Introduction

I would like to thank the Korean Society for Rehabilitation of Persons with Disabilities (KSRPD) for inviting me to deliver this keynote speech. It is indeed an honour to be able to share my views and experiences together with the key people in the disability field at this important time, when the UN is about to introduce a new disability convention.

I will be talking about the rights and social participation of persons with disabilities (PWDs) and our experiences in Hong Kong. There is no denial that discrimination exists to the detriment of our disabled friends. It exists because of prevailing mindset, a stereotype way of looking at the effect of disability. What the community needs to understand and to accept is that PWDs are entitled to the full range of civil, cultural, economic, political and social rights, as stated in various human rights instruments, the same as everyone else.

Situation in Hong Kong

According to the Census and Statistics Department of the Hong Kong Special Administrative Region Government (the Government), there are about 269,500 persons in Hong Kong having one or more types of disability^[1], which makes up about 4% of the total population in Hong Kong. About 882,700 persons required long-term medical treatment for certain types of diseases, representing some 13% of the total population of Hong Kong. About 21.4% of the PWDs and about 12.1% of the persons with chronic diseases claimed that they were unable to work due to their chronic diseases or disabilities. These figures alone are already very alarming, but when you notice that 47.5% of the PWDs and 27.8% of persons with chronic illness reported that they were less inclined to go out for shopping or leisure due to their illness and disabilities, you can see the urgency for special measures to be taken to ensure that people with disabilities have non-discriminatory access to all rights of life, i.e. to social participation.

For a long time, PWDs have often been treated by Governments as if they were a different kind of people. They are provided with special schools, shelter workshops and separate transportation. As a result of this “protective” attitude, people with disabilities are often separated from the mainstream society. They are often being viewed as objects of protection rather than subjects of rights. Even today, the ‘visibility’ of persons with disabilities is still limited; there are still lots of improvement to be made on the representation of persons with disabilities in government policy making processes, in the mass media, and in all other aspects of social and cultural life.

To empower people with disabilities, to ensure their active participation in political, economic, social and cultural life in a way that is respectful has always been a challenge for the Government and it is one of the top priorities for the Equal Opportunities Commission (EOC) in Hong Kong. The EOC has been adopting rights-based approach to promote the rights of people with disabilities ever since its formation in 1996.

Rights based approach

The idea of rights-based approach is not a new concept. It has received much attention ever since its proclamation in 1981 by the United Nations General Assembly as the “International Year of the Disabled” under the slogan “Full Participation and Equality”. Since then, there has been a paradigm shift from a welfare or charity-based approach to a rights-based approach in most developed countries. In a nutshell, the rights-based approach recognises that disabilities only become a handicap because of social obstacles, such as prejudice, stereotypes, and physical limitations of the environment. It asserts that the right not to be discriminated against is the most fundamental human rights for us all. To protect the rights of people with disabilities, special measures must be taken to ensure that they have non-discriminatory access to equal rights and equal opportunities in society.

Before the Disability Discrimination Ordinance

In 1991, the Hong Kong legislature enacted the Bill of Rights Ordinance (BORO) to entrench the concept of anti-discrimination on various stated grounds^[2]. The BORO is binding on the Government and public bodies. In 1992, the Government published a Green Paper on Rehabilitation to study the well-being of people with disabilities in Hong Kong and set out a number of targets to safeguard the rights for PWDs.

On the whole, it is fair to say that the Government has made significant efforts to promote the concept of equal opportunities through measures highlighting the plight of PWDs and recognizing the importance of relevant issues. Legislating against discrimination is a big challenge for the Government because it is inevitable that anti-discrimination laws will invariably limit one’s choices, for example, the employer’s choice in staff recruitment.

We should applaud our co-workers in the rehabilitation field for their persistence and efforts in urging the Government to fulfil its obligations in bringing equality to people with disabilities. Through their hard work and persistence in urging the Government to provide substantive measures to fight discrimination against people with disabilities the Disability Discrimination Ordinance (DDO) finally came into effect. Different concern groups had, at regular intervals, reminded the Government and our legislative council members the deficiency in rehabilitation services, in employment for people with disabilities, in education and vocational training, in supportive services, in transport and basically in every aspect of life.

The Disability Discrimination Ordinance

The Disability Discrimination Ordinance (DDO) was passed in 1996 to provide a most fundamental change in the advancement of the human rights of persons with disabilities in Hong Kong. The Ordinance not only provides PWDs with a formal venue to redress their grievances, but also signifies the determination of the Government to accept people with disabilities as inherent members of our society. The Ordinance does not simply require that a disabled person should be treated in the same way as a person without disability, it also extends to indirect discrimination and requires “reasonable accommodation” to be made for disabled persons. Although there could be no clear cut definition as to what kind of accommodation is considered “reasonable”, it is clear that the laws require employers and goods and services providers to take proactive steps to redress any possible disadvantage that may be rectified without causing undue burden to the providers. What we implement is not a strict model of formal equality based on treating people with no relevant difference in the same way. What we subscribe to is the notion of substantive equality, by requiring that some attempt to be made to remove barriers which would exclude persons with disabilities to full participation in our society.

Structure, content and effects of the DDO

The introduction of the DDO is a major step forward in achieving the goal of integrating people with a disability into the community. It requires the community to give people with disabilities an equal opportunity — a fair chance — to participate fully in the community. It provides PWDs with the legal means to obtain redress against discrimination, harassment^[3] and vilification^[4]. The Ordinance creates a civil right, which the affected PWD can enforce through proceedings in court. It gives the same protection and support to their families and carers as well.

The DDO renders unlawful acts that discriminate against persons on the ground of disability; it also renders unlawful acts of disability harassment and vilification. The areas of life in which discrimination and harassment will be unlawful include: employment, education, provision of goods, services and facilities, access to premises, clubs and sporting activities, and exercise of government functions.

Under the DDO, it will be unlawful to treat people with disabilities less favourably than others because of their disability, in circumstances that are materially the same. As a balance to ensure that the interests of the community as a whole are also taken into account, the DDO provides for two key exemptions, “unjustifiable hardship”^[5] and “inherent requirements”^[6]. The DDO also empowers the EOC to issue Codes of Practice so that parties involved will have practical guidelines to follow regarding how they are expected to behave.

The Functions and Role of the EOC

The EOC is a statutory body set up in 1996 to implement the Sex Discrimination Ordinance (SDO), the Disability Discrimination Ordinance (DDO) and the Family Status Discrimination Ordinance (FSDO). The Commission works towards the elimination of discrimination on the grounds of sex, marital status, pregnancy, disability, and family status. We also aim to eliminate sexual harassment, and harassment and vilification on the ground of disability. Our vision is to create a pluralistic and inclusive society free of discrimination where there is no barrier to equal opportunities.

Investigation and Conciliation

The EOC would investigate into complaints lodged under the SDO, the DDO, and the FSDO if the subject matter of the complaint falls within a provision of the Ordinances. We are required to act impartially in handling all complaints and it is our primary objective to use our best endeavours to effect a settlement between the parties in disputes by way of conciliation. The advantage of conciliation is its relative speed in comparison with other forms of redress. It usually involves fewer people and makes it easier to ensure confidentiality. Conciliation by the EOC is free and therefore should incur little or no cost to the parties. Though we would attempt to effect conciliation between the parties and (the EOC does have the power to call for a compulsory conciliation conference), submission to conciliation by both parties is entirely voluntary. Although the EOC cannot compel the parties to reach an agreement, nor direct or suggest the terms of agreement, over 60% of the cases we recommended conciliation have been successful and the total monetary compensation settled for complaints reached HK$26 million in August 2006.

Where conciliation has not been successful, the EOC has powers under the Ordinances to grant various forms of assistance to an applicant who wishes to take legal proceedings with regard to the complaint. When an application is received, my colleagues in the Legal Service Division will conduct an assessment of the application before giving advice whether or not to grant assistance. The assistance may take the form of legal advice by EOC’s own lawyers, services for obtaining further information or evidence, or representation in legal proceedings by the Commission’s lawyers or by lawyers in private practice briefed by the EOC.

To advocate for the rights of persons with disabilities, our corporate communication team arranges extensive public education programmes to raise public awareness regarding disabilities discrimination issues^[7]. Our training team is responsible for corporate training, and our policy and research team conducts research relating to disability issues.

Proceedings in Court

A person who has reasonable grounds to believe that he/she has been discriminated against on the ground of his/her disability may institute civil proceedings in the District Court. This can be done in addition, or as an alternative, to lodging a complaint with the EOC. As almost all of the discrimination related cases are civil in nature^[8], the remedies are primarily in damages. To date, compensation recovered through litigation has reached over HK$23 Million. However, the treatment of PWD impacts on human dignity and to certain PWD money is not everything. I would like to bring up one particularly important court case to share with you here.

That particular case (Ma Bik Yung v Ko Chuen) involved a wheelchair user and a taxi driver. The EOC agreed to provide legal assistance to the wheelchair user on the basis that the case raised a question of principle and an issue of public interest. The wheelchair user was discriminated against by the taxi-driver when she used taxi services. The significance of the case is the ruling from the Court of Final Appeal^[9] that the court has the power to order an apology, albeit in exceptional circumstances, against an unwilling defendant. It further went on to indicate that monetary damages should be increased when a defendant refused to apologize. An apology serves to redress the loss and damage suffered by the victim of harassment and discrimination, and in that sense, the judgement was extremely encouraging and provided the necessary balance between an apology and damages. From this case, we can see how a public apology serves a significant educational function, as well as an effective remedy. The power of the District Court to order an apology will complement and support the process of conciliation conducted by the EOC.

Over the years, the complaint figures in relation to the Disability Discrimination Ordinance are quite steady (approximately 400 per year). Employment, physical access and disabilities harassment are the three major areas that we receive complaints about.

Employment

Between 1999 and 2000, the District Court heard three cases in which the EOC had granted legal assistance under the DDO to the plaintiffs. The unique aspect of the cases is that the plaintiffs were dismissed not for something they had done or had failed to do, but rather because of the mental illness of their family members and the stigmatization associated with mental illness. The plaintiffs themselves never suffered from any mental illness and were at all times capable of performing the duties of their jobs. All three cases involved claims of disability discrimination in recruitment due to a family history of mental illness, and were consolidated into one hearing, (K & Ors v Secretary for Justice). The District Court gave judgement in Sept 2000, awarding a total of HK$2.8 million in damages in respect of their injuries to feelings, loss of income and loss of other benefits. The judgement highlighted that genetics should not be used to discriminate against or stigmatise individuals.

Employment has always been and still is a major problem for persons with disabilities. Of the 260,500 persons aged 15 and over with disabilities, only 52,500 (20.1%) were employed^[10]. The monthly employment earnings of employed persons with disabilities were relatively lower than that of the employed population. About 60% of the employed persons with disabilities earned less than HK$10,000 per month as compared to 43% of the total employed population. The median monthly employment earnings of employed persons with disabilities was HK$8,000, as against HK$10,000 for the total employed population^[11].

From these figures, we can see that the rates of unemployment among persons with disabilities remain much higher than for people without a disability. Although the Government has put in efforts to promote employment of persons with disabilities^[12], there has been no major improvement in the employment figures. It is obvious that having the DDO in place alone is not sufficient to help persons with disabilities to secure employment. Raising the education opportunities for PWDs, proper public education to remove stereotypes of persons with disabilities, and development of assistive technology might be among the major long-term strategies to promote employment for persons with disabilities. For the time being, we are focusing on providing the impetus for upgrading the physical access for persons with disabilities, and we are preparing to launch a formal investigation along this line in the near future. We hope, by first removing the physical barriers, the obstacles to employment of persons with disabilities could be removed eventually.

Access

Accessibility affects many aspects of our lives and is one of the primary factors affecting the social participation of persons with disabilities. For persons with disabilities to have full social participation, barriers to essential aspects of life and daily living (such as modes of transportation, access to buildings where facilities are provided - e.g. medical, banking and community services, access to the Internet, etc. have to be removed.

Transportation

With the collaborated efforts of the Government, NGOs and concern groups, there has been much improvement to our public transportation in the last decade. Almost all of our mass transit railway and railway stations are equipped with elevators or stair lifts, audible signals, audio induction loop, tactile path, information display system, signage and wide entrance gates. Low-platform buses have been introduced by the public transport companies. Though there is still room for improvement, we have to acknowledge that our public transport operators have made significant efforts over the last decade and we hope that they will continue to improve their services.

Web Accessibility

In this digital age, access to electronic information is becoming more important by the day. When more and more people rely on the Internet for banking and other services, for information, and for leisure, it is essential that persons with disabilities have access to the same information and services. To make this possible, the EOC was among the first to campaign for universal design in web page construction in 1999, urging companies to employ World Wide Web Consortium (W3C) standards^[13] in Internet design. The campaign received strong support from the Government. The Government has, in collaboration with the industry and NGOs, introduced a wide range of measures to bridge the digital divide in the community to ensure that the entire community will benefit from IT development in enhancing the quality of life. The "Digital 21Strategy" web site was launched in June 1999 as a dedicated channel through which the Government can disseminate information and report progress related to the implementation of the "Digital 21" Strategy. Today, all government websites are now in compliance with their internal accessibility guidelines to facilitate access and navigation by people with visual disabilities. The Government also conducts seminars and workshops regularly for the private sector to encourage the adoption of barrier free web design in the private sector.

Buildings

In many Asian countries, physical access has always been a problem for persons with disabilities, and this problem is particularly relevant for places where available land is limited and land value high, such as in Hong Kong. Understandably, developers would be tempted to employ “conservative” building design to maximise land use. As a consequence, many buildings are not accessible to PWDs. With the DDO enacted and the implementation of Barrier Free Design Manual as the basic building plan approval requirement by the Buildings Department in 1997, all buildings are now required to be accessible to persons with disabilities. Buildings built prior to 1997; however, remain a big problem for PWDs. One of the major reasons for the owners’ reluctance to make a change is the high cost involved in making alterations, where barrier free access devices were not considered at the planning stage. Entrances intercepted by steps, absence of dropped kerb or ramps, inadequate lift services, inadequate signage, blocked passages, are among the common problems faced by persons with disabilities.

In the past 10 years, we have received 436 complaints related to access to premises. Most of these complaints were resolved by means of conciliation. There is a need to raise public awareness. The EOC is planning to launch a formal investigation into the physical access and related facilities in public housing estates, commercial properties, car parks, buildings and offices built, owned or managed by the Government and related public entities. Under the DDO, the Bills of Rights Ordinance and the international rights covenants applicable to Hong Kong, the Government is obliged to eliminate various forms of discrimination. As compared to individual homeowners, the Government and related public entities are likely to be more resourceful and capable to rectify any deficiency that may exist, and by so doing will be in a position to set an example for the private sector.

Through this formal investigation, we hope to get a better picture of the up to date situation in Hong Kong. We hope to identify and examine the difficulties encountered by persons with disabilities, and to evaluate whether, and how, the requirements of non-discriminatory accessibility have been achieved. More important, we hope to identify solutions or directions to resolve the problems and where possible, effect changes in attitudes through public education.

Mental Illness

Protection of the rights of people with intellectual disabilities and mental illness is distinct from those affecting people with physical disabilities. The EOC recognises that people with intellectual disabilities and mental illness should be able to make their own decision to the maximum extent possible, and should have their rights and interest respected where they do not have the capacity to make their own decisions. The EOC took up the issue of informing mental patients of their rights before involuntary admission to a mental hospital. Under the Mental Health Ordinance, persons with mental illnesses can request to see a District Judge or Magistrate before an order is made for his or her compulsory admission into a mental hospital. It was unclear whether there was an obligation to inform the patient of such right. The EOC conducted a complaint investigation, and the Health and Welfare Bureau acknowledged that hospitals had a duty to inform patients of their right to see a District Judge or Magistrate. As a result, since 2001, the Hospital Authority has put new procedures into practice - doctors must inform patients of their rights under the Mental Health Ordinance before they are involuntarily admitted to a mental hospital.

Up to September 2006, 16% (562 out of 3560) of the complaints lodged under the DDO were related to mental illness. 379 (67%) of these complaints were in the employment field involving job arrangement, employment and dismissal (322), harassment in the work place by co-workers (51), and victimization (6). The remaining 183 (33%) were in non-employment field relating to discriminatory treatment (135), harassment (43), and victimization (5). The figures can only represent a sketch of the actual situation, as aggrieved persons are generally reluctant to lodge complaints out of fear that revealing their identity can draw further stigmatisation. Sometimes they lack the skill or knowledge to lodge and handle complaints. This is not uncommon in Hong Kong where the cultural and social climate is not yet ready for full acceptance of people with mental illness and intellectual disabilities.

Equal opportunities for persons with mental illnesses will remain a major area of work for EOC. In 2001, the EOC had conducted a study of mental health service users’ perception and experience of discrimination in Hong Kong together with the Chinese University of Hong Kong. We found that for many mental health service users, living with social stigma was an overwhelming experience, which in turn eroded their confidence, resulting in low self-esteem, self-stigmatisation and avoidance of social activities.

To protect the rights of these persons, the EOC has long been an advocate for a mental health council. We believe that a multi-disciplinary and cross sectoral body to coordinate policy formulation, program delivery, research and public education in the area of mental health and to safeguard the rights of those with mental illness will yield long-term benefits for the Hong Kong community and those with mental illness.

Public Attitudes

In August 2000, a 15-year-old autistic boy who was not carrying any identity documents was sent by the Immigration Department to Mainland China under a mistaken belief that he came from the Mainland and should return there^[14]. The boy has been missing since then to the great anguish of his mother. This tragic incident was a classic example of how very often people are unaware of the special needs of those with disabilities, and this ignorance can diminish the fundamental rights of people with disabilities. In response to this incident, we worked with the Immigration Department in the following year to assess the level of knowledge and sensitivity of immigration officers towards people with disabilities. The study was a forward-looking exercise aimed at mainstreaming equal opportunities in the Immigration Department’s operation.

When all attempts at conciliation fail, the EOC will take legal action to protect the rights of people with disabilities. This was what we did in 2000 in a case of harassment and vilification against patients and health workers of a health centre, which catered for AIDS patients. The case was finally settled out of court in 2002. The Centre is now running smoothly and we have witnessed progress in attitudinal change and systemic reforms as a result of our advocacy work and court judgments, one of which is our settlement with two defendants of a neighbouring housing estate. The defendants made unequivocal apologies for harassing staff of the health centre. Upon settlement of the court actions in early 2002, a few residents in the neighbourhood were willing to speak out publicly in support of the clinic. This was a major breakthrough from the days when patients and workers were harassed and vilified by a small but vocal group of residents. While their harassing behaviour was largely due to prejudice and misunderstanding about HIV/AIDS, the anti-discrimination laws helped to change their attitude and induce acceptance.

During the ten years of implementation of the Ordinances, we witnessed some positive changes in social and institutional attitudes toward disability, but there is still a long road ahead. Time and again voices from various disability communities remind us that there is still a lot of work to be done to change pre-existing assumptions and prejudice, which is rooted in ignorance, low expectations and prejudice against people with disabilities.

Prejudicial attitudes towards persons with disabilities are ingrained and ubiquitous. Efforts to effect changes must be inter-sectoral, systematic, sustained, and encompassing elements of empowerment for these individuals. Then, how can we change the negative attitude toward PWDs? This is not an easy question and I cannot say that I am able to give you a perfect solution to the problem. So far our experience in Hong Kong tells us that we must continue to strengthen our public education on the perception of persons with disabilities, we must also improve the visibility of our disabled friends in all aspects of life, and we should empower PWDs to make their own choices and to advocate for themselves. This would and should be a continuing battle for all of us here.

Awareness is the Key

Raising awareness of their basic human rights and their right to be free of discrimination among persons with disabilities is the fundamental work that we should continue working on. Without such awareness, it is extremely difficult to bring about justice and change. Inclusion of disability perspective across all areas of government policy making is another area that we should also be focusing on. Representation of persons with disabilities in the decision and policymaking process in our jurisdiction is still limited at the moment. Empowering persons with disabilities to make their own choice, campaigning for their own rights and speak for their own needs is and should be our long-term goal.

To conclude, I would like to quote from a speech by Franklin D. Roosevelt: “The only limit to our realization of tomorrow will be our doubts of today. Let us move forward with strong and active faith”. In faith, let us all move forward for the best of mankind.

Equal Opportunities Commission

Hong Kong

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^[1] Special Topics Report No. 28, Census and Statistics Department, Hong Kong Special Administrative Region, August 2001

^[2] Art 1(1) of the BORO: The rights recognized in this Bill of Rights shall be enjoyed without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Disability is a personal status which is also protected.

^[3] To harass is to engage in unwelcome conduct on account of another person’s disability in circumstances which a reasonable person would anticipate that the disabled person would be offended, humiliated or intimidated - section 2(6), DDO.

^[4] Vilification is any activity in public to incite hatred towards, serious contempt for, or severe ridicule of, a person with disability - section 46, DDO.

^[5] What constitutes “unjustifiable hardship” depends on a number of factors, including reasonableness of any accommodation to be made available to the PWD; nature of the benefit to the PWD or detriment to the provider of accommodation; and financial burden to be incurred - section 4, DDO.

^[6] An exception is provided for “genuine occupational qualification” - section 12, DDO. Factors to be taken into account include essential nature of the job where such essential nature would be materially different if the job is carried out by a person with a disability; or, nature or location of the establishment makes it impracticable for the job holder to live elsewhere and the only premises available are not properly equipped with accommodation for a PWD and to make alteration would impose unjustifiable hardship.

^[7] The EOC takes a pro-active approach in promotion, working with NGOs, schools, community groups and the business community. It also has a funding program to assist NGOs in running community projects.

^[8] Except for serious vilification, which is made a criminal offence under section 47 of the DDO.

^[9] Judgement delivered on 5 October 2001

^[10] Special Topics Report No. 28, Census and Statistics Department, Hong Kong Special Administrative Region, August 2001

^[11] Ibid

^[12] Example; Trial Placement cum Mentor scheme and placement services provided by the Selective Placement Division, Labour Department

^[13] The World Wide Web Consortium (W3C) is an international consortium where member organizations, a full-time staff and the public work together to develop standards for the World Wide Web. In order for the Web to reach its full potential, the most fundamental Web technologies must be compatible with one another and allow any hardware and software used to access the Web to work together.

^[14] Autism is a broad spectrum of disorders that would affect thoughts, perception and attention. As a result, the autistic boy was unable to communicate effectively with the immigration officers.