Written by: Natalie Wong
Last year, 30 animals including cats and rabbits were thrown from a high-rise residential building in Hong Kong, killing at least half of them. Despite the fact that two men surrendered to the police, the Department of Justice decided not to prosecute them, quoting “insufficient evidence” as the reason. Animal cruelty is not a new phenomenon, non-governmental organisations like the Society for the Prevention of Cruelty to Animals (SPCA) has urged, on multiple occasions, the review and amendment of existing laws and prosecution procedure. This article seeks to discuss the inadequacy of the current legislation for animal protection in Hong Kong. It starts with an overview of the current laws in the area. It then argues that Hong Kong’s legislation on animal protection is outdated and has a wrong focus, lagging behind the practices of other jurisdictions. It ends with suggesting that new legislation should be enacted to impose a duty of care on animal keepers, so that the welfare of animals can be better taken care of.
Current Legislation on Animal Protection
The Prevention of Cruelty to Animals Ordinance, as the SPCA notes, is the “foremost [legislation] that safeguards the welfare of animals in Hong Kong”. It was enacted in 1935, largely replicating the Protection of Animals Act 1911 of the United Kingdom, since Hong Kong was still under British colonial rule at that time. The ordinance was enacted with the aim of prohibiting and punishing cruelty to animals. In summary, animal cruelty is understood as the action or inaction of a person that causes “unnecessary suffering” to an animal. These include physically abusing, neglecting, improperly transporting, and allowing the fighting of animals, and can result in a maximum fine of HK $200,000 and a maximum imprisonment of three years. Examples of other legislation in this area include the Wild Animals Protection Ordinance for the conservation of wild animals, the Dogs and Cats Ordinance for the keeping, regulation and control of dogs and cats. The focus of this article is on the Prevention of Cruelty to Animals Ordinance, since it was the first and main ordinance in Hong Kong governing the law on animal cruelty.
Problems with the Prevention of Cruelty to Animals Ordinance
As a relic from the British colonial era, Hong Kong’s current legislation on animal cruelty is “very much out of step with the rest of the world”. In fact, the UK’s Protection of Animals Act 1911, the source of reference for the current scheme in Hong Kong, has already been repealed and replaced by the new Animal Welfare Act 2006, in order to remedy five shortcomings. These defects, as identified by the UK Government, are applicable to the Prevention of Cruelty to Animals Ordinance as well. Three of these would be examined in more detail below.
i. Outdated Scope of the Legislation
It was submitted that the reforms introduced under the outdated Protection of Animals Act 1911 were “ad hoc and piecemeal in nature”, since the then legislative scheme cannot be updated to show changes in society, which happened over the course of a century. These changes range from more advanced scientific knowledge, to more progressive ethics and beliefs. Against this backdrop, the new Animal Welfare Act 2006 provides a more modern understanding of animal cruelty, defining it as an act or a failure to act that causes a protected animal to unnecessarily suffer, where the person knew or ought reasonably to have known, that the act, or failure to act, would have that consequence. Here in Hong Kong, there had been minimal amendments made to the principal legislation on animal cruelty since its enactment in early 20th century. Furthermore, unlike the positive development in its former coloniser, Hong Kong’s legislation on animal cruelty is still based on a “prescriptive list of nineteenth century offences” in the UK, obsolete and outmoded. Reform is necessary for the legislative scheme to reflect a contemporary understanding of animal cruelty, rather than being based on out-of-date colonial laws enacted for a society with completely different priorities.
ii. Proper Treatment of Animals
The Protection of Animals Act 1911 put an emphasis on prosecuting people that abused and treated animals cruelly, without providing guidance on how these animals “ought to be treated”. In other words, the piece of legislation appears to focus more on retributive justice, that is the “repair of justice through [the] imposition of punishment”, rather than “changing future behaviour”. The problem lies in the fact that animal keepers are not required to improve beyond the standard of animal cruelty as laid down in the law. To remedy this, countries such as Australia, New Zealand, the US, and the Netherlands, have all begun to impose a positive duty on animal keepers to protect animals. The effect of adding a duty of care to animal keepers is that they now have a legal responsibility to “provide their animals with adequate care to meet their basic needs”, not just to refrain from causing harm to animals. In this regard, Hong Kong lags behind many foreign jurisdictions. The effect of the current legislation in Hong Kong, without a duty of care, is that authorities can only take actions to protect animals when they actually suffer, not when there is a need to “prevent the impending suffering of animals”. Again, this illustrates that the time is ripe for new laws to be passed to actively protect the welfare of animals with the legal concept of duty of care.
iii. Weak Enforcement
As noted above, the prosecution usually refers to a lack of evidence as an excuse to not prosecute suspects. Prosecution is made especially difficult with a time limit of six months, meaning that the prosecution has only six months starting from the occurrence of the offence to gather relevant evidence. Yet, it has been recognised that it is often “time-consuming to investigate animal cruelty cases”. Thus, suspects can easily escape from legal punishment following the exhaustion of six months. Moreover, cases of animal cruelty are tried as summary offences, in the lowest courts of Hong Kong. Together with the absence of sentencing guidelines for cases in this area, different magistrates can reach different sentences under the guise of “deciding on a case-by-case basis”. Indeed, in most cases, offenders are only asked to serve 6 weeks or less behind bars. To improve the law on animal protection, enforcement bodies should be given more time to bring a case, whereas courts should also be more aware of the nature and severity of these wrongdoings.
New Legislation focusing on Animal Welfare
As Whitfort and Woodhouse rightly assert, modern animal laws should actively prevent cruelty, not just prosecute it. In order to make the current legislative scheme more comprehensive and more effective, it has been suggested that a new ordinance on animal welfare needs to be introduced, explicitly stipulating a duty of care owed by animal keepers towards animals. With a reasonable standard of care being set up under the new legislation, authorities can intervene to protect animals even before “unnecessary suffering” has been caused to them. This should be coupled with tougher sentences of imprisonment that truly reflect the prevalence of animal abuse, so as to deter offenders from committing such inhumane acts. The new legislation should also take into account the difficulties of gathering compelling evidence, by extending the time limit or lowering the standard of proof. More importantly, apart from the legal arena, the government should also work on raising public awareness and educating people about the seriousness of animal abuse crimes. After all, animals that cannot express their feelings and circumstances in words rely on humans to protect their welfare. Legislation alone cannot solve all the issues. It is only through a more conscious civil society and a more willing government that Hong Kong can become a more animal-friendly city.
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