The Queen v. Ng Yau Fai

HCMA001055/1986

Coram: Roberts, C. J.

Date: 28 November 1986

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JUDGMENT

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1. The Appellant pleaded guilty to three charges, two of them contrary to the Prevention of Cruelty to Animals Ordinance and one of hawking without a licence. He was sentenced to $400, 3 months' imprisonment and $500 respectively on the three charges.

2. He appeals against his conviction on the first charge and against both conviction and sentence on the second.

3. The first two charges, as drafted, alleged offences against section 3(1)(a) and 3(1)(b) of the Prevention of Cruelty to Animals Ordinance, Cap. 169. They were amended by the Magistrate at the outset of the trial to allege offences against section 3(1)(a) only. This was an error in relation to the first charge, the particulars of which supported a charge under section 3(1)(b) not 3(1)(a). This is, however, a minor error, which cannot have misled the Defendant in view of the particulars of the offence which make it perfectly clear under which paragraph that charge was brought.

4. The first charge headed "Cruelty to Animals" read as follows:

"NG Yau-fai, you are charged that on the 7th day of October, 1986, at the junction of Nelson Street and Canton Road, Kowloon, in Hong Kong, you, being the owner, by wantonly or unreasonably omitting to do any act, caused unnecessary suffering to the animal by neglecting to supply such animal with sufficient food and fresh water."

5. The second charge, headed "Skinning Alive Quails", was in these terms:

"NG Yau-fai, you are charged that on the 7th day of October, 1986, at the junction of Nelson Street and Canton Road, Kowloon, in Hong Kong, you skinned alive quails causing unnecesary suffering to the said animals."

This was amended by the Magistrate at the outset of the trial to read as follows:

"NG Yau-fai, you are charged that on the 7th day of October, 1986, at the junction of Nelson Street and Canton Road, Kowloon, in Hong Kong, you tortured animals by skinning them namely live quails."

6. According to the short record, the charges were read and explained to the Defendant and "understood by him after amendment". To each of these three charges, the Defendant replied "I admit".

7. The Magistrate's note continues - "Facts agreed and adds -

8. The facts, which were agreed, were taken from the case summary notes prepared by an RSPCA Inspector -

"On the 7th of October, 1986, we received a complaint regarding a Chinese male hawker skinning alive of quails at the junction of Nelson Street and Canton Road. Having arrived at the location at 10 a.m., Assistant Inspector Lin saw the hawker skinning alive of 2 quails. After all, Assistant Inspector Lin called Mongkok Police Station for assistance. PTU Constable 16522 and 45305 had arrived at 10:20 a.m. The hawker had been arrested to Mongkok Police Station at 10:30 a.m."

9. When asked by the Magistrate if he had anything to say, the Defendant replied "I strangled them but they were not dead. Nothing else".

10. In relation to the first charge Counsel's main complaint related to the record. An examination of the agreed facts shows that the first charge was not substantiated by those facts alone. This no doubt is why the Magistrate asked the Defendant if he had provided the birds with water.

11. The Inspector, who prosecuted the case, swore an affidavit dated the 6th of November, in which he stated that, after the Defendant had agreed to the brief facts, the Magistrate asked the Defendant why he had failed to provide water to the quails and the Defendant replied that he had given water to the quails earlier that morning.

12. The Defendant himself, in an affidavit dated the 21st of October, asserted that the Magistrate asked him whether he supplied the birds with water and he said he did. In that respect, the Defendant added, "the Magistrate's record is not correct".

13. Very properly, the Magistrate was asked to comment on this allegation that his record was inaccurate and his reply was "I disagree that I failed accurately to record the Appellant's reply.  His reply was 'correct', as is shown in the record. No one could fail to understand that reply".

14. It is not uncommon for there to be a disagreement between a Magistrate or District Judge, as to the accuracy of a record which he has kept of proceedings before him. In such circumstances, it is necessary for an appellate court to decide which version it should accept. The normal practice must be that, where there is a disagreement of this kind, the record to be followed, unless there are very exceptional circumstances which are certainly not present here, must be that which is kept by the Magistrate or the judge himself. This is one of his tasks and not that of counsel appearing before him.

15. I must, therefore, reject this ground of appeal, since common sense and precedent both make it clear that it is the Magistrate's record that must be followed.

16. On the second charge, of torturing the quails, a number of objections were taken to the charge itself. The first was that the charge was defective because the word "cruelly" had been omitted from the particulars. Section 3 (1) (a) reads:

"Any person who cruelly beats, kicks, ill-treats, over-rides, over-drives, over-loads, tortures, infuriates, or terrifies any animal ..."

17. This is by no means an easy paragraph to interpret, since it is not clear as to whether the word "cruelly" applies only to "beats" or to any of the other acts which are subsequently listed.

18. Assuming in the Defendant's favour in this instance that the word "cruelly" also governs the word "tortures", the word is supererogatory, in the sense that it is difficult to see how "torture", which means "the infliction of severe pain" could be in these circumstances be other than cruelly inflicted. I do not see that the omission of that word can have put the Defendant at any disadvantage.

19. It was also submitted that the later words of the paragraph, that is to say, "causing unnecessary suffering", govern the earlier words in the paragraph, so that the charge became defective when the Magistrate removed from it the words "causing unnecesary suffering" to the said animals.

20. I am satisfied that the references towards the end of the paragraph to "causing unnecesary suffering", stand by themselves, as indeed in common sense they should do, and that the earlier parts of the paragraph set out a number of different ways in which the offence against that paragraph can be permitted, one of which is by torturing animals.

21. The charge alleges that the Defendant tortured the animals (and birds are included in the definition of "animal" in the Ordinance), by skinning them alive. When this charge was read to the Defendant, he admitted that this was what he had done. When the brief facts were read to him, and these brief facts contained an allegation that he was seen skinning two quails alive, he admitted that they were correct. He therefore admitted twice that he had been skinning them alive, and once that this amounted to torture.

22. When he was asked if he had anything to say in mitigation, however, he replied "I strangled them but they were not dead. Nothing else."

23. Upon this short passage, Mrs. Spruce has built a persuasive and ingenious argument that this was not an equivocal plea of guilty.

24. I need not refer in any detail to the authorities, other than to say that it is established that, if a court is faced with an equivocal plea, it cannot accept it. Only an unequivocal plea of guilty should be entered as such.

25. I quote from P. Foster (Haulage) Ltd v. Roberts ⁽¹⁾:

"A Court cannot accept an equivocal plea of guilty; it has no discretion in the matter; faced with an equivocal plea the Court must either obtain an unequivocal plea of guilty or enter a plea of not guilty. For a plea to be equivocal the defendant must add to the plea of guilty a qualification which, if true, may show that he is not guilty of the offence charged. An example of this type of qualification is found where a man charged with handling a stolen motor car pleads 'guilty to handling but I didn't know it was stolen.'  It is not every qualification which makes a plea of guilty equivocal: for example, the burglar charged with stealing spoons, forks and a camera, who pleads 'guilty but I did not take the camera' is making an unequivocal plea to burglary."

26. A similar view was expressed in R. v. Durham Quarter Sessions ⁽²⁾ in which Lord Goddard C. J. said:

"This is not a case of a defendant who unequivocally pleaded Guilty and then said: 'I made a mistake'. It is a case in which at the trial the defendant said: 'Guilty, but....' and added a statement which showed that he was really pleading Not Guilty.  Every judge and most magistrates know that it is quite a common thing for a prisoner arraigned at assizes or quarter sessions, when the charge is put to him, to say he is Guilty, but so-and-so and so-and-so, and the clerk of assize always says: 'That is a plea of Not Guilty. Enter a plea of Not Guilty'."

It was argued that the Defendant's comment, in mitigation, should have made it clear to the Magistrate that there had been an equivocal plea, because the defendant was, in effect, saying that, as he had strangled them, he could not have inflicted torture upon them.

27. The inference I was asked to draw was that, if he had strangled them, they must have been unconscious. Therefore they could not have suffered, and there could have been no torture.

28. Tempting though it may be, to read into a statement more than it can reasonably bear, it must not be overlooked that the Defendant himself twice admitted that the quails were alive when he skinned them and, as a matter of common sense, rather than as a matter of scientific proof, I see no reason for not accepting his own evidence as to this.

29. There were references to the Defendant having been instructed by officers of the RSPCA as to how to kill quails. I cannot believe that, as part of that instruction, he was shown how to render the quails unconscious so that they could be skinned when they were still alive. He must have been shown how to kill them in an efficient and humane way.

30. By skinning these animals when he knew that they were not dead, whether or not he had, as he put it, "strangled them" beforehand, amounts to an infliction of unnecessary pain, and, as a finding of fact, it was open to a Magistrate to decide that this amounted to torture within the meaning of section 3(1)(a).

31. I do not think that the Magistrate was faced with an unequivocal plea, but with a plea in mitigation. I therefore dismiss the appeals against conviction in relation to both charges.

Sentence

32. I have been provided with a list of sentences which have been imposed in seven other cases in which a defendant was convicted of skinning live quails. In no case was a sentence of imprisonment imposed, whether immediate or suspended. The fines ranged from $180 to $2,500, with most of them falling within a range of $400 to $750.

33. The Defendant, I think, is entitled to feel a real sense of grievance, since the sentence which he received was so much more severe than any other which had been imposed for this offence he is a man of 38, who has been hawking for many years and has a clear record.

34. For someone with this background, taking into account previous sentences for this sort of offence, a fine within the range of $500 to $1,000 would have been appropriate. If the magistrate had had the benefit of the information given to me about other sentences for the same offence, he might well have come to the same conclusion.

35. That is not to say that there are no cases in which a sentence of imprisonment should not be considered for skinning live quails.

36. If a defendant has previously been convicted of that offence or of other offences involving cruelty to animals, or aggravating circumstances are present, a Magistrate could consider whether a suspended or immediate sentence of imprisonment might not be appropriate. None of those circumstances are present in this case. I allow the appeal against sentence on the second charge, quash the sentence of imprisonment for three months and substitute a fine of $750. The Defendant will have 7 days to pay.

(1) [1978] Crim. App. R 305, 313

(2) [1952] 1 ALL E.L.R. 466, 469

Representation:

Mrs. Jill Spruce assigned by DLA for Appellant

Mr. A. A. Bruce, s. c. c. and Peter Ip, c.c. for Crown