Whilst every effort has been made to ensure the accuracy of the contents of these case digests, they are for general guidance on the subject matters only and should not be treated as a substitute for specific legal advice. You are advised to seek advice from your legal advisor as and when necessary.
Tung Lai Lam v Leung Kin ManCourt Ruling - (Chinese Only)
The Plaintiff is a person with mental illness. At the material time, the Defendant was a District Councilor of the Wu King Estate, Tuen Mun. The Plaintiff alleged that the Defendant had committed an act of disability vilification under section 46 of the Disability Discrimination Ordinance (DDO) by displaying a number of banners “Demanding the Integrated Community Centre for Mental Wellness (ICCMW) to locate away from the Wu King residents” as he objected to the ICCMW being set up in the district.
The Court considered that an “ordinary reasonable person”, after having read the slogans and banners, would clearly understand that they aimed to incite or arouse his/her disapproval, fear, disgust and hatred against persons with mental illness in order to gain his/her support to object to the ICCMW being set up near the housing estate.
The Court pointed out that, when dealing with the complaints of “vilification”, the Court should carefully balance between providing sufficient protection to persons with disabilities and ensuring the conduct being complained of should be sufficiently serious. The Court considered the messages spread by the Defendant via the banners and slogans were stigmatizing persons with mental illness as people causing danger, troubles and concerns to residents and thus they must stay away. Such conduct was serious and incited the residents’ discrimination against persons with mental illness. In addition, the Court considered that the effect of disapproval or dislike incited by the banners was strong. A person would not ask someone or something to stay away from him/her, if that person himself/herself does not have a strong sentiment of disapproval or dislike against that person or thing. Therefore, such sentiment incited by the banners could be regarded as hatred.
Although the Defendant emphasized that he only wanted to express the views of a majority of the residents, the Court considered that the views of the majority could not override the rights of the minorities. The Court also considered that the purpose of anti-discrimination legislation is to safeguard the rights of the minorities.
Accordingly, the Court ruled that the Defendant had committed disability vilification and thus contravened section 46 of the DDO. The Defendant was ordered to pay nominal compensation of HK$1 to the Plaintiff.
Tung Lai Lam v Oriental Press Group Ltd & AnorCourt Ruling
The Plaintiff was a mental patient who suffered from anxiety and depressive disorder. Upon reading a newspaper article printed by the Defendant which commented on mental patients and mismanagement by the Hospital Authority, he felt insulted, angered, and distressed. The article contained three statements in particular which the Plaintiff felt constituted disability vilification against persons with mental illness including himself:
As to psychiatric illnesses which they are generally so called, it could be said that “there is always one nearby”. Every now and then there is a crazy man or crazy woman wreaking havoc here and there, playing suicide by jumping off buildings or into the sea, or else they are chopping up their father, killing their mother, murdering their children; just thinking about it making one hair’s stand.
Yet, even the psychiatric wards have overcrowded households. As each of the inmates already has mental problems, wouldn’t the over-crowdedness add madness on top of madness!
Or else, as people “would be stained red by staying near red dye”, he had rubbed off madness by being near the mad. He might have become crazy as a result of handling an increasing number of issues relating to mental illness. (Sigh), two words: crazy
The Court dismissed the Plaintiff’s claim of disability vilification. It found that the relevant statements, having regard to the content, style of communication and relevant context, would not have been understood by the ordinary reader that he or she is being “incited to hate, or to have serious contempt for or severe ridicule of” any person or persons with mental illness within the meaning of the Disability Discrimination Ordinance. The article had to be read in the broad social context, and around the time of publication there were multiple reports concerning violent acts committed by persons suffering from mental illness and poor administration by the Hospital Authority. As the public was generally aware of these social issues, the ordinary reasonable reader would have understood the article to have been written in response to the incompetence of the Hospital Authority, and not as targeting or ridiculing persons with mental illness. The Court acknowledged that the article contained distasteful words used in relation to mental patients, but that the theme of the article was clearly criticism of the policy of the Hospital Authority greatly minimized the impact of these distasteful words.
In the case that liability is established, the court is of the opinion that an apology, rather than damages, would be the appropriate remedy. If the disability vilification is targeted towards an individual person with a disability, the court should focus on damages suffered by the individual and assess damages resulting from the vilification. On the other hand where the vilification is targeted to a class of persons, the effect on an individual plaintiff would be more indirect, thus an apology order would be more appropriate.