Judicial Review filed against decision not to prosecute.
The cruel fate some 30 animals suffered this Valentine's day is still etched in our memories. Some were lucky to cheat death while others perished on the day when they were hurled from a residential building in Sham Tseng.
On September 6, the Department of Justice (“DOJ”) cited insufficient evidence to demonstrate a reasonable prospect of conviction as a reason to not proceed with the prosecution against the alleged perpetrators. This controversial decision was met with public outrage as the DOJ came under fire for their inaction to prosecute the two men who had turned themselves in for the crime.
Following this decision, an owner who adopted the British shorthair cat who narrowly survived the ordeal, filed an application for judicial review with the High Court, challenging the Department of Justice’s decision to not initiate a prosecution against the two men who caused the animals to be thrown out of the apartment.
Cruelty to animals under the Prevention of Cruelty to Animals Ordinance, Cap 169 is only triable summarily and thus have a statutory time limit of six months from the commission of the offence for the Department of Justice to initiate prosecution as stipulated in Magistrates Ordinance (Cap. 227). No charges can be brought upon the expiry of this time limit (including private prosecutions).
It was highlighted in the application for judicial review that citizens had reasonable expectation for the DOJ to act in accordance with the Prosecution Code and that they had a responsibility to take into account the interests of not only victims, but also other relevant parties as well as members of the public.
Furthermore, the application argued that the Director of Public Prosecutions has a duty to communicate their decision to the relevant parties, including SPCA and other organizations assisting in the investigation on whether or not a prosecution would be brought. The failure to do so within the statutory time limit meant that legal recourse for the applicant or other aggrieved parties was prejudiced which was a contravention of Article 35 of the Basic Law which stipulates, “Hong Kong residents shall have the right to confidential legal advice, access to the courts, choice of lawyers for timely protection of their lawful rights and interests or for representation in the courts, and to judicial remedies.”
Under current Hong Kong laws, pets are still regarded as properties and are not given the proper status they deserve as sentient beings possessing physiological characteristics.
The non-prosecution would not only allow animal abusers to enjoy impunity, but it sends a strong message to the world outside of Hong Kong that we shows little or no regard for the lives of animals.
Courtesy of Amelia Wang
Main Source: HK01, SCMP