The emaciated Saint Bernard dog was found on the balcony of a flat in Yuen Long. He had no water and was lying on a concrete floor surrounded by his own faeces; his fur was dirty and hung from his bones. His huge eyes were dull and sorrowful.

It was a pitiful sight: a breed originally bred as a rescue dog in the Swiss mountains and known for its strength, size and ability to survive extreme temperatures, reduced to a cowering wreck.

The five-year-old dog had probably been living cooped up on the balcony for weeks, possibly months, even years, when he was found in February, 2008, by officers of the Hong Kong Society for the Prevention of Cruelty to Animals (SPCA). It was clear he had not been enjoying a dog’s life in the metaphorical sense.

How did a dog manage to deteriorate into such a condition in Hong Kong, a modern city with animal protection legislation having power to lay down tough penalties for anyone proven to cause unnecessary suffering to an animal?

The answer, according to the SPCA Executive Director Sandy Macalister, is the absence in the current legislation of a “duty of care” provision which would make it a legal requirement for owners or carers to provide a reasonable quality of life for their pets.

Under the Prevention of Cruelty to Animals Ordinance, authorities are virtually powerless to prevent animals from living in poor conditions even when they are in danger or distress. They can act only when those conditions have actually taken a toll on the animal’s health, such as in the case of the Saint Bernard, and when cruelty can be proven.

Macalister says as a result of this lack of “duty of care” provision, officers from the society’s inspectorate come across cases of animals in potential danger almost on a daily basis, but have little power to help.

“The biggest incidences of cruelty we see is the neglect of animals. Most often it is not malicious cruelty,” he said.

“What we discover most is animals being kept in a way that is totally unacceptable — dogs confined on rooftops, unexercised, stacked up in cages and flats, left on roofs, tied up continually, sometimes without water — and unless there is provable cruelty, provable suffering, there is nothing we can do and these animals still have to endure bad welfare.

“On the bigger scale, there is illegal breeding and the hoarding of dogs where people think they are being kind to the animals and trying to save them.

“It doesn’t always follow people are being cruel. Some people just can’t cope. They may not have realized how much it takes to care for an animal and just take the easiest way out.”

Hong Kong’s Prevention of Cruelty to Animals was introduced in 1935 and is based on the UK’s Protection of Animals Act 1911 — a law created, say critics, in a time when little was known about animal welfare and behavior, and animals were considered a possession.

This has remained very much unchanged apart from an amendment in 2006, which raised the penalties for those convicted of cruelty from six months imprisonment and a maximum fine of HK$5,000 up to two years in jail and a fine of HK$200,000.

By way of contrast, in the UK, this act has already been deemed out-of-date and was superseded in 2006 by new animal welfare laws which include a “duty of care” provision.

“The law we have in Hong Kong is actually a good law and it has done a good job. The penalties we have now are actually quite high when compared to other countries,” says Macalister. “But what is missing is a welfare act and a provision for ‘duty of care’.”

“‘Duty of care’ gives authorities the power to step in earlier. Although, at the moment we can advise someone to improve the conditions in which they keep animal, there is no legal consequence if they do not or if we cannot prove unnecessary suffering or cruelty, which is very difficult to prove.”

Animal welfare law expert Mike Radford sees “duty of care” as an essential part of animal welfare law in a modern society and says there is wealth of scientific evidence following studies on animal behavior and suffering which support it.

Radford, of the University of Aberdeen, was deeply involved in the drafting of the new Animal Welfare Act in the UK and the Animal Health and Welfare Act in Scotland, both in 2006. These acts consolidated previous animal laws, extended their scope to cover wild animals and domestic animals and brought the old 100-year-old animal protection law up-to-date.

“The most important change was in relation to ‘duty of care’ provision which complements the legislation which makes cruelty an offence,” Radford told the China Daily on a recent visit to Hong Kong to address an international symposium on animal welfare law and ethics hosted by the SPCA.

“What cruelty does is make it an offence to cause an animal unnecessary suffering and although it is absolutely essential to have this as an offence it doesn’t do the whole job.

“The first problem is that it focuses entirely on whether an animal has suffered and you have to demonstrate it has suffered beyond reasonable doubt.

“However, an awful lot of cruelty cases arise because of neglect and the animal deteriorates over time, which means you have to wait around for the animal’s condition to get worse before you can take any action.

“The second problem is that it is negative in character. It tells you what not to do but doesn’t impose any positive duties.”

Radford said by comparison welfare legislation was very different in that it imposes “duty of care” on the owner.

“It puts the duty on them (owner or carer) to take reasonable steps in the circumstances to ensure the needs of their animals are met.

“By needs we include things like proper diet, water, either the company of other animals or separation from other animals depending on the type of animal, prevention of pain, distress, disease, that sort of thing,” said Radford.

“It imposes positive duties on those responsible for animals and it focuses on the animals quality of life and how good a life the owner is giving it and whether they are meeting its needs.”

The big advantage of making “duty of care” a legal responsibility, says Radford, is that it allows much earlier intervention. UK’ s new legislation gives the authorities legal power to issue something called an “improvement notice” to owners who are failing in their duty of care.

“This does three things,” said Radford. “It informs the person responsible there is a problem; it tells them what they have to do to put the situation right; and it gives them a time limit in which they have to do it.

“That means you can get in much quicker before the situation has deteriorated. For example, if you had a dog on a balcony that was left all day, clearly it is in danger of jumping or falling off, and in a climate like Hong Kong being left out in the sun all day.

“Under the present law in Hong Kong, if the owner does not cooperate after a warning, nothing can be done unless the dog actually goes over the balcony or suffers as result of dehydration.

“What we can do in UK under the Animal Welfare act is to issue an improvement notice saying this is not a suitable environment and either you have to make it safe and give shade, or keep the dog inside.

“It gives us the power to try to prevent the problem in some cases and in other cases catch it in the bud so it doesn’t get any worse. Thirdly, in many cases you are avoiding the need to prosecute because the improvement notice does the job.”

According to Radford, the UK’s Royal Society for the Prevention of Cruelty to Animals (RSPCA), the body involved in the majority of prosecutions concerning animal cruelty and welfare, has been very happy with the legislation.

“When the legislation was first brought it enabled the RSPCA to deal with a whole load of people who had been on their books for a long time; people who knew the boundaries of the law and knew as long as the animal was not shown to be suffering that nothing could be done.

“What it essentially means is that you don’t have to go in with a big stick. Like the SPCA here in Hong Kong, a lot of the RSPCA’s time is spent advising people. In many cases, once people are told and things explained to them, they cooperate.

“But it does mean that if you have someone who won’t listen and refuses to cooperate, you can do something.

“In the end you are not only helping animals because you are dealing with situation sooner rather than later, but you are also dealing with it in that way is much cheaper than prosecution and with much less hassle for everyone involved.

“Prosecution is expensive for everyone; it puts pressure on everyone and the outcome can be uncertain. If the owner won’t cooperate, you can’t do anything to help the animal until you get a conviction. So it doesn’t help the animal either.”

Given that Hong Kong’s animal law is based on old outdated UK law, Radford feels it logical that Hong Kong follows the lead of the UK — and also the USA, Australia, New Zealand and Taiwan — and consider updating its animal legislation to cover animal welfare and a “duty of care” provision.

The SPCA’s Macalister believes such legislation could have a huge impact in Hong Kong, and not just protecting animals but encouraging responsible pet ownership and making people think more carefully before they commit to taking on an animal.

The good news is there are rumblings that Hong Kong is coming round to the concept of “duty of care” provisions, says Macalister.

In a statement the Department of Agriculture, Fisheries and Conservation (AFCD) said it was already looking at the concept of “duty of care” and the latest animal welfare standards in relation to the pet trade.

It said the government cared about animal rights and over the years had adopted a multi-pronged strategy comprising education, publicity and law enforcement to raise public awareness of the subject.

“Our policy objective is to ensure that animals and people co-exist in a harmonious way in Hong Kong. We have been promoting animal welfare in line with the changing values and expectations of the community,” it said.

In keeping with increasing public awareness towards animal welfare, the AFCD said it had been reviewing measures and practices and exploring new approaches to further enhance animal welfare.

These include an Animal Watch Scheme operated by police, an increase in penalties for animal abuse in 2006, a review on review of hobby breeding and additional licensing conditions on the pet trade for dogs.

“The AFCD is conducting a review to determine if the additional licensing conditions need to be amended and whether similar conditions should be extended to other pet animals in light of the prevailing situation and actual needs,” it said.

“We will continue reviewing our measures and practices and studying comments and proposals from different parties, so as to enhance animal welfare. During the progress of reviewing the existing measures and practices, we will consult relevant animal welfare organizations and stakeholders.”

Macalister hopes these reviews will lead to a “duty of care” provision which will prevent other animals falling victim to the same fate as the Saint Bernard dog.

On that occasion, the owner was charged and pleaded guilty to three charges of cruelty and keeping an unlicensed dog and was fined $500 for each charge. The dog was lucky. It recovered and was eventually found a new home.

“With ‘duty of care’, we could have intervened earlier. We could have prevented the dog from getting in such a state and from suffering,” said Macalister.

“The situation is not unlike that where a young child is involved. Both the animal and child are defenseless, unable to express themselves and both susceptible to emotional damage as well as the physical. As with a child, it is important there are legal provisions in place to protect them in their environment.

“It just makes sense that the onus of responsibility in ensuring that animal has a quality of life, is put on the person who is responsible for it.”