Dog Shot With Arrows — The Law

Alvin See sets out the law on this controversial incident.

On 13 May 2014, a dog was shot twice with arrows. One arrow was lodged on its front leg while another on its back. The person who shot the dog (the accused) claimed that the dog was trying to attack his children, and he was merely trying to chase the dog away.

The dog was rescued and sent to a veterinary clinic. It was discovered to be very old, substantially blind, malnourished and extremely ill (it was seriously anemic and was suffering from severe tick fever). Soon after, the dog died from its existing ailments.

In Malaysia, animal cruelty offences are found in two legislations: the Animals Act 1953 and the Penal Code. Both are applicable in this case and will be discussed in turn.

Animals Act 1953

Section 44(1) of the Animals Act 1953 sets out a list of animal cruelty offences. The relevant parts are set out below:

“Penalty for cruelty to animals

44. (1)  Any person who —

(a) cruelly beats, kicks, ill-treats, over-rides,over-drives, over-loads, tortures, infuriates or terrifies any animal;

…

(d) by wantonly or unreasonably doing or omitting to do any act, causes any unnecessary pain or suffering, or, being the owner, permits any unnecessary pain or suffering to any animal;

…

commits an offence and shall, upon conviction, be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding one year or to both.”

The terms “cruelly”, “unreasonably” and “unnecessary” have been interpreted as importing a proportionality test. The accused’s conduct is not cruel, unreasonable or unnecessary if it was carried out in pursuant to an adequate and reasonable object, and the amount of suffering inflicted is not disproportionate to the benefit attainable from the fulfillment of such object — see eg Ford v Wiley (1899) LR 23 QBD 203.

The proportionality test was applied in the case of Barnard v Evans [1925] 2 KB 794, which bears close resemblance to the present case. There the accused shot a trespassing dog with a gun. The court held that although there was a legitimate object of chasing the dog away, it was “not reasonably necessary” to resort to such an extreme measure of shooting it. The accused was found guilty of a cruelty offence.

Penal Code

The Penal Code makes it an offence to kill an animal:

“Mischief by killing or maiming any animal of the value of five ringgit

428. Whoever commits mischief by killing, poisoning, maiming, or rendering useless,any animal or animals of the value of five ringgit or upwards, shall be punished with imprisonment for a term which may extend to two years or with fine or with both.

Mischief by killing or maiming cattle, etc., or any animal of the value of twenty-five ringgit

429. Whoever commits mischief by killing, poisoning, maiming, or rendering useless,an elephant, camel, horse, mule, buffalo, bull, cow or ox, whatever may be the value thereof, or any other animal of the value of twenty-five ringgit or upwards, shall be punished with imprisonment for a term which may extend to five years or with fine or with both.”

Although this offence appears to be stated in absolute terms, exceptions could be found in the Penal Code itself as well as in other legislations. Of particular relevance here is the defence of necessity,which is set out in section 81 of the Penal Code:

“Act likely to cause harm but done without a criminal intent, and to prevent other harm

Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property.”

Where the defence is argued on the basis that the commission of an offence will avoid some greater harm (justificatory necessity), an implicit requirement is the proportionality between the accused’s response and the threatened harm: see Stanley Yeo, Neil Morgan & Chan Wing Cheong, Criminal Law in Malaysia and Singapore (Lexis Nexis, 2^nded, 2012) ch 23. In other words, in deciding whether section 81 applies to exculpate the accused, it is necessary to ask whether the commission of the offence is proportionate to the harm that the accused sought to avoid. The requirement of proportionality finds support from the Explanation that accompanies the section:

“It is a question of fact in such a case whether the harm to be prevented or avoided was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm.”

Furthermore, the accused’s response must be “reasonably necessary”: see Yeo, Morgan & Chan above. This means that while the defendant is not confined to using the least harmful response, he is not entirely free to choose his response. In deciding whether the defendant’s response is reasonably necessary, an objective test is applied. A hypothetical reasonable person who is representative of the Malaysian society is relied upon to determine the issue. In simple words, section 81 will not apply to exculpate the accused if such a reasonable person would not, if put in the accused’s position, have acted as the accused had. The case of Barnard v Evans, albeit concerning a different legal provision, is relevant to show how the proportionality test applies.

Ultimately, it is a question of fact whether the accused or some other persons were under such imminent and serious threat of harm from the dog that it is necessary to shoot it with arrows. As the animal could not speak to defend itself, it is essential that all relevant evidence, including circumstantial evidence, in considered.

Given that the dog was found to be very old, substantially blind and extremely weak and ill, the accused’s claim that a dog in such a condition tried to attack his children must be open to doubt. Even if the accused and his children were indeed threatened by the dog, it is arguable that the reasonable response is simply to close the house gate to prevent the dog from getting in.

Moreover, even if the shooting of the dog is regarded as reasonably necessary to chase it away (which is unlikely and contrary to Barnard v Evans), it is open to question whether the shooting of the second arrow is reasonably necessary.

Given that the accused’s conduct has offended the moral sense of a substantial number of Malaysians (as evidenced by the substantial public outrage), the case is best put before a legal tribunal for determination. It is essential that the enforcement agency does not regard animal cruelty as a trivial matter.