Secretary for Justice v Fung Chi Hoi
Court of Appeal
Application for Review No 4 of 2017
Yeung ACJHC, Poon and Pang JJA
21 February, 4 April 2019

Criminal sentencing — cruelty to animals — sentencing principles — inappropriate to lay down sentencing tariffs or guidelines given existing statutory framework — deterrent sentence necessary — aggravating factors for non-commercial context — Prevention of Cruelty to Animals Ordinance (Cap. 169) s. 3(1)(a)

D pleaded guilty to cruelty to animals contrary to s. 3(1)(a) of the Prevention of Cruelty to Animals Ordinance (Cap. 169) (“PCAO”). D, together with another man, K, kicked, slapped, tied up and threw a dog down a slope and then shot water using a hose at it for a few minutes after which the dog lost consciousness. The dog’s decayed carcass was found on the slope three days later. At the time, D and K were inmates at a rehabilitation centre (“Centre”), and they had been assigned to take care of the dog which had been gifted to the Centre. The Magistrate sentenced D to three months’ imprisonment, having adopted a starting point of four months and reduced it by one quarter for plea. On the prosecution’s application for a review of sentence, the Magistrate substituted a term of four months’ imprisonment, having revised the starting point to six months and taken into account the pressure on D during the review process and the fact that D had nearly completed his original sentence. Subsequently, the Secretary for Justice was granted leave to the Court for a review of the sentence on the ground that it was wrong in principle and/or manifestly inadequate. The Court was also asked to lay down sentencing guidelines for the offence of cruelty to animals.

Held, dismissing the application for review of sentence, that:

1) It was inappropriate and impossible to lay down any sentencing tariff or guideline for the offence of cruelty to animals. This was because the circumstances of commission of the offence, under the framework of s. 3(1)(a) of the PCAO, could vary widely. There was no conventional starting point for sentence for the offence. The sentence would depend on the nature and circumstances of each case. It was more desirable to reiterate the sentencing principles in the area and set out some usual aggravating factors for the court to consider (HKSAR v So Pak Lam (HCMA 96/2014) explained). (See paras. 13–22, 40–41.)
2) The correct approach was to impose deterrent sentences for the offence. This would reflect the legislative intent in amending s. 3 of the PCAO in 2006 by increasing the maximum sentence of six months’ imprisonment and a fine of $5,000 to three years’ imprisonment and $200,000 respectively. It would also be appropriate in view of the growing prevalence of the offence in Hong Kong, and to deter reoffending and those with a tendency to resort to violence. (See paras. 12, 24–30.)
3) In a non-commercial context, the aggravating factors of the offence included:
a) Prolonged cruelty to the animal;
b) Use of extreme violence;
c) Use of a weapon;
d) Causing serious, severe or persistent physical or psychological harm or suffering;
e) Where the commission of the offence increased or was aimed at increasing or extending the shock or torment suffered by the animal;
f) Premeditation;
g) Causing severe pain or suffering to the animal in a perverted manner or with a distorted mind, thereby gaining a perverted sense of gratification;
h) Breach of trust in relation to the animal or abuse of power;
i) The effect on third parties, such as the public, who witnessed the course or result of the offence;
j) Making use of technology, such as broadcasting the commission of the offence through social media, so as to publicise or promote cruelty to animals; and
k) Repeated commission of the offence. (See para. 31.)
4) The starting point of six months’ imprisonment imposed by the Magistrate on the review of D’s sentence was not manifestly inadequate. Although it was on the low side, even if the starting point were increased to eight months, the Court would adjust the term to six months to take into account that this was a sentence review and D had completed his sentence. There was no basis for the Court to intervene with the sentence otherwise. The Magistrate reviewing D’s sentence had considered the need for a deterrent sentence, and was entitled to find that D had not tortured the dog with a distorted mind or in a sadistic manner. The Magistrate was also entitled to give the weight he considered necessary to the aggravating factors and D’s remorse. (See paras. 33, 35–36, 40–45.)

Review of sentence

This was an application by the Secretary for Justice for a review of the respondent’s sentence for cruelty to animals contrary to s. 3(1)(a) of the Prevention of Cruelty to Animals Ordinance (Cap. 169) and for the Court to set down sentencing guidelines. The facts are set out in the judgment.

Jurisdictions: 

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