Lam Chi-kwan v. The Queen
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CACC001160/1982
BETWEEN
-------- Coram: Hon. Barnes, J. in Court. Date: 2nd March 1983. __________ JUDGMENT __________ 1. If I ask you to take care of my dog while I go to the races and you agree, the liability imposed upon you by the Dogs and Cats Regulations can vary, not according to the extent of your knowledge of any vicious propensity in the dog, but according to my preferences as regards races. If my preference is for trotting races and I go to Macau the Regulations impose upon you an absolute penal liability for every bite made by the dog in a public place during my absence, no matter how strong the lead, nor how tight the muzzle you placed upon it when you allowed it out of doors. If, however, my preference is for horse racing and I go to Happy Valley, your liability is not absolute. Provided you take reasonable steps to inhibit the dog's freedom to bite when it is allowed out of doors you commit no offence and 1 am at risk in respect of any bite it takes in a public lace. That is one odd result of those Regulations. This case is another. 2. It all began peacefully enough on a balmy October afternoon near a beach on Lantau. Mr. Lam was walking along the road accompanied by a dog on a lead. Mr. Ho then entered the scene on a bicycle. Mr. Lam and Mr. Ho met. They had a dispute. At the height of the dispute Mr. Ho took a point of law. He submitted that Mr. Lam had no exclusive right to use a public road. Mr. Lam's demurrer was short and to the point. He shouted: 'Bite him!' At that time, Mr. Ho's sandalled feet must have looked, in the eyes of the dog, like open-faced sandwiches. Whether they did or not the fact is that the dog was able to, and did, sink an unobstructed tooth into a toe on the left foot of Mr. Ho. 3. A month later Mr. Lam appeared in the Magistrates' Court having been summoned there to answer an Information in the following form:-
4. Mr. Lam's answer was 'Not Guilty'. The learned Magistrate, however, found that the dog did bite Mr. Ho and accepted the Prosecution reasoning which in syllogistic form was as follows:-
5. Mr. Lam is aggrieved by the result of this reasoning and has appealed against the Magistrate's decision. 6. The Regulations, insofar as they are material, provide as follows:-
7. A breach of Regulation 19 may be proved in several ways. It can be proved by evidence that a particular person was responsible for allowing a dog to go out of doors and on the places mentioned in paragraph (1) without the restrictions on its freedom to bite imposed by that paragraph. Thus, if my amah takes my dog out of my flat for a walk in the street without using a lead or a muzzle or holding it by its tail or carrying it, she contravenes the provisions of paragraph (1) and so is liable to the penalty prescribed by Regulation 23. A breach can also be proved without proving that any particular person was responsible for allowing the dog out of doors. If it is proved that a dog was in fact out of doors and on either of the places mentioned in paragraph (1) uninhibited in its freedom to bite, a breach is 'deemed to have occurred'. Thus, evidence that as dog was roaming the streets unled, unmuzzled and unaccompanied establishes a 'deemed breach'. But, unless there is further evidence, or further legislative assistance beyond that contained in paragraph (2), no one is proved or deemed to be liable in respect of that 'deemed breach'. Suppose that I persuade such a stray dog to 'accompany me to the police station for further inquiries'. My association with the dog does not make me liable because the act or omission which constituted the ingredient of 'allowing to go abroad' occurred before my association with the dog began. Equally, if I take the dog on a lead and along the way it bites somebody, I am not liable for the same reason. The Prosecution reasoning must, therefore, be invalid when it leads to the conclusion that whoever holds the lead is guilty of an offence whenever a dog bites a person or another dog in a public place. In the absence of evidence that there was an act or omission on the part of some particular person which allowed the dog to go abroad there needs to be legislative assistance to determine who is to be deemed to have done the 'allowing' which paragraph (2) assumes. That assistance is provided by the following part of paragraph (3):-
8. As the evidence in this case established 'a deemed breach' it was the owner (or, if he was absent from Hong Kong, his surrogate) who was liable for that breach. To prove the case against Mr. Lam it was necessary, therefore, for the Prosecution to prove, not that he held the lead at the time of the bite, but that, whoever held the lead, Mr. Lam was one or other of the persons specified in paragraph (3). As the Prosecution evidence did not establish that Mr. Lam fell within either category it did not establish a case for him to answer. He should, therefore, have been found not guilty. 9. I, therefore, allow the appeal, quash the conviction and set aside the order made by the Magistrate consequent upon that conviction. If Mr. Lam has made any payment pursuant to that order then I order that any money so paid be refunded to him if he applies for such refund.
Representation: Mr. Howard, Crown Counsel, for the Crown. Mr. Sedgwick (D.L.A.) for Appellant. |