Just like SARS, a viral respiratory disease which claimed hundreds of lives back in 2003, recent investigation reveals that the primary source of the new virus behind COVID-19 is likely to be bats.
With an increasing concern for animals and human-animal relationships at present, this finding again reminds us how complicated our relationship with animals can be. On the one hand, we rely on animals as a source of food. We keep them as pets. We even develop hobbies around them. On the other hand, however, we also fear them as they can be sources of disease.
This article will shed light on the complicated relationship between birds and us by investigating how the increasingly restrictive legislation over the years contributed to the decline of pigeon racing in Hong Kong.
Pigeon racing is a sport or hobby which has a long history. It involves specially trained racing pigeons which are taken to a release point and from where they are to race home. Pigeon racing is nothing short of controversy. There have been reports on the inhumane treatment over the breeding of racing pigeons. Furthermore, animal rights advocates have argued that there are often heavy casualties during competition as the racing pigeons can be attacked by the birds of prey or they can become exhausted for flying home from long distances away. There are also doping scandals surrounding pigeon racing. However, the focus of this article is not the ethics of pigeon racing. Instead, this article will focus on the decline of pigeon racing in Hong Kong.
Waste Disposal Ordinance (Cap. 354) (“WDO”)
WDO was enacted in 1980. Livestock waste was the main source of pollution of streams and coastal waters in Hong Kong at that time. With the increasing awareness of the importance of environmental protection and the aim to protect the public's health, the Hong Kong Government was of the view that livestock farming was no longer compatible with urban development. As a result, a new Part IIIA was added to WDO in 1987 to prohibit livestock keeping in urban areas and it came into operation in June 1988 (the “1987 Amendment”).
By virtue of the 1987 Amendment, s. 15(1) of WDO provided that no person (other than an exempt person) shall keep "livestock" in or on any premises in a livestock waste prohibition area (which generally covered the urban area). A contravention would be an offence. As per the definitions in s. 2 of WDO, the word “livestock” meant "pigs or poultry" while the word "poultry" meant "chickens, ducks, geese, pigeons and quail". An exempt person included any person who owned or kept in or on his premises in any livestock waste prohibition area not more than 10 poultry (the “Exemption”). In short, the position under the 1987 Amendment was that a person could keep in his premises not more than 10 poultry. The limit was later increased to 20.
Hong Kong Racing Pigeon Association Limited (“HKRPAL”)
The 1987 Amendment heavily restricted the keeping of racing pigeons in the urban areas. In Hong Kong Racing Pigeon Association Limited v. Attorney General and Other [HCMP No. 3501 of 1993], HKRPAL took out an originating summons seeking a declaration that all racing pigeons kept by all its members were not “pigeons” for the purposes of WDO. In short, HKRPAL submitted that the word "pigeons" did not include racing pigeons because a racing pigeon was not poultry. HKRPAL claimed that it was imperative for the active members to keep at least 30 to 40 birds if they were to take the sport or hobby seriously. On 15th July 1994, the matter came before the Hon. Mr. Justice Sears of the High Court. He found against HKRPAL and refused the declaration sought.
HKRPAL then appealed to the Court of Appeal. In Hong Kong Racing Pigeon Association Limited v. Attorney General and Other [CACV No. 158 of 1994], the Court of Appeal dismissed the appeal in a unanimous decision. The Hon. Mr. Justice Nazareth V-P believed that there was simply no ambiguity or obscurity in the definition of “poultry” or the meaning of “pigeon” in WDO. The Hon. Mr. Justice Bokhary JA and the Hon. Mr. Justice Liu JA concurred with his opinion.
Further Amendments to WDO
In 1997, there was an outbreak of avian influenza in Hong Kong. Due to the fear of avian influenza, further restrictions were imposed on livestock keeping in the city. The Exemption was removed in 2006. Thereafter, if a pigeon racing enthusiast wanted to keep any pigeons in his premises, he needed to rely on s. 15AA of WDO under which no person shall keep livestock in or on any premises in a livestock waste restriction area unless (a) he is authorised in writing so to do by the Director of Environmental Protection; or (b) he holds a valid licence so to do issued by the Director of Agriculture, Fisheries and Conservation (the “Director”) under the Public Health (Animals and Birds) Ordinance (Cap. 139).
Public Health (Animals and Birds) Ordinance (Cap. 139) (“PHABO”)
Various sub-legislations in the form of regulations were enacted under s. 3 of PHABO. They provide for the regulation of the issuance of licences by the Director for the keeping of birds for various purposes. Public Health (Animals and Birds) (Licensing of Livestock Keeping) Regulation (Cap. 139L) regulates the issuance of Livestock Keeping Licence while Public Health (Animals and Birds) (Exhibitions) Regulations (Cap. 139F) regulates the issuance of Exhibition Licence.
Livestock Keeping Licence VS Exhibition Licence
In Lin Kai Yuen v. Director of Agriculture, Fisheries and Conservation [HCAL No. 134 of 2009], the Applicant, a pigeon racing enthusiast, applied for judicial review seeking an order to quash a decision from the Director refusing to grant the Livestock Keeping Licence to him to keep his racing pigeons in his premises. The Applicant was however granted the Exhibition Licence to keep those pigeons. It was the Applicant’s case that he should be granted the Livestock Keeping Licence instead of the Exhibition Licence as the commercial nature and purpose of the Exhibition Licence were inconsistent with his keeping of racing pigeons in his premises which was a residential one. The Hon. Mr. Justice Au rejected the Applicant’s submissions that the Director’s decision was wrongful in law and dismissed the application.
The increasingly restrictive legislation and the judicial decisions mentioned above undoubtedly dealt a severe blow to the pigeon racing enthusiasts in Hong Kong and made it very difficult for them to maintain their sport or hobby. This has contributed to the decline of pigeon racing in Hong Kong. Some animal rights activists may view it as a victory. However, pigeon racing enthusiasts may argue that this has deprived them and the public of an opportunity to appreciate the art of pigeon racing.
To put it in a broader perspective, the legislative history behind the decline of pigeon racing reflects a general trend in the society to discourage the public from interacting with birds due to the increasing fear over the spread of avian influenza and the concern for public health. Birds are an important part of the urban landscape. Yet, we increasingly view them as a nuisance or even a pest problem. Our relationship with birds has been fraught with difficulties.
In 2017, when workers from the Leisure and Cultural Services Department were pruning trees at a well-known egret colony in Tai Po, more than a dozen hatchlings were dislodged from their nests and killed or injured. The tree pruning operation immediately caused a public outcry. It was suspected that the operation was in response to complaints about bird droppings in the area.
There are also news from time to time regarding the use of bird spikes in public area like pedestrian walkway or the roof of MTR station to prevent feral pigeons from gathering. Yet, their use has been controversial as some of them can easily injure the pigeons.
There are no easy solutions to resolve our conflicts with birds. Yet, I hope this article will encourage people to look into the issue and consider how we should approach the issue in the future. Do we want a more restrictive approach or a more liberal approach? If we want a more liberal approach, what should be done to balance the concern for public health and the animal welfare?