No prosecution for throwing 30 animals out of HK apartment.

On 2 September 2020, the Department of Justice (“DOJ”) confirmed that the two men who threw 30 animals out of a Hong Kong apartment will not be facing prosecution. A spokesperson for the DOJ has said the evidence available did not support a reasonable prospect of conviction and the decision was made after “an objective and professional assessment of the available evidence and applicable law.”  

In the early morning of 14 February 2020, 30 animals were thrown out of the Hong Kong Garden Housing Estate near Sham Tseng. Unfortunately, 15 of the animals (which included nine chinchillas, a guinea pig, a cat, two rabbits, a parrot and rodent) died from the fall, and. The remaining animals were severely injured and taken to the Hong Kong Society for the Prevention of Cruelty to Animals (“SPCA”) for their expert examination and treatment.

Having discovered this, the Hong Kong Police executed a search warrant on 15 February, on the suspected housing estate unit. The occupants were not present at the time. It was reported that the Police were able to recover evidence which suggested that animals had been kept as pets in that apartment unit prior to being dropped from a height. Two days after the search warrant was executed, one of the suspects, accompanied by his lawyer, turned himself into the Tsuen Wan Police Station.

It is understood that the Hong Kong Police have completed their investigation into the matter, and after considering the evidence available, the decision was made by the DOJ not to prosecute the suspects. The Hong Kong Police have declined to comment on the investigation or whether officers had made mistakes when gathering evidence.

The SPCA has issued a statement relating to this incident, which you can read in Chinese and English.

Mak Chi-hou, the founder of the Animals Protection Commissioner for the 18 Districts of Hong Kong (十八區動保專員) said he was confused with the decision of the DOJ not to prosecute, especially when the suspect has already turned himself in. He commented the DOJ should consider the underlying public interests not to focus solely on the possibility of a successful prosecution when deciding whether or not to bring a prosecution. Mr. Mak has commented that the present case was a prima facie case involving many animal lives and the DOJ had a duty to convey the message that cruelty to animals and animal abuse were intolerable in our society to the general public.

LegCo member Roy Kwong Chun-yu commented that there was apparent evidence suggesting that the accused has committed an offence of animal cruelty in this case under the Prevention of Cruelty to Animals Ordinance. He further added:

“How could Hong Kong citizens have faith that Hong Kong is moving towards protecting animal’s life after learning DOJ’s ridiculous decision in this case?”

LegCo member Claudia Mo Man-ching has also criticised the DOJ’s decision as inhumane and unjust to the dead pet animals. She said that the DOJ’s decision should be accompanied with reason, and on that basis, had written a letter demanding justification for DOJ’s decision not to prosecute.

Cruelty to animals in Hong Kong is punishable by three years’ imprisonment and a fine of HK$200,000. As the sentences able to be imposed are towards the lower end of the scale, cases of animal cruelty are generally tried in the Magistrates’ Courts. The time limit to consider whether or not to bring a charge under this offence is only 6 months, which in some cases, is not long enough to collect material evidence. Last year, the Government launched a public consultation over reviewing the Prevention of Cruelty to Animals Ordinance, Cap 169, where it suggested increasing the maximum sentence for animal abuse to 10 years imprisonment and a greater fine. An amendment proposal has yet to be published. HKALPO has made written submissions on many of these matters, which you can read here.

If this case is anything to go by, it is a clear indication that there needs to be more accountability for animal owners as well as a greater deterrent factor to prevent the continued abuse of animals by those who are entrusted to care for them.

In Hong Kong, the decision not to prosecute alleged criminal offences is amenable to judicial review,. However Courts will only intervene in the most extreme circumstances, in the context of prosecutorial discretion. For those interested in this area, one of our members has written a thesis analysing the power for Courts to judicially review prosecution decisions to not prosecute.

Courtesy of Thomson Ying & Kim J McCoy

Main Source: SCMP and Hong Kong Animal Post.