Hong Kong Racing Pigeon Association Ltd. v. Attorney General and Another

HCMP003501/1993

HCMP No. 3501 of 1993

H E A D N O T E

Waste Disposal Ordinance - racing pigeons - whether such pigeons not kept for food are poultry - Public Health (Animals and Birds) Ordinance.

HCMP No. 3501 of 1993

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram: The Hon. Mr. Justice Sears in Court

Date of hearing: 15 July 1994

Date of delivery of judgment: 15 July 1994

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J U D G M E N T

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1. The Plaintiff in this matter is the Hong Kong Racing Pigeon Association. It is a member of the Asian Federation of Pigeon Associations and has about 388 members who come from all walks of life. They race pigeons, which means that the pigeons leave Hong Kong and fly vast distances, sometimes over 1000 kilometres to China and other countries.

2. This sport, or hobby, provides for its members a worthwhile pursuit and is taken by them very seriously. The birds are expensive. Pedigree birds can cost up to HK$20,000.00 and the unhatched eggs cost about $1,000.00 each. The racing pigeons are generally kept in well-maintained lofts and because they are so expensive, they are kept in very good conditions. A number of the birds get lost on the long-distance races and some are killed, therefore it is necessary for the members to keep a substantial number of racing pigeons.

3. The problem which has arisen in this case is that by virtue of the Waste Disposal Ordinance, Cap. 354, the keeping of pigeons in certain urban areas is restricted. Section 15 provides that no person shall keep "livestock" at any premises in a "livestock prohibition areas" (which generally covers the urban areas). A contravention is an offence.

4. 'Livestock' is defined in Section 2 as meaning "pigs or poultry", and the word "poultry" means "chickens, ducks, geese, pigeons and quail". The position, therefore, is that under the legislation a person could keep on his premises in a livestock prohibition area not more than 10 poultry. The issue, therefore, before me can be simply stated. The Plaintiff submits that the word "pigeon" does not include racing pigeons, because a racing pigeon is not poultry.

5. I am grateful to Mr. Chain who has done a large amount of research into this matter and has placed before the court substantial material (which I have read before coming into court) to demonstrate, as he submits, that a racing pigeon is not poultry. I have also read the legislative debate on the Waste Disposal Ordinance and it is clear that when this Ordinance was enacted, the purpose of it was to restrict the large farming operations taking place in the urban areas and which provided food for the people of Hong Kong. By virtue of the fact that this is an important pastime and this Ordinance provides criminal penalties for contravention, I ought to examine the matter from a liberal point of view. It is clear to me that the word 'poultry' normally means certain categories of birds which are kept either for breeding or eating. Although I presume that a racing pigeon can be eaten, it is kept for the purpose of racing rather than kept for the purposes of food. However, I must have regard to what the Ordinance says. Does a person if he keeps racing pigeons keep livestock within the meaning of section 15, or putting it in a more refined way, is he keeping poultry?

6. A pigeon comes from the family called 'Columbidae' with some 306 species. There are domestic pigeons, ornamental pigeons and homing or racing pigeons. The main difference between the racing or homing pigeon and the domestic is that the former are much smaller in size, some 15 ounces as compared with the large common pigeons which are about 2.2 pounds. Eating pigeon is a common occurrence in Hong Kong. The difficult question, therefore, which I have to decide, is whether or not I can limit the meaning of pigeon as poultry to only those pigeons that are kept for food. The mere fact that the word 'pigeon' is used would give an easy answer to this problem, but would pay scant attention to the industry which has been put into this case by Mr. Chain. He has referred me to a number of authorities. In Hardwick Game Farm v. S.A.P.P.A. [1969] 2 A.C. 31, the House of Lords when considering the word "poultry' in the Fertilisers and Feeding Stuffs Act 1926 was of the view that pheasants, which have never been in captivity, are not poultry and the word means birds which are kept for supplying the table with meat or eggs. In that Act, however, the word "poultry" was not defined.

7. Mr. Chain further reminds me of the classic citation from Seafood Court Estates v. Aster [1949], as to the Court's approach when considering the language of a statute, where Denning L.J. (as he then was) said :-

"A judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give "force and life" to the intention of the legislature."

8. The problem which faces the court, however, is other legislation in Hong Kong which utilizes the same definition. In the Public Health (Animals and Birds) Ordinance, Cap. 139, there are restrictions from public health points of view on animals and birds. Birds are defined as meaning "poultry and all other birds", and poultry is defined as including "domestic fowls, turkeys, ducks, pigeons and geese". This is a different category of poultry to that found in the Waste Disposal Ordinance, but the word 'pigeon' is used. In my judgment, insofar as public health matters are concerned, which are important provisions, e.g. where disease is discovered and there is restriction on the import of birds, or the movement of birds in affected areas, I can see no reason to restrict the definition of the word 'poultry' as excluding racing pigeon. In those circumstances, it seems to me that I would have to give the same interpretation in the Waste Disposal Ordinance to the meaning of poultry.

9. I have great sympathy for the Plaintiff organization whose members carry out this harmless pursuit. One can keep a large number of parrots in one's property, but these members who have a high standard of hygiene cannot keep a large number of racing pigeons. I am glad, however, to note and grateful to Miss Patel for drawing to my attention that very recently there has been a relaxation in the Ordinance, so that members of the Hong Kong Racing Pigeon Association can now keep 20 pigeons on their premises.

10. Having regard to all these matters, I have come to the clear conclusion that despite the able arguments put forward, the word 'pigeon' included in the word 'poultry' means all categories of pigeons and I am not permitted to remove from that definition a specific category of pigeon. It may be that the Urban Council over the last few years has itself been operating in contravention of this Ordinance by virtue of the large number of ornamental pigeons being kept within urban areas, but it is now by virtue of the new order in Council made by the Govemor removed from the provisions of the Ordinance. The end result, as far as this originating summons is concerned, is that I do not make a declaration that all racing pigeons are not pigeons. In my judgment, racing pigeons are pigeons within the meaning of the Waste Disposal Ordinance and those who keep more than 20 racing pigeons in the specified urban areas are liable to prosecution under Section 15.

Representation:

Mr. Benjamin Chain instructed by M/s. B.C. Chow & Co. for the Plaintiff.

Miss V. Patel, Crown Solicitors, for the Defendants.