The court emphasized that animal cruelty requires severe penalties reflecting public abhorrence, distinguishing between causing and permitting pain, reaffirming the necessity for deterrent sentences.

[1] In the Magistrates Court the respondents were charged with 30 counts under s 44(1)(d) of the Animals Act 1953 ("the Act") for cruelty against 30 cats under their care. They pleaded guilty to the charges and were sentenced to a fine of RM200 in default one month imprisonment for each charge. They paid the fine. The prosecution dissatisfied with the sentence and now appeals for the sentence to be enhanced.

The Facts

[2] The two respondents were carrying on a cat boarding business under the style and name of "PETKNODE ONLINE PET STORE" located at No. F0001B Level 1, Season Square Plaza, Jalan PJU 10/3 Damansara Damai. The fees for their services were paid online. In an online promotional posting the respondents proudly proclaimed: "We are always committed to make sure that your cat gets more with our Good Care services".

[3] This catchy punch line turned out to be just that - a catchy punch line. The cat owners in the present case had left their cats under the care of the respondents when they returned to their kampongs for the 2011 Hari Raya celebration. Food for the cats were provided by the owners themselves. When they returned to take back their cats they were shocked to find that their pets were either missing or were in deplorable conditions and the cat food remained untouched. Eight of the cats subsequently died. Police reports were then lodged against the respondents, which led to the present charges.

The Offence

[4] Section 44 (1)(d) of the Act which creates an offence of animal cruelty provides as follows:

(1) any person who:

(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;

... shall be guilty of the offence of cruelty and shall be liable to fine of two hundred ringgit or to imprisonment for a term of six months or to both.

[5] There are two limbs to the section, namely:

(a) any person who by wantonly or unreasonably doing or omitting to do any act, causes any unnecessary pain or suffering to any animal;

(b) any person who, being the owner, permits any unnecessary pain or suffering to any animal.

[6] The first limb is aimed at any person who by any act or omission causes unnecessary pain or suffering to any animal. The second limb on the other hand is aimed at owners who permit unnecessary pain or suffering to their animals. It is important to appreciate the distinction because an offence committed by "any person" under the first limb is distinct from an offence committed by "the owner" under the second limb. The gravamen of the offence under the first limb is to "cause" unnecessary pain or suffering to any animal whereas under the second limb the offence is to "permit" the animals to suffer unnecessary pain or suffering. It is in this context that the word "owner" in s 2 and in sub - s 44(2) of the Act must be understood. The fact that s 2 of the Act begins with the words "In this Act, unless the context otherwise requires" is not without significance.

[7] In the present case it is clear that the respondents were charged under the first limb as all 30 charges referred to them as "orang yang bertanggungjawab memberi perkhidmatan dan penjagaan". If the public prosecutor had intended to charge them under the second limb the respondents would have been cited as owners who "permitted" the cats to suffer pain and suffering. In this case there was no such citation in any of the charges. I am therefore unable to accede to learned counsel for the respondents' argument that the respondents were owners of the cats within the meaning of s 2 of the Act.

The Magistrate's Grounds Of Sentencing

[8] In passing sentence the learned magistrate referred to the general principles of sentencing. Specifically she referred R v. Bull 35 Cr App R 164, the locus classicus on point where the Court laid down the principle that "in deciding the appropriate sentence