Project 1

AMENDMENTS TO THE PREVENTION OF CRUELTY TO ANIMALS ORDINANCE, CAP 169.

In April 2019, the AFCD published the Proposals to Enhance Animal Welfare in Hong Kong, a public consultation paper setting out the current provisions in place to prevent and prohibit cruelty to animals, possible areas for enhancement and proposals to implement the enhancement measures through legislative amendments to the Prevention of Cruelty to Animals Ordinance, Cap 169 (“the Ordinance”), and sought representations from members of the Hong Kong public to voice their concerns in relation to the proposed amendments. In light of this invitation, both Amanda and Fiona submitted separate representations to the AFCD, supporting many of the proposed amendments to the Ordinance, having identified many of these shortcomings in their 2010 review.

The initial public consultation period has since closed and the AFCD and the Hong Kong Government are now considering the representations made in respect of the proposed amendments. It is understood that there will be a further public consultation with no date fixed as yet. The HKALPO will be working on making further written and oral submissions, and will look to attend any meetings that are held in respect of these legislative changes, in order to advocate for the amendments to the Ordinance. Members who want to voice their opinions or would like to make additional comments on the amendments are invited to email these to HKALPO.

PURPOSE of the amendments

The primary aim of the amendments to the Ordinance was to emphasise to the Hong Kong Government that in light of the increasing concern about animals in the Hong Kong society, it was necessary to enhance animal welfare by requiring persons responsible for animals to take positive steps to provide for their welfare needs. With the introduction of this positive duty of care on keepers of animals, it was hoped there would be an increase in both public awareness as well as overall animal welfare in Hong Kong

The previous amendment to the Ordinance came in 2006 where more severe penalties for offences of animal cruelty were introduced, which resulted in an increase of the maximum penalty to three years’ imprisonment and a fine of HK$200,000. This represented a six fold increase from the original maximum imprisonment term of six months, and a 40 times increase of the maximum fine of $5,000. Whilst the Ordinance prohibits and punishes acts of cruelty towards animals, it still does not specifically promote good welfare or provide guidance on how good welfare should be achieved. As such, having compared and contrasted developments in international jurisdictions with the current position in Hong Kong, the AFCD identified a number of possible areas for improvement to bring the Ordinance up to date to meet community expectations. This view was shared by the Legislative Council (LegCo), academics, and other groups and individuals who were concerned about animal welfare.

The Proposals

The main proposals in relation to enhancing the Ordinance are three fold: - 

1. To introduce a positive duty of care on persons responsible for animals to provide for their welfare needs, empower a public officer to issue an improvement notice to the responsible person where the duty of care has not been fulfilled and set an appropriate level of penalty for the contravention. To complement the duty of care, a promulgation of Code of Practice to give practical guidance on how to provide for the welfare needs of animals to the extent required by good practice.

2. To enhance the provisions for the prevention of cruelty by increasing the maximum penalty for animal cruelty offences and to empower the Courts to disqualify a person convicted of an animal cruelty offence from keeping animals within a specified period of time or permanently.

3. To enhance enforcement powers for safeguarding animal welfare by providing public officers with the necessary powers of entry to premises and seizure of animals with a view to enhancing the protection of animals and suffering.

INTRODUCTION OF A DUTY OF CARE

The duty of care means that a person who is responsible for an animal must take such steps as is reasonable in the circumstances to ensure the welfare needs of the animal are met to the extent required by good practice. The imposition of a duty of care is hoped to introduce a more proactive and educational approach to enhance animal welfare and is hoped that its introduction will thereby minimise or obviate the instances where animals suffer at the hands of humans. As such, the duty of care extends to any person who is responsible for an animal - this wide definition therefore encompasses not only the owner, but also a person in charge of, or having custody of the animal, whether permanently or temporarily. The responsible person must take positive steps to ensure the following welfare needs of the animals are met to the extend required by good practice, which includes the provision of suitable nutrition, suitable environment, the need to be able to exhibit normal patterns of behaviour (including social needs) and the need to be protected from pain, suffering, disease and injury. Additional to the duty of care, the AFCD is seeking to promulgate Codes of Practice (CoP) for animals commonly kept in Hong Kong, to provide practical guidance on how to provide for the welfare needs of animals to the extent required by good practice. Further basic and non exhaustive examples of good practice requirements will be expanded in CoP’s, taking into account the needs of the individual species. Abandonment of pets and animals would be considered a breach of the duty of care as it would amount to leaving the animal without provision for its welfare needs.

Should a responsible person fail to ensure the needs of an animal are met to the extent as required by good practice, that would be a breach of their duty of care and the offence will have been committed. However, there may be instances where there has been a breach of the duty of care, but may present as a relatively lower risk to the welfare of the animal and rectification is an easy solution. In such cases, the AFCD proposes to empower a public officer to issue an improvement notice which would specify what is required in order to improve and meet the welfare needs of the animal within a specified amount of time. The authorised public officer would periodically conduct checks to ensure that proper steps have been taken. Failure to make improvements within the specified period may lead to prosecution for contravention of the duty of care. The ultimate intention would be to create an offence for a person responsible for an animal to contravene their duty of care.

TO ENHANCE THE PROVISIONS FOR PREVENTION OF CRUELTY

The current definition of “cruelty” under section 3 of the Ordinance provides that “any person who cruelly beats, kicks, ill-treats, over-rides, over-drives, overloads, tortures, infuriates or terrifies any animal, or wantonly or unreasonably doing or omitting to do any act, causes any unnecessary suffering to any animal commits an offence and shall be liable on conviction to a fine of $200,000, and imprisonment for three years. However, this definition does not practically cover the release of captive animals into the wild for religious us or other purposes - especially if their release is into an environment to which they are not suited to. Thus, the genesis of the proposal to specify that the release of an animal into an unsuitable environment, which causes it to suffer, is an act of cruelty.
The maximum penalties under the Ordinance were increased in 2006. Since then, the heaviest sentence imposed by a Court was 16 months’ imprisonment. In order to better protect animals, there has been a call to further increase the maximum penalty in order to create more of a deterrence factor. This will be coupled with the proposal to make the offence of cruelty to animals triable either summarily (for general case) or upon indictment (for severe cases). Summary cases will be heard in the Magistracy whilst indictable cases are tried in higher courts.
Under the Ordinance, a Magistrate may deprive an offender of ownership of an animal if it is shown by evidence as to a previous conviction or as to the character of the owner that the animal is likely to be exposed to further cruelty if left with the owner. However the power does not extend to the Magistrate disqualifying the offender from obtaining and keeping more animals in the future. The AFCD has proposed to empower the Courts to disqualify a person convicted of an animal cruelty offence from keeping animals within a specified period or permanently, and deprive them of any animal(s) currently being kept by them. The disqualification order would be at the discretion of the Courts.

TO ENHANCE ENFORCEMENT POWERS FOR SAFEGUARDING ANIMAL WELFARE

The Ordinance provides for authorised officers to enter and search any building or vehicle, if there is reason to suspect that an offence is being committed. However, this means that an animal must be suffering before anything can be done to intervene. The proposal is to widen the scope of that power, to include authorisation of entry, search and intervention before an animal suffers, when there is reason to suspect an offence has been committed, as well as reason to suspect that an animal is likely to suffer if the circumstances do not change. This will necessarily include the introduction of a provision empowering a Magistrate to issue a warrant to allow an authorised officer to enter and search buildings and premises without the consent of an occupier. This aims to allow earlier intervention in order to better safeguard animal welfare.
Currently, animals seized under the Ordinance can only be released from detention upon the Order of a Magistrate. To ensure fairness and putting the welfare of animals first, there is a proposal to allow a Senior Veterinary Officer of AFCD to release a seized animal from detention if it has been surrendered by the owner and it is no longer required for evidential purposes.