2. Domestic legislation

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a. Legislation against discrimination 

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The Disability Discrimination Ordinance (Cap. 487) (“DDO”), enacted in 1995, is the key legislation on disability rights in Hong Kong. Modelled after The Australian Commonwealth Disability Discrimination Act 1992, the DDO outlaws direct and indirect discrimination, harassment, and vilification on the ground of disability. With some exceptions, the DDO applies to both private and public sectors. The Equal Opportunities Commission (“EOC”), an independent statutory body, is established to implement the anti-discrimination ordinances (including the DDO).

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Since its creation, the EOC has provided legal assistance in bringing legal actions under the DDO. A selection of major cases decided under the DDO is set out as follows:

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K & Ors v Secretary for Justice (DCEO 3, 4 and 7/1999) District Court 

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The government’s policy of rejecting job applicants with a close relative that had a history of mental illness was found to be discriminatory. The Court held that the government has a duty to conduct an individual assessment to determine whether an applicant poses a real risk to safety.

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M v Secretary for Justice (CACV 265/2007) Court of Appeal 

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Following the case of Purvisi at the High Court of, the Court of Appeal held there were two steps in establishing direct discrimination. First, it must be shown that the complainant was treated less favourably compared to a person behaving in the same manner without the relevant disability. Second, the impairment must be one of the reasons for less favourable treatment. It was not necessary to show that the government had knowledge of the disability, or had consciously discriminated against the complainant.

 

Law Chi Yuen v Secretary for Education (HCAL 91/2011) Court of First Instance 

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The government provided funding under the Native-speaking English Teacher Scheme for mainstream schools, but excluded special schools for students with intellectual disabilities. The Court found that this decision amounted to direct discrimination.

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No major changes have been made to the DDO since its enactment, and civil society and academics have increasingly pointed out the limitations of the DDO in the protection of disability rights. Professor Carole Petersen has suggested that the definition of disability in the DDO reflects the medical model, and “is arguably inconsistent with the social model adopted in the CRPD”. She noted that the definition of “discrimination”, currently based on classic notions of direct and indirect discrimination, needs reconsideration. In the area of inclusive education, Professor Kelley Loper found that this definition of discrimination falls short of the protection needed to ensure inclusive education and substantive equality under the CRPD.

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As an institution, the EOC also suffers from a number of limitations. Professor Puja Kapai found that the EOC’s conciliation-first model, small capacity to fund litigation, and restricted mandate limited its ability to bring about social change.

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In March 2016, the EOC published its Reports on the Discrimination Law Review. It recommended, as an area of high priority, that the government amend the DDO by introducing a duty to make reasonable accommodation and a prohibition on discrimination in voting and standing for elections. It also suggested changes that would empower the EOC as an advocate for victims of discrimination. The government yet to indicate which recommendations they accept.

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In addition to the DDO, there is a general constitutional right to equality contained in Article 25 of the Hong Kong Basic Law and Article 22 of the Hong Kong Bill of Rights (Cap. 383) (the latter corresponds to Article 26 of the ICCPR). This was successfully argued as a supplementary ground by the applicants in Law Chi Yuen. However, constitutional rights are outside of the jurisdiction of the EOC.

 

b. Other legislation relating to persons with disabilities

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The Mental Health Ordinance (Cap. 136) (“MHO") contains important provisions on persons with mental impairments.

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First, the Court has the power to decide whether a person is mentally incapacitated. The property and affairs of a mentally incapacitated person are subject to orders by the Court. Further, such persons are disqualified from voting or standing for elections (see for example s. 53 of the Legislative Council Ordinance (Cap. 542)).

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Second, the MHO authorizes the Court to grant orders for compulsory detention and treatment of a person in a mental hospital. The main requirement for an order to be granted is the opinion of two registered medical practitioners. Professor Daisy Cheung has argued that compulsory treatment is unconstitutional as it disproportionately restricts the right of liberty and security of person (Article 28 of the Basic Law and Article 5 of the Hong Kong Bill of Rights). She also noted the relevance of the CRPD on this issue.

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Third, the MHO establishes the Guardianship Board, which may make guardianship orders. These orders may confer a wide ambit of powers upon guardians, including the power to require the mentally incapacitated person to reside in a specific place, and to consent to medical treatment on behalf of the incapacitated person.

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The Minimum Wage Ordinance (Cap. 608) establishes a statutory minimum wage for all employees. However, employees with disabilities may opt for an assessment of productivity. The minimum wage can be exempted if the assessment shows the degree of productivity is less than 100%.

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Sheltered workshops are not covered under the Minimum Wage Ordinance. The government considers these workshops forms of vocational training and do not treat the participants as employees.

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