The state of the law is holding back the development of an effective guide dog service in Hong Kong, writes BC&C Partner Alex Liu, who acts as Honorary Legal Advisor to the Hong Kong Guide Dogs Association.
Hong Kong, 26 April 2017: There are about 10,000 guide dogs in the United States, providing life-enhancing mobility and safety to people with visual impairment. The United Kingdom, with a much smaller population, has around 5,000 such dogs. Other developed nations also have long-established guide dog usage.
The Hong Kong Guide Dogs Association, established as a charity five years ago, is making significant progress towards bringing this fantastic service to our territory. It is an exhaustive process, involving the breeding and training of dogs, coaching professional trainers, matching dogs with applicants and then providing comprehensive training for the new owners.
But the HKGDA faces a major obstacle – lack of appropriate legislation. In this respect, Hong Kong is lagging behind other jurisdictions. There are a number of provisions that are pertinent to guide dogs, but loopholes are not only limiting access, they are in fact pitfalls which may lead to potential litigation for both users and the public.
Visually impaired people enjoy some protection under the Disability Discrimination Ordinance (Cap. 487). Under Section 9, a person using a “palliative or therapeutic device or auxiliary aid” should not be treated less favourably. A list of items meeting this description is set out in Schedule 2. Though it is not meant to be exhaustive, the list includes only non-living instruments, so there is no mention of an animal or, for that matter, a guide dog. Hence, if a person is treated less favourably because they are using a guide dog, they may not be protected under the Disability Discrimination Ordinance.
Furthermore, there are insufficient provisions for the use of guide dogs in various premises. Most laws which do make provision first prohibit bringing dogs on to relevant premises and then make an exception for guide dogs accompanying the visually impaired. This is the case in the Food Business Regulation (Cap. 132X) at section 10B, which stipulates that no person shall bring any dog on the premises, but provides exception for the presence of a dog serving as a guide dog for a totally or partially blind person.
There are similar provisions for the MTR, franchised buses and Peak Trams. However, taxis, public light buses, trams and ferries are not so regulated and thus guide dog users are at the mercy of the operators. Also, the Housing Department does not allow any dogs to be kept in public housing estates. Prior permission has to be obtained on a case-by-case basis for trained guide dogs to be kept by a person with visual impairment.
Even those laws which presently provide for access by guide dogs are insufficient. This is because significant time and training is necessary for a guide dog to become qualified. A puppy has to be groomed and trained from a few months until it is about two years old, during which time it lives with its trainer.
But present laws do not provide any protection or exception for the trainer and access is only granted on a discretionary basis. For example, the Housing Department does not allow tenants to raise guide dog puppies and, as such, it essentially bars any training opportunities for puppies within public housing estates.
In fact, only 50 per cent of guide dog puppies are successfully trained as guide dogs. There should also be proper provisions to cater for dogs which do not pass the training and cannot become guide dogs, but can serve as companion or service dogs.
Developed countries such as the US, UK, Australia and Japan have more comprehensive coverage on the rights of access of guide dogs, including puppies under training as well as service dogs for people with other disabilities such as hearing impairment or autism.
The Americans with Disabilities Act, a piece of US federal legislation, provides that in general, state and local governments, as well as public accommodations and commercial facilities, must permit service animals to accompany people with disabilities in all areas where members of the public are allowed to go.
The Equality Act 2010 which is applicable in England, Scotland and Wales gives detailed descriptions of the coverage on the rights and provisions. For example, it is against the law for service providers to treat people with disabilities less favourably because they have a guide or assistance dog with them. Part 12 makes it illegal for assistance dog owners to be refused access to a taxi or private hire vehicle, or for drivers to charge more because a passenger is accompanied by an assistance dog.
Hong Kong’s regulations, on the other hand, are insufficient and there are substantial loopholes both in terms of the coverage and where the rights of access of guide dog puppies are concerned. For the proper development of guide and service dogs in Hong Kong, it is desirable to have a specific piece of legislation that protects access by guide dog puppies, trained guide dogs, their trainers and users.
There are more than 174,000 visually impaired people in Hong Kong – around 2.4% of the population. It is time for the authorities to recognise that guide dogs offer a life-changing opportunity for such people by providing enhanced mobility and safety, not to mention a range of other benefits such as companionship, support and security.
The HKGDA has already initiated informal discussions with the Equal Opportunities Commission and is lobbying legislators and relevant government departments. These discussions need to continue and, hopefully, pressure will grow for appropriate legislation. On this issue, Hong Kong has some catching up to do.