface.

(3)  Eye infections and influenza—— the main cause was a combination of overcrowded environment, poor sanitary conditions, poor ventilation, concurrent diseases and inadequate vaccination.

(4)  Infestation of ticks, fleas and ear mites (1 dog and 1 cat)—— the main cause was that the animals did not receive routine preventive treatment nor was there any measure taken for parasite control.

(5)  One of the dogs had lesions on its skin and its eye which had not been treated for weeks, and they caused the dog significant discomfort.

(6)  One of the dogs had its hair matted with faeces.  It had alopecia and dermatitis on its legs and rump area, and was suffering from ear inflammation.  Its tail was also very long.  These indicated a lack of attention for many weeks, with the result that it was suffering discomfort in its skin and legs.

(7)  One of the dogs was suffering from moist dermatitis, which could have been easily treated, and it caused the dog irritation and discomfort in the skin.

(8)  One of the dogs had conjunctivitis in both of its eyes, which could have been easily noticed, and it gave the dog irritation and discomfort in the eyes.

(9)  Two of the dogs died one after the other within 3 to 4 weeks after this case was exposed.  The main cause of the death of one of them was malnutrition, which also caused parasite-related skin diseases. It also had congenital defects in its legs.  The skin diseases, if they had been timely detected and if the sanitary conditions had been maintained at a good standard, could have been curable.  As for the other dog, before it died, it had dehydration, malnutrition, dental diseases, severe skin diseases, pododermatitis, and bilateral lateral luxating patellas.  This was because the keeper did not give it the attention that should have been given to it, with the result that it was subjected to many months of unnecessary sufferings.

8. Apart from the two dogs mentioned above which had died, one dog had to be euthanized ultimately because no one adopted it.  The other dogs and cats were looked after by the Society for the Prevention of Cruelty to Animals or by adopters.”

Applicant’s background and mitigation submission

5.The trial magistrate (Don So Esquire) referred to the submissions made by the defence as follows[3]:

“6. The defendant was 60 years old, married and had a clear record. … A few years ago, owing to slack business, he changed his job and kept cats and dogs for the purpose of selling them. Although there were areas which were unsatisfactory, the defendant had done his best to look after the animals by providing them with food and water, space, sanitation and medical treatment etc. However, more and more cats and dogs were delivered to him by his friends and more and more offspring were reproduced by those in the flat. Owing to his fragile health condition, he was overwhelmed. The defendant did not know that he could approach the Department or the Society for assistance, so the place was turned into such a mess. He was just helpless and did not know what he could do about the situation. He did not deliberately treat the animals cruelly. I was urged to deal with him leniently and not to consider imprisoning him.”

Sentencing at trial

6.The following were the magistrate’s reasons for sentence:

“7. I accepted the mitigation submissions made by the defence in these days except the point that the defendant “was just helpless and did not know what he could do about the situation[4]”.

8.  Having considered the written facts of the case and the photographs, I am sure that, as the saying goes, it takes more than one cold day to freeze three feet of ice, the chaotic and filthy condition in the flat was not something which could be accomplished overnight. As the defendant went to that place every day to deal with various matters, surely his eyes would see such a messy state and his nose would smell such horrible smells; yet, he allowed such abominable condition to continue in existence.  Why did he not ask for help?

9. The defence claimed that although the defendant had engaged in the business of buying and selling pets for several years, he still did not know that he could actually approach the Department and the Society for help.  This point was patently unbelievable.  It may well be asked why is it that something which even an ordinary person would know did not occur to one who engaged in this kind of business?  Furthermore, I took the view that the fact that these one hundred odd animals were all purebred was not a coincidence.  From common sense, one can know that the value of a purebred is higher than a mongrel.  I am sure that the defendant treated the cats and dogs as his goods, that he made up his mind not to let the Department or the Society know about it, in order to prevent the cats and dogs from being taken away or being adopted and to protect himself from suffering heavy loss.  That being so, it is not the case that the defendant was helpless and did not know what he could do.  The truth is that he was selfish and had only his own interest in mind.  Even though every day he saw that the animals were suffering, he refused to let them be looked after by the Society or be adopted by kind-hearted people.  Certainly there was the possibility that in the end the animals would still be euthanized, but it would have been more humane than subjecting them to such miserable existence and such agony.

10. Both parties agreed that there was no tariff from an appeal court applicable to the present case.  In my view, the defendant was not a warm-hearted person who, filled with love for animals, took in stray cats and stray dogs, regardless of their breeds but, lacking the ability to do what he would like to do, failed to look after them properly.  On the other hand, the defendant was not a maniac who cruelly beat up animals. The facts of this case lay somewhere between these two scenarios.  What the defendant did was done solely for commercial purpose without any regard to the sufferings of the animals.  Taking into account all the circumstances, particularly the fact that over one hundred cats and dogs had fallen ill, I considered that this was a serious case and imprisonment was inevitable.

11. For charge one, I adopted 3 months as the starting point and for charge two, 6 months.  As the defendant pleaded guilty, he was entitled to a one third discount and the terms of imprisonment would be respectively 2 months and 4 months.  The nature of charge one (medical care) and that of charge two (keeping) overlapped, so I ordered that the two terms were to run concurrently and the defendant was sentenced to immediate imprisonment of 4 months.  Since the prison term was rather short, I there and then allowed him bail on the existing terms for lodging his appeal.

12. I considered that in this case the number of animals which had fallen ill was too many and the case was serious, so the defendant’s background (his age etc) or the fact that he had a clear record was not a reason for further reducing his sentence or for suspending the imprisonment.”

Grounds of Appeal

7.The appellant put forward two grounds of appeal:

(1)  The starting points of both charge (1) and charge (2) were too high.

(2)  There were twists and turns in the procedural history of this case, which caused the appellant to undergo much emotional and financial pressure, but this was not reflected in the term of imprisonment.

Discussion

Starting points

8.Regardless of the manner in which the offence is committed, the maximum sentence in law for the offence under section 3(1) is a fine of $200,000 and imprisonment for 3 years.  This reflects the legislature’s view that the offence of cruelty to animals is serious.  On the contrary, the starting points used by the magistrate (3 months and 6 months) were not high.  It was far below the statutory maximum sentence.

9.I have referred to the following cases: SJ v Iu Chi Yung CAAR 4/2008 (date of judgment: 10 October 2008, unreported), HKSAR v So Pak Lam [transliteration of 蘇柏林] (date of judgment: 6 August 2014, unreported) and HKSAR v Shu Ngai Fung HCMA 431/2008 (date of judgment: 30 September 2008, unreported).

10.In Iu the defendant and another man struck a wild deer with a spade and a wooden club and in this way killed it within a short time.  The Court of Appeal held that the term of 6 month’ imprisonment imposed after trial was appropriate.  In So the defendant and several other people blocked up both ends of a corridor in a building in a housing estate.  A cat in the corridor was kicked like a ball.  It was seriously injured and had to be euthanized.  The Court of First Instance held that although it was not proved that the defendant had taken part in the kicking, he had gave encouragement to his partners, that at the material time some of them even laughed and that therefore it was proper to send him to prison for 12 months’ after trial.  The defendant in Shu failed to provide the seven cats and dogs which he kept with sufficient drinking water, and the cages he used did not provide shelter and one of them was too small.  However, the Court of First Instance accepted that the defendant truly loved the animals concerned, but his ability was inadequate to care for them, so the Court considered that 50 hours’ community service was a proper sentence.

11.Although the appellant did not beat up the cats and dogs involved in this case, the gravity of his conduct cannot be regarded as far less than the defendants in Iu and So.  Moreover, the appellant was not credited with the positive factors which the defendant in Shu possessed.  As the magistrate pointed out, the pestilential condition at the scene could only be the result of a complete absence of any cleaning up over the years.  The appellant did not timely surrender the animals; there would be no reason for that other than his unwillingness to forgo the monetary value of the animals.  In any event, the appellant turned a blind eye to the appalling condition which existed before his eyes.  The fact that be fed the cats and dogs everyday to prevent them from starving did not mean that his culpability could thereby diminish.  He claimed that he was troubled by frozen shoulder, but he failed to say specifically how that condition hindered him from tidying up the flat and taking care of the animals in even the most rudimentary way.  The consequence of the appellant’s non-action was that a large number of cats and dogs, because of poor health and other reasons, had suffered unnecessarily for a long period of time.

12.In my judgment, the magistrate cannot be criticized for using these two starting points.

Twists and Turns in the procedural history

13.The following is the sequence of events relevant to the present case:

Date (2014)	Events
11 March	The Appellant pleaded not guilty to one count of cruelty to animals (contrary to section 3(1)(a)).  The case was adjourned to 23 April for pre-trial review.
17 April	The defence sent a letter to counsel on fiat, proposing that a guilty plea could be entered in relation to regulation 21 of the Prevention of Cruelty to Animals Regulations.  The statutory maximum penalty for contravening regulation 21 was just a fine.
22 April	Counsel on fiat accepted the proposal of the defence.
23 April	Counsel on fiat submitted to the court the amended charge and agreed facts.  At the same time, the defence applied for changing the pre-trial review to taking of plea and the guilty plea was entered immediately.  In the course of the mitigation submissions, the magistrate learned that the penalty for the new charge was only a fine.  He also noticed that counsel on fiat had not obtained consent from the Department of Justice for amending the charge.  The magistrate adjourned the proceedings to 25 June for counsel on fiat to seek instructions from the Department of Justice.
24 April	The Department of Justice wrote to the court, saying that counsel on fiat had no power to amend the charge.
5 May	The Department of Justice wrote to the court, saying that the charge would be further amended.  Having learned about it, the magistrate directed that the case was to be brought up for mention on 8 May.
8 May	Having heard the preliminary submissions, the magistrate directed that both parties were to submit written submissions by 5 June, and that supplementary submissions were to be made orally on 25 June.
25 June	The magistrate asked counsel on fiat to explain by way of affidavit what happened. Oral submissions by the parties were adjourned to 22 August.
22 August	The parties formally made their submissions to the magistrate.
3 September	The magistrate allowed the prosecution to re-amend the charge, which became the present charge (1) and charge (2).  The defence forthwith asked for plea to be taken and plea of guilty was entered for both charges.  Having made the mitigation submissions, the appellant was immediately sentenced to a total of 4 months’ imprisonment.

14.The appellant submitted that:

(1)  The charge was repeatedly amended, but the defence was not the party to be blamed.

(2)  Problems arose on the prosecution side.  Because of that the defence had to go to court again and again, and the result was that:

(a)  After each appearance in court there were reports in the newspapers and this unnecessarily brought pressure on the appellant and his family members.

(b)  Costs incurred by the defence increased and the appellant had to sell his property, with the result that his family members (in particular the appellant’s mother) could no longer live with him together.  (Part of the proceeds were used to repay other debts).

(3)  The appellant originally thought that the matter could be settled by paying a fine, but after such twists and turns, it turned out that he had to go to jail.  Emotionally he had suffered considerable torments, and this course of events lasted as long as half a year.

(4)  During mitigation the defence had made submissions to the magistrate on each and every point above, but the magistrate took none of them into consideration.

15.In my judgment, the complaints made by the defence are substantiated.  The points mentioned above are indeed grounds for reducing the sentence and should not have been overlooked by the magistrate.  To remedy this problem, I shall now simply reduce the sentence for charge (2) by one month.

Decision

16.The appeal is allowed.  The original sentence is set aside and the following is substituted:

●  The sentence for charge (1) stands and remains to be 2 months.

●  The sentence for charge (2) is reduced to 3 months.

●  The sentences for the two charges shall run concurrently, making a total of 3 months.

Mr Raymond Cheng, Senior Public Prosecutor of the Department of Justice, for the HKSAR.

Ms Catherine Wong, instructed by Messrs Tse Yuen Ting Wong, for the appellant.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr Patrick W.S. Cheung, Barrister-at-law.

[1] Charge (1): 2 months; charge (2): 4 months; the sentences for the two charges were to run concurrently, making a total of 4 months.

[2] See the written skeleton submission of the defence.

[3] All the quotations referable to the magistrate were extracted from his Reasons for Sentence.

[4] See paragraph 5 above, where paragraph 6 of the Reasons for Sentence was quoted.