就狗狗Baku被漁護署人員指為格鬥狗隻並從家中帶走事件，HONG KONG ANIMAL LAW AND PROTECTION ORGANISATION創辦人兼大律師Kim J McCoy (麥劍祺）從法律程序角度撰寫文章。
此案引發了人們對漁農自然護理署行使權力方式的嚴重擔憂，更根本的是，對犬隻採取執法行動的依據究竟是證據，還是僅基於其外貌和針對他們的投訴。
首先必須明確指出的是，根據已報道的事實，Baku並非香港法律意義上的「已知危險狗」。沒有任何跡象表明Baku曾攻擊或傷害任何人，表現出攻擊性，或以其他方式對公眾構成危險。恰恰相反：他的主人描述說，這是一隻8歲的狗，沒有任何攻擊史，即使漁農自然護理署人員將他關進籠子並帶離家，他也保持冷靜順從。
狗不會因為有人害怕他就變成危險犬，也不會因為鄰居投訴他而變成危險犬。
關於「格鬥狗隻」另有單獨的法律規定，但這反而更令人擔憂。據報道，Baku已登記為混種犬，其主人認為他是美國斯塔福德郡梗犬。然而，漁農自然護理署的工作人員到訪了Baku的住所，查看了他，拍攝了照片和視頻，卻認定他是比特犬，並立即將其帶走。
最令人不安的是，主人隨後被告知，獸醫要幾天後才能對Baku進行評估。
這似乎完全顛倒了正當程序。如果需要獸醫或其他專家評估來確定Baku是否符合格鬥狗隻的法定定義，那麼為什麼在評估完成之前就將其視為格鬥狗隻並予以拘留？
投訴只是一種指控，它並不能證明該指控屬實，更不應成為調查的最終結論。
漁農自然護理署肩負著調查真實投訴、維護公眾安全的重要職責。但這些職責必須公平、理性、專業地履行。將伴侶動物從家中帶走是一項重大的政府權力行使。不應僅僅因為一名官員認為某隻狗「看起來像」某個特定品種就採取這種行動，尤其是在該狗的現有記錄明顯表明其品種不同，且沒有危險行為記錄的情況下。
若漁農自然護理署認定Baku屬於法定格鬥狗隻定義中的比特犬，則應解釋其結論的客觀依據。採用了哪些標準？由誰做決定？做出決定的人具備哪些資格？Baku現有的登記和歷史記錄被賦予了多大的權重？為什麼在獸醫評估前就認為有必要拘留？(狗主)黎先生可以透過哪些程序對此分類提出異議？
此外，漁農自然護理署目前的做法也可能助長錯誤的行為。在犬隻事件被廣泛報導後，民眾對犬隻的擔憂必然會增加。但執法機構必須以專業的態度和確鑿的證據來應對這種擔憂，而不是對未經證實的投訴做出過激反應。
否則，這套系統很容易被濫用。一個不喜歡或害怕某隻狗的鄰居可以投訴他是鬥犬，而狗主人可能突然發現漁農自然護理署的人員上門威脅要報警，並帶走一隻從未傷害過任何人的家犬。
公共安全和動物福利並非相互衝突的目標。兩者都需要謹慎且基於證據的決策。危險狗隻當然應該受到適當的管控。但同樣，溫馴的家犬也不應該僅僅因為外表或有人對其品種提出指控就被扣押或貼上標籤。
如果Baku事件的報道屬實，那麼漁農自然護理署顯得反應過度且缺乏透明度。至少，漁農自然護理署應該立即對黎先生的狗隻進行一次合格的評估，並就任何擬議的分類提供清晰的法律和證據依據，如果該分類無法證實，則應立即歸還Baku。
法律應保護公眾免受真正危險犬隻的侵害，而不應被用作歧視犬種的捷徑。
This case raises serious concerns about the manner in which AFCD is exercising its powers and, more fundamentally, whether dogs are being subjected to enforcement action based on evidence or simply on their appearance and complaints made against them.
The first point that must be made clearly is that, on the facts reported, Baku is not a "known dangerous dog" under Hong Kong law. There is no suggestion that Baku has attacked or injured anybody, behaved aggressively, or otherwise demonstrated that he presents a danger to the public. Quite the opposite: his owner describes an eight-year-old dog with no history of aggression who remained calm and compliant even when AFCD officers placed him into a cage and removed him from his home.
A dog does not become dangerous because somebody is frightened of it. Nor does it become dangerous because a neighbour complains about it.
There is a separate statutory regime concerning "fighting dogs", but that makes AFCD's apparent approach in this case more, not less, concerning. Baku has reportedly been licensed as a mixed-breed dog and his owner understands him to be an American Staffordshire Terrier. Yet AFCD officers apparently attended the home, looked at Baku, took photographs and videos, declared him to be a Pit Bull Terrier and immediately removed him.
Most troublingly, the owner was apparently then told that a veterinarian would not assess Baku until several days later.
That appears to turn the proper process on its head. If a veterinary or other expert assessment is necessary to determine whether Baku falls within the statutory definition of a fighting dog, why was he treated as one and detained before that assessment had taken place?
A complaint is an allegation. It is not evidence that the allegation is correct, and it certainly should not become the conclusion of the investigation.
AFCD has an important responsibility to investigate genuine complaints and protect public safety. But those responsibilities must be exercised fairly, rationally and professionally. Removing a companion animal from its home is a significant exercise of state power. It should not occur simply because an officer believes that a dog "looks like" a particular breed, particularly where the dog's existing records apparently identify it differently and there is no reported history of dangerous behaviour.
If AFCD considers Baku to be a Pit Bull Terrier within the statutory definition of a fighting dog, it should explain the objective basis for that conclusion. What criteria were applied? Who made the determination? What qualifications did that person have to make it? What weight was given to Baku's existing registration and history? Why was detention considered necessary before the veterinary assessment? And what process is available to Mr Lai to challenge the classification?
These are basic questions of transparency and procedural fairness.
There is also a danger that AFCD's present approach encourages exactly the wrong behaviour. Following highly publicised dog incidents, there will inevitably be greater public anxiety about dogs. But enforcement agencies must respond to that anxiety with professionalism and evidence, not become more reactive to unsubstantiated complaints.
Otherwise, the system becomes remarkably easy to abuse. A neighbour who dislikes or fears a particular dog can make a complaint alleging that it is a fighting dog, and the owner may suddenly find AFCD officers at the door threatening to involve the Police and removing a family pet that has never harmed anybody.
That cannot be the standard by which responsible animal control operates.
Public safety and animal welfare are not competing objectives. Both require careful, evidence-based decision-making. Dangerous dogs should of course be appropriately controlled. But equally, docile family pets should not be seized or labelled simply because of their physical appearance or because somebody has made an allegation about their breed.
If the facts reported in Baku's case are accurate, AFCD's response appears unnecessarily reactive and lacking in transparency. At the very least, AFCD owes Mr Lai a prompt and properly qualified assessment, a clear explanation of the legal and evidential basis for any proposed classification, and the return of Baku without delay if that classification cannot be substantiated.
The law should protect the public from genuinely dangerous dogs. It should not be used as a shortcut for breed prejudice.
The post 法律不應用作歧視犬種的捷徑 （文：大律師/HKALPO創辦人Kim J McCoy (麥劍祺）) appeared first on 香港動物報 Hong Kong Animal Post.