Advocates for Animals recently acted for Jessica Sarkar, a volunteer at New Dawn Malinois Rehoming (NDMR) Dog Rescue, who bought a successful private prosecution against a company director who fostered two of NDMR’s dogs, refused to return them, and allowed them to become emaciated, causing one of them unnecessary suffering.

The Facts

Two Belgian Malinois Dogs called Buddy and Monty were taken in by NDMR from other rescues, intending to place them in temporary foster care whilst finding permanent homes for them. Ms. Sakar was a volunteer at NDMR.

The Defendant had volunteered as a foster and entered into a foster agreement which included a condition not to rehome the two dogs without the consent of NDMR. She took the dogs from NDMR in 2019 but after a falling out with them, refused to return them. The Defendant then set up her own company - Mars & Minerva Rehoming Ltd (M&M).

In April 2021, Ms. Sakar and two others attended a rundown kennel in Bluntisham, where online posts suggested M&M were renting kennel space. On arrival, they found Monty and Buddy in an emanciated stated - with bones clearly visible through their coats. Having seen this, a vet treated them over the course of the next few days. In the vet’s professional experience, he evaluated each of the dog’s bodily condition at a 1/9 - which was the worst possible score. One of the dogs had faeces matted into his coat, both had been housed in kennels that was described to have “the stank of death”. Two of the witnesses even broke down in tears describing the state they had recovered the dogs - in their weaknesses, sunken eyes and desperation to eat and drink when they got home.

Both dogs were placed in suitable homes thereafter. Veterinary evidence suggested that in the months following, Buddy improved from 1/9 to 5/9. The vet who gave expert opinion evidence could think of no reasonable explanation for such an improvement other than a change of ownership and receiving a suitable diet.

Charges

The Defendant was summonsed in respect of four offences.

Two offences of causing unnecessary suffering contrary to section 4(1) Animal Welfare Act 2006 (failure to feed the dogs) and two offences of breaching a duty of person responsible for animal to ensure welfare, contrary to section 9(1) Animal Welfare Act 2006 (relating to their weight, their housing conditions and allowing Monty to be covered in faeces and not being given veterinary treatment).

However, without expert evidence that could rule out heart problems as the cause of Monty’s suffering, the prosecutor dropped one of the s 4(1) charges but proceeded with the other three charges.

The Defence

The Defence never filed a defence statement but only stated in the Plea and Effective Trial form: -

“No case to answer. No admissible evidence against D. No unnecessary suffering. No unsuitable environment. Malicious motivated prosecution brought in bad faith.”

The Defence failed in their no case to answer submission, no prosecution evidence was excluded and no abuse of process argument was made. The prosecution witnesses were not challenged on the state of the kennels or the dogs, and the Defendant declined to give any evidence at all in her defence.

The Verdict

The Judge was satisfied that the Defendant had taken responsibility for the dogs and satisfied that they were not taken to the vets or given food of sufficient quantity or quality, and through malnutrition, Buddy suffered unnecessarily.

The case was adjourned for the probation service to write a report about the Defendant, to find out more about an apparent previous conviction of the Defendant for a similar offence relating to horses, and for the prosecution to consider and prepare applications for costs and a possible order disqualifying the Defendant from owning animals.

REPOSTED FROM ADVOCATES FOR ANIMALS: https://www.advocates-for-animals.com/post/sarkar-v-howe

HKALPO reacts

The UK is incredibly fortunate to have Advocates for Animals continuing to not only identify problems with animal welfare and law, but also to take that step further to bring a private prosecution on behalf of a volunteer at a dog rescue centre. The work Advocates for Animals does is to be exemplified and commended and we hope that other jurisdictions including Hong Kong can follow in their mammoth footsteps.

The Animal Welfare Act 2006 (UK) completely outshines the Prevention of Cruelty Against Animals Ordinance, Cap 169. More specifically, where the UK legislation has in place a duty of care provision, Hong Kong legislation still has yet to implement the same.

Section 9 of the Animal Welfare Act 2006 (UK) places a duty of care on people to ensure that they take reasonable steps in all the circumstances to meet the welfare needs of their animals to the extent required by good practice. Once again, the needs of an animal include the ‘Five Freedoms’, which considers the animal in relation to their environment and protection from suffering. In short, positive steps must be taken to ensure they care for their animals properly and in particular must provide for their welfare needs, which are: -

(i) need for a suitable diet;

(ii) need for a suitable environment;

(iii) need to be able to exhibit normal behaviour patterns;

(iv) need to be housed with, or apart, from other animals; and

(v) need to be protected from pain, suffering, injury and disease.

HKALPO has continued to strongly advocate for the introduction of a positive duty of care for all owners and persons responsible for animals as recommended by the Review of Animal Welfare Legislation in Hong Kong (2010). Any owner or person responsible for an animal, who fails to adhere or maintain the welfare needs of their animals will commit an offence under Cap 169.