Law & More: The Boase Cohen & Collins Podcast

Episode 17 - Amanda Whitfort

August 01, 2022 Niall Episode 17
Law & More: The Boase Cohen & Collins Podcast
Episode 17 - Amanda Whitfort
Show Notes Transcript

In this episode, we focus on the law relating to animal welfare with our guest, Professor Amanda Whitfort. A barrister and university lecturer who has co-authored major reports on animal welfare, Amanda discusses Hong Kong’s outdated laws, issues surrounding cruelty and neglect, and major problems such as smuggling and hoarding. She speaks with our Partner, Alice Cabrelli. 

Host: Alice Cabrelli
Director: Niall Donnelly
Producer and VO: Thomas Latter   

[00:00:34] Alice: Amanda, welcome to Law More we are here to talk about animal welfare in Hong Kong. Before we get started could you just give us a bit of background and how you got to be involved in animal welfare in Hong Kong?

[00:00:45] Amanda: Certainly, I am a criminal lawyer. I was a prosecutor in Melbourne, Australia couple of decades ago. And when I came up here, I eventually went to the Bar. I started lecturing at HKU and I decided I missed practice, so I went to the Bar. Crime is my area of expertise. And about 10 years ago I decided that I needed to do more for victims of crime. My background as a prosecutor had been in sexual offences against children. So I was always interested in vulnerable groups. And the animal situation in Hong Kong seemed something that was crying out for attention. I also am married to a conservation biologist so I was very aware of wildlife crime as well. So my focus is not just on animal it's also on wildlife offending.

[00:01:33] Alice: Thank you, so getting straight into it. There seems to be widespread agreement that our legislation here is really out of date. I assume you agree with that and that's a fair comment to make. 

[00:01:43] Amanda: Oh, absolutely. My research partner and I, work very closely with Dr Fiona Woodhouse from the SPCA. We wrote a report back in 2010 where we said that the legislation had to be amended. It hadn't been amended since 1935, other than to slightly raise the penalties. And the government has finally accepted that that is correct. And there is a intention, hopefully by the end of the year to amend cat 169, the prevention of cruelty to animals ordinance to introduce our primary recommendation which has always been that there should be a duty of care for animals as well as protection from overt cruelty. 

[00:02:26] Alice: And why do you think, we have become so outdated. So you mentioned 1935 and I think the ordinance was based off the English act of 1911. So we're now 110 years later. 

[00:02:39] Amanda: Yes, and the UK of course, no longer uses the 1911 act. In 2006, they introduced a law that is based around the duty of care. Most of the common law jurisdictions have done that. Hong Kong has been very slow to accept that that is necessary. Some of the reasons that I've been given in meetings were not enough public concern. AFCD has too much other work. But I think it's very clear that the Hong Kong public is very concerned about the protection of animals and the government has accepted that that is a consensus within the community now.

[00:03:13] Alice: And what would you say are the major issues regarding animal welfare in Hong Kong, first domestic pets and then in terms of wildlife. 

[00:03:20] Amanda: As far as domestic pets are concerned, it's this lack of duty to provide them with a reasonable standard of care. Many, many of the calls that are made to the SPCA, to the other enforcement bodies, such as the police and the AFCD concern people being upset by the way they see animals being treated. However, if there's not evidence of cruelty, if the animal has not yet suffered, that's the legal test then there's very little that the enforcement authorities can do other than educate and persuade. A duty of care would provide a situation where people are required to keep their animals to a reasonable standard And that reasonable standard would reflect their needs as far as space, exercise, diet, veterinary care, socialisation. 

So it would raise the bar significantly if that is addressed. And there is an intention to address that with the upcoming amendment to cap 169, there's also an intention to increase the maximum penalty for the offence. At the moment It's three years imprisonment and maximum penalty fine of $200,000. That was the amendment made in 2006. The intention is to make it a dual offence so that there would remain a summary offence, but there would also be an alternative offence as an indictable offence with a maximum penalty of up to seven years imprisonment and up to a million dollar fine. Which is important because what I've seen in the work that I've done over the last few years, particularly the study that we published last year was that the penalties that are being given, the starting points that are being used by the judges are still very low.

The penalties range for very serious crime around the two-month imprisonment mark which is the same as it was back before the amendment in 2006. So we are using a starting point that is much much lower than the rest of the common law world. And perhaps this time with a much more significant maximum penalty. Bar being provided to the judiciary, they will start to realise, particularly the magistrates they're the main problem. They will start to realise that animal cruelty is a serious offence and needs to be punished in a deterrent manner.

[00:05:39] Alice: And then in terms of wildlife, what are the major issues?

[00:05:42] Amanda: In terms of wildlife, we're seeing a great deal of smuggling. We have a lot of possession of animals in Hong Kong that should not be in the care of the public. We see laundering of wild animals that should be covered by CITES Permits, the Convention on International Trade Endangered Species, which we are party to. We see a lot of laundering of those species, a lot of smuggling of those species. They're coming in for many reasons. A lot of it is to be transported up to China for rare animal collectors. But there are a lot of also rare animal collectors here in Hong Kong, particularly turtles and tortoises which are amongst the most traded endangered species in the world. We're also seeing laundering through the fish market of species that should not be on sale. At the moment you can get a possession license for five years with a certain number of animals that you're allowed to bring in. But the problem is that without those animals being marked or identifiable in some way it's very, very easy for the businesses to sell an animal and bring in another one to replace it.

[00:06:44] Alice: And going back to the duty of care. In Hong Kong, most people live in small flats, in high rises, very little access to parks and green spaces. So is that going to be built into the duty of care, what will be considered given Hong Kong's environment. 

[00:07:01] Amanda: Absolutely, the duty of care would necessarily entail some kind of guidance for the public and that's only fair. So there would be a code that would be provided as to what's appropriate for keeping of different species. So for example, a dog needs to be exercised. So if you take your dog out for a walk a couple of times a day as well as of course giving it opportunities to relieve itself. Then that would be presumably acceptable as meeting your duty of care. The problem is of course that there are some people that don't exercise their animals at all, that tether them for very long periods or that don't seem to understand that different species have different needs.

[00:07:43] Alice: Yes and also, I've seen recently there's been a few cases of dogs dying of heat stroke because they've been taken out in the middle of the day in Hong Kong in the summer, 30 plus degrees.

[00:07:54] Amanda: Yes, I tend to think that's really ignorance more than anything else. I think many people that have lost their dogs in that way are devastated. But certainly, there are educational factors that need to come into this as to how you treat animals appropriately. 

[00:08:07] Alice: So you mentioned the amendment that's coming up. Did that arise outta the public consultation in 2019? 

[00:08:14] Amanda: It did arise outta the public consultation back in 2018. The chief executive announced that there would be a duty of care coming in and that AFCD would have carriage of it. The 2019 consultation then happened we wrote a report at that time for the government. What we were trying to do was to show the government how animal cruelty occurs in Hong Kong. So that they could have a better understanding of what needs to be included in this new legislation. And what we did was we looked at 335 suspected cases of animal cruelty that were logged in the SPCA database between 2013 And 2019. And there were all cases that were considered serious enough to be investigated by police and what we found was that most of them involved either overt cruelty, or neglect being prosecuted. Many of them also involved poisoning, hardly any of those cases were prosecuted. And there were quite a significant number of trapping cases that were not prosecuted 

We also saw a significant number of hoarding cases. Hoarding is a problem in Hong Kong for many reasons. Largely it is the result of a problem with the way that animals are abandoned, a problem with government policy as to not adopting a TNR program for feral dogs, and also public perception that euthanasia is never an appropriate option. So what we have is a situation where most of the animals that are being hoarded are dogs, usually feral dogs that are taken from the street. There are shelters that are unlicensed because there is no licensing requirement here that are operating in really horrible environments where the animals are often not fed for long periods of time. That are taking money from the public because members of the public perceive that the animals better off in that shelter than it is on the street or being euthanised. And the estimate is that about 75% of our feral dog population comes from abandoned animals. And that arises again from this perception that if you can't take care of a dog, it's better to leave it in a country park than to euthanise it. We also have a problem, of course, that is exacerbated by the housing department's policy on not being allowed to keep dogs within public housing. That has led to massive abandonment and continues to do so. Most of the cases that we looked at in regard to hoarding related to people who were living elsewhere from the animals, often in public housing. And had rented village houses in order to house the animals So the animals were not living together with their keeper. What would happen is the owners would run out of money, rather than call the SPCA and surrender the animals or take them in for euthanasia. They would shut the door and hope for the best. And unfortunately in most of those cases, the animals starve to death before anyone becomes aware they're there.

[00:11:18] Alice: In the press recently, this was reported with the animals having to result to eat each other. 

[00:11:23] Amanda: Yes unfortunately, that has happened. Both in abandonment situations and even in shelters. Even in shelters where public's providing money and there are volunteers, we have had cases that we have prosecuted where the shelters had not provided money and the dogs had started to eat one another.

[00:11:38] Alice: And is there a plan to license or regulate the shelters?

[00:11:42] Amanda: It is something that's very much on my agenda. And I applied for money to do that, unfortunately, we haven't got that money yet. But we are hoping that that will be funded this year by the authorities. But at the moment, no. The government does not perceive it as something that is of high priority. But certainly, my research supports the fact that this is something that needs to be dealt with.

There were over 500 animals that were rescued from hoarding and shelter situations in that seven-year period that we recently studied, 2013 to 2019. Licensing of shelters is something that does occur in other jurisdictions to a very good response for both the animals, the public and the shelter operators because they can get help when they need it. Whereas now, many of them scramble. 

[00:12:35] Alice: And do you think that situation will improve when the duty of care amendments come in? 

[00:12:41] Amanda: Well, it will hopefully, but the problem is that these are private shelters. So there is no right to access them, unless there is a tip-off or unless there is knowledge that there are problems within a shelter situation. Then there's no ability for the enforcement authorities to enter. If you have licensing, of course you have inspections. And then you have support, you have guidance, you have the kinds of care controls that are necessary when you've got people keeping very large numbers of animals. 

[00:13:13] Alice: And then turning to enforcement which is linked to inspections, there is a six-month limit for the police, is that right? To lay the charge once they've started investigating. 

[00:13:24] Amanda: One of the things that came out of our recent research was that many of the cases that were not proceeded with, were not proceeded with because the offender was able to stay out of sight from the police for the requisite six months. Meaning that the prosecution would become time barred. This was often the case, of course, in relation to village house rentals where the door would be shut and the offender would just go and stay somewhere else, off the radar until the six months had finished. 

[00:13:55] Alice: And do you think that the police do take it seriously, or is it only when there's a public outcry. 

[00:14:01] Amanda: I think the police do take it seriously. There is a CID unit responsible for animals in every district in Hong Kong now. I think part of the problem is that there is still subjectivity as to which cases are pursued. For example, we saw with many of these cases where animals were neglected, police not pursuing the case because they didn't perceive the animal had suffered enough. And in many cases that eventually led to the animal dying or being handed on or abandoned when there could have been an intervention at an earlier time. Now the duty of care will assist with that because once the duty of care comes in, police officers will have a much more reliable set of guidelines as to when a crime has been committed, when they can step in. There's also an intention to allow for access to private property just on the suspicion that an animal may suffer in the future. So no longer a requirement that the animal has suffered or that there is a suspicion the animal has suffered. It will be a quite wide net and it will allow authorities to enter properties just on the basis that an animal may suffer, as a result of the information that they have. So that would be an important improvement.

[00:15:16] Alice: And you mentioned smuggling of animals, so I think it was maybe a couple of months ago we had that high profile case where 130 cats and dogs, and I think some rabbits were found rammed into cages on a speed boat. So are those pets for sale, are they coming in to be sold in Hong Kong? 

[00:15:34] Amanda: Absolutely. There are still people that believe that owning a pedigree dog or pedigree cat is the only kind of pet that they should have. Unfortunately they then look for the best deal in purchasing that animal and these animals can be smuggled in for a price from China. It's a very very sad situation because there is no protection for the way those animals are bred or cared for in China. So many of them are very sick, even before they leave China. And they will die shortly after they are purchased In many cases. The animals suffer as a result of the transport, but also people need to think about the animals that these are bred from. And the way they are kept in cages without vaccinations without socialisation without enrichments. So they are buying a tortured animal from a torturing industry and they choose instead to think about the money. Anyone who really cares about animals doesn't buy an animal that's smuggled in. 

[00:16:30] Alice: And then, even if they bought this animal and it's so sick that the costs... 

[00:16:34] Amanda: The costs can be extraordinary. The SPCA many years ago, and they will do it again, did a study and found that about 60% to 70% of sick puppies that came from pet shops had not been vaccinated properly. And this is one of the reasons that we were able to convince government to bring in laws as to how animals are bred here.

[00:16:54] Alice: And talking about abandoning animals, do you think that's an education point that the public are not educated that abandoning is worse for the animal. 

[00:17:04] Amanda: Absolutely, the consensus department, a few years ago, did a survey on people's views about abandoning animals and most people believed it's better to abandon them than to euthanise them. So there definitely needs to be a lot of education about the fact that euthanasia is a kindness in a situation where an animal cannot be homed properly. For the animal itself, it's better simply to go to sleep than to continue day to day, waking up, being hungry, being beaten, not knowing how to shelter itself, if it's abandoned, being at risk of being run over. It's very important for people to think through what really is going to happen to that animal as a result of abandoning it, and it is not going to be a good result. 

[00:17:53] Alice: And there is this idea of mercy release as well in terms of, is it usually terrapins? 

[00:18:00] Amanda: Mercy release should be called cruelty release and it should also be banned in my opinion. And fortunately it's on the radar of one of the legislators now, and I hope that that will change and there will be a band in the future on mercy release.

Mercy release is a commercial enterprise, there are businesses that make a great deal of money out of releasing animals, recapturing them, and releasing them again. Or putting animals into totally inappropriate environments. How anyone could think they're going to get any kind of good karma from releasing a freshwater turtle into the sea is incomprehensible. But this unfortunately continues and it should be prohibited. It's not just a problem of animal cruelty, it's a problem of invasive species. And we do have a responsibility under the convention on biological diversity to try to control invasive species.

[00:18:48] Alice: And your study last year with Dr Fiona Woodhouse, there are some interesting statistics in that. I understand that these statistics come from the cases that were prosecuted, that most involved dogs? 

[00:19:02] Amanda: Absolutely, most of them involve dogs. Of the maltreatment cases, two-thirds involve dogs. Of the neglect cases, again, two-thirds involve dogs. And of the hoarding cases, most of them involve dogs. And unfortunately, mongrel dogs.

[00:19:18] Alice: And then 75% of those prosecuted were male. 

[00:19:22] Amanda: Yes. most of the offenders were male. Now that is consistent with studies around the world. So we weren't particularly surprised to see that. The interesting part of that of course is, it's potentially a gatekeeping question. Perhaps men are more likely to be prosecuted and arrested, investigated than women. Particularly in an animal situation where perhaps a police officer is more likely to believe an owner who is a woman has a kinder heart than a man. So it could be a gatekeeping issue. But as I said, it's consistent with studies around the world. What we did find inconsistent however, was that half the hoarding cases involved women, and half men. Most hoarding cases in other parts of the world involve women. So there is clearly a societal problem with the way that animals are being collected, animals are being kept, and the perception that keeping large numbers of animals is a good thing for the animals. In the cases that were prosecuted, half of the hoarders argued at court that they should be allowed to keep their animals. And from the pictures that I've given you today you can see that these animals are being kept in appalling conditions, filthy environments with dog poo everywhere, the animals are without fur in some cases, because they've got skin diseases that are not being treated. They're skinny, their ribs, their hips are hanging out. They've got eye diseases that are not being treated. They're being kept in containers on government land and such. How anybody could perceive this is an acceptable way to keep an animal is incomprehensible 

[00:21:02] Alice: And then what happens to these animals when a shelter is investigated and the animals are seized, the ones that are still alive and are not euthanised. What happens to them next? 

[00:21:12] Amanda: Well, they have to be taken into care. There are some facilities that AFCD has, and there are facilities that the SPCA provides in those situations. So they have to keep some of their kennels free for this kind of large event that can suddenly happen. And that's one of the reasons that the SPCA needs to keep so many vacant kennels, because they need to be aware that this could happen at any time. Whilst there is no proper legislation, this is an ongoing disaster threat. So the animals are taken, there's a lot of money spent on their medical care. Sometimes they are returned to the owners because the magistrates have the power to return them to their owners, if the owner refuses to surrender them. The rule is that the animal can only be taken from the owner because of course an animal is property, it can only be taken from the owner in a situation where the magistrate is convinced that the animal is at risk if it is returned. And for some of the offenders, their mitigation suggests that the animal will not be at risk and the animals are returned. Unfortunately we see many of those animals continue to suffer as a result. There's also the expense of course that the SPCA is put to in looking after these animals which is not recoverable under the current legislation. 

[00:22:26] Alice: And is it correct that they have to wait for the case to be concluded before those animals can be adopted.

[00:22:32] Amanda: It is correct, and this will take six months at a minimum. And in many cases 12 plus months. These animals will then be in shelters for very long periods of time, which causes them more stress. For the ones that were small or young when they came in, they'll now be large dogs which makes them much, much more difficult to re-home. And many of them therefore have lost their chance at adoption. I have argued, many times that these cases should be given priority in the courts. I've argued that under the criminal procedure ordinance section 102 that the animals can be taken early. But so far we haven't had any court prosecutor who's been willing to take up that challenge and argue it. Of course I'd like to, but haven't had the opportunity. 

[00:23:16] Alice: And I'd be interested to hear your views on the culling of wild boars. The recent policy change and what your views are on that. 

[00:23:25] Amanda: With regard to the culling of wild boars. This is an issue, I think, where the government has got it wrong. I think that sterilisation of the boars was a positive humane response, there needs obviously to be no feeding of the boars and the no wild animal feeding law that recently came in is important. People need to understand that the boars come to humans because they have been taught to do it by the way that humans behave. Humans need to be more careful, not just about not feeding wild animals, but how they keep their rubbish, what rubbish they leave behind in country parks, their picnics, et cetera.

Because all of this naturally encourages wild animals to feed on and scavenge and to learn that humans are a source of food, which leads to conflict. Therefore I think the sterilisation together with greater control on public behaviour is the appropriate and humane manner to deal with wild boars. It also concerns me, how would you know whether some of those animals that have been culled have already been sterilised and surely that's a misuse of resources.

[00:24:35] Alice: Yes If you've spent the resources sterilising them and then what's the point in having the earlier program?

[00:24:41] Amanda: I don't know. 

[00:24:42] Alice: How do you think COVID and the pandemic will have any impact on animal welfare? 

[00:24:48] Amanda: I think here the government has been quite proactive in ensuring that if people are taken into quarantine their pets can be cared, appropriately. I mean, people can make their own private arrangements with friends, of course or they can board them. But the AFCD will also take those animals and care for them in appropriate facilities and then allow them to go back to their owners I think that we've been lucky and as far as we've never been locked in which as a dog owner myself one of my greatest concerns was how will my animals exercise, how will my animals relieve themselves, if we can't leave our house.

[00:25:22] Alice: I had a friend who was in Shanghai and she lived on a first floor and they created like a harness to lower their dog down because there was an open space to run around and then bring it back up because otherwise, the dog would be inside entire 

[00:25:39] Amanda: And there are people that have litter trained their dogs as well as obviously their cats and perhaps that's a way of dealing with it. But for people that have very large dogs, that's not really a sustainable situation for them to be in.

[00:25:53] Alice: So what were your views then on the hamster culling which in Hong Kong 2000 hamsters were culled. 

[00:26:00] Amanda: Well, again, I think the government got that very wrong. I think that was a really heavy-handed response to what was medically a very small risk. And I am involved with the Hong Kong animal protection organisation, the law group and we did give some advice in relation to that. Kim McCoy who runs it gave some advice on that, on the website. Telling people that, of course, animals are their property, and it would be a voluntary surrender and people needed to understand that they were not required to give up their hamsters. Of course, the government then amended the regulations to allow them to take them. 

[00:26:38] Alice: But fortunately they haven't, well, not that we know of it that hasn't been used yet. 

[00:26:43] Amanda: No, it has not been used and I hope that if there is ever any consideration of using it in the future that some common sense prevails.

[00:26:51] Alice: Yes because that would cause a huge outrage I think. Do you have the statistics on how many people own pets in Hong Kong? 

[00:26:58] Amanda: About 10% of households have dogs or cats or both. And other animals of course as well.

[00:27:04] Alice: So, there does seem to be some progress. Do you want to talk any further about the amendments that's going to come in? 

[00:27:11] Amanda: I think it's important that there's progress in sentencing. Back when we did our first study on this in 2010. I found that the average sentence was about two months imprisonment. And as I said, we have seen that again, this time around from between 2013 and 2019. It's still only two months imprisonment. Which means that they're not using the range that's available to them. There was a case that went up to the court of appeal in 2019 which the DOJ took up specifically with the view to getting the court to hand down sentencing guidelines, very positive initiative. And I was very pleased to see it. Unfortunately, the court of appeal didn't do it. 

They essentially said, we can't do it because there are too many different factors at play here, too many different kinds of cruelty in Hong Kong. It's not like other places, so we can't necessarily bring in sentencing guidelines from elsewhere. No, not something that we're going to do. Well, our study last year, so three years later, our new study shows that there are very, very particular patterns in the way that animals are abused in Hong Kong. We identify five major typologies - overt cruelty, by which I mean active maltreatment such as striking or beating, stabbing, hitting with spades, air pellets, all sorts of things that unfortunately occur. Passive neglect, by which I also include starvation, whilst that is obviously extreme cruelty those are the typologies that are recognised around the world. Hoarding, commercial exploitation, trapping, and poisoning. All of these typologies show a particular pattern in Hong Kong and it would be very possible for there to be sentencing guidelines that reflected those patterns.

[00:28:59] Alice: In terms of the poisoning cases. I think everyone will know about the Bowen road poisoner, who's never been caught. Has anyone ever been prosecuted for laying down poison on the trails in Hong Kong? 

[00:29:11] Amanda: Very, very few. In that seven-year period, we looked at, 2013 to 2019. There were 59 cases that were investigated by the police in relation to poisoning only two were prosecuted. And in both cases, the defendant admitted the poisoning. One of the recommendations that I made as a result of that study was that there should be an offence of being in a public place with a poison without lawful excuse. The government intention is not to do that at the moment. The government intention is just to introduce an offence of administering a poison to an animal. Now, that means you have to have proof of the fact that the animal has had the poison administered to them. And this is the person that did it. In many cases in prosecuting that, I think they're missing a trick here. What it should be is having poison in a public place without lawful excuse. After all, we're not allowed to have an offensive weapon in a public place, why should we be allowed to have a poison? 

[00:30:07] Alice: So are you hopeful for there to be positive developments in the future? In terms of animal welfare. 

[00:30:13] Amanda: I'm pleased that some of the things that we've been recommending for a long time are finally being accepted and adopted. I'm disturbed that some of the choices that are being made are, to my mind, not appropriate. For example there's an intention to carve out from the duty of care, food animals.

So that would mean that food animals, animals on farms, animals at market, animals in transport for market, animals slaughtered in wet markets, animals slaughtered at the three slaughterhouses, would not be able to benefit from the duty of care. I think that is an omission, a mistake. And in other parts of the world, these are the kinds of animals that are the main focus for duty of care. Why should Hong Kong animals be treated any differently? They feel, they suffer the same way as animals in any other part of the world. I would like to see mercy release banned. I would like to see hoarders dealt with more appropriately in the courts. I'd like to see animal cases dealt more speedily and with a greater deterrence by the courts. And I would like to see shelters all required to be licensed. I mean, there are many things that need to be done, including of course animals in public housing. 

[00:31:22] Alice: How about animals falling from height. I know that was one of your recommendations because we do see these cases happening from time to time in Hong Kong. 

[00:31:30] Amanda: Yes, we had nine cases during 2013, 2019 of animals falling from height. Again, you have problems with prosecution because if the police don't have an eyewitness statement, they tend to take the view that they haven't got a case that's reasonably prosecutable. So that again, that was one of our recommendations that falling from height, as a window falling from your apartment is an offence, why shouldn't an animal falling from your apartment be an offence.

[00:31:56] Alice: Okay well, Amanda, I think that's all I have to talk with you today, but thank you very much for joining us. 

[00:32:01] Amanda: You're very welcome, and thank you for asking me I've really enjoyed our talk.