The Queen v. Ling Yee Shun

HCMA000220/1988

1988, NO. 220

(Criminal)

Mag. App.

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H E A D N O T E

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PREVENTION OF CRUELTY TO ANIMALS REGULATIONS, PART I

HELD :     (1)     Part I applies to all animals including Poultry when being kept or transported in Hong Kong

(2)    Bird cages used to carry poultry must comply with Regulation 3.

(3)     A constant and adequate supply of clean fresh water under Regulation 8 means the supply must be continually recurring in adequate quantities.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 220 OF 1988.

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BETWEEN

Coram: Hon. Hooper, J. in Court

Date of hearing: 21st April 1988

Date of delivery of Judgment: 9th May 1988

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J U D G M E N T

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1. On the 25th February 1988 the appellant was convicted, after trial, in the Western Magistrates Court, by Mr D.M.B. Gill, Esq., of two offences in breach of Part I of the Prevention of Cruelty to Animals Regulations. The first offence was stated in the information to be committed on 6th August 1987 at Forbes Street Poultry Wholesale Market and it was alleged that the appellant "did fail to provide sliding or removable bottoms into the bird cages to prevent droppings from birds in one cage falling on to birds in another cage, contrary to the said Regulations, Part I paragraph 3."

2. The second offence related to the same date and place and it was alleged that the appellant "did fail to provide a constant and adequate supply of clear fresh water to animals", contrary to paragraph 8 of the same Regulations.

3. The appellant having been found guilty of both offences now appeals against the said convictions.

4. In paragraph 5 of his Statement of Findings the Magistrate said :-

"The evidence was either adduced by agreement or was unchallenged. It was as follows: -

(a)    The appellant is a shareholder in and seller at the Poultry Wholesale Market Kennedy Town. His premises are at 2 Forbes Street, Kennedy Town. He has been involved in the poultry business for 25 years.

(b)    Poultry kept at the market are housed in nonportable cages with removable bottoms and with a constant water supply. These are shown in photographs being defence exhibits D1 and D3 and comply with the requirements of regulations 3 and 8.

(c)     Inspectors of the RSPCA came across a cage of chickens outside the appellant's premises. The cage was 3 tiered with no removable bottoms and with no supply of water for drinking by the inmates. Some of the birds had chicken faeces on their feathers believed to come from birds in the tier above. Prosecution exhibit P1 was a photo taken showing the cage and its occupants.

(d)    The cage was a portable one typical of those most frequently used for transporting chickens in Hong Kong. Examples of these are depicted in a photo defence exhibit D2.

(e)    The chickens had been sold by the appellant prior to discovery by the RSPCA inspectors. As a result they had been transferred a short time earlier from the holding cages (where they had access to water) to the portable one. That cage was then placed outside the appellant's premises to await pick up by the purchaser or his representative. It was at this stage they were seen by the RSPCA inspectors.

(f)    Poultry in Hong Kong is habitually transported in and around Hong Kong in cages similar to that seen by the RSPCA."

5. In paragraph 7 the learned magistrate said that the evidence being either agreed or unchallenged, he accepted it as fact.

6. In paragraph 8 he stated that he found on the evidence that the appellant kept chickens in a bird cage which did not have a sliding or removable bottom as to prevent droppings from birds in one cage falling on birds of another. And in paragraph 9 he found that the appellant kept chickens not having a constant and adequate supply of clear fresh water. He then went on to convict the appellant on these findings.

7. In view of the findings in paragraph (b) above, it is clear that action could not have been taken while the poultry was still housed in the nonportable cages at the Poultry Wholesale Market, because these cages complied with both regulations. It was only when they had been placed into portable cages outside the appellant's premises which did not comply with these regulations that action could be and was taken.

8. Mr Tsang who represents the appellant on this appeal and who also appeared for him at the trial, submitted to the trial Magistrate a number of points for consideration. The learned Magistrate dealt with them as follows in pargraph 6 of his Statement of Findings -

"Mr Tsang submitted no case to answer after the prosecution case and addressed me again at the end of the trial before I gave my decision. He said :-

(a)    "The appellant at the time of the alleged commission of the offence was not the owner of the birds and thus should not have been charged."

I found the regulations were not limited to the 'owner' but covered the 'keeper' (see section 8 Cap. 169). I decided the appellant had been the owner had sold them but had not parted with possession of them. He was in control of and responsible for them until collection and was thus still the keeper of them.

(b)    "Regulation 19 of the Regulations refers to poultry. Regulation 3 refers to birds. There is thus a distinction drawn and the Crown is required to prove that poultry are birds."

I rejected this argument. Quite clearly and obviously a chicken falls within the wider category of a bird.

(c)     "Regulation 3 of the Regulations is designed to relate only to cages where chickens are kept and not cages used for transportation." I find no provision in the Regulations or elsewhere and nor was I so directed as would allow me to make that distinction.

(d)    "Transporting chickens in cages with removable bottoms and with water supply might be harmful to the chickens as well as being impractical. Chickens have been transported in portable cages in Hong Kong for 40 years."

I could not see how a chicken could be harmed by transportation in cages complying with Regulations 3 and 8 nor any legal force in the argument that they having been transported this way as a matter of usual practice it must therefore be lawful.

(e)    "Constant water supply does not mean continuous water supply. The absence of a continuous supply of water to the chickens did not mean they were deprived of a constant supply, as long as the supply was frequently recurring." I did not accept this argument. 'Constant' means 'all the time' not 'periodic'."

9. In the perfected grounds of appeal against conviction, Ground 1, the appellant takes issue with the Magistrate's comment in paragraph 6(d) above, in that there was clear undisputed evidence that if cages complying with the said regulations were used, the chickens could be harmed. In Ground 2 the appellant claims that the learned Magistrate paid no or no sufficient regard to a number of factors including the fact that harm might come to the animals, there was nothing inhumane about the cages in question for transit purposes; and the impracticability of ensuring a constant water supply to chickens in transit. In Ground 3, the appellant complains that the Magistrate paid no or no sufficient regard to the expert evidence of D.W.2, whose evidence was largely in support of the claims made above, and which evidence the magistrate said he accepted in paragraph 7.

10. In my view there is no inconsistency between the Magistrate's comments in para. 6(d) and paragraph 7 of his Statement of Findings. Paragraph 7 was clearly referring to the evidence which he had set out in paragraph 5, and upon which he based his Findings of Fact. Furthermore he did not disregard the evidence of D.W.2. He regarded it and rejected it.

11. This, of course, raises the question as to how far evidence may be relied upon in construing a statute.

12. The matter is dealt with in Cross on Statutory Interpretation, 2nd Edn at page 58 et seq. It has been said that the ordinary meaning of words, a matter of obvious concern to the law of interpretation, is a question of fact. At page 59 the learned authors say :-

"But although the meaning of ordinary words is a question of fact, it is very far from being an ordinary fact for legal purposes. In the first place one is apt to think of questions of fact as something upon which evidence can be called on each side. This is certainly not the law of statutory interpretation as far as the ordinary meaning of words is concerned. In Marquis Camden v. Inland Revenue Commissioners [1914]1 KB 641, the evidence of a valuer with regard to the meaning of a 'nominal rent' was held to have been inadmissible, Phillimore, L.J. disposing of the matter with the remark that: 'It is enough to say that in construing a modern statute, not dealing with the particular customs of a particular locality, or with the practice of a particular trade, but of general application, evidence such as sought to be adduced in this case is inadmissible.' Lord Esher stated the theoretical position with regard to the inadmissibility of evidence concerning the meaning of words on questions of interpretation when he said: 'If the act is directed to dealing with matters affecting everybody generally, the words used have the meaning attached to them in the common and ordinary use of language. If the act is one passed with reference to a particular trade, business, or transaction, and the words are used as everybody conversant with that trade, business or transaction knows and understands to have a particular meaning in it, then the words are to be construed as having that particular meaning, though it may differ from the common or ordinary meaning of the words.'"

The learned authors continue later on:-

"It may therefore be assumed that evidence of the ordinary meaning of statutory words is theoretically inadmissible, although it may be received in practice comparatively frequently. When it is agreed or contended that statutory words have a technical meaning, evidence with regard to that meaning is unquestionably admissible, and it should generally be preferred to information gleaned from other sources such as dictionaries."

Later the learned authors say:-

"The second reason why the meaning of ordinary words is no ordinary question of fact is that it is the subject of judicial notice. This has at least two highly significant consequences. The first is that, although the direct evidence of witnesses concerning the ordinary meaning of statutory words is inadmissible, recourse may be had to all the other sources of information which a Judge may tap when considering whether a fact is one of which judicial notice should be taken. These include dictionaries."

13. I respectfully agree with the views of the learned authors as quoted above.

14. Mr Tsang has not suggested that any of the words used in the Prevention of Cruelty to Animals Ordinance, or the regulations made thereunder have technical meanings. Neither has he suggested that any of the words used have a particular connotation in the poultry trade. On the contrary he has only sought to show that if the words are given their literal meaning the effect is that they will be harmful to chickens being transported within the Colony. He asks me to give the regulations a fair, large and liberal construction in accordance with section 19 of the Interpretation and General Clauses Ordinance, which provides:-

"An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit."

15. He refers me to a passage in Maxwell on The Interpretation of Statutes, 12th Edn. at page 228 in the following terms:-

"1. Modification Of The Language To Meet The Intention.

Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, or by rejecting them altogether, on the ground that the legislature could not possibly have intended what its words signify, and that the modifications made are mere corrections of careless language and really give the true meaning. Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman's unskilfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used."

16. Thus, suggests Mr Tsang, the Courts will depart from the literal rule in exceptional circumstances.

17. In my judgment the evidence, upon which Mr Tsang relies to prove that compliance with the regulations would be harmful to the chickens in the ways mentioned was not admissible as an aid to construction. The Magistrate was required to construe in Regulation 3 the word "cages" and in Regulation 8 the word "constant".

18. The evidence was directed not at showing that these words have any special meaning in the poultry trade, but at showing that compliance with the regulations if construed literally, would be harmful. That was not a legitimate purpose for introducing that evidence.

19. That disposes of Grounds 1, 2 and 3.

20. Ground 4 of the perfected grounds of appeal is that the learned Magistrate erred in finding that a constant water supply, as required in Regulation 8, means there must be a water supply 'all the time'.

21. It is convenient to deal also with Ground 5 at this time which is in the following terms:-

"In all the circumstances the learned Magistrate should have found that on the true construction of the Prevention of Cruelty to Animals Regulations, Cap 169:

(a)    Regulation 3 only applies to real birds as distinct from chickens which-are governed by Regulation 19,

(b)    A distinction has been drawn between bird cages used for keeping birds. and those used in transit, and

(c)    Birds cages used in transit are not covered by Regulations 3 and 8."

22. Mr Tsang argues in support of these grounds that neither Regulations 3 and 8 refer to the situation where poultry is in transit. He refers to English legislation in which a distinction is made between 'birds' and 'poultry' and cages for keeping birds, and cages for keeping birds in the course of conveyance. He points out that the definition of "animal" in Hong Kong in section 2 of the Prevention of Cruelty to Animals Ordinance, Cap. 169 under which these Regulations have been made, includes birds and does not make any distinction between 'birds' and 'poultry'. However, he suggests there are indications of such a distinction in the regulations, in that Part I of the regulations which is the general part, refers only to "birds" whereas Part II, which deals with import and export of various types of animals, refers specifically to "poultry". It is thus his contention that none of the regulations in Part I refer to poultry, which are covered only by section 19 in Part II.

23. In Part II there is only one regulation which is set out under the heading 'poultry' and that is Regulation 19 which is in the following terms:-

"The baskets or crates in which poultry are carried are to be supplied with mats or to be otherwise so constructed as to prevent the poultry getting their legs through."

24. He suggests that it was the intention of the legislature to control only 'baskets or crates in which poultry are carried' and that there was no intention to make any regulations in respect of cages for poultry. He further argues that since Regulation 19 deals with the baskets or crates in which poultry are carried, it was not the intention of the legislature that Regulations 3 and 8 should apply to chickens at all or animals in transit. In further support of this contention he draws the attention of the Court to the fact that the wording of Regulation 8 is "All animals shall have a constant and adequate supply of clear fresh water", whereas section 3(l)(b) of the Ordinance itself provides that "any person who being in charge of any animal ...................... in the course of transit from one place to another, neglects to supply such animal with sufficient food and sufficient fresh water ... shall be liable on summary conviction". He draws the distinction that this section refers to 'sufficient food and sufficient fresh water' whereas Regulation 8 refers to 'a constant and adequate supply of clear fresh water'. He also relies on the evidence of the defence witnesses to prove that a constant water supply to chickens while in transit would be harmful. He urges me not to construe the word 'constant' in Regulation 8, if it applies at all, to mean 'all the time'.

25. Mr Maxwell for the Crown submits that the Regulations do not make any distinction between birds kept in confinement and birds in transit, though he agrees it was open to argument that Regulation 3 may not apply to poultry because of the reference to 'bird cages' as distinct from 'baskets or crates in which poultry are carried' referred to in Regulation 19. He suggests that the conviction under Regulation 8 could be upheld on the basis that the Magistrate rejected the evidence of the defence witness that it would be harmful to chickens to supply them with a constant supply of water, saying that the magistrate was not obliged to take that evidence into account; it was his duty to construe the regulations under the normal canons of construction.

26. I have considered the terms of these Regulations carefully. The construction to be placed on them is certainly not free from difficulty. This Court must do the best it can in the light of the terms of section 19 of the Interpretation and General Clauses Ordinance.

27. In my judgment, no assistance can be gained from the English legislation which is quite different.

28. In Hong Kong the Prevention of Cruelty to Animals Ordinance, Cap. 169, section 2 defines 'animal' as including "any mammal, bird, reptile, amphibian, fish or any other vertebrate or invertebrate whether wild or tame". There is thus no distinction made between wild birds and other birds and poultry.

29. Section 3(1)(b) of that Ordinance, which has been referred to earlier, does indicate that it was the intention of the legislature that it should not only govern the situation where birds (including poultry) are kept, but also where they are kept in the course of transit from one place to another. It makes it an offence for "any person who, ......... being in charge of any animal in ................ the course of transport from one place to another, neglects to supply such animal with sufficient food and sufficient fresh water." Such an offence carries a penalty of a fine of $5,000 and to imprisonment for 6 months.

30. It is to be noted that this subsection does not make it an offence for a person to fail to supply such animal with a constant supply of fresh water, but only 'sufficient fresh water'. It seems to me that on a charge of contravening that provision, it would be permissible for expert evidence of someone in the trade to be led as to what constituted a sufficient supply of fresh water for poultry because that evidence would be relevant not in construing the legislation but in giving effect to it, once construed. But the defendant has not been charged under that section. The appellant has been charged under the Prevention of Cruelty to Animals Regulations of the 29th November 1935 made under the enabling provisions of section 8 of the Ordinance.

Section 8 provides:-

"For the purpose of preventing cruelty the Governor in Council may make regulations prescribing the conditions under which animals may be kept in confinement in any place, vessel, train, tram, aircraft or vehicle, including the licensing, construction and proper sanitary maintenance of any such place and may by such regulations prescribe offences and penalties therefor."

31. It is clear therefore that it was and is within the power of the Governor in Council to make regulations governing the conditions in which poultry may be kept in any place including while in transit.

32. Part I of those regulations are general regulations and must cover the keeping of poultry even while in transit in Hong Kong. Indeed, Regulation 10 specifically provides:-

"Any basket, crate or cage in which any animal is carried or kept shall be so constructed as to prevent any such animal from being injured."

33. I,  therefore, reject the appellant's contention that Part I cannot be applied to poultry in transit.

34. Part II of the regulations governs the conditions in which animals are imported and exported. Specific provisions are made therein in respect of particular types of animals including sheep, goats, pigs, poultry and cattle. Regulation 19 refers specifically to the construction of the baskets or crates in which poultry are carried.

35. However, I cannot see that this regulation should be taken to mean that chickens are never kept or carried in cages or that if they are, the regulations concerning cages do not apply. There appears to be no reason why poultry should be subject to such discrimination. If they are kept or carried in cages, then I can see no reason why the provisions of Regulation 3 should not be followed regarding the construction of those cages. Indeed the appellant complied with that regulation before transferring the birds into the cages used for transportation.

36. There appears to be no issue on this appeal with the finding of the magistrate that the poultry in question was being kept by the appellant in cages. Indeed all witnesses referred to 'cages' including the appellant's expert witness. I hold that these cages should have complied with Regulation 3 and that, on the Magistrate's findings, that they did not do so, he was entitled to convict the appellant.

37. I now turn to Regulation 8. This Regulation requires a construction to be put upon the word "constant". No evidence has been led to show that this word has a special meaning in the poultry trade. It must therefore be construed in accordance with section 19, of the Interpretation and General Clauses Ordinance.

38. The Shorter Oxford Dictionary defines this word in respect of actions as meaning "continuous", "continuous without intermission" or "continually recurring". The Magistrate's construction that it means "all the time" was therefore not the only construction open to him on an ordinary use of the word. In my judgment the proper construction to put on this word is "continually recurring". I do not consider that it was intended that a fresh supply of clear fresh water should be "continuous without interruption" or "all the time", even when poultry is being transported around Hong Kong. This is clearly impracticable. As long as animals have at continually recurring intervals throughout the day an adequate supply, then I cannot see why it would be necessary to require an uninterrupted supply.

39. There was no evidence that the poultry in the present case had anything less than an adequate supply, at the time they were kept by the appellant and it was therefore not open to the magistrate to convict under Regulation 8.

40. I therefore allow this appeal and set aside the conviction under Regulation 8 but confirm the conviction under Regulation 3.

Representation:

Mr A.K. Maxwell (Crown Counsel) for Crown/Respondent.

Mr Albert Tsang (M/s Tai, Ho & Chan) for Appellant LING Yee-shun.