VI. Common types of nuisance: Animals
A. Civil liability
Deed of Mutual Covenant
Not all multi-storey buildings allow unit owners or occupiers to keep animals in their homes. The deed of mutual covenant of the building sets out whether unit owners or occupiers are allowed to keep animals. Sometimes it allows unit owners or occupiers to keep animals on condition that the manager of the building gives permission. Sometimes it sets out that no animals can be kept at all.
If you are in breach of the deed of mutual covenant, the incorporated owners of your building may apply to the Court for an injunction.
If a unit owner or occupier does not keep his pet well, it may cause a nuisance to neighbours. The keeping of any animal in a position or circumstances that result in material discomfort or annoyance to a neighbour is an actionable nuisance. For a general explanation of the liability of nuisance, please refer to Private nuisance > What constitutes an actionable nuisance?
1. Strict liability
The owner or keeper of an animal is strictly liable, even without intention or negligence on his part, for injury or damage caused by the animal if: the species of animal is classified as dangerous; or the species of animal is classified as normally harmless, but the individual animal has a mischievous propensity known to the keeper, and damage is caused by the animal’s propensity.
Dogs have been held to be normally harmless animals for this purpose. The keeper of a normally harmless animal is liable for damage done by it only if he has actual knowledge of the animal’s propensity to cause injury or damage to human beings. That knowledge must be of the particular propensity that caused the damage which is not common to the species in general.
An owner or keeper may be liable in negligence for damage caused by a tame animal not known to be dangerous if the owner or keeper knows of a mischievous propensity in his otherwise well-behaved animal (actual knowledge), or ought to have known of such a propensity (constructive knowledge).
For both actions, damages can be recovered for personal injury or injury to another animal.
B. Criminal liability
1. Statutory nuisance
Under section 12(1)(d) of the Public Health and Municipal Services Ordinance ( Cap. 132 of the Laws of Hong Kong), any animal or bird kept in such a place or manner as to be a nuisance, or injurious or dangerous to health constitutes a statutory nuisance, and the general principles of private nuisance apply (Please refer to Statutory nuisance > What is a statutory nuisance? ).
The FEHD is responsible for handling this kind of statutory nuisance. (Please refer to Statutory nuisance > C. Remedies for more details.)
2. Noise caused by animals
Under section 5(3) of the Noise Control Ordinance ( Cap. 400 ), any person who at any time in any domestic premises or public place keeps an animal or bird that makes noise which is a source of annoyance to any person commits an offence. The maximum penalty for the offence is a fine of $10,000 ( section 5(5) of the Noise Control Ordinance ).
It has been held that the test for annoyance is whether it is such that a reasonable person would not tolerate it. In HKSAR v Chan Oi Chun , the court held that a dog barking continually for 30 minutes or more could amount to a nuisance.
3. Dogs to be kept under control
Under section 23 of the Rabies Ordinance ( Cap. 421 ), unless it is on a leash or otherwise under control, no dog may be in(a) a public place or (b) any place from which it may reasonably be expected to wander into a public place. Where a dog is found in any such circumstances, the keeper of the dog and any person who caused, suffered or permitted the dog to be in that place are each guilty of an offence and liable to a fine of $10,000.
This section applies to all dogs of all sizes. However, it is a defence for the person charged to prove that he took all reasonable measures to prevent the contravention.
Under section 7 of the Rabies Ordinance ( Cap. 421 ), an authorized officer from the Agriculture, the Fisheries and Conservation Department (AFCD) may seize and detain any dog not on a leash or otherwise under control in a public place or a place from which it may reasonably be expected to wander into a public place. Where an authorized officer is empowered to seize and detain an animal, but it is not reasonably practicable to do so, he may instead destroy it. He may also destroy a dog seized if he has reasonable grounds to believe its detention is likely to adversely affect the health of any other animal similarly detained.
Under section 5(1) of the Dogs and Cats Ordinance ( Cap. 167 ), if it appears to a magistrate on complaint that a dog is dangerous and is not kept under effective control, the magistrate may order that the said dog be either destroyed or kept under effective control.
4. Bites by animals other than dogs
Under section 24 of the Rabies Ordinance , the keeper of any animal, that has bitten a person must (a) give notice of that fact to the nearest police station without delay; and (b) detain the animal securely, in isolation from other animals, for such period as may be specified by the officer in charge of the police station.
A person who contravenes the above requirements commits an offence and is liable to a fine of $10,000.
5. Dog bites
Under section 23 of the Rabies Ordinance , where a dog that is (a) in a public place; or (b) in any place from which it may reasonably be expected to wander into a public place if it is not on a leash or otherwise under control bites a person (other than the dog’s keeper), the keeper is guilty of an offence and liable to a fine of $10,000.
It is a defence for the keeper to prove that (a) he took all reasonable measures to prevent the animal from biting; or (b) the animal was wilfully provoked by someone other than the keeper.
The keeper of the dog must also report the matter to the nearest police station and detain the dog securely in accordance with section 24 of the Rabies Ordinance . A person who contravenes the above requirements commits an offence and is liable to a fine of $10,000.
Under section 7 of the Rabies Ordinance , an authorized officer from the AFCD may seize and detain any dog that he has reasonable grounds to believe has bitten a person. Where an authorized officer is empowered to seize and detain the animal, but it is not reasonably practicable to do so, he may instead destroy it. He may also destroy a dog seized if he has reasonable grounds to believe its detention is likely to adversely affect the health of any other animal similarly detained.