HKSAR v. So Wai Hang

HCMA 95/2022

[2022] HKCFI 1405

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 95 OF 2022

(ON APPEAL FROM KTS 16912 & 16914 OF 2021)

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BETWEEN

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Before:  Hon D’Almada Remedios J in Court

Date of Hearing:  11 May 2022

Date of Judgment:  11 May 2022

Date of Reasons for Judgment:  13 May 2022

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REASONS FOR JUDGMENT

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1.The appellant appeals against his conviction after trial by a magistrate[1] of two offences. The first offence[2] was contrary to section 25(1)  and the second offence[3] was contrary to Regulations 20(1)  and 20(2)  of the Rabies Ordinance Cap 421 (RO)  respectively. He was sentenced to a fine of HK$3,000 for each summons.

2.The first offence alleged that on 17 February 2021 the appellant was the keeper of a dog on So Kei Fish Raft (So Kei)  which was not on a leash or under control from which it then wandered into a public place, namely the Tai Tau Chau Fish Culture Zone, Sai Kung (the Fish Culture Zone)  where the dog bit a person named Cheng Tin-sung (PW2).

3.The second offence alleged that the appellant was the keeper of a dog (the same dog as in the first offence)  over 5 months of age which was unlicenced.

The trial hearing

4.At the trial the magistrate heard evidence against the appellant in the 2 summonses and against another person Chen Jianzai who was charged with the offence under section 25 of the RO[4]. They were referred to as D1 and D2 respectively by the magistrate.  Both D1 and D2 were legally represented by the same counsel at the trial.

Background, admitted and undisputed facts

5.It was admitted that PW2 was bitten multiple times by the unlicenced dog who was over 5 months of age (the dog)  as depicted in exhibit photo P4(1)  and (2)  whilst PW2 was on his boat in the Fish Culture Zone.  It was admitted that So Kei is in the Fish Culture Zone.  The appellant’s father is the licensee of So Kei.  D2 is an employee (foki)  of So Kei.  It was not disputed that shortly before the dog jumped into the appellant’s boat and bit PW2 the dog was on So Kei.  At the material time the appellant operated and managed So Kei.  D2 was present[5] when the dog bit and attacked PW2.  The appellant, PW1, PW3 and PW4 were however not present during the attack.

Issue at trial

6.The issue at trial was if the prosecution could prove that the appellant was the keeper of the dog.  It was the appellant’s case that a smaller dog exhibit photo P4(10)  was kept by him at So Kei but not the dog.  The Whatsapp messages between the appellant and PW4 were ambiguous as to which dog the appellant was referring to.  It was the appellant’s case that the dog was a stray dog and not kept by the appellant.  However, the dog appeared on the appellant’s raft (So Kei)  all the time despite the appellant or the workers on So Kei constantly trying to drive it away, it continued to come back.

The prosecution case

7.The Prosecution called 4 witnesses at trial.  PW1 a veterinarian who examined the dog which had bitten PW2 and confirmed that it was over the age of 5 months and was not licenced.

8.PW2 is the 80 year old victim who was bitten multiple times by the dog. PW2 had a fish raft in the Culture Zone near to So Kei.  On 17 February 2021, whilst PW2 was driving his boat near So Kei he saw a leaking water tap there.  He drove his boat near another boat (the blue boat)  that was parked at So Kei to tell a foki (employee)  on So Kei about it.  That foki (D2)  stepped onto the blue boat and the dog followed D2 (going from So Kei onto the blue boat).  The dog then went between D2’s legs, jumped into PW2’s boat and bit PW2 multiple times.  In the end PW2 pushed and kicked the dog into the water and yelled for help.

9.PW2 recognised the dog.  He had seen the dog multiple times before in the past 3-4 years always on So Kei.  He said the dog was the largest dog of its type in the vicinity.  He said some other fish rafts keep dogs including black mongrels, but the dog was much larger than the others.  He said that So Kei always had the dog and a smaller dog on it.

10.PW2 said during the incident, D2 had tried to stop the dog from biting PW2, but was unable to do so.  PW2 had seen the appellant feeding the two dogs on the raft which included the dog.

11.In the afternoon of 17 February after he was bitten by the dog, PW2 was taken to hospital and found to suffer serious injuries.  They were; a deep laceration wound on the left side of his face, a laceration wound to his left ear lobe, bite holes and marks on his left knee, right thigh, and left elbow region due to dog bites – the most extensive wound was over the left face measuring around 8cm in maximal diameter with significant tissue loss involving left face, angle of jaw and ear lobe; underlying muscles were exposed with uncertain involvement of salivary glands and nerve structures.

12.In the evening of the same day that PW2 was bitten at about 2200 hours, Agriculture Fisheries & Conservation Department (hereinafter referred to as “AFCD”)  staff arrived at So Kei and inspected the dog; the dog had no microchip implant, indicating that it was not licenced.  It was taken to Kowloon Animal Management Centre.

13.PW3 and PW4 were relatives of PW2 who went to and worked at a fish raft near So Kei.  They gave evidence that the dog which had bitten PW2 was owned and kept by the appellant and his employees.  They however did not witness the dog biting PW2.

14.PW3 worked at the Culture Fish Zone on a raft that was around 60m away So Kei.  He went there several times a week.  Every time he drove his boat past So Kei, the 2 dogs (i.e. the dog at P4(1)  and the smaller dog at P4(10))  would bark fiercely.

15.Originally the dog was given to PW3 as a puppy in around 2016.  However later in or around 2017 the dog was taken by the appellant to keep on So Kei.  Since then, every time PW3 went out to work on his fish raft, he saw the dog on So Kei.  On average, he would see the dog at least once per week since 2017.

16.PW4 was the grandson of PW2 and he exchanged Whatsapp messages with the appellant who admitted that his dog had bitten his grandfather PW2.  PW4 had seen the dog on So Kei for the past 3-4 years as he drove past So Kei almost everyday.  PW4 had seen the appellant feeding the dog and had seen the appellant watching the dog eat.  Moreover, he had seen the dog and the smaller dog follow the appellant around So Kei.

17.The appellant admitted in his Record of Interview, inter alia, that:-

(i)  He has seen the dog before the incident;

(ii)  He is currently responsible for managing So Kei (his raft)  on his father’s behalf; and

(iii)  The dog appears on his raft all the time, his foki and himself had tried repeatedly to drive the dog away from the raft into the water, but time and again the dog got out of the water after a while and climbed back onto the raft. Eventually, his foki and himself paid no particular attention to the dog.

18.The salient points of the WhatsApp messages between the appellant and PW4 were set out by the magistrate as follows:-

(a)  At around 6pm on same day that PW2 was bitten, PW4 told the appellant “Your dog got on my mariculture raft and bit my paternal grandfather.  … Report had been made to the police already;

(b)  The appellant responded “My dog did bite your paternal grandfather, as I understand from my staff, however, it was your paternal father who approached my mariculture raft, by which the boat was berthed.  My dog then jumped into the boat and bit him.  It is how the incident happened.  … It was not the case that my dog entered your mariculture raft”;

(c)  PW4 asked the appellant: “Hang Jai, is your dog fully vaccinated?  Do you have any vaccination records?  Now the hospital is asking for this information immediately”;

(d)  The appellant answered: “Let me find out first, as I am not at home right now.  … I will ask my wife to take a look first and see if this could be found”;

(e)  After PW4 chased for an answer, the appellant said: “I am now searching it for you.  Nothing special with the dog and looks normal these days.  The dog is fully vaccinated, vaccinated, vaccinated but not microchipped”; and

(f)  On 17 February after 10pm, the appellant asked about PW2 and whether surgery had been done and said he was sorry.

Defence Case

19.The appellant chose not to testify or to call any witness.

Magistrates findings

20.The magistrate accepted the evidence of all prosecution witnesses in full and attached full weight to the inculpatory answers given by the appellant in the Record of Interview and found no ambiguity in the appellant’s WhatsApp messages sent to PW4.  She found that the dog the appellant was referring to was the dog and not the smaller dog on So Kei.  The magistrate found that the appellant was the keeper of the dog because:-

(i)  The appellant admitted in the Whatsapp message that the dog belonged to him and was therefore its owner;

(ii)  When the appellant apologized to PW4 in the Whatsapp message that his dog had bitten his grandfather, the dog had been taken away by AFCS and therefore the appellant knew it was the dog and not the smaller dog that bit PW1;

(iii)  When the appellant told PW4 in the Whatsapp message that the dog was fully vaccinated and not microchipped he was referring to the dog;

(iv)  The appellant as the son of the licensee of So Kei had taken over the operation and management of So Kei; and

(v)  When the appellant was on So Kei he himself had occasionally fed the dog.

Grounds of Appeal

21.The appellant was absent at the hearing of the appeal.  The appellant filed no grounds of appeal or written submissions save for what is formally stated in Form 101.

Consideration

22.It is apparent from the thoroughness of the Statement of Findings that the magistrate was very much alive to the issue in the case.  The magistrate gave a full and careful assessment to the evidence.  She gave proper consideration to the prosecution witnesses’ credibility and reliability, in particular, she addressed challenges advanced in respect of PW2’s inconsistent statements, PW3’s concealment of his relationship with PW2, and PW3-PW4 being PW2’s relatives.  In doing so, it was apparent that the magistrate had approached the prosecution witnesses’ evidence with care.

23.The magistrate had the advantage of having seen the witnesses give evidence.  In accepting the prosecution witnesses’ evidence in full, the magistrate had given reasons to support her finding and relied on the appellant’s inculpatory answers given in the Record of Interview and his WhatsApp messages with PW4.

Conclusion

24.Having reviewed the evidence with care, the magistrate was fully justified in reaching her conclusion that the appellant had committed the two offences. The appellant’s appeal against conviction is dismissed.

Ms Joyce Poon, PP of the Department of Justice, for the respondent

The appellant appeared in person