HKSAR v. Cheung Hin Ming

[English Translation – 英譯本]

HCMA 265/2021

[2022] HKCFI 1417

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 265 OF 2021

(ON APPEAL FROM FLCC 386 OF 2021)

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BETWEEN

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Before:  Hon Alex Lee J

Written submission:  16 August 2021 (Respondent)

Date of Judgment:  18 May 2022

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J U D G M E N T

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Introduction

1.The appellant was charged with one count of “attempting to use the flesh of dog for food”[1]. The particulars of the offence are that the appellant, on 14 October 2020 on the pavement off lamppost FC 4128 at Castle Peak Road - San Tin Section (Yuen Long bound), Lok Ma Chau, attempted to use the flesh of a brown adult female mongrel for food.

2.The appellant pleaded not guilty to the charge and was tried before Deputy Magistrate Fung Lim-wai (“the Magistrate”).  On 4 June 2021, the Magistrate convicted the appellant and sentenced him to 5 days’ imprisonment, suspended for 12 months.

3.The appellant now appeals against the conviction.  The appeal hearing was originally scheduled for 6 May of this year but because of the pandemic, directions were given by the court on 8 April that the original oral hearing be vacated and the appeal be dealt with in writing.

Prosecution case

4.PW1 was the key witness of the prosecution.  In short, at about 0730 hours on the day in question, she drove past the location concerned and saw the appellant pulling laboriously away from the carriageway a dog which seemed to have been knocked down by vehicle.  Thus, she stopped her car and intended to help the appellant.  But when she went near, she saw the appellant taking out the innards from the dog’s body and put them into a plastic bag.  She asked the appellant if the dog belonged to him.  The appellant replied in the negative.  She requested the appellant to explain and to stop his act but the latter paid no heed.  In order to leave the dog an intact carcass, she requested the appellant to put down the plastic bag and agreed to give him HK$100.  The appellant collected the HK$100 offered by PW1 and the course of which was filmed by the latter (P1).  After that, the appellant picked up the plastic bag and left the scene.  Upon seeing that, PW1 requested the appellant to put down the plastic bag, otherwise she would follow him to his home and report the case to the police.  At first, the appellant paid no heed to PW1.  It was only when he reached the outside of “Wong Moon Kee” that he handed the plastic bag to her.  After PW1 went back to the scene, she put the plastic bag next to the dog carcass and reported the case to the police.  Later, she left the scene with her friend.

5.PW5 and PW6, Veterinary Officers of Agriculture, Fisheries and Conservation Department, gave evidence in court and confirmed the contents of their examination report (P3A, translation P3B).  According to the anatomy of the dog, although the precise cause of death could not be determined, the extent and mode of injuries were compatible with severe blunt force traumas which could be inflicted after being struck by vehicle, and the innards/tissues were processed [cut][2] afterwards [presumed to be after death].

Defence Case

6.After the close of the prosecution case, the appellant made a halfway submission. Yet the Magistrate ruled that there was a prima facie case and the appellant had a case to answer.  The appellant elected to give evidence but called no witness.

7.The appellant said he was 70 years old, a retiree and unemployed.  He was receiving the government Old Age Allowance and Disability Allowance totalling HK3,500 a month.  On the day in question, he was doing morning exercise and strolling near the location concerned. During that time, he saw on the road a big dog which was dead and had been run over by vehicles many times.  He thought it would pose a danger to the vehicles and the traffic, so he pulled the dog carcass onto the pavement. At that time, the innards of the dog carcass were already scattered on the ground.  He found a plastic bag from the roadside and put the innards into the plastic bag.  During which, PW1 went up to the defendant and indicated that “I give you $100, you leave.”  He replied by saying “okay”.  PW1 requested him to give her the plastic bag and followed him all the way.  Upon reaching the outside of “Wong Moon Kee”, he handed the plastic bag with innards to PW1 and then went home. According to the appellant, he knew there was a garbage bin in the bus stop near the location in question (P2, Photo 15).  However, he chose not to throw away the plastic bag and the innards into that garbage bin and intended to throw them away after bringing them home.  The appellant also indicated that before and after he took HK$100 from PW1, all the while he was only “taking away” those innards “offhandedly and unintentionally”.

Reasons for conviction 

8.In the Magistrate’s view, there are three issues in the present case: (1)  the credibility and reliability of the evidence of the prosecution witnesses; (2)  whether the purpose behind the appellant’s conduct at the scene was to use the flesh of the dog in question for food, or that he was acting out of kindness to drag the dog carcass away from the carriageway so as not to obstruct the traffic, and to clean up the scene; (3)  whether the conduct of the appellant was more than merely preparatory to the commission of  the offence of “using the flesh of dog for food”[3].

9.The Magistrate had heard the appellant and observed his demeanour when he gave evidence.  He had also taken into account his description of the course of the incident.  In his view, the appellant’s evidence was manifestly unreasonable, illogical and inherently improbable. The Magistrate did not find him to be an honest and reliable witness[4].  On the other hand, the Magistrate found PW1 to be an honest and reliable witness[5].  He also found the evidence of other prosecution witnesses to be the facts of this case and attached full weight to their evidence.[6]

10.The Magistrate made the following findings in respect of the facts of this case:

(1)  According to PW1’s evidence, the appellant knew that the plastic bag contained the innards of the dog and he was in possession of those innards[7];

(2)  According to the expert evidence of PW5 and PW6, the separation of the innards from the body of the dog was probably the result of the manual operation (cutting)  of the dog’s innards by the appellant[8];

(3)  According to the evidence of the investigation officer PW7, the route to the appellant's residence was also the path described by PW1.  The appellant was trying to take the plastic bag and the innards home[9];

(4)  The appellant took out the innards from the body of the dog in question and put them into a plastic bag.  Then he intended to take the innards back to his residence.  There being no other evidence to the contrary, the only irresistible inference was that he intended to use the flesh of the dog for food[10].

(5)  Besides having the intention to use the flesh of the dog for food, the appellant’s conduct was more than merely preparatory to the commission of using the flesh of dog for food[11].

Grounds of appeal

11.The appellant did not set out the grounds of appeal in his Form 101[12]. Nor did he file any perfected grounds of appeal or written submission as directed by the court[13].

Legal principles concerning appeals

12.A magistracy appeal is conducted by way of “rehearing” on the evidence before the magistrate: Chou Shih Bin v HKSAR[14].  In HKSAR v Ip Chin Kei[15], McWalters J (as he then was)  summarised the legal principles concerning the approach to magistracy appeals, which included the following:

(1)  The appellate court will only depart from the lower court’s finding of fact or determination of a witness’s credibility if it is satisfied that it was plainly wrong;

(2)  The test in determining whether an error by the trial magistrate should lead to the appeal being allowed is whether it is just for the conviction to be quashed;

(3)  Notwithstanding that the trial magistrate did not commit any error, the appellate court must still perform its statutory duty of conducting a “rehearing”.  This requires the appellate court to be satisfied that on the evidence adduced, the charge has been proved beyond reasonable doubt. If the evidence is insufficient, the appeal must also be allowed.

13.On point (1), the appellate court is required to have regard to the fact that the trial magistrate enjoyed the advantage of having seen and heard the witnesses giving evidence, which it does not enjoy: Raymond Chen v HKSAR[16]. In general, the credibility and reliability of a witness is within the determination of the trial magistrate.  As Barnes J pointed out in HKSAR v Chan Wai Yip Albert[17], when the findings of the trial magistrate are shown to be unreasonable or illogical, or inherently improbable; or that the trial magistrate has misquoted, or omitted, or failed to consider or analyse any significant aspect of the evidence, the conviction would then be rendered unsafe and unsatisfactory.  In HKSAR v Ip Chin Kei, McWalters J pointed out that in a trial where the prosecution evidence consists solely of an accomplice witness whose character is clearly flawed and credibility highly suspect and there is a lack of independent evidence to support his accusations, if the magistrate's assessment of this witness was defective rendering his assessment unreliable then it would be inappropriate for the appellate court to make its own assessment of such a witness just on the transcript.  The appeal would then have to be allowed, with consideration as to an order for retrial was to be made[18].

Discussion

14.In my view, the main issues of this case are: (1)  the credibility and reliability of the evidence of the prosecution and defence witnesses; (2)  whether the appellant’s intention of putting the innards of the dog into the plastic bag was consumption; (3)  whether the innards of the dog should be included as the flesh of the dog; and (4)  whether the appellant’s conduct was more than merely preparatory to the commission of the offence of “using the flesh of dog for food”.

15.In relation to issue (1), I am not going to discuss in detail the various grounds of the Magistrate for rejecting the appellant’s evidence.  However, I have examined them one by one carefully.  In my view, they were objective and persuasive.  Furthermore, as mentioned earlier, the Magistrate had the advantage of hearing and observing the demeanour of the witnesses giving evidence, which I have not.  Therefore, as regards the assessment of the evidence of witnesses, I should not interfere with the Magistrate’s decision lightly.  Finally, I agree with the Magistrate’s finding in this regard.

16.In relation to issue (2), the Magistrate had directed himself that the burden of proof was on the prosecution and the standard of proof was beyond reasonable doubt.  If the appellant’s evidence was true or might be true, he must acquit the appellant.  In this case, there was no direct evidence to prove the intention of the appellant. Thus the prosecution case relied on inference.  Regarding this, the Magistrate knew that for any adverse or guilty inference drawn against the appellant, such inference must be the only reasonable inference that could be drawn.  As regards the Magistrate’s inference that the appellant intended to use the innards of the dog for food, given that the appellant’s explanation had been rejected, in my view, since there was no other evidence to the contrary, this inference drawn by the Magistrate was not only unassailable but also correct.

17.In relation to issue (3), although the term “flesh of dogs” is used in regulation 22(2)  of the Dogs and Cats Regulations, there is no interpretation of “flesh of dogs” or “flesh” in either the Dogs and Cats Ordinance or the Dogs and Cats Regulations.  The Magistrate was aware of this issue of whether the flesh of dog included the dog’s innards, so he stated[19]:

“33. The ‘innards’ of the dog mentioned in the evidence of this case fall within ‘any part thereof’ as referred to in regulation 22(2)  and (3)  of the Dogs and Cats Regulations, Cap. 167A.”

Nevertheless, he did not elaborate on the relevance of regulation 22(2)  and (3)  or his reasoning.

18.Regulation 22 of the Dogs and Cats Regulations provides as follows:

“22. Slaughter of dog or cat for food prohibited. Onus of proof

(1)  No person shall slaughter any dog or cat for use as food whether for mankind or otherwise.

(2)  No person shall sell or use or permit the sale or use of the flesh of dogs and cats for food.

(3)  Any person who is found in possession of the carcass of any dog or cat or any part thereof in such circumstances as would reasonably give rise to a belief that such dog or cat was being or had been slaughtered or sold or used for food in breach of this regulation shall be guilty of an offence against paragraph (1)  or (2), as the case may be, unless he is able to satisfy a magistrate that he has not in fact committed any breach of paragraph (1)  or (2), as the case may be.”

(Emphasis added)

19.Regulation 22(1)  above prohibits the slaughter of dog or cat for food while regulation 22(3)  deals with the onus of proof.  As far as evidence is concerned, although the appellant was in possession of the dog’s innards at the time, it was not the case that the dog “was being or had been” slaughtered or sold or used for food.  Moreover, according to the evidence of the expert witnesses, there were reasons to believe that the dog died in car accident.  Therefore, Ms Chan, prosecuting counsel for the respondent, fairly stated that actually regulation 22(3)  is not directly applicable to this case. I agree.

20.However, I also agree that the wordings of regulation 22(3)  still have considerable value as reference.  First, the presumption in that provision is based upon someone who is in possession of the carcass of any dog or cat or “any part thereof”.  I note that “carcass” in English generally refers to the body of a dead animal, it does not necessarily mean it has been slaughtered and processed.  No matter the Chinese word “carcass” in regulation 22(3)  carries the former general meaning or the latter specific meaning, in my view, the natural meaning of “any part thereof” shall include the innards of the animal.

21.Second, regardless of whether regulation 22(3)  is imposing a persuasive burden or an evidential burden on the defendant: Lee To Nei v HKSAR[20], the effect of this provision is to hold those who possess innards of dog criminally liable under certain circumstances with respect to paragraph (1)  or (2), as the case may be.  By the same logic, the “flesh” of dogs or cats which is prohibited by regulation 22(2)  for use as food should also include the innards.

22.Third, I have considered whether “any part thereof” should be construed in a narrower sense, but am of the view that this is not consistent with the legislative intent of the Dogs and Cats Ordinance: HKSAR v Cheung Kwun Yin[21]. When the Dogs and Cats Bill 1949 was moved for First Reading in the Legislative Council, the then Attorney General said as follows[22]:

“In addition, Honourable Members will recall that a petition bearing many signatures representative of many shades of opinion in the Colony has been received by Government urging prohibition of the practice of slaughter of dogs for human consumption. That petition had regard to the fact that cruelty attends the slaughter of dogs for human consumption, and furthermore they urge the view, which I may say is shared by veterinary and other authorities, that the practice of consumption of dog meat encourages the importation of dogs into the Colony, thereby increasing the risk of the introduction and spread of rabies.”

As pointed out by the respondent, the legislative intent of regulation 22 of the Dogs and Cats Regulations was to direct against the cruelty of the slaughter of dogs for human consumption, and that the practice of consumption of dog meat would in effect encourage the importation of dogs, thereby increasing the risk of the spread of rabies.  It would be contrary to the above legislative intent if the offence under regulation 22(2)  is to restrict only human consumption of dog’s (muscle)  meat, but allowing the human consumption of dog’s innards. 

23.Fourth, the matters restricted by regulation 22(2)  are:

•  the sale

•  the use

•  permitting the sale or use

of the flesh of dogs or cats for food.

According to the natural literal meaning of regulation 22(2), even if the dog or cat in question was not "slaughtered", the person consuming the dog’s flesh (or the cat’s flesh)  would still be in breach of that regulation. In my view, (a)  the relevant restriction pursues a legitimate aim, namely to prevent cruelty to dogs or cats and to reduce the risk of spreading rabies; (b)  the restriction is reasonably related to that legitimate aim; (c)  the relevant restriction does not go beyond what is necessary to achieve that legitimate aim, as it would be impractical, almost impossible, to prove that the dog (cat)  in question was slaughtered and this would significantly undermine the effectiveness of the legislation; and (d)  a reasonable balance has been struck between the societal benefits of prohibiting the consumption of dogs (or cats)  and the infringement of constitutionally protected individual rights (such as the right to life and privacy): see Hysan Development Co Ltd v Town Planning Board[23]. On the contrary, to limit the offence to the carcass of a slaughtered dog (or cat)  would, in my view, not only be too narrow, but would also violate the legislative intent.

24.Therefore, in my view, even if the magistrate’s discussion on this issue was insufficient and perhaps went so far as to wrongly apply regulation 22(3), his conclusion (that the "flesh" of dog referred to in regulation 22(2)  includes its innards)  was correct and therefore did not affect the conviction.  Moreover, even if the appellant was merely packing up the innards of the dog for consumption after it was knocked down and killed by vehicle, this would not constitute a defence.

25.In relation to issue (4), the Magistrate took into account section 159G of the Crimes Ordinance and authorities concerning “attempt”[24]. He did not err in law in this regard.  In the Magistrate’s findings, had PW1 not obstructed him persistently, the appellant would have brought the innards of the dog back to his residence for consumption. Therefore, his conduct was more than preparatory to the commission of using the flesh of dog for food. I agree with it.

26.I have also considered all the evidence in this case carefully by way of a rehearing, but found that the appellant’s conviction was correct and just.

Conclusion

27.For the above reasons, I dismiss the appellant’s appeal against conviction.

The Respondent: Miss Chan Hei Wun, Gladys, Public Prosecutor of the Department of Justice, for the HKSAR.

The Appellant, unrepresented, appeared in person.

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