With regard to the District Court judgment, handed down on 30 May 2016, in the case of Singh Arjun (by his next friend Singh Anita Guruprit) v Secretary for Justice & Hung Kai Kam (DCEO 9/2011), the Equal Opportunities Commission (EOC) has issued today (31 May 2016) the following statement:

The EOC notes that the Court dismissed the Plaintiff’s claim of racial discrimination. The Plaintiff alleged that, on the ground of his race, certain police officers had failed to provide him with a service to protect and assist him in a like manner as would be provided to other members of the public.

The EOC’s participation in this case was to act as amicus curiae, to provide our independent submissions on the extent to which police activities (including the response to and investigation of a request for assistance, arrests, as well as the treatment of an arrested person in custody) can constitute “services” within the meaning of ss.3 and 27 of the Race Discrimination Ordinance (RDO). As the RDO currently does not expressly provide that it is unlawful for the Government to discriminate “in the performance of its functions or the exercise of its powers”, the EOC believes that this case raises an important question on the law’s scope of protection and can set an important legal precedent. Specifically, this is the first time a Hong Kong court is engaged with the question of the extent to which police officers in Hong Kong have an obligation to provide their services in a non-discriminatory manner under the RDO.

Per the EOC’s amicus submission to the Court, the Commission’s position was that, based on the decisions from similar jurisdictions, all policing activities can and should be interpreted to be within the meaning of a “service” for the purposes of the RDO, including the pursuit, arrest or investigation of a person. While the Court held the view that some police action, such as the act of arresting a person or the decision to grant bail, is not a “service” under the RDO, the EOC believes that there should nevertheless be protection from racial discrimination where police action, such as arrests, is taken on the ground of a person’s race rather than on evidence as to whether or not they have committed a crime. This case clearly highlights that the current protections from discrimination under the RDO are insufficient and should be strengthened. In practical terms, there may be gaps in protection relating to Government functions and powers, where they are not considered to be a service. Furthermore, the provisions of the RDO are inconsistent with the provisions in the three other existing anti-discrimination ordinances, which provide express coverage of Government functions and powers.

The EOC notes that the judgment makes specific reference to the role of the Commission to review the effectiveness of the current legislation, and, where appropriate, make recommendations for reform. In fact, the EOC has made recommendations to the Government, as stated in the submissions of the Discrimination Law Review (DLR) published in March 2016, to amend the Race Discrimination Ordinance by providing that it is unlawful for the Government to discriminate in performing its functions or exercising its powers (Recommendation 6). Such an amendment would close the existing gap in protection from racial discrimination, and redress the inconsistency with protections under the other three anti-discrimination ordinances.

On a related note, at present, it is not clear from the manner in which the current provisions are drafted whether other public authorities that are not part of the Government are within the scope of the anti-discrimination Ordinances in relation to the exercise of their functions and powers. This is particularly relevant in relation to statutory bodies established by the Government, but independent of it, such as the EOC. The EOC, therefore, also recommended in the DLR that the Government should amend the four anti-discrimination Ordinances to include a provision that they apply to all public authorities, and it shall be unlawful for them to discriminate in the performance of their functions and exercise of their powers. As part of the recommendation, the EOC also noted that consideration should also be given as to whether a definition of a public authority is required (Recommendation 20).

The Commission believes these amendments would strengthen the protection of all against race discrimination. The EOC, once again, calls on the Government to seriously consider the recommendations put forth by the Commission in the DLR, and implement the legislative reforms as soon as possible.

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Equal Opportunities Commission
31 May 2016