HONG KONG LEGISLATIVE COUNCIL － 28 July 1995 6335 OFFICIAL RECORD OF PROCEEDINGS
Friday, 28 July 1995
The Council met at Nine o’clock
PRESENT
THE PRESIDENT
THE HONOURABLE SIR JOHN SWAINE, C.B.E., LL.D., Q.C., J.P.
THE CHIEF SECRETARY
THE HONOURABLE MRS ANSON CHAN, C.B.E., J.P.
THE FINANCIAL SECRETARY
THE HONOURABLE SIR NATHANIEL WILLIAM HAMISH MACLEOD, K.B.E., J.P.
THE ATTORNEY GENERAL
THE HONOURABLE JEREMY FELL MATHEWS, C.M.G., J.P.
THE HONOURABLE ALLEN LEE PENG-FEI, C.B.E., J.P.
THE HONOURABLE MRS SELINA CHOW LIANG SHUK-YEE, O.B.E., J.P. THE HONOURABLE MARTIN LEE CHU-MING, Q.C., J.P.
THE HONOURABLE NGAI SHIU-KIT, O.B.E., J.P.
THE HONOURABLE PANG CHUN-HOI, M.B.E.
THE HONOURABLE SZETO WAH
THE HONOURABLE TAM YIU-CHUNG
THE HONOURABLE ANDREW WONG WANG-FAT, O.B.E., J.P.
THE HONOURABLE LAU WONG-FAT, O.B.E., J.P.
THE HONOURABLE EDWARD HO SING-TIN, O.B.E., J.P.
THE HONOURABLE RONALD JOSEPH ARCULLI, O.B.E., J.P.
THE HONOURABLE MARTIN GILBERT BARROW, O.B.E., J.P.
THE HONOURABLE MRS PEGGY LAM, O.B.E., J.P.
6336 HONG KONG LEGISLATIVE COUNCIL － 28 July 1995 THE HONOURABLE MRS MIRIAM LAU KIN-YEE, O.B.E., J.P. THE HONOURABLE LAU WAH-SUM, O.B.E., J.P.
DR THE HONOURABLE LEONG CHE-HUNG, O.B.E., J.P. THE HONOURABLE JAMES DAVID McGREGOR, O.B.E., I.S.O., J.P. THE HONOURABLE MRS ELSIE TU, C.B.E.
THE HONOURABLE PETER WONG HONG-YUEN, O.B.E., J.P. THE HONOURABLE ALBERT CHAN WAI-YIP
THE HONOURABLE VINCENT CHENG HOI-CHUEN, O.B.E., J.P. THE HONOURABLE MOSES CHENG MO-CHI
THE HONOURABLE MARVIN CHEUNG KIN-TUNG, O.B.E., J.P. THE HONOURABLE CHEUNG MAN-KWONG
THE HONOURABLE CHIM PUI-CHUNG
REV THE HONOURABLE FUNG CHI-WOOD
THE HONOURABLE FREDERICK FUNG KIN-KEE
THE HONOURABLE TIMOTHY HA WING-HO, M.B.E., J.P. THE HONOURABLE MICHAEL HO MUN-KA
DR THE HONOURABLE HUANG CHEN-YA
THE HONOURABLE SIMON IP SIK-ON, O.B.E., J.P. DR THE HONOURABLE LAM KUI-CHUN
DR THE HONOURABLE CONRAD LAM KUI-SHING, J.P. THE HONOURABLE EMILY LAU WAI-HING
THE HONOURABLE LEE WING-TAT
THE HONOURABLE ERIC LI KA-CHEUNG, J.P.
THE HONOURABLE FRED LI WAH-MING
THE HONOURABLE MAN SAI-CHEONG
THE HONOURABLE STEVEN POON KWOK-LIM
HONG KONG LEGISLATIVE COUNCIL － 28 July 1995 6337 THE HONOURABLE HENRY TANG YING-YEN, J.P.
THE HONOURABLE TIK CHI-YUEN
THE HONOURABLE JAMES TO KUN-SUN
DR THE HONOURABLE SAMUEL WONG PING-WAI, M.B.E., J.P. DR THE HONOURABLE PHILIP WONG YU-HONG
DR THE HONOURABLE YEUNG SUM
THE HONOURABLE HOWARD YOUNG, J.P.
THE HONOURABLE ZACHARY WONG WAI-YIN
DR THE HONOURABLE TANG SIU-TONG, J.P.
THE HONOURABLE CHRISTINE LOH KUNG-WAI
THE HONOURABLE ROGER LUK KOON-HOO
THE HONOURABLE ANNA WU HUNG-YUK
THE HONOURABLE JAMES TIEN PEI-CHUN, O.B.E., J.P.
THE HONOURABLE ALFRED TSO SHIU-WAI
THE HONOURABLE LEE CHEUK-YAN
ABSENT
THE HONOURABLE HUI YIN-FAT, O.B.E., J.P.
DR THE HONOURABLE DAVID LI KWOK-PO, O.B.E., LL.D., J.P.
IN ATTENDANCE
MR MICHAEL LEUNG MAN-KIN, C.B.E., J.P.
SECRETARY FOR EDUCATION AND MANPOWER
MR MICHAEL SUEN MING-YEUNG, C.B.E., J.P.
SECRETARY FOR HOME AFFAIRS
MR RONALD JAMES BLAKE, J.P.
SECRETARY FOR WORKS
6338 HONG KONG LEGISLATIVE COUNCIL － 28 July 1995
MR JAMES SO YIU-CHO, O.B.E., J.P.
SECRETARY FOR RECREATION AND CULTURE
MR HAIDER HATIM TYEBJEE BARMA, I.S.O., J.P. SECRETARY FOR TRANSPORT
MR NICHOLAS NG WING-FUI, J.P.
SECRETARY FOR CONSTITUTIONAL AFFAIRS
MR MICHAEL DAVID CARTLAND, J.P.
SECRETARY FOR FINANCIAL SERVICES
MR DOMINIC WONG SHING-WAH, O.B.E., J.P.
SECRETARY FOR HOUSING
MR PETER LAI HING-LING, J.P.
SECRETARY FOR SECURITY
MR BOWEN LEUNG PO-WING, J.P.
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS
MR KWONG KI-CHI, J.P.
SECRETARY FOR THE TREASURY
MRS REGINA IP LAU SUK-YEE, J.P.
SECRETARY FOR TRADE AND INDUSTRY
MRS SHELLEY LAU LEE LAI-KUEN, J.P.
SECRETARY FOR HEALTH AND WELFARE
THE CLERK TO THE LEGISLATIVE COUNCIL
MR RICKY FUNG CHOI-CHEUNG
THE DEPUTY SECRETARY GENERAL
MISS PAULINE NG MAN-WAH
HONG KONG LEGISLATIVE COUNCIL － 28 July 1995 6339
PRESIDENT: Before we start, I think it would be helpful if I were to announce the arrangements for today. We have not expected to spill over into Friday with so much business left undone. As Members know, we do have an end of term dinner tonight which would be very costly to cancel. We shall go ahead with the dinner starting at about 7.30 pm, but we will compress the dinner as much as possible with no speeches, and it is expected that we ought to be able to finish dinner within about an hour and a quarter, which will be tantamount to the normal dinner break at any event. So dinner will take place upstairs as arranged, but it will be compressed to the shortest time practicable. I regret to say that there will be no lunch break, and what will be provided for the benefit of Members is snacks in the Ante Chamber so that in the event of voting, Members will be able to make it to the Chamber when the division bell rings. The Deputy has kindly consented from time to time to take the Chair when I take a short break. These breaks will occur when it is clear that there will be no voting. So we shall have to plough through the whole of the day breaking only for supper at about 7.30 pm. We shall go on as long as it is humanly possible tonight with a view to trying to finish the Order Paper today. But if that proves humanly impossible, we shall resume tomorrow morning. But I would please urge upon Members the need to get the outstanding business finished with the minimum of delay, and I would please urge Members to keep their speeches down to the essentials, that is, to speak at the Committee stage of this Bill and to speak on the remaining Bills on matters which are strictly relevant to the matter under debate.
Committee Stage of Bill
Council went into Committee.
DISABILITY DISCRIMINATION BILL
Clauses 5, 14, 37, 40, 41, 42, 45, 46, 49, 53, 57, 58, 61, 64, 68, 69, 72 to 75, 77, 78, 81, 84 and 85 were agreed to.
Clauses 1, 3, 4, 6 to 10, 12, 13, 15 to 19, 21 to 36, 38, 39, 43, 44, 47, 48, 50, 51, 52, 55, 56, 59, 63, 67, 71, 82 and 83
SECRETARY FOR HEALTH AND WELFARE: Mr Chairman, I move that the clauses specified be amended as set out in the paper circulated to Members.
As I mentioned in my earlier speech, many disability groups feel that the Chinese term for disability“弱能”is not one they are happy with. In view of their concerns, the Administration has proposed 53 amendments to different clauses of the Bill, some of which are specified here, to amend the term to“殘疾”.
6340 HONG KONG LEGISLATIVE COUNCIL － 28 July 1995
Clause 7 covers discrimination by way of victimization of a person who, for example, has brought proceedings against the discriminator. Our amendment will extend the definition of victimization to cover circumstances where a person is victimized because of proceedings and other actions taken by another person under the Bill. In other words, a person with a disability who has been discriminated against but has not brought proceedings himself will also be protected from any victimization which may arise from such proceedings having been brought by another person.
The Chinese text of clauses 7, 19, 21, 23, 27, 28 and 82 are amended to correct errors in the gazetted Chinese version of the Bill or to bring some of the Chinese terms used in line with those used in other Ordinances.
Clause 9 is a technical amendment to improve the definition of “therapeutic device”, “palliative device” and “auxiliary aid”.
Our amendments to clause 12(3)(b) stem from our acceptance of the suggestions made by the Bills Committee to improve the provisions relating to genuine occupational qualification. The amendments mean that in addition to an employer not being exempt if the alteration of premises he provides for employees would not impose unjustifiable hardship on him, the employer would also not be exempt if the disabled job applicant proposed to make the necessary alterations himself and undertook to restore the premises to their original condition on leaving. The intention is to make the exemptions provided under clause 12 consistent with similar exemptions provided under clauses 26 and 27 relating to the disposal and management of premises.
Another amendment to clause 12 is to delete subclauses 3(c), (d) and (f) as the exemptions provided in these three subclauses are already covered by the more general exemption of the inherent requirements of the job.
Clause 34 covers harassment in educational establishments. The provision protects, for example, a student with a disability from harassment by his teacher. Our amendment would extend this protection to the less likely but possible situation of a student harassing a teacher with a disability.
Clause 24 makes it unlawful for a person to discriminate against another person with a disability in relation to the provision of goods, services and facilities. A person is exempt only if he can prove that the provision of goods, services and facilities to people with a disability would impose unjustifiable hardship on him and, in the case of facilities, that the facilities are so designed or constructed as to be inaccessible to people with a disability. However, as some facilities are not physical in nature, for example, some banking facilities, the second exemption which involves the concept of design and construction may not be applicable. We therefore propose this technical amendment to limit the second exemption to those facilities which are physical in nature.
HONG KONG LEGISLATIVE COUNCIL － 28 July 1995 6341
The amendment to clause 25 is to ensure the conduct of public examinations is covered under facilities for education.
Clause 29 exempts voluntary bodies, defined as those whose activities are carried on otherwise than for profit, from restricting their membership to persons without a disability and providing benefits, services and facilities to them. Our intention is to preserve the freedom of these organizations, who raise their own money, to choose their own members and to provide them with benefits, but as drafted, it would be technically possible for voluntary bodies subvented by the Government to take advantage of this provision to provide services in a discriminatory way. Although this is highly unlikely, our amendment will make it clear that it would be unlawful for voluntary bodies fully or partially funded by the Government to act in this way.
Although also unlikely to occur in practice, the clauses drafted would also permit a voluntary body to exclude people with a disability from membership, even though they met the membership criteria. In my remarks on the resumption of the Second Reading, I gave the example of excluding from an organization like MENSA a person with the necessary IQ on the basis that he had a disability. Our amendment will prevent organizations from placing such restrictions on membership unless they are reasonable, having regard to the main object of the body concerned.
Clause 30(1) exempts hospitals or reception centres for persons requiring special care other than those with a disability from the clauses relating to the provision of goods, services and facilities, and the disposal or management of premises. Members of the Bills Committee and disability groups believe that it is precisely those with disabilities who often have to rely on hospitals for care and treatment. These institutions should not, therefore, be exempt. We agree and are moving an amendment to delete this subclause.
Clause 39 makes it unlawful for a person to request a disabled person to provide any information if it is to be used for the purpose of doing a discriminatory act and if similar requests are not made of persons without a disability.
Disability groups, particularly those representing people with HIV or AIDS, are concerned about this clause, especially when linked to employment. They are afraid that HIV testing of all applicants for a job, which may be lawful under the existing provision, would in effect deter people with HIV or AIDS from applying for jobs.
To address their concerns, our amendment would make it unlawful for an employer to require a job applicant to provide information of a medical nature for the purposes of doing an unlawful act in relation to employment, unless he can prove that such a request is necessary, to determine, for example, whether the applicant is able to carry out the inherent requirements of the job.
6342 HONG KONG LEGISLATIVE COUNCIL － 28 July 1995
Clause 56 exempts acts done for the purpose of safeguarding the security of Hong Kong. The intention is to give disciplinary forces more flexibility in dealing with emergencies. However, the Administration agrees, as Members of the Bills Committee and disability groups have suggested, that the exemption is not necessary in the context of disability. Our amendment will therefore delete the clause.
Our amendment to clause 59 is to define what we mean by “infectious diseases”. The definition will include those diseases referred to in the First Schedule of the Quarantine and Prevention of Disease Ordinance and communicable diseases as specified by the Director of Health. The Director of Health and others will have reference to these diseases when they take action, which might otherwise be discriminatory to safeguard public health.
The amendment to clause 63 is to empower the Secretary for Health and Welfare to specify the bodies which the Commission should consult in the drawing up of codes of practice to ensure that the views of disability groups are taken into account in the process.
The amendments to clause 71 will enable the Equal Opportunities Commission to issue enforcement notices requiring a person to cease specific practices that led to the unlawful discrimination concerned and to delete the requirement for the Commission to give the person both notice and an opportunity of making representations before he serves an enforcement notice on him.
Clause 82 requires a public authority which has the power to approve building, the Building Authority for example, to ensure that reasonable access for people with a disability is provided in all new buildings, taking into account whether it is practicable to provide such access and whether doing so would provide unjustifiable hardship on the developer concerned. The key words here, of course, are “practicable” and “unjustifiable hardship”. While “unjustifiable hardship” is already clearly defined in the Bill, “practicable” is not. Our amendment will specify in a non-exhaustive way, that the physical location and the immediate environs of a building should be taken into account in considering whether providing access for people with a disability is practicable in a particular case. It is, for example, practicable and reasonable to provide ramps in a building located in a normal street, but it may not if the building were located in a stepped street, where people in wheelchairs could not gain access.
Finally, our amendment to clause 83 is prompted by the concerns expressed by the Bills Committee and disability groups that people with a disability and those with a mental impairment in particular, are potentially more vulnerable in the process of giving information in the context of formal investigations conducted by the Equal Opportunities Commission. Our amendment will enable the Commission to make any arrangement necessary to assist any person with a disability to attend before it, and provide information
HONG KONG LEGISLATIVE COUNCIL － 28 July 1995 6343
pursuant to section 66. This gives the Commission power to obtain information for the purposes of a formal investigation.
Proposed amendments
Clause 1
That clause 1 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
Clause 3
That clause 3 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
Clause 4
That clause 4 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
Clause 6
That clause 6 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
Clause 7
That clause 7 be amended －
(a) in the heading, by deleting“不公平對待者”and substituting“使㆟受 害”.
(b) in subclause (1), by deleting“受不公平對待者”wherever it appears and substituting“受害㆟士”.
That clause 7(1) be amended －
(a) by adding “or any other person (“the third person”)” after “that the person victimised”.
(b) by adding “or the third person, as the case may be,” after -
(i) “knows the person victimised”;
(ii) “suspects the person victimised”.
6344 HONG KONG LEGISLATIVE COUNCIL － 28 July 1995 Clause 8
That clause 8 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
Clause 9
That clause 9 be amended －
(a) in paragraph (a), by deleting “possesses -” and subparagraphs (i) and (ii) and substituting “possesses a palliative or therapeutic device or auxiliary aid”.
(b) in paragraph (b), by deleting everything after “, of” and substituting “such a palliative or therapeutic device or auxiliary aid.”.
That clause 9 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
Clause 10
That clause 10 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
Clause 12
That clause 12 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
That clause 12(3) be amended －
(a) by deleting paragraphs (c), (d) and (f).
(b) in paragraph (e), by deleting “; or” and substituting a full stop. That clause 12(3)(b) be amended －
(a) by adding “, subject to subsection (4A),” before “are not”.
(b) by deleting the semicolon and substituting “where the alteration of those premises to be so equipped would impose an unjustifiable hardship on the employer; or”.
That clause 12 be amended, by adding －
HONG KONG LEGISLATIVE COUNCIL － 28 July 1995 6345
“(4A) Paragraph (b) of subsection (3) shall not apply in relation to the filling of a vacancy where the applicant for that vacancy, being a person with a disability, proposes to the employer that, on appointment to the vacancy, he will make reasonable alterations to that part of the premises to be occupied by him as accommodation if -
(a) the applicant undertakes to restore the premises to their
condition before alteration on leaving the premises;
(b) in all the circumstances it is likely that the applicant
will perform the undertaking;
(c) in all the circumstances, the action required to restore
the premises to their condition before alteration is
reasonably practicable;
(d) the alteration is at that applicant’s expense; and
(e) the alteration does not involve alteration of other
premises occupied by any other person.”.
Clause 13
That clause 13 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
Clause 15
That clause 15 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
Clause 16
That clause 16 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
Clause 17
That clause 17 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
6346 HONG KONG LEGISLATIVE COUNCIL － 28 July 1995 Clause 18
That clause 18 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
Clause 19
That clause 19 be amended －
(a) in the heading, by deleting“僱傭㆗介行”and substituting“職業介紹 所”.
(b) by deleting“僱傭㆗介行”wherever it appears and substituting“職業介紹 所”.
That clause 19 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
Clause 21
That clause 21 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
That clause 21(4)(a) be amended, by deleting“僱傭㆗介行”and substituting“職業介紹 所”.
That clause 21(4)(b) be amended, by deleting“僱傭㆗介行”and substituting“職業介紹 所”.
Clause 22
That clause 22 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
Clause 23
That clause 23 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
That clause 23(2)(b) be amended －
(a) by deleting“更改”and substituting“改動”.
(b) by deleting“做”and substituting“造”.
HONG KONG LEGISLATIVE COUNCIL － 28 July 1995 6347 Clause 24
That clause 24 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
That clause 24(2)(b) be amended, by adding “and to the extent that those facilities are physical in nature,” before “those”.
Clause 25
That clause 25(d) be amended, by adding “, including the conduct of public examinations” after “education”.
Clause 26
That clause 26 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
Clause 27
That clause 27 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
That clause 27(2)(c) be amended, by deleting“改建”wherever it appears and substituting “改動”.
That clause 27(3)(a)(ii) be amended, by adding“共住”before“家庭成員”.
Clause 28
That clause 28(1)(b) be amended, by adding“共住”before“家庭成員”. That clause 28(2)(a) be amended, by adding“共住”before“家庭成員”. That clause 28(2)(b) be amended, by adding“共住”before“家庭成員”.
6348 HONG KONG LEGISLATIVE COUNCIL － 28 July 1995
Clause 29
That clause 29(1) be amended, by deleting “This” and substituting “Subject to subsection (5), this”.
That clause 29(2)(a) be amended, by adding “where such restriction is reasonable having regard to the main object of the body” before “; or”.
That clause 29 be amended, by adding －
“(5) This section shall not apply to a body whose recurrent expenditure is funded wholly or in part by the Government.”.
That clause 29 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
Clause 30
That clause 30 be amended, by deleting subclause (1).
That clause 30 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
Clause 31
That clause 31 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
Clause 32
That clause 32 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
Clause 33
That clause 33 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
Clause 34
That clause 34 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
HONG KONG LEGISLATIVE COUNCIL － 28 July 1995 6349 That clause 34 be amended, by adding －
“(3) It is unlawful for a person who is seeking to be, or who is, a student of an educational establishment to harass a person with a disability -
(a) who is, or is a member of, the responsible body for; or
(b) who is a member of the staff of,
the establishment.”.
Clause 35
That clause 35 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
Clause 36
That clause 36 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
Clause 38
That clause 38 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
Clause 39
That clause 39 be amended －
(a) by renumbering the clause as clause 39(1).
(b) by adding -
“(2) Subject to subsection (3), if, because of section 11(1),
it would be unlawful, in particular circumstances, for a person to discriminate against another person, in doing a particular act, it is unlawful for the first-mentioned person to request or require that other person to provide information of a medical nature (whether by completing a form or otherwise) in connection with or for the purposes of the doing of the act.
6350 HONG KONG LEGISLATIVE COUNCIL － 28 July 1995
(3) Nothing in subsection (2) shall render it unlawful for a
person to request or require another person to provide information of a medical nature that is necessary to determine if that other person would be unable to carry out the inherent requirements of the job or would require services or facilities that are not required by persons without a disability.”.
That clause 39 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
Clause 43
That clause 43 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
Clause 44
That clause 44 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
Clause 47
That clause 47 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
Clause 48
That clause 48 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
Clause 50
That clause 50 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
Clause 51
That clause 51 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
HONG KONG LEGISLATIVE COUNCIL － 28 July 1995 6351 Clause 52
That clause 52 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
Clause 55
That clause 55(1) be amended, by deleting “within the meaning of section 54”.
Clause 56
That clause 56 be amended, by deleting the clause.
Clause 59
That clause 59 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
That clause 59 be amended, by adding －
“(3) In this section, “infectious disease”（傳染病）includes -
(a) any disease specified in the First Schedule to the Quarantine and Prevention of Disease Ordinance (Cap. 141); and
(b) any communicable disease specified by the Director of Health by notice in the Gazette.”.
Clause 63
That clause 63 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
That clause 63(3) be amended, by adding “, including any of the associations, organizations, associations of organizations or bodies specified by the Secretary for Health and Welfare by notice in the Gazette” at the end.
Clause 67
That clause 67 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
6352 HONG KONG LEGISLATIVE COUNCIL － 28 July 1995 Clause 71
That clause 71(2)(a) be amended, by adding after “acts” －
“(which may include discontinuing or changing any of his practices or other arrangements which occasioned those acts, in particular to avoid any repetition thereof)”.
That clause 71 be amended, by deleting subclause (5).
Clause 82
That clause 82 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
That clause 82(1) be amended, by adding“、改動”after“改建”.
That clause 82(2)(a) be amended, by adding “, bearing in mind the physical location and immediate environs of the building” after “building”.
Clause 83
That clause 83(1) be amended, by adding before paragraph (a) －
“(aa) to enable the Commission to make any arrangements necessary to assist any person with a disability to attend before it and provide information pursuant to section 66;”.
Question on the amendments proposed.
DR LEONG CHE-HUNG: Mr Chairman, I rise to thank the Health and Welfare Branch for their prompt response and willingness to amend the clauses as specified to really remove the sensitive issues from the original Bill, to make it into a better Bill.
I would like to address in particular clause 39 by which, through its amendment, will give more reassurance for the disabled in relation to the requirement for information. The amended clause will make it unlawful for employers to request medical information unless it was necessary to determine whether they could carry out the intended requirements of the job.
Mr Chairman, putting it simply, in the case of AIDS testing, compulsory testing of such is illegal unless there is proof of job nature relationship, and this I also have to thank the Administration on behalf of the Coalition of AIDS Organizations against Discrimination.
HONG KONG LEGISLATIVE COUNCIL － 28 July 1995 6353
DR YEUNG SUM (in Cantonese): Mr Chairman, I am especially pleased that the Administration has accepted our proposal to amend“弱能”as“殘疾”, because many people, though disabled, are not weak in their minds. By making the amendment, the Administration may change the society’s perception of the disabled. Thank you, Mr Chairman.
Question on the amendments put and agreed to.
Question on clauses 1, 3, 4, 6 to 10, 12, 13, 15 to 19, 21 to 36, 38, 39, 43, 44, 47, 48, 50, 51, 52, 55, 56, 59, 63, 67, 71, 82 and 83, as amended, proposed, put and agreed to.
SECRETARY FOR HEALTH AND WELFARE: Mr Chairman, as Standing Order 46(4) and (5) stipulate that any proposed new clause shall be considered after the clauses of a Bill have been disposed of, may I seek leave to move that Standing Order 46(4) and (5) be suspended in order that new clause 19A may be considered ahead of the amendments to clause 2.
Council then resumed.
PRESIDENT: Secretary for Health and Welfare, you have my consent.
SECRETARY FOR HEALTH AND WELFARE: Mr President, I move that Standing Order 46(4) and (5) be suspended to enable the Committee of the whole Council to consider new clause 19A before the amendments to clause 2.
Question proposed, put and agreed to.
Council went into Committee.
New clause 19A Discrimination against
commission agents
Clause read the First time and ordered to be set down for Second Reading pursuant to Standing Order 46(6).
SECRETARY FOR HEALTH AND WELFARE: Mr Chairman, I move that new clause 19A as set out under my name in the paper circulated to Members be read the Second time.
6354 HONG KONG LEGISLATIVE COUNCIL － 28 July 1995
New clause 19A will make it unlawful to discriminate against commission agents on the ground of disability in the context of employment. Usually, commission agents would be regarded as employees or contract workers and would therefore be covered by the existing provisions of the Bill. However, there may be circumstances where a commission agent worked so independently that he or she may not be so regarded. Our new clause will make it clear that the commission agents are covered regardless of the circumstances of their employment.
Question on the Second Reading of the clause proposed, put and agreed to. Clause read the Second time.
SECRETARY FOR HEALTH AND WELFARE: Mr Chairman, I move that new clause 19A be added to the Bill.
Proposed addition
New clause 19A
That the Bill be amended, by adding －
“19A. Discrimination against commission agents
(1) This section applies to any work for a person (“the principal”) which is available for doing by individuals (“commission agents”) as the agents of the principal and who are remunerated, whether in whole or in part, by commission.
(2) It is unlawful for the principal, in relation to work to which this section applies, to discriminate against a person with a disability who is a commission agent -
(a) in the terms on which he allows the person with a
disability to do that work;
(b) by not allowing that person to do it or continue to do it;
(c) in the way he affords that person access to any benefits,
services or facilities or by refusing or deliberately
omitting to afford that person access to them; or
HONG KONG LEGISLATIVE COUNCIL － 28 July 1995 6355 (d) by subjecting that person to any other detriment.
(3) The principal does not contravene subsection (2)(b) by doing any act in relation to a person with a disability at a time when if the work were to be done by a person taken into his employment being a person without a disability would be a genuine occupational qualification for the job.
(4) Subsection (2)(b) shall not apply to a principal who discriminates against a commission agent with a disability, if taking into account -
(a) the commission agent’s past training, qualifications
and experience relevant to working as a commission
agent;
(b) where the person is already working for the principal
as a commission agent, the commission agent’s
performance as a commission agent; and
(c) all other relevant factors that it is reasonable to so take
into the account,
the commission agent because of the commission agent’s disability -
(i) would be unable to carry out the inherent requirements
of a commission agent; or
(ii) would, in order to carry out those requirements, require
services or facilities that are not required by persons
without a disability and the provision of which would
impose an unjustifiable hardship on the principal.
(5) Subsection (2)(c) shall not apply to benefits, services or facilities of any description if the principal is concerned with the provision (for payment or not) of benefits, services or facilities of that description to the public, or to a section of the public to which the person with a disability belongs, unless that provision differs in a material respect from the provision of the benefits, services or facilities by the principal to his commission agents.
Question on the addition of the new clause proposed, put and agreed to.
6356 HONG KONG LEGISLATIVE COUNCIL － 28 July 1995 Clause 2
SECRETARY FOR HEALTH AND WELFARE: Mr Chairman, I move that clause 2 be amended as set out under my name in the paper circulated to Members.
We propose two amendments to clause 2(1). The first is to cover commission agents in the protection offered to people with a disability in the context of employment. The second is a technical amendment to improve the definition of “therapeutic device”, “palliative device” and “auxiliary aid”.
The two additional subclauses 2(9) and 2(10) will add the definition of “existing statutory provision” to the interpretation section. The definition currently provided for in clause 54 will be deleted.
Proposed amendment
Clause 2
That clause 2 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
That clause 2(1) be amended －
(a) by deleting the definition of “auxiliary aid”.
(b) in the definition of “palliative or therapeutic device” -
(i) by adding “or auxiliary aid” after “therapeutic device”;
(ii) by adding“或輔助器材”after“裝置”;
(iii) by adding “or aid” after “a device”.
(c) by adding -
““commission agent”（佣金經紀㆟）means commission agent as construed in accordance with section 19A;”.
That clause 2(1) be amended －
(a) in the definition of “employment agency”, by deleting“僱傭㆗介行”and substituting“職業介紹所”.
(b) in the definition of “disability”, by deleting“弱能”and substituting“殘 疾”.
That clause 2 be amended, by adding －
HONG KONG LEGISLATIVE COUNCIL － 28 July 1995 6357
“(9) Subject to subsection (10), in this Ordinance “existing statutory provision”（現有法例條文）means any provision of -
(a) any Ordinance enacted before this Ordinance was enacted;
(b) any subsidiary legislation made -
(i) under an Ordinance enacted before this Ordinance was
enacted; and
(ii) before, on or after this Ordinance was enacted.
(10) Where an Ordinance enacted after this Ordinance was enacted re enacts (with or without modifications) a provision of an Ordinance enacted before this Ordinance was enacted, then that provision as re-enacted shall be treated for the purposes of subsection (9) as if it continued to be contained in an Ordinance enacted before this Ordinance was enacted.”.
Question on the amendment proposed, put and agreed to.
DR LEONG CHE-HUNG: Mr Chairman, I move that clause 2 be further amended as set out under my name in the paper circulated to Members. And I have to say that I am moving on behalf of the Bills Committee and also myself because I do not have to say I do not have a schizophrenic personality.
The proposed amendment to clause 2 defines relevant international instruments and relevant international obligations. The new definitions specify which of the international instruments and obligations applied to Hong Kong are relevant to this Bill, such as the United Nations Declaration on the Rights of Disabled Person and the International Covenant on Civil and Political Rights, as they relate to disability discrimination.
Mr Chairman, many Members of this Council said yesterday that law alone is not enough and education is essential. To give effect of the Bill, if enacted into law, with the international obligations and instruments will no doubt help in this direction.
Mr Chairman, this amendment should also be considered together with the Bills Committee proposed amendment to clause 60, which can only be moved if this amendment is agreed. The amendment to clause 60 gives two new functions to the Equal Opportunities Commission (EOC).
6358 HONG KONG LEGISLATIVE COUNCIL － 28 July 1995
Firstly, the new subclause 60(1A)(a) gives the EOC an optional function of promoting observation of relevant international instruments and obligations. Despite apparent breath, the EOC’s functions are limited to discrimination as defined in the Disability Discrimination Bill. The Bills Committee considered that in its role other than law enforcement such as research, promotion and conciliation, the EOC should be clearly empowered to address any matter connected with discrimination under the broad international non-discriminatory standards.
Secondly, the new subclause 60(1A)(b) gives the EOC power to examine any proposed legislation that it considers may affect equal opportunity and report the results to the legislation sponsor. The subclause is to give the EOC an express statutory role in respect of the proposed legislation. Similar provisions are provided, Mr Chairman, in the Personal Data Privacy Bill.
Proposed amendment
Clause 2
That clause 2 be amended －
(a) in subclause (1), by adding -
““relevant international instruments”（有關國際文書）means -
(a) the Standard Rules on the Equalization of Opportunities
for Persons with Disabilities adopted by the General
Assembly of the United Nations on 20 December 1993;
(b) the Declaration on the Rights of Disabled Persons
proclaimed by the General Assembly of the United
Nations on 9 December 1975; and
(c) the Declaration on the Rights of Mentally Retarded
Persons proclaimed by the General Assembly of the
United Nations on 20 December 1971;
““relevant international obligations”（有關國際義務）means obligations applicable to Hong Kong under international treaties to take appropriate steps, including legislative measures, to eliminate discrimination, on the ground of disability, in particular obligations under the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, as applied to Hong Kong;”.
HONG KONG LEGISLATIVE COUNCIL － 28 July 1995 6359 (b) by adding -
“(9) For the purposes of the definition of “relevant
international obligations”, “discrimination” （歧視） means discrimination within the meaning of the treaties referred to in that definition and, although including every form of discrimination falling within section 6, 7, 9 or 10, is not limited to discrimination so falling.”.
Question on the amendment proposed.
MS ANNA WU: Thank you, Mr Chairman. This amendment adds two new definitions for purposes of the new functions given to the Commission by the Bills Committee’s amendment to clause 60, which Dr LEONG has referred to. Taken together, the instruments and obligations listed in the new definitions amount to an international charter of the rights of people with disabilities.
I want to make it very clear to Members that all of the listed instruments and obligations are already applicable to Hong Kong. Nothing is being brought into Hong Kong law through the back door here. The amendments merely list for clarity and convenience which of Hong Kong’s international obligations are directly relevant to disabled persons.
The Administration opposes the addition of any reference to international standards in the functions assigned to the Commission. The Administration suggests that the international standards are vague and that the Commission would do better to focus on discouraging unlawful acts against the disabled as defined in much greater detail by the Bill.
The Commission should do more than merely discourage unlawful acts against the disabled, however. It should also endeavour to promote the positive recognition and development of the rights and equality of persons with disabilities. The various international standards are formulated with regard not only to law enforcement but also to more general policy and promotional considerations, and provide a better blueprint for positive promotional activity than to the negative legal prohibitions contained in the Bill itself.
The Administration correctly observes that both the proposed new functions can already be undertaken by the Commission under authority of its broader existing functions. The Administration’s observation is irrelevant, however. Many of the functions that the Administration put into clause 60 could also be undertaken without express authority, for example, function 1(e): “To keep the working of the Ordinance under review and to submit amendment proposals to the Governor”, which again Dr LEONG has referred to. The Administration put that function in the Bill because it considered the function important enough to warrant special mention, not because of any legal necessity.
6360 HONG KONG LEGISLATIVE COUNCIL － 28 July 1995
The two new functions that this amendment adds are at least as important as that one, and should also be expressly authorized by the legislation. Express mention can make a difference. For example, although the Commission could examine any legislation it chooses anyway, the status of his recommendation will be much higher if they are made pursuant to an express statutory power. The Administration has not suggested any real reason to vote against the proposed amendment. I do not understand why the Administration shies away from any reference to the international standards concerning equal opportunity. In its own equal opportunity legislation, there is nothing legally irregular about such reference to international instruments.
As I mentioned previously in connection with the Sex Discrimination Ordinance, at least six Ordinances enacted in the last six months either refer to or expressly incorporate international standards. I would add that the International Covenant on Civil and Political Rights is expressly referred to in the Legal Aid Ordinance and elsewhere in our laws. The Bill of Rights itself is a verbatim repeat of the International Covenant on Civil and Political Rights. I hope the Administration is not suggesting that the Bill of Rights is itself too vague for enforcement.
Paragraph 15.39 of the 1992 Green Paper on Rehabilitation Policies and Services in fact refers to the need to have a comprehensive review which should include examination of the effect of the Bill of Rights upon disabled persons and the need to develop the various international conventions and declarations dealing with the rights and needs of disabled persons. Reference to treaties and covenants seem to be desirable and necessary.
There is no doubt that, when the Administration makes future reports to various United Nations committees, it will cite this Bill and the Commission’s enforcement efforts under it as partial fulfilment of several international obligations that are listed by this amendment. It seems only fair and appropriate that those obligations be expressly mentioned in the Bill itself.
Mr Chairman, I urge Members to accept and endorse this amendment. Thank you.
SECRETARY FOR HEALTH AND WELFARE: Mr Chairman, in answer to Members’ comments I would like to point out that the proposed amendments are not relevant to the existing Bill as the Bill really does not refer to international treaties and instruments, as mentioned under the present amendments.
These amendments are really introduced for the purpose of another amendment to be moved by Dr the Honourable LEONG Che-hung to empower the Equal Opportunities Commission to promote the understanding, acceptance and public discussion of relevant international obligations and standards contained in the instruments, and to examine any proposed legislation that it
HONG KONG LEGISLATIVE COUNCIL － 28 July 1995 6361
considers may affect the quality of opportunity and acceptance of the same international obligations and standards.
As Members know, anti-discrimination legislation is a relatively new area the whole world over. In the Administration’s view and to assure the Honourable Ms Anna WU, the Equal Opportunities Commission will have all the powers necessary to focus on promoting public understanding and acceptance of this Bill and its requirements, which will have an important impact on our community than on more general international instruments. Moreover, as I explained earlier in my Second Reading speech, nothing in this Bill prevents the Commission from promoting public discussion of international instruments or examining proposed legislation if it felt it would be helpful to do so.
Mr Chairman, since we consider all the amendments referring to international treaties and instruments as unnecessary and potentially confusing, the Administration opposes this amendment.
Question on Dr LEONG Che-hung’s amendment put.
Voice vote taken.
THE CHAIRMAN said he thought the “Ayes” had it.
Dr LEONG Che-hung claimed a division.
CHAIRMAN: Committee will proceed to a division.
CHAIRMAN: Would Members please proceed to vote?
CHAIRMAN: We seem to be four short of the head count; three short. Are there any queries? If not, the result will now be displayed.
Mr Martin LEE, Mr SZETO Wah, Mr Andrew WONG, Dr LEONG Che-hung, Mr Albert CHAN, Mr CHEUNG Man-kwong, Rev FUNG Chi-wood, Mr Michael HO, Dr HUANG Chen-ya, Dr Conrad LAM, Miss Emily LAU, Mr LEE Wing-tat, Mr Eric LI, Mr Fred LI, Mr MAN Sai-cheong, Mr James TO, Dr YEUNG Sum, Mr WONG Wai-yin, Miss Christine LOH, Ms Anna WU and Mr LEE Cheuk-yan voted for the amendment.
6362 HONG KONG LEGISLATIVE COUNCIL － 28 July 1995
The Chief Secretary, the Attorney General, the Financial Secretary, Mr Allen LEE, Mrs Selina CHOW, Mr NGAI Shiu-kit, Mr TAM Yiu-chung, Mr LAU Wong-fat, Mr Edward HO, Mr Ronald ARCULLI, Mrs Peggy LAM, Mrs Miriam LAU, Mr LAU Wah-sum, Mr Jimmy McGREGOR, Mrs Elsie TU, Mr Peter WONG, Mr Vincent CHENG, Mr Moses CHENG, Mr Marvin CHEUNG, Mr Timothy HA, Dr LAM Kui-chun, Mr Steven POON, Dr Samuel WONG, Dr Philip WONG, Mr Howard YOUNG, Dr TANG Siu-tong, Mr Roger LUK and Mr James TIEN voted against the amendment.
THE CHAIRMAN announced that there were 21 votes in favour of the amendment and 28 votes against it. He therefore declared that the amendment was negatived.
Question on clause 2, as amended, proposed, put and agreed to.
Clause 11
SECRETARY FOR HEALTH AND WELFARE: Mr Chairman I move the amendments to clause 11, except the amendment to subclause (5) of clause 11, as set out under my name in the paper circulated to Members.
As drafted, clause 11(2) makes it unlawful for a person to discriminate against an employee with a disability by, for example, dismissing him or her or subjecting him or her to any other detriment. To bring the subclause into line with that on job applicants, we propose to amend it to make it also unlawful for an employer to discriminate against employees in the terms of employment he affords them.
Proposed amendment
Clause 11
That clause 11 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
That clause 11(2)(a) be amended, by deleting “; or” and substituting a semicolon. That clause 11(2) be amended, by adding －
“(aa) in the terms of employment he affords that person; or”
Question on the amendment proposed, put and agreed to.
HONG KONG LEGISLATIVE COUNCIL － 28 July 1995 6363
CHAIRMAN: Mr Fred LI has given notice to move amendments to subclauses (3), (5), (6) and (7) of clause 11. The Secretary for Health and Welfare has also given notice to move an amendment to subclause (5) of clause 11. I will call upon Mr Fred LI to move his amendments first in accordance with Standing Order 25(4) and 46(2).
MR FRED LI (in Cantonese): Mr Chairman, I move that clauses 11(3), (5), (6) and (7) be amended as set out under my name in the paper circulated to Members. These are very simple amendments, mainly on whether those firms with less than five employees should be exempted for a certain grace period. There are definite controversies over this point.
As the spokesperson of the Democratic Party on welfare policies, I propose the amendments of this Bill, which are made in response to the requests raised in the past few days to all the Members by the Hong Kong Society for Rehabilitation, the Rehabilitation Department of the Hong Kong Council of Social Service and all those who are involved in rehabilitation. We basically welcome this Disability Discrimination Bill, which is something we have been waiting for a very long time. However, in respect of protecting the disabled so that they can enjoy equal opportunity in employment, there are loopholes in clauses 11(3), (5), (6) and (7). We have had detailed discussions over this problem with the Hong Kong Society for Rehabilitation, and we think that providing a grace period for small firms would only further reduce the employment opportunities of the disabled. At a time like this when the unemployment rate remains high, it is already hard for the able-bodied to keep their rice bowls, so the difficulty for the disabled to have a job would be even greater. According to a survey on the employment situation of the disabled, it is found that their unemployment rate is almost 50%, which clearly shows the greater difficulties the disabled faced in finding a job. Moreover, if the small companies really have difficulties in employing the disabled, the Bill has already provided two “excuses”; one is “unjustifiable hardship”, and the other is “genuine occupational qualification”. What it means is that if an employer can explain that his not employing a disabled is because of the inherent problem of the job itself, and that he has actual difficulty in employing the disabled, then the employer can be exempted from being prosecuted. These two conditions have taken care of the operating condition of companies, large, medium and small. If further provision is made in respect of a grace period, the effectiveness of this Bill will be reduced and harm the spirit of providing equal opportunity and promoting full participation as envisaged by this Bill. After much detailed discussions, we proposed this amendment. If passed, this amendment will treat those companies with less than five employees like any other companies. In fact, the Secretary for Health and Welfare said yesterday that this figure was only 20%, and we feel that there is no substantial effect, so why does the Administration still want to have this grace period? If this exemption can be removed, then everyone will be equal.
6364 HONG KONG LEGISLATIVE COUNCIL － 28 July 1995
The Administration also proposes an amendment by reducing the grace period from five years to three years so as to make it in line with the Sex Discrimination Bill, and the Health and Welfare Branch also submit a document, detailing, item by item, the reason for opposing the amendments of Dr the Honourable LEONG Che-hung and my amendment, but from the document I cannot see any arguments, except that it only said that more time should be given, and three years are enough, so that the small firms can learn from the big companies in how to deal with the problems. But why not four years or two years? No explanation whatsoever was given in the document. Why the grace period? Why is it especially difficult for the small firms? No explanation also. Despite that the reduction to three years seems to be a backdown on the part of the Administration, we think that it still is a violation of the principle of equality espoused by the Bill, and it does not give much significance to promoting equal opportunity and full participation for the disabled. I therefore must stress that I have sufficient reason for proposing the amendment, and it is nothing suferfluous. On the contrary, the reduction of the grace period only shows that the Administration does not have any criteria to go by.
We had got in contact with a lot of disabled job-seekers, they felt despaired and were often subject to the whimps of the employers, for example, the employers, seeing that they were disabled, would say that there was no vacancy, but outside on the gate was still pasted a recruitment ad; or some employers set down some very harsh conditions to scare the disabled away. Even if they were employed, the disabled were often subject to unequal treatment, for example, pay reduction, unequal pay, not promotion, and when the company was to retrench its staff or restructure, the disabled were the first to be axed.
Mr Chairman, the disabled in Hong Kong have been subject to all sorts of unequal treatment and discrimination. In the past, they could only bear all these and remain silent, but now with this Bill, we can break the silence and create equal employment opportunities for the disabled and eliminate discrimination. I sincerely hope that my colleagues here, and the Administration, would support my amendment by giving the disabled further equal employment right so that they can be self-reliant and integrate into the society. I would like to appeal to the Members that this is not my amendment, for it is in fact one made with the wish of many persons with disabilities and friends of the rehabilitation sector. I hope that you will not disappoint them. If any of you do not approve of the amendment, I hope that you can excuse yourself or abstain, but do not vote against it, or else you will be doing injustice to the friends of the rehabilitation sector and dealing them a heavy blow.
With these remarks, I move the amendment.
HONG KONG LEGISLATIVE COUNCIL － 28 July 1995 6365 Proposed amendment
Clause 11
That clause 11 be amended －
(a) by deleting subclause (3).
(b) by deleting subclause (5).
(c) by deleting subclause (6).
(d) by deleting subclause (7).
Question on the amendment proposed.
DR LEONG CHE-HUNG: Mr Chairman, I am grateful for Mr Fred LI for moving this amendment, and I have to tell him that this was actually the feelings of the Members who were present at the Bills Committee meeting. The reason why the Bills Committee did not include this as one of their amendments was in the light of the “defeat” of the Sex Discrimination Bill that also had this particular amendment that we moved.
As Mr Fred LI has mentioned very rightly, the fact that the Administration is willing to change the grace period to three years is just not good enough for the disabled persons who we are facing with.
Secondly is that in the Bill itself, there is already a very specific feature to show that if there are genuine occupational qualifications, it does not impinge on the Bill itself. I do not see any reason why we cannot change this to remove the whole five-year grace period to really give the full benefit of a proper Bill to the disabled.
MR JAMES TIEN (in Cantonese): Of all the members of the Federation of Hong Kong Industries and Hong Kong General Chamber of Commerce, not one member has employed less than five staff. Of course we hope or encourage small firms to employ the disabled, but we have to understand that these small employers are not big companies like the members of the Federation of Hong Kong Industries of the Hong Kong General Chamber of Commerce. For example, I am a personnel manager. I issue a memo that an ad has to be published in such and such a way, all others just follow and people just come to apply for it. Whatever they want to say, it is up to them. However, it is different with the small employers, they may have to be a “Jack of all trades” within his company.
6366 HONG KONG LEGISLATIVE COUNCIL － 28 July 1995
In passing this Bill, if we provide for a three-year grace period so as to encourage the small employers to take on the disabled and give them more opportunites, I think that having a three-year period is better than having none. As Dr the Honourable LEONG Che hung has just said, an employer can still decline to employ on the grounds of special reasons inherent in the job. In order not to get involved in any law suit, a small employer may resort to this reason in whatever case. He would not care about anything, he just does not want to be prosecuted. I feel that such an amendment will in fact be counter-productive. Just as I said yesterday, be it the Clean Hong Kong Campaign, or any anti-discrimination legislation, educating the public is the most important thing. If it becomes a practice for the big employers, the small ones would follow. If the big employers are being prosecuted, the small ones would keep their eyes open within that three year period.
Mr Chairman, on this ground, I do not support the amendment.
DR YEUNG SUM (in Cantonese): Mr Chairman, I rise to speak in support of the Honourable Fred LI. We may think that this is only a very minor amendment, that it only removes the three-year grace period for the small firms so that no grace period is allowed. This is a small matter, but I hope that those Members present should seriously consider giving the disabled an opportunity. This is also a milestone. If we approve this Bill today, and if we also agree that the factories and companies should employ the disabled, they will be given an opportunity. If the Bill is passed, I believe that the image of the whole society will be enhanced, and pschologically, the disabled will feel that they have the respect of the society, and their disability is no obstacle to dignity or opportunity. I hope that we can give them an opportunity.
I would also like to tell the Honourable James TIEN not to worry that much. The proceedings cannot convict the employers. How can they be convicted so easily? Firstly, an employer can explain that there is occupational reason that the disabled cannot be employed. Secondly, he can invoke unjustifiable hardship as the reason to explain the problem he may have if he employs the disabled. I feel that these two reasons, as drafted in the Bill, have in fact given due consideration to the problems the employers may have. The employers can explain themselves away, can they not? If they think that it is difficult for a disabled to fill a certain job, or employing them will give rise to unjustifiable hardship, these two reasons are already very sufficient, are not they? I hope that the representatives of the industrial and commercial sectors present can think deeply, these two reasons have already accorded the employers sufficient protection, and in fact they are protection, are not they? Under reasonable condition, it is hard to convict an employer? If it is so, why not give an opportunity to the disabled while the employers can have their protection? At the same time, a milestone will be set for the whole society when we pass this Bill, signalling that Hong Kong will not allow the disabled to be treated
HONG KONG LEGISLATIVE COUNCIL － 28 July 1995 6367
unfairly. I feel that this is very important. Though it is a small amendment, its signficance lies in the protection it gives the employers and the opportunity it gives the disabled. Why do we not go for it?
I therefore appeal to you all, though you may have been lobbied by the Administration, I still hope that you can abstain so that we can pass this Bill. Thank you, Mr Chairman.
MR HOWARD YOUNG (in Cantonese): Mr Chairman, I feel that how advanced a society is cannot simply rely on what sort of law is passed at a certain point in time. Yesterday when we were discussing the Bill on Mandatory Provident Fund, I pointed out that some companies had already set up very comprehensive provident fund scheme long before the coming existence of the relevant legislation. Similarly, in the treatment of the disabled, there are also similar precedents. I represent the hotel constituency, and have been criticized in this Council that the hotel industry is importing labour, is doing some other thing improper. However, last week, a hotel manager talked to me. He said that he had once called the Secretary for Education and Manpower, saying that he would like to employ some disabled and asked the Secretary to refer him someone who can take up such job as a telephone operator. What was required for the job is fluency in Cantonese, it did not matter if the applicant was wheelchair bound or not, he would be just as welcomed. The manager even said that he could adapt the facilities in the hotel for easy access by the disabled, staff and guests. However, the manager could not find anyone. At that time, there was no such law. He felt that it is the responsibility due of a large corporation to employ the disabled, it is not because there is such a legal requirement.
I think that many large corporations in Hong Kong have sufficient resources, legal advisers, and also sufficient manpower and framework to implement this series of measures. For small firms, however, I feel that we have to consider carefully their hardship. Of course, the Honourable James TIEN and I come from different background. What he referred to are members of the Federation of Hong Kong Industries, employing more than five employees, and I am from a constituency that encompasses both large and small companies, and even small travel agencies run by a man and his wife. We should not have the idea that if a large corporation can do something, we can force the small ones to do the same. Large corporations should also understand the hardship of the small firms. I feel that it is good to set down a period during which the small firms can learn from the large ones. We all know that in Hong Kong, large corporations usually can provide better conditions or benefit to their staff. If these companies can employ those disabled who need a job, it should be a most welcome move.
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MR VINCENT CHENG (in Cantonese): Mr Chairman, I belong partly to the rehabilitation sector because I have spent some time doing voluntary work, especially in employment. In private I have contacted a number of large and small companies. My influence on the large ones is not very much as I can see that the disabled have to face great difficulties in finding employment. I myself have also tried to do something that is within my ability, for example, I request the Hong Kong Bank to make a statement in its annual report that disabled persons will be employed. To a large corporation, it is not difficult. They have division of labour, and the employer can make clear arrangement in respect of jobs for the disabled. However, there is clear problem in the division of labour in small companies. Very often when a small company employs a person, it already has an idea what the person will do, but when there is a shortage in manpower, the company may make some adjustments. There are times that the employer actually cannot make any preparation for and he needs to have that flexibility. This may make the disabled a bit worried. I feel that for some cases “anything done under compulsion is no good.”
Under such a situation, I understand how urgently the disabled are hoping that this Bill can be passed, hoping that some legislation can be enacted to regulate people’s behaviour. On this matter, I would rather have the “goodwill”, as the rehabilitation sector says; it is better to wait for the society to accept than setting it down in harsh terms that if an employer does this he would be punished. I feel that so doing would only delay the progress of the whole matter. I would prefer to give the employers three years, saying that this will be implemented and we understand their hardship, but we still hope that within the three years, they can employ more disabled. I know that they have actual difficulties, so I cannot accept the amendment of the Honourable Fred LI.
Thank you, Mr Chairman.
MR ROGER LUK (in Cantonese): Mr Chairman, I feel the same as the Honourable Vincent CHENG does. I think there is quite a large number of large corporations employing disabled persons. It is easy for these companies to do so because large corporation can adapt to the change very naturally and there are also sufficient vacancies for people to choose. Small companies employing people with disabilities should be in the minority. However, I do not mean that we should not employ people with disabilities. We may ask why we do not give immediate effect to it, but have to give a buffer of a number of years?
On the other hand, the Honourable YEUNG Sum said just now that as long as there was ground for proceedings to be instituted, then let the court adjudicate. However, going to court is a very costly option for small companies. I feel that if we pass this Bill today but provide for a buffer period, we are not discriminating against or doing injustice to the disabled; we have to protect the employer as well. A period of three years is an ideal one. Though I feel that three years may in fact be a bit too long, the only options open to us are immediate effect or three years.
HONG KONG LEGISLATIVE COUNCIL － 28 July 1995 6369
Whenever we legislate, we must try to balance various interests. If the disabled are to be given equal opportunities, it should be something coming from the society spontaneously rather than being defined by law. In fact, it is also quite impossible for any legislation to accurately define where that point of balance is. Under such a situation, my personal preference is to provide for a buffer period, and at the same time, if we have similar legislation in the future, we should consider very carefully. After all, is a three-year buffer period too long?
Thank you, Mr Chairman.
MR LEE CHEUK YAN (in Cantonese): Mr Chairman, I speak in support of Mr Fred LI’s ......
CHAIRMAN: Please do not exhibit that T-shirt.
MR LEE CHEUK-YAN: You mean you want me to zip up?
CHAIRMAN: Zip it up, do not show it. That is a slogan. Slogans are not permitted in this Chamber. Please zip it up.
MR LEE CHEUK-YAN (in Cantonese): Mr Chairman, I speak in support of Mr Fred LI’s amendment.
The speeches of some of the Members seem to imply that the amendment is to force the small companies to employ the disabled, but I do not see any element of coercion in the amendment itself. Many of the small companies usually do not put out any recruitment ad. It is more often the case that they recruit through their relations with others. If recruitment is done this way, the disabled actually do not even have the chance for an interview. The amendment therefore does not cause much hardship to the small enterprises.
I also feel that we do not have to take our case to court at every turn because we have an Equal Opportunities Commission which can help settle the disputes and look into the matter. For example, many small companies often require their staff to be Jack of all trades. There may really be a genuine requirement in the job itself that a disabled person cannot be employed for the job, and this can be explained by the employer. I do not think that it is necessary to take our case to court, and therefore it does not pose any hardship for the small companies. What we want to see is that those small companies that are now having disabled people on their staff will not, because of their
6370 HONG KONG LEGISLATIVE COUNCIL － 28 July 1995
disability, pick them out to be axed first when there is a necessity to dismiss any staff. I believe this amendment does not give much pressure in respect of recruitment.
Thank you, Mr Chairman.
SECRETARY FOR HEALTH AND WELFARE: Mr Chairman, we agree with all that Members have said and we want to point out that we will do absolutely all we can to give people with a disability equal opportunities in employment. This is what the whole Bill is all about. At the same time, we also need to do all we can to encourage the entire community to support the spirit of the Bill.
This is why the Administration will be proposing an amendment to reduce the grace period from five to three years. The equivalent grace period for small firms was also recently set at three years in the Sex Discrimination Ordinance. I stress again that 80% of all employees would be unaffected by such a grace period, and that most persons with a disability are in practice employed by larger firms.
The amendment proposed by the Honourable Fred LI would delete the grace period in its entirety. We believe small firms may encounter difficulties in this and, they should be positively encouraged to adjust to the new requirements, and we consider three years to be a reasonable period.
Mr Chairman, therefore, the Administration objects to this amendment and will vote against it.
Question on Mr Fred LI’s amendment put.
Voice vote taken.
CHAIRMAN: Committee will proceed to a division.
CHAIRMAN: Would Members please proceed to vote?
CHAIRMAN: Are there any queries? If not, the result will now be displayed.
HONG KONG LEGISLATIVE COUNCIL － 28 July 1995 6371
Mr Martin LEE, Mr SZETO Wah, Mr TAM Yiu-chung, Mr Andrew WONG, Dr LEONG Che-hung, Mr Jimmy McGREGOR, Mr Albert CHAN, Mr CHEUNG Man-kwong, Rev FUNG Chi-wood, Mr Frederick FUNG, Mr Michael HO, Dr HUANG Chen-ya, Dr Conrad LAM, Miss Emily LAU, Mr LEE Wing-tat, Mr Eric LI, Mr Fred LI, Mr MAN Sai-cheong, Mr TIK Chi-yuen, Mr James TO, Dr YEUNG Sum, Mr WONG Wai-yin, Miss Christine LOH, Ms Anna WU and Mr LEE Cheuk-yan voted for the amendment.
The Chief Secretary, the Attorney General, the Financial Secretary, Mr Allen LEE, Mrs Selina CHOW, Mr NGAI Shiu-kit, Mr PANG Chun-hoi, Mr LAU Wong-fat, Mr Edward HO, Mr Ronald ARCULLI, Mrs Peggy LAM, Mrs Miriam LAU, Mr LAU Wah-sum, Mrs Elsie TU, Mr Peter WONG, Mr Vincent CHENG, Mr Moses CHENG, Mr Marvin CHEUNG, Mr Timothy HA, Mr Simon IP, Dr LAM Kui-chun, Mr Steven POON, Mr Henry TANG, Dr Samuel WONG, Dr Philip WONG, Mr Howard YOUNG, Dr TANG Siu tong, Mr Roger LUK and Mr James TIEN voted against the amendment.
THE CHAIRMAN announced that there were 25 votes in favour of the amendment and 29 votes against it. He therefore declared that the amendment was negatived.
CHAIRMAN: As Mr Fred LI’s amendments to subclauses (3), (5), (6) and (7) of clause 11 have not been agreed, I will now call upon the Secretary for Health and Welfare to move her amendment to subclause (5) of clause 11.
SECRETARY FOR HEALTH AND WELFARE: Mr Chairman, I move that subclause (5) of clause 11 be amended as set out under my name in the paper circulated to Members.
Presently, under clause 11(5) of the Bill, a five-year transitional period is given to small business establishments, that is to say, those with five or fewer employees. Our intention was to help small firms adapt to the changes in practice and behaviour that would be required by the legislation.
As many Members have already pointed out, this Bill represents a big step forward for our community in eliminating discrimination against people with a disability. Some, however, not because they are unwilling to comply, do need time to adjust to the new way of doing things.
SHAKESPEARE once said “balance is all”. We have to get the right balance. A long grace period could lead to inertia. No grace period could lead to real difficulties. Members of the Bills Committee and disability groups have already expressed their concern over this issue.
6372 HONG KONG LEGISLATIVE COUNCIL － 28 July 1995
Having considered carefully their views and to bring this Bill in line with the Sex Discrimination Ordinance, we propose an amendment to reduce the grace period from five to three years.
Proposed amendment
Clause 11
That clause 11(5) be amended, by deleting “5th” and substituting “3rd”. Question on the amendment proposed.
MR FREDERICK FUNG (in Cantonese): Thank you, Mr Chairman. Just now I supported the amendment of the Honourable Fred LI, and I thought that there is no need for a grace period. Now his amendment is not passed, the amendment of the Administration will reduce the grace period from five years to three years; this amendment certainly is better than the original, but is still not as good as Mr Fred LI’s. I hope that the Administration can make itself clear why at first it wanted a five-year grace period, but now reduces it to three years, but not two years or two and a half years. What is behind the Administration’s change of mind?
SECRETARY FOR HEALTH AND WELFARE: Basically we were given the advice through the Education and Manpower Branch about why it was set initially at five years, but we have, through long discussions with the Bills Committee, reached the view that reduction from five to three years is reasonable.
Question on the amendment put and agreed to.
Question on clause 11, as amended, proposed, put and agreed to.
Clause 20
SECRETARY FOR HEALTH AND WELFARE: Mr Chairman, I move that clause 20 be amended as set out under my name in the paper circulated to Members.
Clause 20 covers harassment in the context of employment. It protects, for example, an employee with a disability from harassment by her boss, but it did not cover all potential cases of harassment. We now propose to amend it to cover the harassment of an employee with a disability by an employer, the harassment of a commission agent with a disability by someone who lives in the same home as the employer.
HONG KONG LEGISLATIVE COUNCIL － 28 July 1995 6373 Proposed amendment
Clause 20
That clause 20 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
That clause 20 be amended, by adding －
“(9) It is unlawful for the principal, in relation to work to which section 19A applies, to harass a person with a disability who is a commission agent.
(10) It is unlawful for a commission agent to harass a person with a disability who is a fellow commission agent.
(11) It is unlawful for a person who is seeking to be, or who is, employed by a person with a disability at an establishment in Hong Kong to harass that person.
(12) It is unlawful for a person residing in any premises to harass a person with a disability -
(a) employed by another person at an establishment in Hong Kong (and whether or not that other person also resides in
those premises or those premises are that establishment); and
(b) carrying out in those premises all or part of that person’s work in relation to that person’s employment (and whether or not
that person also resides in those premises).”.
Question on the amendment proposed, put and agreed to.
Question on clause 20, as amended, proposed, put and agreed to.
Clause 54
SECRETARY FOR HEALTH AND WELFARE: Mr Chairman, I move that clause 54 be amended as set out under my name in the paper circulated to Members.
This amendment is related to my earlier amendment to clause 2. The purpose is to move the reference to “existing statutory provision” to the definition section of this Bill.
6374 HONG KONG LEGISLATIVE COUNCIL － 28 July 1995 Proposed amendment
Clause 54
That clause 54 be amended, by deleting subclauses (3) and (4).
That clause 54 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
Question on the amendment proposed, put and agreed to.
DR LEONG CHE-HUNG: Mr Chairman, I move that clause 54 be further amended as set out under my name in the paper circulated to Members.
The proposed amendment is to the effect that exceptions permitting exclusion of disabled persons from jobs covered by Schedule 3 and exempting protective legislation and acts done for the protection of a person with a disability will expire in one year, subject to extension by Legislative Council resolution for another year.
The Bills Committee considers that current regulations intended to protect a person with a disability may be outdated and might become inadvertent restrictions. At present, no items of legislation have yet been placed in the Schedule. A time-limit should therefore be set for the Administration to review the Schedule and associated exception; one year in the first instance, subject to extension by Legislative Council resolution.
I would like to remind Members that a parallel amendment was approved by this Council for the Sex Discrimination Bill.
SECRETARY FOR HEALTH AND WELFARE: Mr Chairman, a similar amendment was passed by Members of this Council in respect of the Sex Discrimination Ordinance last month, and our own Schedule relating to existing legislation concerning the protection of persons with a disability is empty. In the light of these considerations, we have no objection to the amendment and will vote for it.
Question on the amendment proposed, put and agreed to.
Question on clause 54, as amended, proposed, put and agreed to.
Clause 60
CHAIRMAN: Dr LEONG Che-hung, as your amendment to clause 2 has been negatived, you can no long proceed with your amendment to clause 60.
HONG KONG LEGISLATIVE COUNCIL － 28 July 1995 6375
SECRETARY FOR HEALTH AND WELFARE: Mr Chairman, I move that clause 60 be amended as set out under my name in the paper circulated to Members.
The amendment is to change the Chinese term for disability from“弱能”to“殘 疾”in this clause.
Proposed amenedment
Clause 60
That clause 60 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
Question on the amendment proposed.
MR VINCENT CHENG (in Cantonese): I personally object to this amendment because I feel that this translation is worse than“弱能”.“弱能”only refers to the fact that one’s certain ability is not as good as others’, it is just feebleness. However, with“殘疾”,
“殘”in Chinese, refers to a condition pretty bad, it is 10 times worse than“弱”. Sorry, I should have used Chinese all through.“殘” refers to something even worse than“弱”. “疾”in Chinese means a disease, that is a frequent illness. However, a person with disability is not always one with a frequent illness. I therefore object to this translation.
MR HOWARD YOUNG (in Cantonese): Mr Chairman, I have also thought about this word. In a sense,“弱能”is not so good, but now with so many voluntary agencies relying on fund-raising campaigns to raise funds for their operations, I think“弱能”can help them in this respect. The Honourable Vincent CHENG has rightly said that“殘疾”in Chinese can be quite unacceptable. On this issue, I think that it is not worth supporting.
MR ROGER LUK (in Cantonese): Mr Chairman, translation is a very demanding job, requiring very exact correspondence in meaning, but with respect to the word itself, it may not be best translation for another word. To use“殘疾”to translate “disability” of course is very appropriate. But referring to the“殘疾㆟士”,sorry, I still have to use the term, they may not have any deep feeling about it.
I can give you another example for your consideration. When the Scout Association organized activities for these people, they were referred to as “弱能㆟士”, now they are said to be“特能㆟士”. Where does this term come from? In English, we never use “disability scouting”, but use “extension scouting”, that is, we extend services to this group of people, and we term it “展能童軍”.
6376 HONG KONG LEGISLATIVE COUNCIL － 28 July 1995
I want to point out one thing. With the use of words, different places or different languages may use different words to refer to the same thing, but with legislations, I believe that“殘疾”is more appropriate. I do have the same feeling like the Honourable Vincent CHENG has, but this is law-making and not scouting, we should not use a beautiful word to gloss over things. Legislating should fit very strict standard. I will support“殘疾”.
DR LEONG CHE-HUNG: Mr Chairman, I do agree that it is very difficult to have a translation which explains all and which encompasses all. The change in the Chinese word has actually been fully discussed amongst the Bills Committee and, in particular, in consultation with the deputations which came to us. And I think the ultimate Chinese, the choice of the Chinese words, was after approval by these particular groups. There are examples of using such a Chinese term, for example, in Taiwan. But it is not a main issue.
I do feel that since it is these groups of people who are being affected, the disabled that is, I think we should honour their likes and their decisions.
DR YEUNG SUM (in Cantonese): Mr Chairman, I thought that the discussion has finished already. But since the Honourable Vincent CHENG has raised it, perhaps we can have another go at it. “殘疾”is only describing a fact, without any moral judgment involved, whereas“弱能”has a bit of moral judgment in it, implying one’s ability is lower than that of others. I therefore hope that you can all support the amendment. In fact, the Administration has accepted the views of the rehabilitation groups, most of which suggest using“殘疾”.
MR ALLEN LEE (in Cantonese): Mr Chairman, Dr the Honourable LEONG Che-hung and I had once attended an “open seminar” together, discussing this term with the groups for the disabled. This is the term they wished to use. I feel that “disability” does not necessarily mean weak in ability, so they want to change the term. I believe that this Council should respect their choice.
REV FUNG CHI-WOOD (in Cantonese): Mr Chairman, “殘疾”of course is not the best word, but while considering the translation, we want“殘疾”also to encompass those who are sick. Very often, for some who fall sick, they do not seem to require any special attention. That is why we have this translation. I appeal to the society and the Members of this Council, if there is any better translation, please raise them so that we can make improvement in the future.
MR VINCENT CHENG: Mr Chairman, I would like to make an apology that I did not really bring my view forward to the Committee when we are discussing this and this is only my personal feeling. I am not going to call a division on this. Thank you. (Laughter)
HONG KONG LEGISLATIVE COUNCIL － 28 July 1995 6377
CHAIRMAN: The Clerk has just drawn my attention to the fact that this new version has already been approved in clause 2.
Question on the amendment proposed, put and agreed to.
Question on clause 60, as amended, proposed, put and agreed to.
SECRETARY FOR HEALTH AND WELFARE: Mr Chairman, as Standing Order 46(4) and (5) stipulate that any proposed new clause shall be considered after the clauses of a Bill have been disposed of, may I seek leave to move that Standing Order 46(4) and (5) be suspended in order that new clause 83A may be considered ahead of the amendments to clause 62.
Council then resumed.
PRESIDENT: Secretary for Health and Welfare, you have my consent.
SECRETARY FOR HEALTH AND WELFARE: Mr President, I move that Standing Order 46(4) and (5) be suspended to enable the Committee of the whole Council to consider new clause 83A before the amendments to clause 62.
Question proposed, put and agreed to.
Council went into Committee.
New clause 83A Regulations to empower
Commission to bring
certain proceedings
Clause read the First time and ordered to be set down for Second Reading pursuant to Standing Order 46(6).
SECRETARY FOR HEALTH AND WELFARE: Mr Chairman, I move that new clause 83A as set out under my name in the paper circulated to Members be read the Second time.
The effectiveness of this Bill in combatting discrimination against people with a disability will be undermined if people who suffer discrimination do not realize that their rights have been infringed or if there is a sector-wide discriminatory practice which is difficult for an individual to confront. On the first, the Commission will need to promote understanding of the Bill through public education. On the second, it is important that the Commission be given the right to bring proceedings in its own name so that the problem can be
6378 HONG KONG LEGISLATIVE COUNCIL － 28 July 1995
tackled. It could also use such proceedings to establish points of principle as well as in the process educate the public. We propose, therefore, to empower the Secretary for Health and Welfare to make regulation to allow the Equal Opportunities Commission to bring proceedings in its own name. The purpose of doing this through regulations is to set out in detail in the law under what circumstances the Commission would exercise its power.
Question on Second Reading of the clause proposed.
MS ANNA WU: Thank you, Mr Chairman. The Administration is proposing this clause in response to the Bills Committee’s request that the Commission be enabled to bring proceedings in its own name. However, the Administration’s proposed clause enables the Commission to do so only at some future date as provided by subsidiary legislation.
Such an important Commission power should properly be provided in the principal Ordinance not by subsidiary legislation. That is why the Bills Committee is proposing new clause 70A instead. The Administration has also suggested that the power to bring proceedings raise various procedural problems that still need to be considered, hence the need for future subsidiary legislation. It is entirely possible, however, to provide for such details by subsidiary legislation after setting out the main power in the Ordinance itself. The Administration can defer commencement of the clause until the necessary subsidiary details are ready if it is worried that the Commission would otherwise rush to bring proceedings prematurely.
There is a second and more important problem with the Administration’s proposal, namely, that it does not clearly enable the Commission to bring Bill of Rights challenges against laws that discriminate against the disabled. There are several exceptions in this Bill that permit discriminatory acts against a disabled that would be unlawful except that they are authorized by law under this Bill. Such laws may often be inconsistent with the non discrimination provisions of the Bill of Rights, and the Commission should be able to pursue that possibility.
It is well-established that the United Kingdom Commission can use judicial review proceedings to challenge laws relied on by public bodies. Judicial review proceedings, however, involve procedural obstacles that are unnecessary in this context. Each time the United Kingdom Commission seeks judicial review, it must obtain leave of court to do so, which will only be granted once the court is satisfied that the Commission has a sufficient interest in the matter. The time limits to bring judicial review proceedings are also much more strict than those applicable to most civil proceedings, measured in months rather than years. To avoid these procedural hurdles, it is desirable that the Commission be given a clear right to bring ordinary Bill of Rights proceedings against laws that discriminate on the ground of disability. The Bills Committee’s new clause 70A does so whereas the Administration’s proposed clause does not.
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I would like to mention that there is a decision in the United Kingdom. It is a House of Lords case under the name Equal Opportunities Commission and another versus Secretary of State for Employment, in which it was decided that the Commission could bring proceedings in its own name and join in proceedings seeking declaratory order relating to breach of community law and judicial review of the Secretary of State’s refusal to introduce amending legislation. This is a precedent for Hong Kong. If the Commission has that power then it would be desirable to make that power specific and avoid any challenges to locus standi and save ourselves a lot of time and resources.
I therefore urge Members to support the Bills Committee’s new clause 70A instead of this clause. Thank you, Mr Chairman.
SECRETARY FOR HEALTH AND WELFARE: We would like to assure Members that we will introduce regulations as soon as practicable. We think it is important that the Equal Opportunities Commission should have set out clearly for it the circumstances under which it could exercise this important power. Being subsidiary legislation, the regulations will come before this Council for approval.
Question on Second Reading of new clause put.
Voice vote taken.
CHAIRMAN: Committee will proceed to a division.
CHAIRMAN: Would Members please proceed to vote?
CHAIRMAN: Are there any queries? If not, the result will now be displayed.
The Chief Secretary, the Attorney General, the Financial Secretary, Mr Allen LEE, Mrs Selina CHOW, Mr NGAI Shiu-kit, Mr PANG Chun-hoi, Mr TAM Yiu-chung, Mr LAU Wong-fat, Mr Edward HO, Mr Ronald ARCULLI, Mrs Peggy LAM, Mrs Miriam LAU, Mr LAU Wah-sum, Mr Jimmy McGREGOR, Mrs Elsie TU, Mr Peter WONG, Mr Vincent CHENG, Mr Moses CHENG, Mr Timothy HA, Mr Simon IP, Dr LAM Kui-chun, Mr Steven POON, Mr Henry TANG, Dr Samuel WONG, Dr Philip WONG, Mr Howard YOUNG, Dr TANG Siu-tong and Mr James TIEN voted for the motion.
6380 HONG KONG LEGISLATIVE COUNCIL － 28 July 1995
Mr Martin LEE, Mr SZETO Wah, Mr Andrew WONG, Dr LEONG Che-hung, Mr Albert CHAN, Mr CHEUNG Man-kwong, Rev FUNG Chi-wood, Mr Frederick FUNG, Mr Michael HO, Dr HUANG Chen-ya, Dr Conrad LAM, Miss Emily LAU, Mr LEE Wing-tat, Mr Eric LI, Mr Fred LI, Mr MAN Sai-cheong, Mr TIK Chi-yuen, Mr James TO, Dr YEUNG Sum, Mr WONG Wai-yin, Miss Christine LOH, Mr Roger LUK, Ms Anna WU and Mr LEE Cheuk-yan voted against the motion.
THE CHAIRMAN announced that there were 29 votes in favour of the motion and 24 votes against it. He therefore declared that the motion was carried.
Clause read the Second time.
SECRETARY FOR HEALTH AND WELFARE: Mr Chairman, I move that new clause 83A be added to the Bill.
Proposed addition
New clause 83A
That the Bill be amended, by adding －
“83A. Regulations to empower Commission
to bring certain proceedings
(1) The Secretary for Health and Welfare may make regulations -
(a) where any person may bring proceedings under section
70(1) but has not done so, empowering the
Commission, in such circumscances as are specified in
the regulations, to bring and maintain those
proceedings as if the Commission were that person;
(b) specifying which of the remedies referred to in section
70(3) shall be obtainable by the Commission in any
such proceedings;
(c) for the purposes of enabling the Commission to bring
and maintain any such proceedings (including any
related purposes), specifying modifications to which
any provisions of this Ordinance (including any
subsidiary legislation) shall be read.
HONG KONG LEGISLATIVE COUNCIL － 28 July 1995 6381
(2) Any regulations made under this section shall be subject to the approval of the Legislative Council.”.
Question on the addition of the new clause proposed, put and agreed to.
Clause 62
SECRETARY FOR HEALTH AND WELFARE: Mr Chairman, I move that clause 62 be amended as set out under my name in the paper circulated to Members.
This is a technical amendment which requires the Equal Opportunities Commission not to delegate its functions under the regulations made by the Secretary for Health and Welfare relating to its power to bring proceedings in its own name contained in new clause 83A.
Proposed amendment
Clause 62
That clause 62 be amended －
(a) by deleting “59” where it twice appears and substituting “67”. (b) by adding -
“(aa) any provisions of any regulations made under section 83A which are specified in the regulations as provisions which
shall not be subject to section 67 of the relevant Ordinance;”.
Question on the amendment proposed, put and agreed to.
Question on clause 62, as amended, proposed, put and agreed to.
Clause 65
DR LEONG CHE-HUNG: Mr Chairman, I move that clause 65 be amended as set out under my name in the paper circulated to Members.
The amendment enables the EOC to carry out an investigation to named persons or organizations for any purpose connected with its functions. The amendment deletes the statutory requirement that the EOC only investigates if it believes unlawful acts have occurred. The proposed amendment is in line with a key recommendation of the United Kingdom Equal Opportunities Commission.
6382 HONG KONG LEGISLATIVE COUNCIL － 28 July 1995
The Commission in practice is unlikely to investigate a person unless it believes that person has discriminated.
Clause 65(4), as it is now, however requires the EOC to incorporate that belief expressly in the investigation’s terms of reference. But this undersirably restricts investigations. If the investigation uncovers discrimination outside the EOC’s initial belief, the EOC must redraft the terms of reference and restart the investigation. In the United Kingdom, for example, this has caused unreasonable delay to the EOC’s investigations.
Proposed amendment
Clause 65
That clause 65 be amended, by deleting subclause (4) and subsituting -
“(4) Where the terms of reference of the formal investigation confine it to activities of persons named in them and the Commission in the course of it proposes to investigate any act which a person so named may have done, the Commission shall -
(a) inform that person of its proposal to investigate the act; and
(b) offer him an oipportunity of making oral or written representations, within 28 days after the notification of the
proposal to investigate, with regard to it (or both oral and
written representations if he thinks fit),
and a peson so named who avails himself of an opportunity under this subsection of making oral representations may be represented -
(i) by counsel or a solicitor; or
(ii) by some other person of his choice, not being a person
to whom the Commission objects on the ground that he
is unsuitable.”.
Question on the amendment proposed.
MS ANNA WU: Thank you, Mr Chairman. This amendment follows important recommendations made by the United Kingdom Equal Opportunities Commission on the basis of its many years of practical experience. The amendment deletes the requirement that the Commission suspects a person of having committed an unlawful act before it decides to investigate the person.
HONG KONG LEGISLATIVE COUNCIL － 28 July 1995 6383
The Administration opposes the amendment because it believes the deleted restriction is an important check on the abuse of the Commission’s power. In practice, however, the restriction has no such effect. First, with or without the restriction, it is common sense that the Commission will not investigate someone unless it believes that there is something to investigate. Leaving all legal requirements aside, it is difficult to envision the Commission squandering its resources investigating people at random. Second, if the restriction is deleted, ordinary principles of administrative law will still require the Commission to have reasonable grounds before deciding to investigate a person.
A decision to investigate someone made without a reasonable basis can always be quashed by judicial review with or without the deleted statutory language.
In fact, this restriction that we are seeking to remove only came to be in the United Kingdom law because of a parliamentary drafting error. All of what appears in this Bill as subsection 65(4) was a last-minute addition to the United Kingdom law on which this provision is based, inserted into the law by a Private Member’s Amendment in the House of Lords. The amendment was intended to insert a new section providing an opportunity to be heard for persons who came under suspicion of unlawful activity, not prior to an investigation but during an investigation, and I emphasize it was intended to insert a new section for the purpose of investigation during that time and not prior. This was a drafting error. This makes much more sense that talking about suspicions before any investigation has been done.
However, when the amended United Kingdom Bill was transferred from the House of Lords into the House of Commons the new section was inserted into this Bill in the wrong place as a subsection. Such mistake can happen, as we saw earlier on this month with the Sex Discrimination Ordinance. The result of the error in the United Kingdom is that, contrary to the amender’s original intention, subsection 65(4) applies before an investigation begins and has been interpreted by the courts as a restriction requiring the Commission to form suspicions before it has done any investigation.
The United Kingdom Commission has found that this statutory language originally inserted in error seriously hampers its investigations. Subsection 65(4) not only requires advance suspicion of particular unlawful acts, it also requires that these suspicions be incorporated in the Commission’s terms of reference for an investigation. Should the investigation eventually reveal acts that were not suspected in advance in the terms of reference, it must hold another round of hearings, at which the suspected persons can oppose the new terms with assistance of counsel if they wish. The result is interminable delay in getting investigations started and in expending them as they progress.
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In regard to formal investigations in the United Kingdom, Lord DENNING remarked: “I am very sorry for the Commission, but they have been caught up in a spider’s web, spun by Parliament, from which there is little hope of escaping.” There are two commissions in the United Kingdom that suffer under the burden of such clauses, and both have recommended that the language of clause 65(4) be modified or deleted.
Finally, with regard to the period of 28 days provided for a person to make representations against a proposed investigation of him, that is the length of time recommended by the United Kingdom Commission on the basis of its experience.
Members, I urge you to support this particular amendment. It is important to make the procedure relating to investigations simple, effective and easy for the disabled persons to use. What we have is a very complicated procedure in the United Kingdom transplanted to Hong Kong under error. I cannot see how that could be right. I urge you to support the amendment of the Bills Committee.
Thank you, Mr Chairman.
SECRETARY FOR HEALTH AND WELFARE: Mr Chairman, under the present provisions, the Equal Opportunities Commission can initiate a formal investigation into the activities of a particular person only if it believes that the person may have done an act made unlawful under the Bill and has informed the person of its belief of its proposal to investigate the act. One of the effects of Dr the Honourable LEONG Che-hung’s amendment is to remove these requirements so that the Commission could investigate on an act which may not be unlawful under this Bill and need not state its belief that an unlaw ful act may have occurred.
Like the public, the Administration does not want the Commission to be a toothless tiger. It does need teeth, or powers, to fight against discrimination on the grounds of sex and disability. But we also do not wish to see the Commission being made so powerful that it becomes a shark preying on the innocent. Mr Chairman, before these metaphors expand into a zoo, I will return to the point. Since those being investigated could be injured by the adverse publicity arising from an investigation by the Commission, it is important that it be made incumbent upon the Commission to state the grounds for its investigation and that its investigation should be in relation to acts made unlawful in the Bill.
Dr the Honourable LEONG Che-hung’s amendment also sets a time limit of 28 days for the person being investigated to make written or oral representations. The existing provision does not provide such a time limit since we believe the Commission should be given the flexibility to take into account the circumstances of each case, including its complexity and the availability of
HONG KONG LEGISLATIVE COUNCIL － 28 July 1995 6385
the person being investigated. We believe the Commission should have the discretion to decide what time limit is appropriate on a case-by-case basis.
In response to the Honourable Ms Anna WU, we also believe that the Commission will act reasonably. That is why we do not believe it would allow strategic delay on the part of those being investigated. It could set its own time limit as appropriate to the circumstances of the case, but the defendant does have the opportunities to make representation. The clause as drafted in the Bill only gives him or her this opportunity. It does not give him or her the right to veto or to delay proceedings interminably through arguments about the terms of reference.
Mr Chairman, for the reasons given above, the Administration objects to this amendment and will vote against it.
Question on the amendment put.
Voice vote taken.
THE CHAIRMAN said he thought the “Noes” had it.
Dr LEONG Che-hung claimed a division.
CHAIRMAN: Committee will proceed to a division.
CHAIRMAN: Would Members please proceed to vote?
CHAIRMAN: Are there any queries? If not, the result will now be displayed.
Mr Martin LEE, Mr SZETO Wah, Mr Andrew WONG, Dr LEONG Che-hung, Mr Jimmy McGREGOR, Mrs Elsie TU, Mr Albert CHAN, Mr CHEUNG Man-kwong, Rev FUNG Chi-wood, Mr Frederick FUNG, Mr Michael HO, Dr HUANG Chen-ya, Dr Conrad LAM, Miss Emily LAU, Mr LEE Wing-tat, Mr Fred LI, Mr MAN Sai-cheong, Mr TIK Chi-yuen, Mr James TO, Dr YEUNG Sum, Mr WONG Wai-yin, Miss Christine LOH, Ms Anna WU and Mr LEE Cheuk-yan voted for the amendment.
The Chief Secretary, the Attorney General, the Financial Secretary, Mr Allen LEE, Mrs Selina CHOW, Mr NGAI Shiu-kit, Mr PANG Chun-hoi, Mr TAM Yiu-chung, Mr LAU Wong-fat, Mr Edward HO, Mr Ronald ARCULLI, Mrs Miriam LAU, Mr LAU Wah-sum, Mr Peter WONG, Mr Vincent CHENG, Mr
6386 HONG KONG LEGISLATIVE COUNCIL － 28 July 1995
Moses CHENG, Mr Marvin CHEUNG, Mr Timothy HA, Mr Simon IP, Dr LAM Kui-chun, Mr Eric LI, Mr Steven POON, Mr Henry TANG, Dr Samuel WONG, Dr Philip WONG, Mr Howard YOUNG, Dr TANG Siu-tong, Mr James TIEN and Mr Alfred TSO voted against the amendment.
Mrs Peggy LAM and Mr Roger LUK abstained.
THE CHAIRMAN announced that there were 24 votes in favour of the amendment and 29 votes against it. He therefore declared that the amendment was negatived.
SECRETARY FOR HEALTH AND WELFARE: Mr Chairman, I move that clause 65 be amended as set out under my name in the paper circulated to Members. The amendment is to correct an error in the gazetted Chinese version of the Bill. It changes the term“行為” to“行為”.
Question on the amendment proposed, put and agreed to.
Question on clause 65, as amended, proposed, put and agreed to.
Clause 66
DR LEONG CHE-HUNG: Mr Chairman, I move that clause 66 be amended as set out under my name in the paper circulated to Members.
This is a basically consequential amendment to the amended clause 65. Proposed amendment
Clause 66
That clause 66(2)(b) be amended, by deleting everything after “formal investigation” and substituting “confine it to activities of persons named in them.”.
Question on the amendment put.
Voice vote taken.
THE CHAIRMAN said he thought the “Noes” had it.
HONG KONG LEGISLATIVE COUNCIL － 28 July 1995 6387 Dr LEONG Che-hung and Mr WONG Wai-yin claimed a division.
CHAIRMAN: Committee will proceed to a division.
CHAIRMAN: Would Members please proceed to vote?
CHAIRMAN: We are three short of the head count. Are there any queries? If not, the result will now be displayed.
Mr Martin LEE, Mr SZETO Wah, Mr Andrew WONG, Dr LEONG Che-hung, Mr Jimmy McGREGOR, Mrs Elsie TU, Mr Albert CHAN, Mr CHEUNG Man-kwong, Rev FUNG Chi-wood, Mr Frederick FUNG, Mr Michael HO, Dr HUANG Chen-ya, Dr Conrad LAM, Miss Emily LAU, Mr LEE Wing-tat, Mr Eric LI, Mr Fred LI, Mr MAN Sai-cheong, Mr TIK Chi-yuen, Mr James TO, Dr YEUNG Sum, Mr WONG Wai-yin, Miss Christine LOH, Ms Anna WU and Mr LEE Cheuk-yan voted for the amendment.
The Chief Secretary, the Attorney General, the Financial Secretary, Mr Allen LEE, Mrs Selina CHOW, Mr NGAI Shiu-kit, Mr PANG Chun-hoi, Mr TAM Yiu-chung, Mr LAU Wong-fat, Mr Edward HO, Mr Ronald ARCULLI, Mrs Peggy LAM, Mrs Miriam LAU, Mr LAU Wah-sum, Mr Peter WONG, Mr Vincent CHENG, Mr Moses CHENG, Mr Marvin CHEUNG, Mr Timothy HA, Mr Simon IP, Dr LAM Kui-chun, Mr Steven POON, Mr Henry TANG, Dr Samuel WONG, Dr Philip WONG, Mr Howard YOUNG, Dr TANG Siu tong, Mr James TIEN and Mr Alfred TSO voted against the amendment.
Mr Roger LUK abstained.
THE CHAIRMAN announced that there were 25 votes in favour of the amendment and 29 votes against it. He therefore declared that the amendment was negatived.
Question on clause 66 standing part of the Bill put and agreed to.
Clause 70
SECRETARY FOR HEALTH AND WELFARE: Mr Chairman, I move that clause 70 be amended as set out under my name in the paper circulated to Members.
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Clause 70 states what kind of claims can be made the subject of civil proceedings under this Bill. Two references are made in error to clause 44, which relate to serious vilification. Since this is a criminal offence, the Administration’s amendment would delete these references.
Proposed amendment
Clause 70
That clause 70 be amended, by deleting“弱能”wherever it appears and substituting“殘 疾”.
That clause 70(1)(c) be amended, by deleting “or 44”.
That clause 70(6) be amended, by deleting “or 44”.
That clause 70(1)(b) be amended, by adding“針對該申索㆟的並”after“作出”. Question on the amendment proposed, put and agreed to.
DR LEONG CHE-HUNG: Mr Chairman, I move that clause 70 be further amended as set out under my name in the paper circulated to Members.
First, the proposed amendment to clause 70(3) and (4) empowers the District Court to order appropriate remedy, including reinstatement.
During the scrutiny of the Sex Discrimination Bill, the Administration initially accepted this in principle. However, subsequently, it proposed to deal with this in the next Session in accordance with recommendations of its recent general review of labour relations. The Bills Committee considers that since this has been accepted in principle, the provision should be amended without delay.
The Bills Committee considers that because of the scarcity of jobs available for disabled persons, reinstatement is particularly important for this particular Bill. The remedy should therefore be made available now, at the discretion of the court.
I would like to mention, Mr Chairman, that a few days ago, a few Members of this Council actually met a deputy of somebody suspended from work because he was found to be positive for HIV. What he told us was that he has no grievance towards his employer and he actually mentioned this, “my priority is to get my job back, for my living and for my dignity.”
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Mr Chairman, let us not forget that a disabled person is not asking for sympathy, but is asking for a chance of equal opportunity.
Mr Chairman, the second thing is that clause 70(5) provides that there shall be no award of damages if the indirect discrimination was unintentional.
This subclause is to be deleted as in the case of similar restrictions in United Kingdom law which have been repealed after being found inconsistent with European human rights standards. It is preferable to leave the court flexibility to take account of intentions by varying the amount of damages it awards.
Proposed amendment
Clause 70
That clause 70 be amended －
(a) in subclause (3), by deleting everything after “District Court” and substituting “and where the court is satisfied that the respondent has committed an unlawful act of discrimination, vilification or harassment against the claimant in contravention of this Ordinance, the court may make an order which it considers just and appropriate in the circumstances.”.
(b) by deleting subclause (4) and substituting -
“(4) Without limiting the generality of the power conferred
by subsection (3), the District Court may -
(a) make a declaration that the respondent has
engaged in conduct, or committed an act, that is
unlawful under this Ordinance, and order that
the respondent shall not repeat or continue such
unlawful conduct or act;
(b) order that the respondent shall perform any
reasonable act or course of conduct to redress
any loss or damage suffered by the claimant;
(c) order that the respondent shall employ or re
employ the claimant;
6390 HONG KONG LEGISLATIVE COUNCIL － 28 July 1995
(d) order that the respondent shall promote the
claimant;
(e) order that the respondent shall pay to the
claimant damages by way of compensation for
any loss or damage suffered by reason of the
respondent’s conduct or act;
(f) order that the respondent shall pay to the
claimant punitive or exemplary damages; or
(g) make an order declaring void in whole or in
part either ab initio or from such date as may be
specified in the order, any contract or
agreement made in contravention of this
Ordinance.”.
(c) by deleting subclause (5).
Question on the amendment proposed.
MS ANNA WU: Mr Chairman, I would just like to add to what Dr LEONG has indicated insofar as reinstatement is concerned. I would like to emphazise that reinstatement is a discretionary remedy. That is, the court may take into account all circumstances before an actual order is made. It is not a mandatory remedy. It is entirely up to the court. But where you are dealing with those individuals who are disabled, when getting a job is so difficult, being deprived of a job for the wrong reason is that much worse as I have indicated yesterday.
To give the disabled person some degree of dignity and some recognition of that, reinstatement would only be the appropriate remedy where the circumstances are practicable. For instance, if the job is available then that person could be reinstated. Where the job is no longer there, then obviously the court could no longer do so, and ordering damages would be a better course.
This is something that I would like to emphazise. It is something that, for the disabled persons, is particularly helpful and I would like to draw Members’ attention to the requests made by the Joint Council for the Physically and Mentally Disabled Groups and the Rehabilitation Division of the Hong Kong Council of Social Services. They have strongly urged that Members of this Council support reinstatement as a measure of remedy for the disabled.
Thank you, Mr Chairman.
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MR VINCENT CHENG: I have confidence the Judiciary will come up with impartial judgment on this, and therefore I support this as an option.
MR WONG WAI-YIN (in Cantonese): Mr Chairman, I rise in support of Dr the Honourable LEONG Che-hung’s amendment. During the Second Reading of the Bill yesterday, I had specially emphasized how the disabled could be integrated with the society and how they could have the respect of the others. Having a job is very important for the disabled. Without a job, they would be misunderstood to have problems with their ability or otherwise. As having a job is so important to the disabled, when discrimination arises and the court judgment is in favour of them, it would be very unfair to them if they cannot return to their job. We specially stressed this point yesterday. It is already very difficult for the disabled to find a job, if they cannot be reinstated after being dismissed, it would be even harder for them to find a job in another organization after their going through the legal wrangles. I therefore feel that reinstatement is very important.
Mr Chairman, I also hope that Members of this Council can brush aside whatever thoughts they might have in respect of the recently passed Sex Discrimination Bill. I have listened to the many amendments proposed by the Secretary for Health and Welfare, but she has not given sufficient reasons for all these amendments. All that she can give is that they are recommended by the Education and Manpower Branch, or since the Sex Discrimination Bill has been passed, this Bill should also be passed similarly. I do not think we need to do so, in fact, while the Sex Discrimination Bill was being debated, the Honourable Mrs Peggy LAM suddenly proposed an amendment to set the damages ceiling at $150,000. At that time, many of us supported this sudden proposal, though it had not been discussed by the Bills Committee, and the Administration had not given any deep thoughts to it. Now no one has proposed any similar amendment, but I hope that those who might have given their support by mistake last time will consider the hardship the disabled face in finding an employment.
Finally, Mr Chairman, I hope that the Honourable PANG Chun-hoi, who has been named by the Honourable James TIEN and the Honourable Allen LEE as the one who cares most about the benefits of the workers, will support this amendment in respect of reinstatement. Thank you, Mr Chairman.
MR PANG CHUN-HOI (in Cantonese): Mr Chairman, just now I have been named by the Honourable WONG Wai-yin, and I would like to speak about my feelings. I always think that this is a well-intentioned Bill, but it would be counter-productive if too many amendments are needed. Just now he mentioned that it is very difficult for the disabled to find a job, now the disabled cannot be dismissed. If a disabled is dismissed, the matter would be brought before court so that he could be reinstated. He said that the labour sector did not support the disabled, but what about the social worker sector from which he comes? Have
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they helped the disabled? Must the labour sector help the workers? There are three millions workers in Hong Kong, most of them, I believe, are employed. You are not the employer, just the employed, but would like to do something worthwhile. But if you just charge on, what good do you bring to the workers, or to the society as a whole? For workers, they all want to make a bit more money, have a bit less work, and be a bit easier with their living. This is every one’s hope.
Now I am over 70, I just hope that you can look a bit further on and hope that you will all remain unchanged. I do not want to offend anyone, but a lot of people have changed and they do not even realize it themselves. I do not want to point out anyone, but if the 4 June incident of 1989 did not occur, would the situation develop into something like this now? The future Chief Executive should be from one of us here, but the 4 June incident has crashed everything. I therefore think that one should open one’s eyes and look; before we can have a clear picture of the situation, we must listen to the hot-headed words of young men, we must also listen to those who have nothing to fear. However, we should keep the whole picture in view.
I shall vote against the amendment.
MRS PEGGY LAM (in Cantonese): Mr Chairman, I should thank many of my colleagues in this Council for their often mentioning my name in their speeches. I am puzzled because when I suggested the $150,000 ceiling, I had twice explained the rationale behind it, and I am not going to repeat it again. If they have forgotten my rationale, I shall refer them to the official record of the proceedings of the Legislative Council. I have not suggested setting any ceiling in respect of the Disability Discrimination Bill because I do not think it would be a situation of frequent occurrence. Some people have suggested that I should make the suggestion, but I think there is no such need.
I would support the amendment of Dr the Honourable LEONG Che-hung because if the disabled, especially those with AIDS, were dismissed for the wrong reasons, they should be given the opportunity for reinstatement. I support the amendment of Dr LEONG Che-hung.
MISS EMILY LAU (in Cantonese): Mr Chairman, I want to respond to the Honourable PANG Chun-hoi’s speech. He said that there were people making stinging remarks and asked us to keep the whole picture in view and look further ahead. I think not many of us need the admonishment from Mr PANG Chun-hoi.
Many of us (sadly not the absolute majority of us) were voted into office by the citizens, on an one-person-one-vote basis, unlike some who were on a number of times automatically elected. I also wonder how a person, claiming to be a representative of the labour sector, can have such a strange stand. I hope
HONG KONG LEGISLATIVE COUNCIL － 28 July 1995 6393
that those of the labour functional constituency and the public in general, when casting their votes on 17 September, should open wide their eyes and see who do not know switching allegiance, and who really care about protecting the citizens’ interests.
Finally, Mr Chairman, some people said that I am too radical, or some people like to give me labels. However, I would like to know if the Honourable Mrs Peggy LAM could be described as radical, or if the Honourable Vincent CHENG is radical? They all said that they would support this proposal. I therefore hope that you can see clearly and listen carefully, it does not matter we differ on our views, but I feel very offended to see that we can so easily pin a label on anyone. Thank you, Mr Chairman.
CHAIRMAN: We are straying into more irrelevancies. Mr PANG was invited to speak. He spoke on a matter that was strictly irrelevant and it is not going to. be compounded by further speeches of that nature.
DR YEUNG SUM (in Cantonese): Mr Chairman, the Honourable Vincent CHENG and I have confidence in the judicial system of Hong Kong. However, if we do not make the legislative change so that the workers can be reinstated, a judge cannot pass the necessary judgment. I therefore hope that while maintaining the integrity of the judicial system, we can make the legislative change so that the workers can have the right for reinstatement.
MR ERIC LEE (in Cantonese): Mr Chairman, my speech will be very brief. I have been listening very carefully, and I also support this amendment, because I would not support an amendment that is inconsistent with the general interests of the society. Though I think the disabled are a minority worthy of our assistance, I would not let emotion rule my head.
I think that allowing the disabled the right of reinstatement is not simply a matter of dignity. From my more than 20 years’ experience working with them, I understand very well that they really want to help themselves and do not want to rely on the society. If we help a disabled to get a job, he would not need to rely on the society for his living, thereby without taking up some of the resources of the taxpayers. I think that even my colleagues from the commercial and industrial sector would agree that this amendment is consistent with the general interests of the society.
I would also like to have a word on behalf of the Honourable Mrs Peggy LAM. When this Bill was introduced, as the Honourable Ms Anna WU and I had already mentioned, Mrs Peggy LAM and I immediately proposed the amendment concerned. Right in front of me, she phoned the official concerned, saying that she would not support that amendment, instead she would support the amendment of Dr the Honourable LEONG Che hung. I therefore think that
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Mrs Peggy LAM has done a lot for this Bill, and we should not have so much grumbling and stinging remarks against her.
MR JAMES TIEN (in Cantonese): Mr Chairman, the Honourable WONG Wai-yin reminded us once again that I had praised the Honourable PANG Chun-hoi yesterday. Yesterday he reiterated that if the communists were to heap praises on him, he would get very apprehensive. However, from the views expressed by the Democratic Party in respect of clause 65, I believe that if the communists prosecute Mr WONG Wai-yin without giving him any reason but only 28 days to respond, he would feel even more apprehensive.
MS ANNA WU: Thank you, Mr Chairman. Mr Chairman, I would like to speak a second time simply to remind Members that we are talking about the Disability Discrimination Bill. It is important to remember that the plight of the disabled is different from the plight of the women under the gender discrimination laws. It is particularly helpful for Mrs Peggy LAM to make that distinction between the disabled and the gender issues.
She has not raised the issue of $150,000 ceiling of damages in the case of the disabled, and I am sure the Members of the Bills Committee, including in particular myself, were extremely grateful for that measure. I am, of course, equally happy that the Government does not feel it necessary to raise that particular quantum, but I would like to mention again that we are talking about remedies for the disabled. Their plight are somewhat unusual. Their plight is particularly difficult to remedy, and reinstatement in many cases does give them that measure of dignity which is sometimes required. And furthermore, the reinstatement remedy together with the general principles of disability discrimination provides the self-help mechanism and arrangements that anybody suffering from discrimination needs, and I would ask Members to consider those particular aspects. It is a discretionary remedy of the court again.
May I also remind Members that the Government had initially accepted that in principle. I would urge Members to support that and not be drawn away by their decisions under the Sex Discrimination Bill, for whatever reason.
Thank you, Mr Chairman.
MR LEE CHEUK-YAN (in Cantonese): Mr Chairman, I hope my colleagues can all calm down a bit. Let us make it clear to ourselves that this amendment is to provide the disabled with the opportunity for employment, I hope that you all can support.
I know that when the Secretary for Health and Welfare, in her speech to be made later, will mention that in the review on labour relations carried out by the Secretary for Education and Manpower, the option of reinstatement as a
HONG KONG LEGISLATIVE COUNCIL － 28 July 1995 6395
remedy has been studied, the result will be tabled at the Legislative Council next year. However, I would like to tell you that in the conclusion of the study of the Secretary for Education and Manpower, there would not be reinstatement as a remedy for unions being discriminated against. That is why we only have discussion about the disabled now. Do not think that after the detailed review by the Secretary for Education and Manpower, there will the right of reinstatement. If we vote against this right today, the Secretary for Education and Manpower will still say that there will not be any right of reinstatement next year.
I hope that we can keep in mind that the discussion we have today is about the disabled. I agree to many Members that they are “special”, I therefore appeal to you that for this one “special” time, please treat them “specially”. Thank you.
MR MARTIN LEE (in Cantonese): Mr Chairman, I hope that the three government officials can show “special” mercy.
SECRETARY FOR HEALTH AND WELFARE: Mr Chairman, the amendment proposed by Dr the Honourable LEONG Che-hung is to empower the District Court to order, amongst other things, reinstatement or promotion as a remedy in a discrimination case brought under this legislation.
Now, it is available in the United Kingdom in unfair dismissal cases and in Australia for discrimination cases. Experience in these places has shown that there are many enforcement problems. It is thus rarely used. In general, where a case of alleged unfair dismissal is brought to the court, the relations between the employee and the employer would have broken down to such an extent that reinstatement by force would not be a welcome remedy to either party. Compensation should, therefore, be the appropriate remedy.
As the Honourable LEE Cheuk-yan quite rightly said, this question has been fully addressed in a review of labour relations conducted by the Secretary for Education and Manpower, and legislative proposals taking into account the outcome of the review will be introduced into the Legislative Council in the next Session. It would be premature to our minds to predict the results of this review or to include this provision in the Disability Discrimination Bill.
Moreover, if a change to the remedies available to the court were deemed to be appropriate in Hong Kong in the context of this review, we believe it would be better introduced generally rather than only in respect of this Bill.
The Honourable Ms Anna WU, the Honourable WONG Wai-yin and Dr the Honourable LEONG Che-hung have all suggested that reinstatement would restore the dignity of a person with a disability who had been discriminated against. We are less sure that there is dignity in the position of someone going
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back to his work place under these circumstances. We do feel compensation is the more appropriate remedy.
The amendment proposed by Dr the Honourable LEONG Che-hung also makes the award of damages possible in relation to the application of a discriminatory condition or requirement by a person even if the application were not intentional. The Administration objects to this idea. Where a person, an employer for example, can prove that the application of a discriminatory condition and requirement were unintentional, the remedy should be to order the employer to remove the discriminatory requirement or condition rather than to pay damages.
Mr Chairman, the Administration objects to this amendment and will vote against it.
DR LEONG CHE-HUNG: Mr Chairman, I am actually very grateful for Mr Vincent CHENG and Mrs Peggy LAM for supporting the remedy, in particular Mrs LAM because of her feelings, having worked as the Chairman of the Hong Kong AIDS Foundation as my predecessor.
I am also extremely grateful, actually, and I mentioned that yesterday, for the Health and Welfare Branch for not moving an amendment to put a ceiling on compensation, but I am disturbed that by trying to do our best today for the disabled group, we have moved apparently into a political angle. Mr Chairman, this is not. I am also not a radical person and I move this amendment not just on behalf of the Bills Committee but also on behalf of myself, and I fully endorse the fact that it should receive the reinstatement.
Mr Chairman, if Members have talked enough to the disabled people, to the chronically ill person, to people, for example, with AIDS, who have been discriminated, you will find that they are not there to take you to court. They are not angry. They are not aggrieved and try to really do something harmful. They repeatedly will be telling us that their main thing is that they want to get their jobs back. Their priority is to get their jobs back for the reason of making a living and for the reason of dignity, and they feel very strongly that reinstatement is an important remedy that should be made available to them, all of them, who have been discriminated.
So, I do hope Members will vote “yes” this time for this particular amendment. Thank you.
HONG KONG LEGISLATIVE COUNCIL － 28 July 1995 6397
MR RONALD ARCULLI: Thank you, Mr Chairman. I just felt that we should say a few words about this issue since the Liberal Party is not going to support the amendment.
I would like to emphasize that it is not a decision that we have taken easily or lightly. I suspect that, in terms of reinstatement as a remedy, it is not a unilateral decision and, in terms of the relationship between a disabled person and his employer, or former employer, one is hesitant to actually interfere with it, and I suspect perhaps the best reason really is that in terms of our disabled, they also deserve dignity.
Now, if dignity is taken into account, maybe different disabled people would behave differently but if conciliation, as it were, fails and one has to resort to court to order reinstatement, then we wonder what the practical effect of that future relationship would be. And we think that in those circumstances, the better course of action would really be compensation and perhaps assistance in relocating that particular person to a somewhat more sympathetic employer.
So, I think it is really on that basis that － it is not out of lack of sympathy for the disabled person or out of sympathy for the employer －that we do not support the amendment.
MR MARTIN LEE: Mr Chairman, the Secretary says that such a remedy is rarely used in other jurisdictions that have it. I can perfectly understand why because if I were a disabled person and I was wrongfully sacked, I would not like to continue to work for the same employer who wrongfully sacked me. I would rather seek a new job, but if I am a disabled person it is not exactly easy for me to find that other employer. And that is why, if I really want to have job satisfaction, to have the dignity to be employed, I would take the alternative, if there is one, so that I can be reinstated. Damages is not the answer. Money may not be that important to me.
So, all that we are asking for is an alternative. So damages will cover the period of wrongful dismissal but reinstatement will make sure that I, as a disabled person, if in such a case, will get my job back. It is not an ideal situation but it will still give me my job back.
MR VINCENT CHENG: Thank you, Mr Chairman. I have spoken too much already, I think, but I just want to address the practical side of this issue to ease some of the Members’ concerns.
I think for small employers, there is this problem that Mr ARCULLI has mentioned that the relationship will be quite strained because for small employers there are more, sort of, day-to-day personal contact between the employee and the employer himself. But for large corporations, I think there
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are ways out because there are certainly more jobs available that could be mutually agreed between the disabled person and the personnel manager, for example.
So, I think it is not as black and white as some of us are making out here. There will be so many cases and examples with different reasoning and whatnot, but I think as an option, I am just saying as an option, we should be able to consider it.
Thank you, Mr Chairman.
MR JIMMY McGREGOR: Mr Chairman, I rise actually to support the amendment and the point made by Mr Martin LEE and Dr LEONG Che-hung.
Very late last night, I was outside this Chamber and had the opportunity to have discussion with one of the disabled, rather seriously disabled person who was supported by others, who, as you know, are now more or less camping outside this building while the legislation is being discussed. I was very struck by the response given to me by that disabled person who is actually here today. The sincerity with which he spoke, the predicament in which he stated he found himself and others find themselves, I think it is not simply a matter of sympathy for the disabled people. It is a matter, I would agree entirely, of restoring and giving them the chance to have a life in dignity.
Employers, I think small employers particularly, would be reluctant in the very first place, to take on the responsibility of having disabled people within the staff who they cannot cope with, or who they may feel are not quite able to do the job. In many cases where such disabled people are taken in by smaller companies, there is a sort of a feeling of wanting to help by the employer and that feeling will carry on when the person is employed and carries out his or her work. But the larger companies, the very large companies in particular, have policies towards this as Mr Vincent CHENG has accurately remarked. They have policies which will allow them, in fact, which makes it a policy of the company to employ a number of disabled people as a matter of social service, quite apart from anything else, and to give these people the chance of a dignified life.
I think the fact that there is a legal requirement which will permit reinstatement will in itself cause employers to think very carefully about taking on disabled people and secondly dismissing them if they find that the quality of their work is not quite up to the standard they are looking for. So, I do think there should be remedy in law. I do not think it is necessary for employers to have such a protection that they can take on somebody who is disabled, dismiss that person, or who becomes disabled but who can still do the job. For instance, the AIDS patients, the AIDS people who have been remarked on by Dr LEONG Che-hung. I think this is a very tragic situation where an employer would be so afraid that he would dismiss a person coming to his attention as having the AIDS
HONG KONG LEGISLATIVE COUNCIL － 28 July 1995 6399
virus when apparently there is no need and he can do the work perfectly well and can continue to have work. In fact, that would be part of the need by the person concerned, I guess, to have work that he can continue to do and to fight this infection without danger to anybody else around him or her.
So, I do believe that although I have gone along with the Government in a wide range of opposing various amendments in this Bill, and may continue to do so in other amendments, I think in this particular one there is a very strong social case for agreeing to the amendment put forward by Dr LEONG Che-hung, and therefore I will support it and I would ask, especially all the independents and I think a good many of the independents already are beginning to swerve that way to vote for the amendment.
Thank you, Mr Chairman.
MR SZETO WAH (in Cantonese): Mr Chairman, I do not agree to the Honourable Martin LEE’s asking the three official members to give mercy just now. We are not at a time when one can bestow mercy on another. I hope that all of us, whether official members or unofficial members, can show some benevolence. Confucius said, “To be benevolent is human.” A man with benevolence will treat others like himself, with dignity. This is equality. Confucius also said, “Neither do you angle with a net, nor shoot homing birds with a string tied to an arrow.” What he said was that he only fished with line and hook, and not with a big net, and when he hunted, he would not kill those birds which were returning home. When we hunt, we would hunt with such care as not to exterminate the fish and the birds, why can we not do the same to the disabled? Like ourselves, they are also dignified human beings. They feel that being able to be reinstated is a dignity for which no money can buy. Why not give them this dignity?
MR TSO SHIU-WAI (in Cantonese): Mr Chairman, I am also an employer myself, I understand that if a disabled loses his job on the ground of discrimination, besides any money compensation, his having the right and the channel to get reinstatement has great significance to him. I think that it is a reasonable system to allow a court to mediate between an employer and his employees in respect of the conflict in their relationship and to set the appropriate time for the disabled to be reinstated. Such a system is worthy of our support. I will support the amendment of Dr the Honourable LEONG Che-hung. Thank you, Mr Chairman.
MR ANDREW WONG (in Cantonese): Mr Chairman, in the discussion in respect of the Sex Discrimination Bill, I supported the right of reinstatement, today I will vote similarly. I appeal to the Administration to allow the official members to vote as they see fit. Could the Liberal Party also allow its Members
6400 HONG KONG LEGISLATIVE COUNCIL － 28 July 1995
to vote freely, that is, they do not need to be as rigid as an iron slab? I believe this is something that should be done with our conscience.
CHAIRMAN: I hope we are not going to have repetitive speeches.
MS ANNA WU: Thank you, Mr Chairman, for your indulgence. I simply would like to mention again that this is an optional remedy which can be used and ordered by the court where appropriate. Obviously where a court sees that it is going to create friction then it would not be an appropriate remedy and the court is not bound to order that particular remedy.
Mr Vincent CHENG has talked about large commercial establishments. What I would like to draw Members’ attention to are major public bodies, universities and the Government as employers. In these particular institutions, there are many departments and tens of thousands of employees. The personal factor is far less strong. It is not going to create friction where a disabled person is given the remedy of reinstatement.
In the case of the Government, in particular, the issue is quite simple. There is no other equivalent government employer and this would be an appropriate remedy in many cases because it would not create additional friction in any event.
I am simply urging Members to consider that as part of the remedy that ought to be made available as a discretionary option.
Thank you, Mr Chairman.
MR MARTIN LEE (in Cantonese): The Honourable Andrew WONG, Members of the Democratic Party can vote freely.
MR MAN SAI-CHEONG (in Cantonese): Mr Chairman, as the largest employer in Hong Kong, the Government, should take the lead and set itself an example for the employers in Hong Kong. I urge the three official members to support the amendment or abstain.
Question on Dr LEONG’s amendment put.
Voice vote taken.
THE CHAIRMAN said he thought the “Ayes” had it.
HONG KONG LEGISLATIVE COUNCIL － 28 July 1995 6401 Dr YEUNG Sum claimed a division.
CHAIRMAN: Committee will proceed to a division.
CHAIRMAN: Would Members please proceed to vote?
CHAIRMAN: We are one short of the head count. Are there any queries? If not, the result will now be displayed.
Mrs Selina CHOW, Mr Martin LEE, Mr SZETO Wah, Mr TAM Yiu-chung, Mr Andrew WONG, Mrs Peggy LAM, Dr LEONG Che-hung, Mr Jimmy McGREGOR, Mrs Elsie TU, Mr Albert CHAN, Mr Vincent CHENG, Mr Marvin CHEUNG, Mr CHEUNG Man-kwong, Rev FUNG Chi-wood, Mr Frederick FUNG, Mr Timothy HA, Mr Michael HO, Dr HUANG Chen-ya, Mr Simon IP, Dr Conrad LAM, Miss Emily LAU, Mr LEE Wing-tat, Mr Eric LI, Mr Fred LI, Mr MAN Sai-cheong, Mr TIK Chi-yuen, Mr James TO, Dr YEUNG Sum, Mr WONG Wai-yin, Miss Christine LOH, Mr Roger LUK, Ms Anna WU, Mr Alfred TSO and Mr LEE Cheuk-yan voted for the amendment.
The Chief Secretary, the Attorney General, the Financial Secretary, Mr PANG Chun-hoi, Dr Samuel WONG and Dr Philip WONG voted against the amendment.
Mr Allen LEE, Mr NGAI Shiu-kit, Mr LAU Wong-fat, Mr Edward HO, Mr Ronald ARCULLI, Mrs Miriam LAU, Mr LAU Wah-sum, Mr Peter WONG, Mr Moses CHENG, Dr LAM Kui-chun, Mr Steven POON, Mr Henry TANG, Mr Howard YOUNG, Dr TANG Siu-tong and Mr James TIEN abstained.
THE CHAIRMAN announced that there were 34 votes in favour of the amendment and six votes against it. He therefore declared that the amendment was carried.
Question on clause 70, as amended, proposed, put and agreed to.
Clause 76
DR LEONG CHE-HUNG: Mr Chairman, I move that clause 76 be amended as set out under my name in the paper circulated to Members.
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The proposed amendment is to empower the court additionally to make an order imposing a non-criminal financial penalty of $10,000 for the first contravention and $30,000 for a second and subsequent contraventions in publishing unlawfully discriminatory advertisements.
A parallel amendment was approved by this Council for the Sex Discrimination Bill. Proposed amendment
Clause 76
That clause 76 be amended, by adding －
“(5) Without prejudice to subsection (4), if it appears to the Commission that a person has done an act which was unlawful by virtue of section 40, the Commission may apply to the District Court for an order imposing a financial penalty on such person; and the District Court, if satisfied that the application is well-founded, may make such an order.
(6) The financial penalty imposed under subsection (5) shall not exceed $10,000 for the first occasion on which a penalty is imposed, and $30,000 for the second and any subsequent occasion on which a penalty is imposed in respect of the same person.”.
Question on the amendment proposed.
SECRETARY FOR HEALTH AND WELFARE: Mr Chairman, since a similar amendment to the Sex Discrimination Ordinance was passed by Members of this Council last month, the Administration has no objection to the amendment and will vote for it.
Question on the amendment put and agreed to.
Question on clause 76, as amended, proposed, put and agreed to.
Clause 79
SECRETARY FOR HEALTH AND WELFARE: Mr Chairman, I move that clause 79 be amended as set out under my name in the paper circulated to Members.
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This is a technical amendment which will facilitate the Equal Opportunities Commission in the provision of assistance to complainants in proceedings before the District Court.
Proposed amendment
Clause 79
That clause 79(3) be amended, by adding “except to the extent permitted under rules made in accordance with section 73C of the District Court Ordinance (Cap. 336)” at the end.
Question on the amendment proposed, put and agreed to.
DR LEONG CHE-HUNG: Mr Chairman, I move that clause 79 be further amended as set out under my name in the paper circulated to Members.
The proposed amendment enables the EOC to take over proceedings in its own name even if a claimant receiving EOC assistance withdraws from proceedings.
The Bills Committee considers that where the EOC has already provided assistance to a person litigating an important case under the Disability Discrimination Bill, the EOC should be able to pursue the case in its own name if the person withdraws.
Proposed amendment
Clause 79
That clause 79 be further amended, by adding －
“(5A)(a) Where any person, who has received assistance in respect of proceedings under this Ordinance under subsection (2), withdraws from those proceedings, the Commission may take over and maintain those proceedings.
(b) As from the date of any such taking over of proceedings under paragraph (a), the Commission shall be deemed to be a party to those proceedings in place of the person who has withdrawn therefrom.”.
Question on the amendment proposed.
6404 HONG KONG LEGISLATIVE COUNCIL － 28 July 1995
MR JAMES TIEN (in Cantonese): Mr Chairman, according to clause 79, if an employer discriminates against a disabled person, the Equality Opportunities Commission can initiate proceedings. We support this arrangement. However, we have been emphasizing that with respect to the relation between the employer and the disabled, we really hope that they can resolve any dispute themselves. If they can come up with a resolution, reinstatement of course would not be a problem and they can maintain a cordial relationship. However, the amendment of Dr the Honourable LEONG Che-hung gives the intiative to the Equal Opportunities Commission to deal with the case, without allowing the concerned parties to enter into any negotiation and without obtaining the consent of the person being discriminated against. So doing would only aggravate the conflict, and how can the disabled enter into any negotiation with his employer? Even if reinstatement is contemplated, they still need to negotiate before any reinstatement can be possible. Otherwise, when they just put on a look of displeasure towards each other, there will not be any point in working at all. I therefore feel that it is important to give them a chance to talk with each other. If an agreement can be reached, the whole matter is resolved, but if the talk breaks down, the disabled can still ask the Equal Opportunities Commission to prosecute the employer. This is something we support absolutely.
The Administration also proposes that the subsidiary legislation that provides for the power of the Equal Opportunities Commission shall have to be approved by the Legislative Council. The amendment of Dr LEONG Che-hung indicates that such a requirement is not needed. Yesterday when we had debates on the Mandatory Provident Funds Bill, though the Administration expressed that all legislations should have the approval of the Legislative Council, as to the commencement date, the Members were still in a deadlock when it was time to press the buttons to vote, thinking that the legislations must be approved by the Legislative Council. Now, what their proposal amounts to is that even if the subsidiary legislations have to have the approval of the Legislative Council, they would not support. On this basis, the Liberal Party and the industrial and commercial sectors will not support the amendment of Dr LEONG Che-hung, but will support that of the Administration instead. I hold the same view in respect of clauses 70A and 70B, and I shall not repeat the reasons. Thank you, Mr Chairman.
MS ANNA WU: Thank you, Mr Chairman. As specified in subsection (2A) of this particular clause, the Commission will sometimes assist a claimant because the case raises a question of principle. When it does so the Commission is investing its resources in the assistance because it wants to develop a particular legal issue that is of significance for people with disabilities. Indeed, the Commission would only take on a case if that issue is important in the first place. In many instances, this type of assistance could help to prevent other problems later on, so the case itself would be of importance.
The Commission’s investment should not be lost and the important legal issue abandoned simply because the assisted person drops out for his own
HONG KONG LEGISLATIVE COUNCIL － 28 July 1995 6405
reasons part way through the proceedings. If that happens, this amendment enables the Commission to take over and maintain the proceedings in its own name.
Again, I wish to emphasize that this is a matter for the Commission to decide. It is not mandatory in any event. Where this is important in terms of a preventive measure out of the public interest, we should allow the Commission to take on that role if it sees fit.
It should be emphasized also that this amendment does not give the Commission control over an assisted person’s litigation while that person still has an interest in it. The Commission can only take over proceedings if and when the assisted claimant abandons them.
I also want to emphasize that this does not empower the Commission to overturn or undo settlements made by an assisted claimant. Once a claimant reaches a settlement there are no longer any proceedings left for the Commission to take over, and this amendment will not apply.
I therefore urge Members to consider this option and allow the Commission that particular flexibility and support the amendment. Thank you, Mr Chairman.
SECRETARY FOR HEALTH AND WELFARE: Mr Chairman, the amendment proposed by Dr the Honourable LEONG Che-hung would empower the Commission to take over proceedings even though the plaintiff concerned has decided to withdraw from such proceedings for whatever reason. As I said in the Second Reading debate, we believe that where a person decides to withdraw from proceedings the Commission should respect rather than interfere in his or her right to do so. If the Commission wishes to establish a point of principle, it could achieve this aim through a formal investigation or a test case, where the individual was content to be involved.
Mr Chairman, the Administration objects to this amendment and will vote against it. MR JIMMY McGREGOR: Am I allowed to speak on this issue at this time? CHAIRMAN: Yes, in the Committee stage, you can.
MR JIMMY McGREGOR: Well, I simply want to say that I do point out that, the background to Dr LEONG Che-hung’s amendment is that no employer need to fear this kind of legal authority because the case will be taken by the Commission on a basis of whether a case exists or not and whether it is strong
6406 HONG KONG LEGISLATIVE COUNCIL － 28 July 1995
enough to proceed. Therefore I agree entirely with Ms Anna WU and her summing up of when a case would be taken.
An employer should not feel any difficulty if the employee withdraws himself or herself from the case and the Commission takes it over because there would have to be a matter of considerable principle or the protection of that particular employee.
We have seen in Hong Kong people withdrawing themselves from cases for different reasons, and I think it is quite possible that a litigant may become frightened of the outcome or the length of the case or the importance of the case. That litigant may be an ordinary working person who finds himself or herself bound up in some very important issue and becomes very frightened of the outcome or frightened of carrying it any further, and may then wish to withdraw. The case itself may be of such importance that the legal issues should be taken before the courts and decided by the courts.
So, it seems to me that there is a strong case and I would simply point out one more thing, Mr Chairman, if I may, is that over a very long period of discussion of this Bill and in the Bills Committee, many of those issues came up for discussion repeatedly. There was an option, an ability for those who wished to make these points to make them then and have them fully considered at that point. I have to say that the attendance record for this particular Bills Committee was abysmal throughout the whole length of time the issues were being held. So, it is a strange thing sometimes that we reach this point in debate and find that Members have very strict and very severe disagreements with some of the points being made.
So, for these reasons, Mr Chairman, I would like to ask for support for this particular amendment. Thank you.
MR PETER WONG: Mr Chairman, I do not normally speak on these subjects, but I think that we are treading a very dangerous path if we follow this amendment because it would allow a very zealous Commission to embark upon lines of enquiries which are very interesting, could be very useful, but does not relate to any particular case.
Justice is there for the individual who claim that they have not received a fair deal. But to embark on ventures like this would be coming to like America where lawyers would take charge and start a case, and with nobody being wrong. It was just a class action and it was there for the benefit of the lawyers and nobody else.
I am very much against this line.
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MS ANNA WU: Thank you, Mr Chairman, for allowing me to speak very briefly for a second time.
I would like to emphasize that any Commission, be it this one or anything else, and I am sure the Government would agree, would owe a duty to the public to account for the use of their resources and monies. And I would also like to emphasize that any resources given to the Commission would, of course, be controlled and vetted and reviewed by the Government as well as appropriated by the Legislative Council.
There is no way, absolutely not, how the Commission can misuse its funds or its power. I would hope that we give it a particular credible standing before it gets started.
Thank you, Mr Chairman.
Question on the amendment put.
Voice vote taken.
CHAIRMAN: Committee will proceed to a division.
CHAIRMAN: Would Members please proceed to vote?
CHAIRMAN: Are there any queries? If not, the result will now be displayed.
Mr Martin LEE, Mr SZETO Wah, Mr Andrew WONG, Dr LEONG Che-hung, Mr Jimmy McGREGOR, Mr Albert CHAN, Mr CHEUNG Man-kwong, Rev FUNG Chi-wood, Mr Frederick FUNG, Mr Michael HO, Dr HUANG Chen-ya, Dr Conrad LAM, Miss Emily LAU, Mr Eric LI, Mr Fred LI, Mr MAN Sai-cheong, Mr TIK Chi-yuen, Mr James TO, Dr YEUNG Sum, Mr WONG Wai-yin, Miss Christine LOH, Mr Roger LUK, Ms Anna WU and Mr LEE Cheuk-yan voted for the amendment.
The Chief Secretary, the Attorney General, the Financial Secretary, Mr Allen LEE, Mrs Selina CHOW, Mr PANG Chun-hoi, Mr LAU Wong-fat, Mr Edward HO, Mr Ronald ARCULLI, Mrs Peggy LAM, Mrs Miriam LAU, Mr LAU Wah-sum, Mrs Elsie TU, Mr Peter WONG, Mr Vincent CHENG, Mr Moses CHENG, Mr Timothy HA, Dr LAM Kui chun, Mr Steven POON, Mr Henry TANG, Dr Samuel WONG, Dr Philip WONG, Mr Howard YOUNG, Dr TANG Siu-tong, Mr James TIEN and Mr Alfred TSO voted against the amendment.
6408 HONG KONG LEGISLATIVE COUNCIL － 28 July 1995
THE CHAIRMAN announced that there were 24 votes in favour of the amendment and 26 votes against it. He therefore declared that the amendment was negatived.
Question on clause 79, as amended, proposed, put and agreed to.
Clause 80
SECRETARY FOR HEALTH AND WELFARE: Mr Chairman, I move that clause 80 be amended as set out under my name in the paper circulated to Members.
This amendment is to extend the time for bringing proceedings under the Ordinance from 12 to 24 months. It also provides for a period of two years for those who, after publication of a formal investigation report, realize that they have been discriminated against to bring proceedings. The Bill as drafted, in any case, provides for the District Court to consider any claim which is out of time if it considers that it is just and equitable to do so.
Proposed amendment
Clause 80
That clause 80 be amended, by deleting subclause (1) and substituting －
“(1) The District Court shall not consider a claim under section 70 unless proceedings in respect of the claim are instituted before the end of the period of 24 months beginning -
(a) when the act complained of was done; or
(b) if there is a relevant report in relation to that act, with the day on which the report is published or made available for
inspection under section 67,
whichever is the later.”.
That clause 80(2)(a) be amended, by deleting “12” and substituting “24”. That clause 80(6) be amended －
(a) by deleting “subsection (2)(a) or (b)” and substituting “subsection (1)”. (b) by deleting “any” and substituting “the”.
That clause 80 be amended, by adding －
HONG KONG LEGISLATIVE COUNCIL － 28 July 1995 6409
“(7) In this section, “relevant report”（有關報告）, in relation to an act referred to in subsection (1), means a report -
(a) published or made available for inspection under section 67; and
(b) from which it can reasonably be construed (and whether or not the report mentions, or was in any way prepared in
consequence of, the act) that the Commission is of the opinion
that the act, or the class of acts to which the act belongs, is
unlawful under a provision of Part III, IV or V.”.
Question on the amendment proposed, put and agreed to.
DR LEONG CHE-HUNG: Mr Chairman, I move that clause 80 be further amended as set out under my name in the paper circulated to Members.
The proposed amendment is to the effect that the period within which proceedings under the Ordinance may be brought to provide that time in conciliation will not be taken into account.
The Bills Committee considers the Disability Discrimination Bill should clearly provide that time in conciliation does not count against the time allowed to bring legal proceedings. A complainant undergoing conciliation should not need to commence proceedings (possibly disrupting conciliation) merely to be certain of preserving the right to litigate if conciliation fails.
Proposed amendment
Clause 80
That clause 80 be further amended, by adding －
“(2A) For the purposes of determining the period under subsection (1) within which proceedings may be brought, where an act to which the claim relates was the subject of a complaint lodged under section 78(1), then the peirod that elapsed between the date when the complaint was lodged and the date when conciliation under section 78 was conducted, as certified in writing by the Commission, shall be disregarded.”.
Question on the amendment proposed.
6410 HONG KONG LEGISLATIVE COUNCIL － 28 July 1995
MS ANNA WU: Thank you, Mr Chairman. This amendment is a technical improvement on the Bill as it stands. The Administration suggests that clause 80 already empowers and encourages the District Court to allow a late claim to be made if it has run out of time because of lengthy conciliation.
The existing provisions however leave the matter to the discretion of the Court. Once a time has passed a legal right is in fact lost there and then. Careful claimants will not be willing to rely on the discretion and may instead file their claims while conciliation is on going in order to be absolutely sure that they will not be time-barred. This can have an adverse effect on the conciliation efforts and certainly it will be wrong to make an applicant willing to undergo conciliation run the risk of losing a legal right. A discretionary remedy after the time has run out does not guarantee that person the right to go back to the courts. And if it is not granted subsequently that right will be absolutely lost without any kind of remedy to the individual. If you look at it in the context of the disabled in particular, those who are suffering from mental illness or mental impairment, we should make every effort to ensure that they feel comfortable with the conciliation procedure and not to have force them into litigation if we do not have to.
This amendment simply removes an uncertainty by providing that time in conciliation will simply not be counted against the time available to file claims. This amendment does not ask for longer time, it simply removes that uncertainty that while conciliation is on going and there is a prospect of conciliation succeeding, then time should be given to the conciliation process and that time should not be counted towards the 24 months. That is all the amendment is seeking to do.
May I also remind Members that at the last sitting when this matter was raised under the Sex Discrimination Bill the vote was extremely tight, it was almost passed. However, I do urge Members to consider in particular the disabled persons in the event that they should seek conciliation. Every encouragement should be made and every effort should be made to ensure that no time will bar them from bringing proceedings in court. Thank you, Mr Chairman.
MR RONALD ARCULLI: Thank you, Mr Chairman. I hear what the Honourable Ms Anna WU says but in my view far from introducing certainty by allowing the conciliation time to, as it were, be discounted, it increases the element of uncertainty because conciliation is not a cut and dried process. It could go quite far one day and yet looks wonderful today and six months later might look terrible.
So I think for those Members who spoke out earlier about giving their faith in our judicial system perhaps they should consider this that in this instance
HONG KONG LEGISLATIVE COUNCIL － 28 July 1995 6411
they should give the discretion to the court to allow the court to decide. And I would take this opportunity, Mr Chairman, to remind Members that not so long ago when we considered another piece of legislation here in terms of the family inheritance provisions where persons entitled to lodge claims could only do so within six months of grant of probate or administration. And any period beyond that was left really to the discretion of the court.
Now I think all of us, particularly the lawyers, understand how the discretion of the court works and I am quite sure that in conciliation process if the disabled person was advised properly, it may well be that the employer wanting to achieve something in the conciliation process would be quite happy to extend, as it were, on his own or her own the period and therefore not take the point in court.
So, I think this sort of flexibility does create better atmosphere for better conciliation. And I think the way the position is left, if the government position is maintained does not in my view, actually prejudice and I hope it does not － I do not think it is intended to prejudice the disabled person because it is left to the discretion of the court. Thank you, Mr Chairman.
MR JAMES TIEN (in Cantonese): Mr Chairman, the time limit, as drafted in the Bill, is 12 months. An extension from 12 months to 24 months is a bit too long for many employers. If the conciliation time is taken into account, the time required maybe as along as two and a half or three years. During this period, would the disabled change his mind, or would the situation of the employer change? During the two-year period, the job may have been taken up by another disabled. The industrial and commercial sector thinks that any problem should be resolved as soon as possible. We feel that our support is stretched to the limit with an extension from 12 months to 24 months. Thank you, Mr Chairman.
MS ANNA WU: Thank you again for the indulgence, Mr Chairman. I would simply like to remind Members that as lawyers I would say that where a discretion is given to the court to grant extra time, that discretion is only exercised where there are exceptional circumstances. This is not a general rule and therefore it is only in exceptional circumstances where the court would give extra time to an individual applicant. And this being the case an applicant may easily find himself or herself out of time and therefore a legal right completely lost, and when that occurs conciliation would have failed, there would not have been any settlement, there would not have been any remedy and the person could not go to court. That is a consequence of the events for that particular individual.
Now in the case of the mentally impaired and the mentally ill in particular, one can easily imagine investigative processes by the Commission taking an awful lot of time. We are talking about 24 months. That could easily
6412 HONG KONG LEGISLATIVE COUNCIL － 28 July 1995
lapse and investigation could take easily a year, 18 months and it may take a person who is suffering from particular forms of mental illness or mental impairment at least some months if not a year or so to even file a complaint. These individuals do not have the skills to necessarily help themselves and that is the reason why I am urging Members that if we must err, please err in favour of the victim, not in favour of convenience of the others. Thank you.
MR MOSES CHENG: Mr President, I have never intended to speak on this particular point but with respect to the Honourable Ms Anna WU, that speech she just made does not tally with the experience that I have gained in my practice as a lawyer.
A discretion granted to court would be exercised in favour of a case which is reasonable and justifiable and it does not lead in exceptional case to require the court to exercise the discretion in favour of the applicant. I just want Members to have a clear understanding and would not sort of being swayed by some sort of misunderstanding. Thank you, Mr Chairman.
MR RONALD ARCULLI: Thank you, Mr Chairman. Very briefly to reply to the Honourable Ms Anna WU. As I said earlier, introducing or supporting the amendment would increase the uncertainty. Lawyers have limitation periods so that if in fact you are talking, you are trying to conciliate and you know that tomorrow the time is up, you would issue proceedings today, and you can carry on talking.
This way, the disabled person is actually protected rather than be under the illusion that conciliation can go on after the two-year period when in fact the employer says that conciliation terminated before. So what you will be litigating firstly if the amendment is supported, is you are arguing in the first instance whether or not conciliation has ended. And that will do the disabled person more injustice than having a fixed period of time. Thank you, Mr Chairman.
SECRETARY FOR HEALTH AND WELFARE: Mr Chairman, I reiterate the Administration has already proposed to extend the period during which proceedings may be brought from 12 to 24 months. More importantly, the District Court may consider any claim or application which is out of time if it considers that it is just and equitable to do so.
An aggrieved party who spent more than two years in conciliation and was not satisfied with the outcome could bring his case to the court and ask for it to be actioned. But we do not envisage conciliation taking more than two years and to reassure the Honourable Ms Anna WU in the likely event that it did, the court would have regard to that fact in considering a claim that was out of time.
HONG KONG LEGISLATIVE COUNCIL － 28 July 1995 6413
We do not therefore see the need to make a provision to state explicitly in the Bill that the time taken for conciliation should not be taken into account.
Mr Chairman, the Administration objects to this amendment and will vote against it.
DR LEONG CHE-HUNG: Yesterday, it was a debate and today we have a legal debate. I just wish all Members will support this amendment.
MS ANNA WU: Thank you, Mr President. I would be very brief. I would like to explain that the amendment insofar at the point when conciliation ends, is specifically stated in that amendment that it should be certified in writing by the Commission. That removes the uncertainty that was earlier discussed. Thank you, Mr Chairman.
MR MARTIN LEE: Mr Chairman, this amendment is really to be made out of caution. I heard with dismay from Mr Ronald ARCULLI saying “Well, the employer of course could extend the period”. Now if he should rely on the kindness of the employer and yet those who oppose the Bill on behalf of the employers would not agree with this amendment. So it really makes me think if they are really so generous about it why do they not accept the amendment, support it. As for time of limitation of course I know that － I too am a later, and, Mr Chairman, for fraud for instance, the limitation period would be extended in case of fraud. And of course very often the judge would have to decide whether or not there is fraud and how it impinges on the limitation period. So we are not introducing something new. This is something known to the court. They are able to cope with it. There is certainty and I urge Members to support it.
Question on Dr LEONG Che-hung’s amendment put.
The Chairman said he thought the “Noes” had it.
Mr WONG Wai-yin claimed a division.
CHAIRMAN: Committee will proceed to a division.
CHAIRMAN: Would Members please proceed to vote?
6414 HONG KONG LEGISLATIVE COUNCIL － 28 July 1995 CHAIRMAN: Are there any queries? If not, the result will now be displayed.
Mr Martin LEE, Mr SZETO Wah, Mr Andrew WONG, Mrs Peggy LAM, Dr LEONG Che hung, Mr Albert CHAN, Mr CHEUNG Man-kwong, Rev FUNG Chi-wood, Mr Frederick FUNG, Mr Michael HO, Dr HUANG Chen-ya, Dr Conrad LAM, Miss Emily LAU, Mr LEE Wing-tat, Mr Fred LI, Mr MAN Sai-cheong, Mr TIK Chi-yuen, Mr James TO, Dr YEUNG Sum, Mr WONG Wai-yin, Miss Christine LOH, Mr Roger LUK, Ms Anna WU and Mr LEE Cheuk-yan voted for the amendment.
The Chief Secretary, the Attorney General, the Financial Secretary, Mr Allen LEE, Mrs Selina CHOW, Mr NGAI Shiu-kit, Mr PANG Chun-hoi, Mr LAU Wong-fat, Mr Edward HO, Mr Ronald ARCULLI, Mr Martin BARROW, Mrs Miriam LAU, Mr LAU Wah-sum, Mr Jimmy McGREGOR, Mrs Elsie TU, Mr Peter WONG, Mr Vincent CHENG, Mr Moses CHENG, Mr CHIM Pui-chung, Mr Timothy HA, Dr LAM Kui-chun, Mr Steven POON, Mr Henry TANG, Dr Samuel WONG, Dr Philip WONG, Mr Howard YOUNG, Dr TANG Siu tong, Mr James TIEN and Mr Alfred TSO voted against the amendment.
Mr Eric LI abstained.
THE CHAIRMAN announced that there were 24 votes in favour of the amendment and 29 votes against it. He therefore declared that the amendment was negatived.
Question on clause 80, as amended, proposed, put and agreed to.
Heading before Government
New clause 19B
New Clause 19B Government
Clause read the First time and ordered to be set down for Second Reading pursuant to Standing Order 46(6).
SECRETARY FOR HEALTH AND WELFARE: Mr Chairman, I move that the heading before new clause 19B and new clause 19B as set out in the paper circulated to Members be read the Second time.
No comments yet.
Private notes are available after approval.