Secretary for Justice v. Iu Chi Yung

CAAR 4/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 4 OF 2008

(ON APPEAL FROM TWCC NO. 307 of 2008)

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Before:   Stuart-Moore Ag CJHC, Yeung JA and Reyes J

Dates of Hearing: 10 October 2008

Date of Judgment: 10 October 2008

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J U D G M E N T

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Stuart-Moore, Ag CJHC (giving the judgment of the Court):

1.This is an application brought by the Secretary for Justice (the applicant) under the provisions of section 81A of the Criminal Procedure Ordinance, Cap. 221, for the review of a sentence of 6 months’ imprisonment imposed on Iu Chi-yung (the respondent) on 21 April 2008 for cruelty to an animal, contrary to section 3(1)(a) of the Prevention of Cruelty to Animals Ordinance, Cap. 169.

2.The particulars of the offence were that the respondent, on 31 December 2007, at Pui O Beach, outside 39 Ham Tin Kau Tsuen, Lantau Island, together with another man (whose identity remains unknown) “cruelly beat a barking deer and caused unnecessary suffering” to the deer.  The respondent, having pleaded not guilty to the charge, was convicted after trial by Mr J Glass, Permanent Magistrate, sitting at Tsuen Wan Magistrates’ Court.

The facts

3.Mr Grenville Cross, SC, on the applicant’s behalf, has provided us with a helpful account of the relevant background factors which, in large measure, we propose to adopt.  In short, the magistrate was satisfied beyond reasonable doubt that the respondent was one of two men who ran about ten metres from a house beside Pui O beach to where a barking deer was standing on the beach.  He held a spade and the man he was with held a wooden club.  They each struck the deer violently with their implements.  The respondent hit the deer at least twice by raising the spade above his shoulder before striking it.  During the attack, the deer let out a continuous, and very loud, “horrifying scream”.  The magistrate concluded that the scream occurred “because the deer was feeling the severe pain from the attack” and the magistrate found that this sound lasted for “a substantial part of the one minute PW1 estimated it took her to reach the beach”.

4.PW1 saw the respondent and the other man carrying the deer back to a house.  The deer was dripping with blood.  When challenged, the respondent denied having killed the deer and claimed that dogs had bitten it to death.  The magistrate found this to be a lie.

5.When the respondent was arrested, he told the police he had seen a dog biting the “yellow cow” and that he had seen a passer-by move the dog away with the spade.  He said that he and the passer-by helped the deer to his house door as he intended to report the incident to the police.  The magistrate rejected this as untrue.

6.A vet gave evidence that there were no teeth marks on the deer’s body.  Rather, open wounds were found on the chin and pelvic region of the deer, and there were also injuries to the skull and to the chest area.  The magistrate found that the loud, continuous sound made by the deer arose from the pain it felt in the attack.

7.It was an admitted fact that the deer was pregnant at the time of death although it is right to add that there is no indication from the evidence that the respondent was aware of this.

8.The magistrate found as a fact that the respondent had intentionally and cruelly beaten the barking deer by using a spade to inflict at least two violent blows and that, together with another man, he caused unnecessary suffering to the deer by striking it until it was rendered unconscious.

Pre-sentence report

9.Prior to sentence, the magistrate had ordered a background report from the probation service.  The report indicated that the respondent was married with three children, aged between 7 and 14.  The family lived at a public housing unit in Kwai Chung and the respondent worked as an electrician, earning about $10,000 a month.  It was said that he enjoyed drinking with colleagues and sometimes became drunk.  He also liked betting on horse races.  He did voluntary work for a district councillor who was impressed by his community service.

10.The respondent told the probation officer that on the night of the offence he had drunk lot of beer.  He was annoyed by the barking of dogs and, together with another man, he took a pole to fight them.  He mistook the deer for a dog and therefore attacked it as well.  He attributed his acts to alcohol and an underestimation of the consequences.  He expressed remorse and promised to stop drinking beer.

11.The probation officer concluded that the respondent had committed the offence as a result of alcohol, that he had learned his lesson and was remorseful.  He did not consider the respondent to be aggressive or impulsive and his prospects for reform were described as good.

Voluntary community work

12.The respondent placed various documents before the court in mitigation.  These included a letter from Mr S F Lam, a District Councillor in Kwai Tsing, who described the respondent as a long-standing volunteer in his office, who was conscientious and enthusiastic in his work and praised by residents for his assistance to the elderly in his spare time.  The incident had “struck a great blow to his family” and a lenient sentence was sought so that he could “turn over a new leaf and contribute to society”.  There were other letters from various colleagues and family members, as well as a letter from the respondent himself, which the magistrate took into account.

Reasons for sentence

13.The magistrate rejected the submission that the respondent had committed the offences whilst under the influence of drink.  This was something which had never been mentioned at trial.  He found instead that the respondent had been in full control of his faculties and was able to run to the deer to beat it violently into unconsciousness before carrying it back to his house.  He was also able to concoct a false account when confronted by PW1 who had arrived at the scene shortly after the incident.

14.The magistrate also rejected the respondent’s account to the probation officer where this conflicted with the evidence and with the magistrate’s own findings of fact.  In particular, the magistrate was satisfied that the respondent had known that it was not a dog he was attacking and the magistrate observed that although the respondent was not aggressive towards humans, he was, by his own admission, prepared to be aggressive towards animals which annoyed him.

15.The magistrate noted that a maximum sentence of 3 years’ imprisonment and a fine of $200,000 represented a sixfold increase in the maximum term of imprisonment for this offence (introduced in December 2006) as well as an increase by forty times of the maximum financial penalty.  He observed also that there had been a publicity campaign against cruelty to animals and he recognised the principle that, where the legislature has increased the maximum sentence for an offence, the new legislative view of the seriousness of the offence should be given full weight in sentencing.

16.The magistrate observed that “all previous authorities on animal cruelty were out of date for the present legislative intent” and that the present offence was “a very serious case of animal cruelty as the defendant had used a brutally cruel and painful method of beating the deer unconscious, eventually killing it, without showing any concern for the pain and suffering the animal would sustain in his attack”.  The respondent and the other man had not sought to kill the animal immediately and as painlessly as possible, but had “wildly hit it in various places causing more pain than was necessary to kill it”.  All of this was done in circumstances where the deer had not caused any nuisance or danger to the respondent or his family.  The magistrate held that it was an aggravating factor that the deer was pregnant at the time.

17.The respondent was stated by the magistrate to have shown no remorse until after conviction and even this was not genuine as he had sought to mislead the probation officer about what had occurred.

18.The magistrate described this offence as not the most serious case of animal cruelty where a sentence closer to the maximum penalty would be appropriate but he concluded that it warranted immediate imprisonment.  Given the legislative intent, the seriousness of the offence, and the absence of genuine remorse, the magistrate adopted a starting point of 8 months’ imprisonment from which he deducted a month for clear record and another month for the respondent’s voluntary work on behalf of the elderly.

The application

19.Mr Cross submitted that the sentence of 6 months’ imprisonment imposed upon the respondent was manifestly inadequate and/or wrong in principle.  He accepted that the magistrate had analysed the principles of sentencing and had identified the relevant factors but he submitted that the sentence ultimately achieved was not such as to reflect the gravity of the crime.  Whilst it was correct for the magistrate to have said that there was no sentencing tariff for the offence of animal cruelty, Mr Cross submitted this was a serious offence of its type and, as such, a starting point closer to the top of the sentencing range was required, rather than one closer to the bottom of the range.  The deer, as the magistrate found, was “wildly hit” for almost a minute by the two men using a spade and a club and they caused “more pain than was necessary to kill it”.  In these circumstances Mr Cross suggested that a sentence was required which would deter others in cases involving the effective torture of an animal.

20.We are, with respect, unable to agree with the submission that the sentence imposed by the magistrate was manifestly inadequate.  Whilst the behaviour of the respondent on this occasion was, to any right-minded member of society, very shocking indeed, we consider that the offence was not in the most serious category such as would have been the case where, for example, cruelty had been inflicted out of a misguided and sadistic sense of fun at seeing an animal suffer over a prolonged time through torture.

21.Here, the animal’s suffering was relatively short.  Whilst, therefore, the respondent’s dreadful actions are to be deplored, a sentence of 6 months’ imprisonment was, we consider, appropriate in the circumstances.

22.Each case will depend on its own facts and we would suggest that the reason an act of cruelty to an animal is committed will often be a determining factor in deciding whether a custodial sentence is appropriate and, if so, its length.

23.Accordingly, as we do not consider that any upward revision of sentence would be appropriate in the present case, the application is dismissed.

Mr I Grenville Cross, SC, DPP and Ms Tsang Oi-kei, Olivia, Ag SPP, of the Department of Justice, for the Applicant.

Mr Hung Hing-shek, Andy, instructed by Messrs Or & Partners, assigned by Director of Legal Aid, for the Respondent.