By Pit Hok Yau
After a Bryde’s whale was spotted off Sai Kung on July 13, animal welfare NGOs and activists urged the public not to sail to the area, explaining that whales were sensitive to human interference. But boat owners and citizens still flocked to the area in hopes of seeing the animal. Some had their dreams come true, but only at the expense of the whale.
Legislator Doreen Kong called out those whale-watchers for a “lack of self-discipline.” However, the incident is not only attributable to a lack of self-discipline, but is also an almost inevitable consequence of Hong Kong’s backward marine animal protection law.
Cetaceans – whales, dolphins, and porpoises – are mainly protected by the Wild Animals Protection Ordinance and the Marine Parks Ordinance. The former bans hunting, possessing, or “wilfully disturbing” any cetaceans, while the latter regulates human activities in protected areas, such as banning water sports and unauthorised fishing, to conserve the habitat.
The Agriculture, Fisheries and Conservation Department (AFCD) has also implemented a Code of Practice for Dolphin Watching Activities which provides guidelines for operators such as keeping a distance from dolphins, controlling speed, not chasing them, etc.
However, these laws and regulations cannot adequately protect cetaceans. There are three main problems.
Firstly, the definition of wilfully disturbing animals in the Wild Animals Protection Ordinance is extremely vague. Taking the whale incident as an example, many photos circulated on the internet showed that the whale-watching boats were extremely close to the animal, which is clearly an act of wilful disturbance.
However, the fact that the ordinance does not define what counts as wilfully disturbing hinders and discourages prosecutions. In fact, the government has never prosecuted anyone for wilfully disturbing cetaceans.
Unlike Hong Kong, many countries including Canada, the United Kingdom, and the United States have clearly stated the distance citizens should maintain from cetaceans. The Canadian government successfully charged a tour guide in 2019 because he did not keep a 100-meter distance from a dolphin.
Secondly, even though Hong Kong has relevant laws and regulations, they have been poorly enforced. I took part in a research trip organised by the Hong Kong Dolphin Conservation Society to observe Chinese white dolphins in marine parks. During the journey, I saw many boats sailing faster than the legal limit of 10 knots.
These high-speed boats are one of the main culprits injuring the dolphins – which, like the whale in Sai Kung, often get cut by the propellers. However the AFCD did not prosecute anyone for speeding in marine parks between November 2019 and November 2022.
Thirdly, the code of practice is not a legal obligation but a set of voluntary guidelines for dolphin-watching operators. As a result, the government cannot prosecute those who violate it. While the code clearly states that no one shall chase dolphins, media reports show that the problem persists. However, the government has yet to introduce stricter regulations.
The inadequacy of current policies may explain the government’s inability to deter people from injuring, if not killing, the whale. Of course, it had refused to take advice from experts, who called for setting up some restricted areas to protect the mammal. The public uproar at the death of the whale showed that the government made a mistake and that citizens do care about marine animals’ well-being. The government should learn from the incident and immediately enhance protections.
To begin with, it should provide a clear definition of wilful disturbance in the Wild Animals Protection Ordinance, such as by stating a distance that citizens should maintain from different marine animals. Enforcement, including patrols and prosecutions, should also be improved. Authorities should also criminalise violations of the Code of Practice for Dolphin Watching Activities and expand its coverage to whales and other marine animals, such as green turtles, which frequent Hong Kong.
Mahatma Gandhi once said: “The greatness of a nation and its moral progress can be judged by the way its animals are treated.” The paramount task of the government is to tell the world a better Hong Kong story. A whale which stayed in our city for less than 20 days was injured and died. Worse still, according to the AFCD, the number of Chinese white dolphins dropped from 188 in 2003 to 40 in 2021.
These shameful facts cannot be erased by repeated “Happy Hong Kong” campaigns or diplomatic visits. The government should reform the marine animal protection law immediately.
Pit Hok Yau is a researcher for The Hong Kong Animal Law and Protection Organisation and an MPhil student in Cultural Studies at the Chinese University of Hong Kong.
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