Race Discrimination Ordinance

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Race Discrimination Ordinance (Cap. 602) (2008)
Legislative Council of Hong Kong

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related portals: Ordinances of Hong Kong

Date of Commencement: 3 October 2008 (ss. 1, 59, 61, 62, 63, 82, 83, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105 and 106) (L.N. 222 of 2008)

Date of Commencement: 10 July 2009 (Remaining parts) (L.N. 166 of 2009)

A verified copy of this enactment exists on Hong Kong e-Legislation since 13 December 2018.

3647306Race Discrimination Ordinance (Cap. 602)2008Legislative Council of Hong Kong

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RACE DISCRIMINATION ORDINANCE

CONTENTS

Section

Page

PART 1 Interpretation, Application, etc.
1.	Short title and commencement ............................................................................................................................................................................................................................................................................................................	A1219
2.	Interpretation ............................................................................................................................................................................................................................................................................................................	A1219
3.	Application to Government ............................................................................................................................................................................................................................................................................................................	A1227
PART 2 Discrimination and Harassment to which this Ordinance Applies
4.	Racial discrimination ............................................................................................................................................................................................................................................................................................................	A1227
5.	Discrimination on the ground of race of near relative ............................................................................................................................................................................................................................................................................................................	A1229
6.	Discrimination by way of victimization ............................................................................................................................................................................................................................................................................................................	A1229
7.	Racial harassment ............................................................................................................................................................................................................................................................................................................	A1231
8.	Meaning of “race”, “on the ground of race”, “racial group” and comparison of cases of persons or different racial groups ............................................................................................................................................................................................................................................................................................................	A1231
9.	Act done for racial and other reason ............................................................................................................................................................................................................................................................................................................	A1233
PART 3 Discrimination and Harassment in Employment Field
Discrimination by employers
10.	Discrimination against applicants and employees ............................................................................................................................................................................................................................................................................................................	A1235
11.	Exception for genuine occupational qualification ............................................................................................................................................................................................................................................................................................................	A1239
12.	Exception for employment intended to provide training in skills to be exercised outside Hong Kong ............................................................................................................................................................................................................................................................................................................	A1239
13.	Exception for employment of person with special skills, knowledge or experience ............................................................................................................................................................................................................................................................................................................	A1241
14.	Exception for existing employment on local and overseas terms of employment ............................................................................................................................................................................................................................................................................................................	A1243
15.	Discrimination against contract workers ............................................................................................................................................................................................................................................................................................................	A1243
16.	Meaning of employment at establishment in Hong Kong ............................................................................................................................................................................................................................................................................................................	A1247
Discrimination by other bodies
17.	Partnerships ............................................................................................................................................................................................................................................................................................................	A1247
18.	Organizations of workers or employers or professional or trade organizations, etc. ............................................................................................................................................................................................................................................................................................................	A1249
19.	Qualifying bodies ............................................................................................................................................................................................................................................................................................................	A1251
20.	Persons concerned with provision of vocational training ............................................................................................................................................................................................................................................................................................................	A1253
21.	Employment agencies ............................................................................................................................................................................................................................................................................................................	A1255
22.	Discrimination against commission agents ............................................................................................................................................................................................................................................................................................................	A1255
Special cases
23.	Employment, etc. for religion ............................................................................................................................................................................................................................................................................................................	A1257
Harassment
24.	Employees, etc. ............................................................................................................................................................................................................................................................................................................	A1257
25.	Other harassment ............................................................................................................................................................................................................................................................................................................	A1259
PART 4 Discrimination and Harassment in Other Fields
Education
26.	Discrimination by responsible bodies for educational establishments ............................................................................................................................................................................................................................................................................................................	A1261
Goods, facilities, services and premises
27.	Discrimination in provision of goods, facilities or services ............................................................................................................................................................................................................................................................................................................	A1263
28.	Discrimination in disposal or management of premises ............................................................................................................................................................................................................................................................................................................	A1263
29.	Discrimination: consent for assignment or sub-letting ............................................................................................................................................................................................................................................................................................................	A1265
30.	Exceptions for small dwellings ............................................................................................................................................................................................................................................................................................................	A1267
31.	Exceptions for voluntary bodies ............................................................................................................................................................................................................................................................................................................	A1269
32.	Exceptions for cemeteries ............................................................................................................................................................................................................................................................................................................	A1269
33.	Further exceptions ............................................................................................................................................................................................................................................................................................................	A1269
Public bodies, etc.
34.	Discrimination in eligibility to stand for election, etc. ............................................................................................................................................................................................................................................................................................................	A1271
Barristers
35.	Discrimination by, or in relation to, barristers ............................................................................................................................................................................................................................................................................................................	A1273
Clubs
36.	Discrimination by clubs ............................................................................................................................................................................................................................................................................................................	A1273
37.	Exception from section 36 for certain clubs ............................................................................................................................................................................................................................................................................................................	A1275
Harassment
38.	Educational establishments ............................................................................................................................................................................................................................................................................................................	A1277
39.	Other harassment ............................................................................................................................................................................................................................................................................................................	A1277
Extent
40.	Extent of Part 4 ............................................................................................................................................................................................................................................................................................................	A1279
PART 5 Other Unlawful Acts
41.	Discriminatory practices ............................................................................................................................................................................................................................................................................................................	A1281
42.	Discriminatory advertisements ............................................................................................................................................................................................................................................................................................................	A1281
43.	Instructions to discriminate ............................................................................................................................................................................................................................................................................................................	A1283
44.	Pressure to discriminate ............................................................................................................................................................................................................................................................................................................	A1283
45.	Vilification ............................................................................................................................................................................................................................................................................................................	A1283
46.	Offence of serious vilification ............................................................................................................................................................................................................................................................................................................	A1285
47.	Liability of employers and principals ............................................................................................................................................................................................................................................................................................................	A1287
48.	Aiding unlawful acts ............................................................................................................................................................................................................................................................................................................	A1287
PART 6 Matters not Affected by Parts 3, 4 and 5
49.	Special measures ............................................................................................................................................................................................................................................................................................................	A1289
50.	Charities ............................................................................................................................................................................................................................................................................................................	A1291
51.	Discriminatory training by certain bodies ............................................................................................................................................................................................................................................................................................................	A1291
52.	Discriminatory training by employers, organizations of workers or employers or professional or trade organizations, etc. ............................................................................................................................................................................................................................................................................................................	A1291
53.	Indirect access to benefits, etc. ............................................................................................................................................................................................................................................................................................................	A1293
54.	Nationality law, etc. not affected ............................................................................................................................................................................................................................................................................................................	A1295
55.	Immigration legislation ............................................................................................................................................................................................................................................................................................................	A1295
56.	Acts done under statutory authority not affected by Parts 3, 4 and 5 ............................................................................................................................................................................................................................................................................................................	A1295
57.	Application to New Territories land ............................................................................................................................................................................................................................................................................................................	A1295
58.	Other matters not affected ............................................................................................................................................................................................................................................................................................................	A1297
PART 7 Commission
Commission
59.	Functions and powers of Commission ............................................................................................................................................................................................................................................................................................................	A1297
60.	Review of Schedule 5 ............................................................................................................................................................................................................................................................................................................	A1299
61.	Restrictions on delegation by Commission ............................................................................................................................................................................................................................................................................................................	A1299
62.	Protection of members of Commission, etc. ............................................................................................................................................................................................................................................................................................................	A1299
Codes of practice
63.	Codes of practice ............................................................................................................................................................................................................................................................................................................	A1301
Investigations
64.	Power to conduct formal investigations ............................................................................................................................................................................................................................................................................................................	A1305
65.	Terms of reference ............................................................................................................................................................................................................................................................................................................	A1305
66.	Power to obtain information ............................................................................................................................................................................................................................................................................................................	A1307
67.	Recommendations and reports on formal investigations ............................................................................................................................................................................................................................................................................................................	A1309
68.	Restrictions on disclosure of information ............................................................................................................................................................................................................................................................................................................	A1311
PART 8 Enforcement
General
69.	Restrictions on proceedings for contravention of Ordinance ............................................................................................................................................................................................................................................................................................................	A1313
70.	Claims in respect of discrimination, harassment and vilification ............................................................................................................................................................................................................................................................................................................	A1313
Enforcement notices
71.	Issue of enforcement notices ............................................................................................................................................................................................................................................................................................................	A1317
72.	Appeal against enforcement notice ............................................................................................................................................................................................................................................................................................................	A1319
73.	Investigation as to compliance with enforcement notice ............................................................................................................................................................................................................................................................................................................	A1319
74.	Register of enforcement notices ............................................................................................................................................................................................................................................................................................................	A1319
Other enforcement by Commission
75.	Persistent discrimination, harassment or vilification ............................................................................................................................................................................................................................................................................................................	A1321
76.	Enforcement of sections 42, 43 and 44 ............................................................................................................................................................................................................................................................................................................	A1321
Help for persons suffering discrimination, harassment or vilification
77.	Help for aggrieved persons in obtaining information, etc. ............................................................................................................................................................................................................................................................................................................	A1323
78.	Assistance by way of conciliation ............................................................................................................................................................................................................................................................................................................	A1325
79.	Assistance other than by way of conciliation ............................................................................................................................................................................................................................................................................................................	A1327
Period within which proceedings to be brought
80.	Period within which proceedings to be brought ............................................................................................................................................................................................................................................................................................................	A1331
PART 9 Miscellaneous
81.	Validity and revision of contracts ............................................................................................................................................................................................................................................................................................................	A1333
82.	Rules ............................................................................................................................................................................................................................................................................................................	A1335
83.	Regulations to empower Commission to bring certain proceedings ............................................................................................................................................................................................................................................................................................................	A1337
84.	Amendment of Schedules 1, 2, 3, 4 and 5 ............................................................................................................................................................................................................................................................................................................	A1337
Consequential and Related Amendments
Labour Tribunal Ordinance
85.	Jurisdiction of tribunal ............................................................................................................................................................................................................................................................................................................	A1339
86.	Declining jurisdiction ............................................................................................................................................................................................................................................................................................................	A1339
Employment Ordinance
87.	Exclusion ............................................................................................................................................................................................................................................................................................................	A1339
District Court Ordinance
88.	Section added
	73E.Rules in relation to jurisdiction under Race Discrimination Ordinance ............................................................................................................................................................................................................................................................................................................	A1341
District Court Equal Opportunities Rules
89.	Interpretation ............................................................................................................................................................................................................................................................................................................	A1345
90.	Application of other rules ............................................................................................................................................................................................................................................................................................................	A1345
Sex Discrimination Ordinance
91.	Interpretation ............................................................................................................................................................................................................................................................................................................	A1345
92.	Discrimination against contract workers ............................................................................................................................................................................................................................................................................................................	A1347
93.	Discrimination in provision of goods, facilities or services ............................................................................................................................................................................................................................................................................................................	A1347
94.	Discrimination in disposal or management of premises ............................................................................................................................................................................................................................................................................................................	A1349
95.	Claims under Part III or IV ............................................................................................................................................................................................................................................................................................................	A1349
96.	Period within which proceedings to be brought ............................................................................................................................................................................................................................................................................................................	A1349
Disability Discrimination Ordinance
97.	Interpretation ............................................................................................................................................................................................................................................................................................................	A1349
98.	Discrimination against contract workers ............................................................................................................................................................................................................................................................................................................	A1351
99.	Vilification ............................................................................................................................................................................................................................................................................................................	A1351
100.	Section substituted
	47.Offence of serious vilification ............................................................................................................................................................................................................................................................................................................	A1353
101.	Claims under Part III or IV ............................................................................................................................................................................................................................................................................................................	A1355
102.	Period within which proceedings to be brought ............................................................................................................................................................................................................................................................................................................	A1355
Family Status Discrimination Ordinance
103.	Interpretation ............................................................................................................................................................................................................................................................................................................	A1355
104.	Discrimination against contract workers ............................................................................................................................................................................................................................................................................................................	A1357
105.	Discrimination in provision of goods, facilities or services ............................................................................................................................................................................................................................................................................................................	A1357
106.	Period within which proceedings are to be brought ............................................................................................................................................................................................................................................................................................................	A1357

Schedule 1	Educational establishments and their responsible bodies ............................................................................................................................................................................................................................................................................................................	A1359
Schedule 2	Employee in existing employment ............................................................................................................................................................................................................................................................................................................	A1363
Schedule 3	Authorization or qualification specified for the purposes of section 19(2) of this Ordinance ............................................................................................................................................................................................................................................................................................................	A1369
Schedule 4	Discrimination to which sections 27(1) and 28 of this Ordinance do not apply ............................................................................................................................................................................................................................................................................................................	A1371
Schedule 5	Other matters not affected by this Ordinance ............................................................................................................................................................................................................................................................................................................	A1371

HONG KONG SPECIAL ADMINISTRATIVE REGION

Ordiance No. 29 of 2008

L.S.

Donald TSANG
Chief Executive
17 July 2008

An Ordinance to render discrimination, harassment and vilification, on the ground of race, unlawful; to prohibit serious vilification of persons on that ground; to extend the jurisdiction of the Equal Opportunities Commission to include such unlawful acts; to confer on the Commission the function of eliminating such discrimination, harassment and vilification and promoting equality and harmony between people of different races; to amend certain definitions, and the provisions on discrimination against contract workers, in existing anti-discrimination legislation as well as the provision on unlawful sexual harassment by creating a hostile or intimidating environment in the Sex Discrimination Ordinance for alignment with corresponding provisions in this Ordinance; to make other consequential and related amendments to enactments; and for related purposes.

[]

Enacted by the Legislative Council.

PART 1
Interpretation, Application, etc.

1. Short title and commencement

(1) This Ordinance may be cited as the Race Discrimination Ordinance.

(2) This Ordinance shall come into operation on a day to be appointed by the Secretary for Constitutional and Mainland Affairs by notice published in the Gazette.

2. Interpretation

(1) In this Ordinance, unless the context otherwise requires—

“access” (獲得、享用) means access as construed in accordance with section 53;

“act” (作為) includes a deliberate omission;

“advertisement” (廣告) includes every form of advertisement, whether to the public or not, and whether—

(a) in a newspaper or other publication;

(b) by television or radio;

(c) by display of notices, signs, labels, showcards or goods;

(d) by distribution of samples, circulars, catalogues, price lists or other material;

(e) by exhibition of pictures, models or films; or

(f) in any other way;

“club” (會社) means an association, incorporate or unincorporate, of not less than 30 persons associated together for social, literary, cultural, political, sporting, athletic or other lawful purposes and which provides and maintains its facilities, in whole or in part, from the funds of the association;

“commencement date” (生效日期), except in section 73, in relation to any provision of this Ordinance, means—

(a) the date appointed under section 1(2) for that provision to come into operation; or

(b) if different dates are appointed for the provision to commence for different purposes, the date appointed for that provision to come into operation for the relevant purpose;

“Commission” (平機會) means the Equal Opportunities Commission established under section 63(1) of the Sex Discrimination Ordinance (Cap. 480);

“commission agent” (佣金經紀人) means a commission agent as construed in accordance with section 22;

“committee” (委員會) means a committee established under section 64(2)(a) of the Sex Discrimination Ordinance (Cap. 480);

“committee of management” (管理委員會), in relation to a club, means the group or body of persons (howsoever described) that manages the affairs of the club;

“conciliator” (調解人) means any person engaged by the Commission under section 64(2)(e) of the Sex Discrimination Ordinance (Cap. 480);

“contract worker” (合約工作者) means a contract worker as construed in accordance with section 15;

“discrimination” (歧視) means any discrimination falling within section 4, 5 or 6 and related expressions are to be construed accordingly;

“dispose” (處置), in relation to premises, includes granting a right to occupy the premises, and any reference to acquiring premises are to be construed accordingly;

“dynamically supported craft” (動力承托的航行器) has the same meaning as in the Shipping and Port Control Ordinance (Cap. 313);

“education” (教育) includes any form of training or instruction;

“educational establishment” (桝育機構) means an educational establishment specified in column 2 of Schedule 1;

“employment” (僱用) means employment under—

(a) a contract of service or of apprenticeship; or

(b) a contract personally to execute any work or labour;

“employment agency” (職業介紹所) means a person who, for profit or not, provides services for the purpose of—

(a) finding employment for workers; or

(b) supplying employers with workers;

“enforcement notice” (執行通知) means a notice served under section 71(2);

“estate agent” (地產代理) has the same meaning as in the Estate Agents Ordinance (Cap. 511);

“firm” (商號) means a firm within the meaning of the Partnership Ordinance (Cap. 38);

“formal investigation” (正式調查) means an investigation conducted under section 64;

“general notice” (一般通告), in relation to a person, means a notice published by the person at a time and in a manner appearing to the person suitable for securing that the notice is seen within a reasonable time by persons likely to be affected by it;

“genuine occupational qualification” (真正的職業資格 ) means a genuine occupational qualification as construed in accordance with section 11(2);

“harass” (騷擾) means to harass within the meaning of section 7(1) or (2);

“near relative” (近親), in relation to a person, means—

(a) the person’s spouse;

(b) a parent of the person or of the spouse;

(c) a child of the person or the spouse of such a child;

(d) a brother or sister (whether of full blood or half blood) of the person or of the spouse or the spouse of such a brother or sister;

(e) a grandparent of the person or of the spouse; or

(f) a grandchild of the person or the spouse of such a grandchild,

and, in determining the above relationships, children born out of wedlock are to be included, an adopted child is to be regarded as a child of both the natural parents and the adoptive parent or parents and a step child as the child of both the natural parents and any step parent;

“notice” (通告、通知) means a notice in writing;

“prescribed” (訂明) means prescribed in rules made under section 82;

“profession” (專業) includes any vocation or occupation;

“responsible body” (負責組織), in relation to an educational establishment, means the body specified in column 3 of Schedule 1 opposite to that establishment;

“retirement” (退休) includes retirement (whether voluntary or not) on grounds of age, length of service or incapacity;

“trade” (行業) includes any business;

“training” (訓練) includes any form of education or instruction.

(2) References in this Ordinance to “race”, “on the ground of race” and “racial group” shall be construed in accordance with section 8.

(3) References in this Ordinance to the dismissal of a person from employment or to the expulsion of a person from a position as partner include references—

(a) to the termination of that person’s employment or partnership by the expiration of any period (including a period expiring by reference to an event or circumstance), not being a termination immediately after which the employment or partnership is renewed on the same terms;

(b) to the termination of that person’s employment or partnership by any act of that person (including the giving of notice) in circumstances such that that person is entitled to terminate it without notice by reason of the conduct of the employer, or the other partners, as the case may be.

(4) For the purposes of this Ordinance, an enforcement notice or a finding by the District Court becomes final when an appeal against the notice or finding is dismissed, withdrawn or abandoned or when the time for appealing expires without an appeal having been brought; and for this purpose an appeal against an enforcement notice is taken to be dismissed if, notwithstanding that a requirement of the notice is quashed on appeal, a direction is given in respect of it under section 72(3).

(5) Subject to subsection (6), in this Ordinance, “existing statutory provision” (現有法例條文) means a provision of—

(a) an Ordinance enacted before this Ordinance was enacted; or

(b) any subsidiary legislation made—

(i) under an Ordinance enacted before this Ordinance was enacted; and

(ii) before, on or after the enactment of this Ordinance.

(6) Where an Ordinance, enacted after this Ordinance was enacted, reenacts (with or without modifications) a provision of an Ordinance enacted before this Ordinance was enacted, then that provision as re-enacted is to be treated for the purposes of subsection (5) as if it continued to be contained in an Ordinance enacted before this Ordinance was enacted.

(7) The Secretary for Justice may, by notice published in the Gazette, amend this Ordinance by substituting, for a reference to the commencement date of a provision, the actual calendar date appointed for the commencement of that provision.

3. Application to Government

This Ordinance binds the Government.

PART 2
Discrimination and Harassment to which this Ordinance Applies

4. Racial discrimination

(1) In any circumstances relevant for the purposes of any provision of this Ordinance, a person (“the discriminator”) discriminates against another person if—

(a) on the ground of the race of that other person, the discriminator treats that other person less favourably than the discriminator treats or would treat other persons; or

(b) the discriminator applies to that other person a requirement or condition which the discriminator applies or would apply equally to persons not of the same racial group as that other person but—

(i) which is such that the proportion of persons of the same racial group as that other person who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it;

(ii) which the discriminator cannot show to be justifiable irrespective of the race of the person to whom it is applied; and

(iii) which is to the detriment of the other person because that person cannot comply with it.

(2) For the purposes of subsection (1)(b)(ii), a requirement or condition is justifiable if it serves a legitimate objective and bears a rational and proportionate connection to the objective.

(3) It is declared that, for the purposes of this Ordinance, segregating a person from other persons on the ground of the race of that person is treating that person less favourably than the other persons are treated.

5. Discrimination on the ground of race of near relative

In any circumstances relevant for the purposes of any provision of this Ordinance, a person (“the discriminator”) discriminates against another person (“relevant person”) if, on the ground of the race of a near relative of the relevant person, the discriminator treats the relevant person less favourably than the discriminator treats or would treat another person not having a near relative of the same racial group as the near relative of the relevant person.

6. Discrimination by way of victimization

(1) A person (“the discriminator”) discriminates against another person (“the person victimized”) in any circumstances relevant for the purposes of any provision of this Ordinance if the discriminator treats the person victimized less favourably than in those circumstances the discriminator treats or would treat other persons, and does so—

(a) by reason that the person victimized or any other person (“the third person”) has—

(i) brought proceedings against the discriminator or any other person under this Ordinance;

(ii) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Ordinance;

(iii) otherwise done anything under or by reference to this Ordinance in relation to the discriminator or any other person; or

(iv) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Ordinance; or

(b) by reason that the discriminator—

(i) knows the person victimized or the third person, as the case may be, intends to do any of those things; or

(ii) suspects the person victimized or the third person, as the case may be, has done, or intends to do, any of them.

(2) Subsection (1) does not apply to treatment of a person by reason of any allegation made by that person if the allegation was false and not made in good faith.

7. Racial harassment

(1) In any circumstances relevant for the purposes of any provision of this Ordinance, a person harasses another person if, on the ground of the race of that other person or a near relative of that other person, the first-mentioned person engages in unwelcome conduct (which may include an oral or a written statement), in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated by that conduct.

(2) In any circumstances relevant for the purposes of any provision of this Ordinance, a person (“the first-mentioned person”) harasses another person (“the second-mentioned person”) if, on the ground of the race of the second-mentioned person or his or her near relative, the first-mentioned person, alone or together with other persons, engages in conduct (which may include an oral or a written statement) that creates a hostile or intimidating environment for the second-mentioned person.

8. Meaning of “race”, “on the ground of race”, “racial group” and comparison of cases of persons or different racial groups

(1) In this Ordinance and subject to subsections (2) and (3)—

(a) “race” (種族), in relation to a person, means the race, colour, descent or national or ethnic origin of the person;

(b) a reference to an act done on the ground of the race of a person is a reference to an act done on the ground of the race, colour, descent or national or ethnic origin of the person;

(c) an act constitutes discrimination on the ground of descent only if it constitutes discrimination against members of communities based on forms of social stratification such as caste and analogous systems of inherited status which nullify or impair their equal enjoyment of human rights; and

(d) “racial group” (種族群體) means a group of persons defined by reference to race, colour, descent or national or ethnic origin, and references to a person’s racial group refer to any racial group into which the person falls.

(2) An act done on the ground of any matter specified in subsection (3) does not constitute an act done on the ground of the race, colour, descent or national or ethnic origin of a person; and section 4(1)(b) does not apply to a requirement or condition as to any matter specified in subsection (3).

(3) The matters specified in this subsection are—

(a) that the person—

(i) is or is not an indigenous inhabitant of the New Territories; or

(ii) is or is not a person who was in 1898 a resident of an established village in Hong Kong or a person descended through the male line from such person;

(b) that the person—

(i) is or is not a Hong Kong permanent resident;

(ii) has or has not the right of abode or the right to land in Hong Kong;

(iii) is or is not subject to any restriction or condition of stay imposed under the Immigration Ordinance (Cap. 115); or

(iv) has or has not been given the permission to land or remain in Hong Kong under the Immigration Ordinance (Cap. 115);

(c) the length of residence in Hong Kong of the person; or

(d) the nationality, citizenship or resident status of the person under the law of any country or place concerning nationality, citizenship, resident status or naturalization of or in that country or place.

(4) The fact that a racial group comprises 2 or more distinct racial groups does not prevent it from constituting a particular racial group for the purposes of this Ordinance.

(5) A comparison under section 4(1) of the case of a person of a particular racial group with that of a person not of that group must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

(6) A comparison under section 5 of the case of a person having a near relative who is of a particular racial group with that of a person not having a near relative who is of that group must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

9. Act done for racial and other reason

If—

(a) an act is done for 2 or more reasons; and

(b) one of the reasons is the race of a person (whether or not it is the dominant reason or a substantial reason for doing the act),

then, for the purposes of this Ordinance, the act is taken to be done for the reason of the race of the person.

PART 3
Discrimination and Harassment in Employment Field

Discrimination by employers

10. Discrimination against applicants and employees

(1) It is unlawful for a person (“the employer”), in relation to employment by the employer at an establishment in Hong Kong, to discriminate against another person—

(a) in the arrangements the employer makes for the purpose of determining who should be offered that employment;

(b) in the terms on which the employer offers that other person employment; or

(c) by refusing, or deliberately omitting to offer, the other person that employment.

(2) It is unlawful for an employer, in the case of a person employed by that employer at an establishment in Hong Kong, to discriminate against that employee—

(a) in the terms of employment which the employer affords that employee;

(b) in the way the employer affords the employee access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford the employee access to them; or

(c) by dismissing the employee, or subjecting him or her to any other detriment.

(3) Except in relation to discrimination falling within section 6, subsections (1) and (2) do not apply to employment when the number of persons employed by the employer, added to the number employed by any associated employers of that employer, does not exceed 5. This subsection does not apply to the employment by a person of another person to perform domestic duties on the premises on which the first-mentioned person or his or her near relative resides.

(4) Subject to subsection (5), subsections (1)(b) and (2) do not apply to provision in relation to death or retirement for a person made before the commencement date in so far as any such provision continues for that person on and after that date.

(5) Subsections (1)(b) and (2) apply to provision made in relation to retirement of the kind mentioned in subsection (4) in so far as, in their application to such provision, they render it unlawful for a person (“the employer”) to discriminate against another person—

(a) in such of the terms on which the employer offers that other person employment as make provision in relation to the way in which the employer will afford that other person access to opportunities for promotion, transfer or training or as provide for that other person’s dismissal or demotion;

(b) in the way the employer affords that other person opportunities for promotion, transfer or training, or by refusing or deliberately omitting to afford that other person access to any such opportunities; or

(c) by dismissing that other person or subjecting that other person to any detriment which results in that other person’s dismissal or consists in or involves that other person’s demotion.

(6) Subsection (2) does not apply to benefits, facilities or services of any description if the employer is concerned with the provision (for payment or not) of benefits, facilities or services of that description to the public, or to a section of the public comprising the employee in question, unless—

(a) that provision differs in a material respect from the provision of the benefits, facilities or services by the employer to his or her employees;

(b) the provision of the benefits, facilities or services to the employee in question is regulated by the employee’s contract of employment; or

(c) the benefits, facilities or services relate to training.

(7) Except in relation to discrimination falling within section 5 or 6, nothing in subsection (1)(a) or (c) renders it unlawful for a person to discriminate against another person on the ground of the race of that other person, in connection with employment to perform domestic duties on the premises on which the first-mentioned person or his or her near relative resides.

(8) Subsection (3) expires on the third anniversary of the day on which this Ordinance is enacted.

(9) For the purposes of subsection (3), 2 employers are to be treated as associated if one is a company of which the other (directly or indirectly) has control or if both are companies of which a third person (directly or indirectly) has control.

(10) The Chief Executive in Council may, by notice published in the Gazette, do either or both of the following—

(a) amend subsection (3) by substituting another number for the number appearing after the word “exceed” in that subsection;

(b) amend subsection (8) by substituting another anniversary for the anniversary appearing in that subsection.

11. Exception for genuine occupational qualification

(1) In relation to discrimination falling within section 4—

(a) section 10(1)(a) and (c) does not apply to any employment where being of a particular racial group is a genuine occupational qualification for the job; and

(b) section 10(2)(b) does not apply to opportunities for promotion or transfer to, or training for, such employment.

(2) Being of a particular racial group is a genuine occupational qualification only where—

(a) the job involves participation in a dramatic performance or other entertainment in a capacity for which a person of that racial group is required for reasons of authenticity;

(b) the job involves participation as an artist’s or photographic model in the production of a work of art, visual images or sequence of visual images for which a person of that racial group is required for reasons of authenticity;

(c) the job involves working in a place where food or drink is (for payment or not) provided to and consumed by members of the public or a section of the public in a particular setting for which, in that job, a person of that racial group is required for reasons of authenticity;

(d) the holder of the job provides persons of that racial group with personal services promoting their welfare, and those services can most effectively be provided by a person of that racial group; or

(e) the job involves providing persons of that racial group with personal services of such nature or in such circumstances as to require familiarity with the language, culture and customs of and sensitivity to the needs of that racial group, and those services can most effectively be provided by a person of that racial group.

12. Exception for employment intended to provide training in skills to be exercised outside Hong Kong

Without prejudice to section 8(2) and (3), nothing in section 10 renders unlawful any act done by an employer for the benefit of a person not ordinarily resident in Hong Kong in or in connection with employing the person at an establishment in Hong Kong, where the purpose of that employment is to provide the person with training in skills which the person appears to the employer to intend to exercise wholly outside Hong Kong.

13. Exception for employment of person with special skills, knowledge or experience

(1) Nothing in section 10 renders unlawful any act done by an employer for the benefit of any person in or in connection with employing the person at an establishment in Hong Kong, where—

(a) the employment requires special skills, knowledge or experience not readily available in Hong Kong;

(b) the person—

(i) possesses those skills, knowledge or experience; and

(ii) is recruited or transferred from a place outside Hong Kong; and

(c) the act is reasonably done for a person so recruited or transferred, having regard to—

(i) the prevailing terms of employment offered to persons with those skills, knowledge or experience in places outside Hong Kong; and

(ii) any other relevant circumstances (other than the race of the person).

(2) Where in an employment of a person to which subsection (1) or this subsection applies—

(a) the employment terminates and is immediately followed by renewal or re-engagement (whether or not on the same terms);

(b) the person is promoted; or

(c) the person is transferred within the same group of companies,

nothing in section 10 renders unlawful any act done, by the employer or the employer upon transfer (as the case may be), for the benefit of the person in or in connection with the renewal, re-engagement, promotion or transfer, or in or in connection with the employment pursuant to it, so long as the act is reasonably done for the person having regard to the matters referred to in subsection (1)(c).

(3) In this section—

(a) “group of companies” (公司集團) means a group of companies within the meaning of the Companies Ordinance (Cap. 32);

(b) an employee is transferred within the same group of companies if the termination of the employment of the employee by one employer is immediately followed by the employment of the employee by another employer, both employers being at that time within the same group of companies; and a reference to transfer of employment within the same group of companies shall be construed accordingly.

(4) Nothing in this section shall prejudice the operation of section 8(2) and (3).

14. Exception for existing employment on local and overseas terms of employment

(1) Nothing in section 10 renders unlawful—

(a) any differential treatment by an employer in or in connection with employing an employee on local terms of employment on the one hand and employing another employee on overseas terms of employment on the other hand in accordance with those two sets of terms respectively; or

(b) any differential treatment by an employer in or in connection with employing on overseas terms of employment an employee who is a national or citizen of a country or place on the one hand and employing also on those terms another employee who is a national or citizen of another country or place on the other hand in accordance with those terms.

(2) Subsection (1) applies only to an employee in an existing employment as specified in Schedule 2.

(3) In this section, “local terms of employment” (本地僱用條款) and “overseas terms of employment” (海外僱用條款) have the meanings assigned to them respectively by section 11 of Schedule 2.

(4) Nothing in this section shall prejudice the operation of section 8(2) and (3).

15. Discrimination against contract workers

(1) This section applies to any work for a person (“the principal”) that is available for doing by individuals (“contract workers”) who are employed not by the principal himself or herself but by a contractor or sub-contractor of the principal.

(2) It is unlawful for the principal, in relation to work to which this section applies, to discriminate against a contract worker—

(a) in the terms on which the principal allows that contract worker to do that work;

(b) by not allowing the contract worker to do it or continue to do it;

(c) in the way the principal affords the contract worker access to any benefits, facilities or services, or by refusing or deliberately omitting to afford him or her access to them; or

(d) by subjecting the contract worker to any other detriment.

(3) The principal does not contravene subsection (2)(b) by doing any act in relation to a person not of a particular racial group at a time when, if the work were to be done by a person taken into the principal’s employment, being of that racial group would be a genuine occupational qualification for the job.

(4) Without prejudice to section 8(2) and (3), nothing in this section renders unlawful any act done by the principal for the benefit of a contract worker not ordinarily resident in Hong Kong in or in connection with allowing the contract worker to do work to which this section applies, where the purpose of the contract worker’s being allowed to do that work is to provide him or her with training in skills which he or she appears to the principal to intend to exercise wholly outside Hong Kong.

(5) Without prejudice to section 8(2) and (3), nothing in this section renders unlawful any act done by the principal for the benefit of any contract worker in or in connection with allowing the contract worker to do work to which this section applies, where—

(a) the work requires special skills, knowledge or experience not readily available in Hong Kong;

(b) the contract worker—

(i) possesses those skills, knowledge or experience; and

(ii) comes to do the work from a place outside Hong Kong; and

(c) the act is reasonably done for a person who comes from that place, having regard to—

(i) the prevailing terms of employment offered to persons with those skills, knowledge or experience in places outside Hong Kong; and

(ii) any other relevant circumstances (other than the race of the person).

(6) Subsection (2)(c) does not apply to benefits, facilities or services of any description if the principal is concerned with the provision (for payment or not) of benefits, facilities or services of that description to the public, or to a section of the public to which the contract worker in question belongs, unless that provision differs in a material respect from the provision of the benefits, facilities or services by the principal to his or her contract workers.

(7) In this section—

“contractor” (承判商) means a person who undertakes any work for the principal under a contract that is entered into by the person directly with the principal;

“sub-contractor” (次承判商) means a person who enters into a contract with another person (whether or not a contractor of the principal) to undertake all or any part of the work that a contractor of the principal has undertaken.

16. Meaning of employment at establishment in Hong Kong

(1) For the purposes of this Ordinance (“the relevant purposes”), employment is to be regarded as being at an establishment in Hong Kong unless the employee does his or her work wholly or mainly outside Hong Kong.

(2) Subsection (1) does not apply to—

(a) employment on board a ship registered in Hong Kong; or

(b) employment on an aircraft or a dynamically supported craft registered in Hong Kong and operated by a person whose principal place of business is in Hong Kong or who is ordinarily resident in Hong Kong,

but for the relevant purposes such employment is to be regarded as being at an establishment in Hong Kong unless the employee does his or her work wholly outside Hong Kong.

(3) In the case of employment on board a ship registered in Hong Kong (except where the employee does his or her work wholly outside Hong Kong) the ship is deemed for the relevant purposes to be the establishment.

(4) Where work is not done at an establishment it is to be treated for the relevant purposes as done at the establishment from which it is done or (where it is not done from any establishment) at the establishment with which it has the closest connection.

Discrimination by other bodies

17. Partnerships

(1) It is unlawful for a firm consisting of not less than 6 partners, in relation to a position as partner in the firm, to discriminate against a person—

(a) in the arrangements they make for the purpose of determining who should be offered that position;

(b) in the terms on which they offer the person that position;

(c) by refusing, or deliberately omitting to offer, the person that position; or

(d) in a case where the person already holds that position—

(i) in the way they afford the person access to any benefits, facilities or services, or by refusing or deliberately omitting to afford him or her access to them; or

(ii) by expelling the person from that position, or subjecting him or her to any other detriment.

(2) Subsection (1) applies in relation to persons proposing to form themselves into a partnership as it applies in relation to a firm.

(3) Subsection (1)(a) and (c) does not apply to a position as partner, where, if it were employment, being of a particular racial group would be a genuine occupational qualification for the job.

(4) Subject to subsection (5), subsection (1)(b) and (d) does not apply to provision in relation to death or retirement for a person made before the commencement date in so far as any such provision continues for that person on and after that date.

(5) Subsection (1)(b) and (d) applies to provision made in relation to retirement of the kind mentioned in subsection (4) in so far as, in its application to such provision, it renders it unlawful for a firm to discriminate against a person—

(a) in such of the terms on which the firm offers the person a position as partner as provide for his or her expulsion from that position; or

(b) by expelling the person from a position as partner or subjecting him or her to any detriment which results in his or her expulsion from such a position.

(6) In the case of a limited partnership, references in subsection (1) to a partner shall be construed as references to a general partner within the meaning of section 2(1) of the Limited Partnerships Ordinance (Cap. 37).

(7) The Chief Executive in Council may, by notice published in the Gazette, amend subsection (1) by—

(a) substituting another number for the number appearing in that subsection; or

(b) repealing the words and number appearing after “for a firm” and before “, in relation to”.

18. Organizations of workers or employers or professional or trade organizations, etc.

(1) This section applies to an organization of workers, an organization of employers, an organization of both workers and employers, or any other organization whose members carry on a particular profession or trade for the purposes of which the organization exists.

(2) It is unlawful for an organization to which this section applies, in the case of a person who is not a member of the organization, to discriminate against the person—

(a) in the terms on which it is prepared to admit the person to membership; or

(b) by refusing, or deliberately omitting to accept, the person’s application for membership.

(3) It is unlawful for an organization to which this section applies, in the case of a person who is a member of the organization, to discriminate against the person—

(a) in the way it affords the person access to any benefits, facilities or services, or by refusing or deliberately omitting to afford him or her access to them;

(b) by depriving the person of his or her membership, or varying the terms on which he or she is a member; or

(c) by subjecting the person to any other detriment.

(4) This section does not apply to provision in relation to the death or retirement from work of a member made before the commencement date in so far as any such provision continues for that member on and after that date.

(5) Where, immediately before the enactment of this Ordinance, the main object of an organization to which this section applies was to enable the benefits of membership to be enjoyed by persons of a particular racial group (defined otherwise than by reference to colour), then, in so far as that continues to be its main object, this section is not to be construed as affecting that object and does not render unlawful an act which is done in order to give effect to that object.

(6) In determining whether the main object of an organization to which this section applies is as stated in subsection (5), regard shall be had to—

(a) the essential character of the organization;

(b) the extent to which the affairs of the organization are so conducted that the persons primarily enjoying the benefits of membership are of the racial group in question; and

(c) any other relevant circumstances.

19. Qualifying bodies

(1) It is unlawful for an authority or body which can confer an authorization or qualification which is needed for, or facilitates, engagement in a particular profession or trade to discriminate against a person—

(a) in the terms on which it is prepared to confer on the person that authorization or qualification;

(b) by refusing, or deliberately omitting to grant, the person’s application for it; or

(c) by withdrawing it from the person or varying the terms on which he or she holds it.

(2) Subsection (1) does not render unlawful any requirement for proficiency in either Chinese or English, or in both of them (whether or not to equivalent or comparable levels) imposed for the conferment of an authorization or qualification if—

(a) the requirement is reasonable, having regard to the demands of, or associated with, the profession or trade concerned; or

(b) without prejudice to paragraph (a), the authorization or qualification is one specified in Schedule 3.

(3) Where an authority or body is required by law to satisfy itself as to a person’s good character before conferring on the person an authorization or qualification which is needed for, or facilitates, the person’s engagement in any profession or trade then, without prejudice to any other duty to which it is subject, that requirement shall be taken to impose on the authority or body a duty to have regard to any evidence tending to show that the person, or any of his or her employees or agents (whether past or present), has—

(a) practised unlawful discrimination;

(b) engaged in unlawful harassment; or

(c) engaged in acts which contravene section 45,

in, or in connection with, the carrying on of any profession or trade.

(4) Subsection (1) does not apply to discrimination which is rendered unlawful by section 26.

(5) In this section—

“authorization or qualification” (授權或資格) includes recognition, licensing, registration, enrolment, approval and certification;

“confer” (授予) includes renew or extend.

20. Persons concerned with provision of vocational training

(1) It is unlawful, in the case of a person (“the first-mentioned person”) seeking or undergoing training which would help to fit him or her for employment, for any person (“the second-mentioned person”) who provides, or makes arrangements for the provision of, facilities for such training to discriminate against the first-mentioned person—

(a) in the terms on which the second-mentioned person affords the first-mentioned person access to any training course or other facilities concerned with such training;

(b) by refusing, or deliberately omitting to afford, the first-mentioned person such access;

(c) by terminating the first-mentioned person’s training; or

(d) by subjecting the first-mentioned person to any other detriment during the course of his or her training.

(2) Nothing in subsection (1) is to be construed as requiring a person who provides, or makes arrangements for the provision of, facilities for such training—

(a) to modify for persons of any racial group its arrangements regarding holidays or medium of instruction; or

(b) to make different arrangements regarding holidays or medium of instruction for persons of any racial group.

(3) Subsection (1) does not apply to—

(a) discrimination which is rendered unlawful by any of the provisions of section 10 or 26; or

(b) discrimination which would be rendered unlawful by any of those provisions but for the operation of any other provision of this Ordinance.

21. Employment agencies

(1) It is unlawful for an employment agency to discriminate against a person—

(a) in the terms on which the agency offers to provide any of its services;

(b) by refusing, or deliberately omitting to provide, any of its services; or

(c) in the way it provides any of its services.

(2) References in subsection (1) to the services of an employment agency include guidance on careers and any other services related to employment.

(3) This section does not apply if the discrimination only concerns employment which the employer could lawfully refuse to offer the person.

(4) An employment agency is not subject to any liability under this section if it proves—

(a) that it acted in reliance on a statement made to it by the employer to the effect that, by reason of the operation of subsection (3), its action would not be unlawful; and

(b) that it was reasonable for it to rely on the statement.

(5) A person who knowingly or recklessly makes a statement of the kind referred to in subsection (4)(a) which in a material respect is false or misleading commits an offence and is liable on conviction to a fine at level 4.

22. Discrimination against commission agents

(1) This section applies to any work for a person (“the principal”) that 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 who is a commission agent—

(a) in the terms on which he or she allows the person to do that work;

(b) by not allowing the person to do it or continue to do it;

(c) in the way he or she affords the person access to any benefits, facilities or services, or by refusing or deliberately omitting to afford the person access to them; or

(d) by subjecting the person to any other detriment.

(3) The principal does not contravene subsection (2)(b) by doing any act in relation to a person not of a particular racial group at a time when, if the work were to be done by a person taken into the principal’s employment, being of that racial group would be a genuine occupational qualification for the job.

(4) Subsection (2)(c) does not apply to benefits, facilities or services of any description if the principal is concerned with the provision (for payment or not) of benefits, facilities or services of that description to the public, or to a section of the public to which the person belongs, unless that provision differs in a material respect from the provision of the benefits, facilities or services by the principal to his or her commission agents.

Special cases

23. Employment, etc. for religion

(1) Nothing in this Part applies to employment for the purposes of an organized religion where the employment is limited to a particular racial group so as to comply with the doctrines of the religion or to avoid offending the religious susceptibilities common to its followers.

(2) Nothing in section 19 applies to an authorization or qualification (within the meaning of that section) for the purposes of an organized religion where the authorization or qualification is limited to a particular racial group so as to comply with the doctrines of the religion or to avoid offending the religious susceptibilities common to its followers.

Harassment

24. Employees, etc.

(1) It is unlawful for a person, in relation to employment by that person at an establishment in Hong Kong, to harass a person who is seeking to be employed by that person.

(2) It is unlawful for a person (“the first-mentioned person”), in the case of a person employed by that first-mentioned person at an establishment in Hong Kong, to harass that other person.

(3) It is unlawful for a person, who is employed by another person (“the second-mentioned person”) at an establishment in Hong Kong to harass a person who is seeking to be, or who is, employed by that second-mentioned person.

(4) It is unlawful for the principal, in relation to work to which section 15 applies, to harass another person who is a contract worker.

(5) It is unlawful for a contract worker to harass another person who is a fellow contract worker.

(6) It is unlawful for a partner of a firm to harass a person who is seeking to be, or who is, a partner in the firm.

(7) Subsection (6) applies in relation to persons proposing to form themselves into a partnership as it applies in relation to a firm.

(8) Section 17(6) applies to subsection (6) as it applies to section 17(1).

(9) It is unlawful for the principal, in relation to work to which section 22 applies, to harass a person who is a commission agent.

(10) It is unlawful for a commission agent to harass a person 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 at an establishment in Hong Kong to harass the second-mentioned person.

(12) It is unlawful for a person residing in any premises to harass another person who is—

(a) employed by a third person at an establishment in Hong Kong (whether or not the third person also resides in those premises and whether or not those premises are that establishment); and

(b) carrying out in those premises all or part of his or her work in relation to the employment (whether or not he or she resides in those premises).

25. Other harassment

(1) It is unlawful for a member of an organization to which section 18 applies to harass a person who is seeking to be, or who is, a member of that organization.

(2) It is unlawful for a member of an authority or body referred to in section 19 to harass a person who is seeking an authorization or qualification (within the meaning of that section) which can be conferred by the authority or body or to harass a person holding such an authorization or qualification. This subsection does not apply to harrassment which is rendered unlawful by section 38.

(3) It is unlawful for a person to harass another person who is seeking or undergoing training which would help to fit that other person for any employment if the person provides, or makes arrangements for the provision of, facilities for such training. This subsection does not apply to harassment which is rendered unlawful by section 24(1) or (2) or 38.

(4) It is unlawful for a person who—

(a) operates an employment agency; or

(b) is a member of the staff of an employment agency,

to harass a person to whom the agency provides any of the agency’s services or who is seeking the provision of such services.

PART 4
Discrimination and Harassment in Other Fields

Education

26. Discrimination by responsible bodies for educational establishments

(1) It is unlawful for the responsible body for an educational establishment to discriminate against a person—

(a) in the terms on which it offers to admit that person to the establishment as a student;

(b) by refusing, or deliberately omitting to accept, an application for that person’s admission to the establishment as a student; or

(c) where the person is a student of the establishment—

(i) in the way it affords the person access to any benefits, facilities or services, or by refusing or deliberately omitting to afford the person access to them; or

(ii) by expelling the person from the establishment or subjecting him or her to any other detriment.

(2) Nothing in subsection (1) is to be construed as requiring the responsible body for an educational establishment—

(a) to modify for persons of any racial group arrangements of the establishment regarding holidays or medium of instruction; or

(b) to make different arrangements regarding holidays or medium of instruction for persons of any racial group.

Goods, facilities, services and premises

27. Discrimination in provision of goods, facilities or services

(1) It is unlawful for any person (“the first-mentioned person”) concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public to discriminate against another person (“the second-mentioned person”) who seeks to obtain or use those goods, facilities or services—

(a) by refusing, or deliberately omitting to provide, the second-mentioned person with any of them; or

(b) by refusing or deliberately omitting to provide the second-mentioned person with goods, facilities or services of the like quality, in the like manner and on the like terms as are normal in the first-mentioned person’s case in relation to other members of the public or (where the second-mentioned person belongs to a section of the public) to other members of that section.

(2) The following are examples of the facilities and services referred to in subsection (1)—

(a) access to and use of any place which members of the public or a section of the public are permitted to enter;

(b) accommodation in a hotel, guesthouse or other similar establishment;

(c) facilities by way of banking or insurance or for grants, loans, credit or finance;

(d) facilities for education;

(e) facilities for entertainment, recreation or refreshment;

(f) facilities for transport or travel;

(g) the services of any profession or trade;

(h) the services of—

(i) any department of the Government; or

(ii) any undertaking by or of the Government.

28. Discrimination in disposal or management of premises

(1) It is unlawful for a person, in relation to premises in Hong Kong of which that person has power to dispose, to discriminate against another person—

(a) in the terms on which the person offers that other person the premises;

(b) by refusing the other person’s application for those premises; or

(c) in the person’s treatment of the other person in relation to any list of persons in need of the premises of that description.

(2) It is unlawful for a person, in relation to premises managed by that person, to discriminate against another person (“the second-mentioned person”)—

(a) in the way he or she affords the second-mentioned person access to any benefits or facilities, or by refusing or deliberately omitting to afford the second-mentioned person access to them; or

(b) by evicting the second-mentioned person, or subjecting him or her to any other detriment.

(3) Subsection (1) does not apply to a person who owns an estate or interest in the premises and wholly occupies them unless the person uses the services of an estate agent for the purposes of the disposal of the premises, or publishes or causes to be published, an advertisement in connection with the disposal.

(4) In this section, “power to dispose” (有權處置), in relation to premises, includes the power to sell, rent, let, sub-let or otherwise part with possession of those premises.

29. Discrimination: consent for assignment or sub-letting

(1) Where the licence or consent of a landlord or of any other person is required for the disposal to any person of premises in Hong Kong comprised in a tenancy, it is unlawful for the landlord or other person to discriminate against a person (“assignee/sublettee”) by withholding the licence or consent for disposal of the premises to the assignee/sublettee.

(2) Subsection (1) does not apply if—

(a) the person withholding the licence or consent or a near relative of that person (“the relevant occupier”) resides, and intends to continue to reside, on the premises;

(b) there is on the premises, in addition to the accommodation occupied by the relevant occupier, accommodation (not being storage accommodation or means of access) shared by the relevant occupier with other persons residing on the premises who are not members of the relevant occupier’s household; and

(c) the premises are small premises as construed according to section 30(2).

(3) For the avoidance of doubt, it is declared that this section applies to tenancies created before the enactment of this Ordinance as well as to tenancies created on or after the enactment of this Ordinance.

(4) In this section—

“disposal” (處置), in relation to premises comprised in a tenancy, includes assignment of the tenancy and sub-letting or parting with possession of the premises or any part of the premises;

“tenancy” (租賃) means a tenancy created—

(a) by a lease or sub-lease;

(b) by a tenancy agreement; or

(c) pursuant to any agreement.

30. Exceptions for small dwellings

(1) Sections 27(1) and 28 do not apply to the provision by a person of accommodation in any premises, or the disposal of premises, by the person, if—

(a) that person or a near relative of that person (“the relevant occupier”) resides, and intends to continue to reside, on the premises;

(b) there is on the premises, in addition to the accommodation occupied by the relevant occupier, accommodation (not being storage accommodation or means of access) shared by the relevant occupier with other persons residing on the premises who are not members of the relevant occupier’s household; and

(c) the premises are small premises.

(2) Premises are to be treated for the purposes of subsection (1) as small premises if—

(a) in the case of premises comprising residential accommodation for one or more households (under separate letting or similar agreements) in addition to the accommodation occupied by the relevant occupier—

(i) there is not normally residential accommodation on the premises for more than 2 such households; and

(ii) only the relevant occupier and any member of his or her household reside in the accommodation occupied by the relevant occupier; and

(b) in the case of premises not falling within paragraph (a), there is not normally residential accommodation on the premises for more than 6 persons in addition to the relevant occupier and any members of his or her household.

(3) The Chief Executive in Council may, by notice published in the Gazette, amend subsection (2)(b) by substituting another number for the number appearing in that subsection.

31. Exceptions for voluntary bodies

(1) Sections 27(1) and 28 are not to be construed as rendering unlawful—

(a) the restriction of membership of any voluntary body to persons of a particular racial group (disregarding any minor exceptions); or

(b) the provision of benefits, facilities or services to members of any voluntary body where the membership is so restricted,

even though membership of the body is open to the public, or to a section of the public.

(2) Nothing in section 27(1) or 28—

(a) is to be construed as affecting a specified provision; or

(b) renders unlawful an act which is done in order to give effect to a specified provision.

(3) In this section—

“specified provision” (指明規定) means a provision for conferring benefits on persons of a particular racial group (disregarding any benefits to persons of another racial group which are exceptional or are relatively insignificant), being a provision which constitutes the main object of a voluntary body;

“voluntary body” (志願團體) means a body the activities of which are carried on otherwise than for profit.

32. Exceptions for cemeteries

Nothing in section 27(1), 28 or 29(1) renders unlawful—

(a) any act to set aside or allocate a cemetery, crematorium or columbarium (in whole or in part) for the reception of human remains of persons belonging to any particular community, race or religion;

(b) any act to provide goods, facilities or services in a cemetery, crematorium or columbarium, or part of it, that is so set aside or allocated; or

(c) any act done in connection with an act referred to in paragraph (a) or (b).

33. Further exceptions

(1) Section 27(1) does not apply to anything done by a person as a participant in arrangements under which he or she (for reward or not) takes into his or her home, and treats as if they were members of his or her family, any children, elderly persons or persons requiring a special degree of care and attention.

(2) Sections 27(1) and 28 do not apply—

(a) to discrimination which is rendered unlawful by any provision or Part of this Ordinance specified in column 2 of Schedule 4; or

(b) to discrimination which would be so unlawful but for any provision or Part of this Ordinance specified in column 3 of that Schedule.

Public bodies, etc.

34. Discrimination in eligibility to stand for election, etc.

(1) It is unlawful for a person to discriminate against another person in—

(a) determining the eligibility of a person to stand for election to a relevant body or relevant position, or to be selected for a relevant position;

(b) the terms or conditions on which a person is considered eligible to stand for election to a relevant body or relevant position, or to be selected for a relevant position;

(c) determining the eligibility of a person to vote in elections of members of a relevant body or the holder of a relevant position;

(d) the terms or conditions on which a person is considered eligible to vote in elections of members of a relevant body or the holder of a relevant position, or to take part in the selection of the holder of a relevant position;

(e) considering whether a person should be appointed as a member of a relevant body, where some or all of the members of that body are appointed; or

(f) considering whether a person should be appointed to a relevant position, approved as a member of a relevant body or recognized as holding a relevant position.

(2) In this section—

(a) a reference to a relevant body means a public body, a public authority, a statutory advisory body, or a prescribed body;

(b) a reference to a relevant position includes membership of a public body, a public authority, and a prescribed position.

Barristers

35. Discrimination by, or in relation to, barristers

(1) It is unlawful for a barrister or barrister’s clerk, in relation to any offer of a pupillage or a tenancy, to discriminate against a person—

(a) in the arrangements which are made for the purpose of determining to whom it should be offered;

(b) in respect of any terms on which it is offered; or

(c) by refusing, or deliberately omitting, to offer it to that person.

(2) It is unlawful for a barrister or barrister’s clerk, in relation to a person who is a pupil or a tenant in the chambers concerned, to discriminate against that person—

(a) in respect of any terms applicable to that person as a pupil or a tenant;

(b) in the opportunities for training, or gaining experience, which are afforded or denied to that person;

(c) in the benefits, facilities or services which are afforded or denied to that person; or

(d) by terminating that person’s pupillage or by subjecting him or her to any pressure to leave the chambers or other detriment.

(3) It is unlawful for any person, in relation to the giving, withholding or acceptance of instructions to a barrister, to discriminate against a person.

(4) In this section—

“barrister’s clerk” (大律師書記) includes any person carrying out any of the functions of a barrister’s clerk;

“pupil” (見習大律師), “pupillage” (見習職位), “tenancy” (租賃) and “tenant” (承租人) have the meanings commonly associated with their use in the context of a set of barrister’s chambers.

Clubs

36. Discrimination by clubs

(1) It is unlawful for a club, the committee of management of a club or a member of the committee of management of a club to discriminate against a person who is not a member of the club—

(a) by refusing or failing to accept the person’s application for membership; or

(b) in the terms or conditions on which the club is prepared to admit the person to membership.

(2) It is unlawful for a club, the committee of management of a club or a member of the committee of management of a club to discriminate against a person who is a member of the club—

(a) by refusing or failing to accept the person’s application for a particular class or type of membership;

(b) in the terms or conditions of membership that is afforded to the person;

(c) by denying the person access, or limiting his or her access, to any benefits, services or facilities provided by the club;

(d) by depriving the person of membership or varying the terms of membership; or

(e) by subjecting the person to any other detriment.

37. Exception from section 36 for certain clubs

(1) Section 36 does not apply to, or in relation to, a club the main object of which is to enable the benefits of membership to be enjoyed by persons of a particular racial group defined otherwise than by reference to colour.

(2) In determining whether the main object of a club is as stated in subsection (1), regard shall be had to—

(a) the essential character of the club;

(b) the extent to which the affairs of the club are so conducted that the persons primarily enjoying the benefits of membership are of the racial group in question; and

(c) any other relevant circumstances.

(3) Where the main object of a club is to enable the benefits of membership to be enjoyed by persons of a number of different racial groups defined otherwise than by reference to colour—

(a) nothing in section 36 shall render unlawful any arrangements concerning membership which is designed to give effect to such object; and

(b) nothing in section 36 shall render unlawful a provision to which this paragraph applies or any act done in order to give effect to such a provision.

(4) Subsection (3)(b) applies to a provision which is designed to ensure that the committee of management of the club includes, in relation to each of the relevant racial groups, a minimum number of members, and—

(a) which for that purpose—

(i) reserves seats for each of those racial groups on that committee; or

(ii) makes extra seats available for persons of any such racial group when the number of persons of that racial group in the other seats falls below the minimum; and

(b) which, in the opinion of the club or its committee of management, is needed in the circumstances to secure a reasonable lower limit to the number of members of each of those racial groups serving on the committee.

(5) In determining whether the main object of a club is as stated in subsection (3), regard shall be had to—

(a) the essential character of the club;

(b) the extent to which the affairs of the club are so conducted that the persons primarily enjoying the benefits of membership are of the different racial groups in question; and

(c) any other relevant circumstances.

Harassment

38. Educational establishments

(1) It is unlawful for a person who is, or is a member of, the responsible body for an educational establishment to harass a person who is seeking to be, or who is, a student of the establishment.

(2) It is unlawful for a person who is a member of the staff of an educational establishment to harass a person who is seeking to be, or who is, a student of the establishment.

(3) It is unlawful for a person who is a student of an educational establishment to harass a person who is seeking to be, or who is, a student of the establishment.

(4) It is unlawful for a person who is seeking to be, or who is, a student of an educational establishment to harass a person—

(a) who is, or is a member of, the responsible body for the establishment; or

(b) who is a member of the staff of the establishment.

39. Other harassment

(1) It is unlawful for a person concerned with the provision of goods, facilities or services to harass another person who seeks to obtain or use those goods, facilities or services or to whom the person provides those goods, facilities or services.

(2) It is unlawful for a person, in relation to premises in Hong Kong of which that person has power to dispose, to harass another person who applies for those premises.

(3) It is unlawful for a person, in relation to premises managed by that person, to harass a person occupying the premises.

(4) Where the licence or consent of the landlord or of any other person is required for the disposal to any person of premises in Hong Kong comprised in a tenancy, it is unlawful for the landlord or other person to harass a person seeking the licence or consent for the disposal of the premises to him or her, or a person from whom the licence or consent is withheld.

(5) Subsections (1), (2), (3) and (4) do not apply to harassment which is rendered unlawful by section 24, 25 or 38.

(6) Section 29(4) applies to subsection (4) as it applies to section 29.

(7) It is unlawful for a barrister or barrister’s clerk, in relation to any chambers, to harass a person who is, or has applied to be, a pupil or tenant in the chambers.

(8) It is unlawful for any person, in the course of giving, withholding or acceptance of instructions to a barrister, to harass a person.

(9) Section 35(4) applies to subsections (7) and (8) as it applies to section 35.

(10) It is unlawful for a club, the committee of management of a club or a member of the committee of management of a club to harass a person who is, or has applied to be, a member of the club.

Extent

40. Extent of Part 4

(1) Section 27(1)—

(a) does not apply to goods, facilities or services outside Hong Kong except as provided in subsections (2) and (3); and

(b) does not apply to facilities—

(i) by way of banking or insurance; or

(ii) for grants, loans, credit or finance,

where the facilities are for a purpose to be carried out, or in connection with risks wholly or mainly arising, outside Hong Kong.

(2) Section 27(1) applies to the provision of facilities for travel outside Hong Kong where the refusal or omission occurs in Hong Kong or on a ship, aircraft or dynamically supported craft referred to in subsection (3).

(3) Section 27(1) applies on and in relation to—

(a) any ship registered in Hong Kong;

(b) any aircraft or dynamically supported craft registered in Hong Kong and operated by a person whose principal place of business is in Hong Kong or who is ordinarily resident in Hong Kong; or

(c) any ship, aircraft or dynamically supported craft belonging to or possessed by the Government,

even if the ship, aircraft or craft is outside Hong Kong.

(4) This section does not render unlawful an act done in or over a place outside Hong Kong, or in or over that place’s territorial waters for the purpose of complying with the laws of that place.

(5) Section 26 does not apply to benefits, facilities or services outside Hong Kong except—

(a) travel on a ship registered in Hong Kong; or

(b) benefits, facilities or services provided on a ship so registered.

PART 5
Other Unlawful Acts

41. Discriminatory practices

(1) In this section, “discriminatory practice” (歧視性的做法) means the application of a requirement or condition—

(a) which results in an act of discrimination which is unlawful by virtue of any provision of Part 3 or 4 as read with section 4(1)(b); or

(b) which would be likely to result in such an act of discrimination if the persons to whom it is applied were not all of the same racial group.

(2) A person acts in contravention of this section if and so long as the person—

(a) applies a discriminatory practice; or

(b) operates practices or other arrangements which in any circumstances would call for the application by the person of a discriminatory practice.

(3) Proceedings in respect of a contravention of this section may be brought only by the Commission and any such proceedings must be brought in accordance with sections 71, 72, 73, 74 and 75.

42. Discriminatory advertisements

(1) It is unlawful to publish or cause to be published an advertisement which indicates, or might reasonably be understood as indicating, an intention by a person to do any act which is or might be unlawful by virtue of Part 3 or 4.

(2) Subsection (1) does not apply to an advertisement if the intended act would not in fact be unlawful.

(3) For the purposes of subsection (1), use of a job description which is specific with reference to race is to be taken to indicate an intention to discriminate, unless the advertisement contains an indication to the contrary.

(4) The publisher of an advertisement made unlawful by subsection (1) is not subject to any liability under that subsection in respect of the publication of the advertisement if the publisher proves—

(a) that the advertisement was published in reliance on a statement made to the publisher by the person who caused it to be published to the effect that, by reason of the operation of subsection (2), the publication would not be unlawful; and

(b) that it was reasonable for the publisher to rely on the statement.

(5) A person who knowingly or recklessly makes a statement of the kind referred to in subsection (4)(a) which in a material respect is false or misleading commits an offence and is liable on conviction to a fine at leve1 4.

43. Instructions to discriminate

It is unlawful for a person—

(a) who has authority over another person; or

(b) in accordance with whose wishes that other person is accustomed to act,

to instruct that other person to do any act which is unlawful by virtue of Part 3 or 4, or procure or attempt to procure the doing by him or her of any such act.

44. Pressure to discriminate

(1) It is unlawful to induce, or attempt to induce, a person to do any act which contravenes Part 3 or 4 by—

(a) providing or offering to provide the person with any benefit; or

(b) subjecting or threatening to subject the person to any detriment.

(2) An offer or threat is not prevented from falling within subsection (1) because it is not made directly to the person concerned, if it is made in such a way that he or she is likely to hear of it.

45. Vilification

(1) It is unlawful for a person, by any activity in public, to incite hatred towards, serious contempt for, or severe ridicule of, another person or members of a class of persons on the ground of the race of the person or members of the class of persons.

(2) For the purposes of subsection (1), it is immaterial whether a person is actually incited, by an activity, to—

(a) hatred towards;

(b) serious contempt for; or

(c) severe ridicule of,

another person or members of a class of persons on the ground of the race of the person or members of the class of persons.

(3) Nothing in this section renders unlawful—

(a) a fair report on an activity in public;

(b) an activity in public that—

(i) is a communication or the distribution or dissemination of any matter; and

(ii) consists of a publication which is subject to a defence of absolute privilege in proceedings for defamation; or

(c) an activity in public done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussions about and expositions of any matter.

(4) In this section and section 46, “activity in public” (公開活動) includes any of the following activities, whether or not the person carrying out the activity is in a public place while carrying out the activity—

(a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, screening and playing of tapes or other recorded material;

(b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia;

(c) the distribution or dissemination of any matter to the public.

46. Offence of serious vilification

(1) A person commits an offence if—

(a) the person, by any activity, incites hatred towards, serious contempt for, or severe ridicule of, another person (“the second-mentioned person”) or members of a class of persons, on the ground of the race of the second-mentioned person or the members of the class of persons;

(b) the person intentionally incites such hatred, serious contempt or severe ridicule on such ground; and

(c) the activity is an activity in public and consists of threatening physical harm, or inciting others to threaten physical harm—

(i) towards, or towards any premises or property of, the second-mentioned person or the members of the class of persons; or

(ii) towards the premises or property of any other person to which the second-mentioned person or the members of the class of persons have access.

(2) For the purposes of subsection (1)(a), it is immaterial whether a person is actually incited, by an activity, to—

(a) hatred towards;

(b) serious contempt for; or

(c) severe ridicule of,

another person or members of a class of persons on the ground of the race of 'the person or members of the class of persons.

(3) A person who commits an offence under subsection (1) is liable on conviction to a fine at level 6 and to imprisonment for 2 years.

47. Liability of employers and principals

(1) Anything done by a person in the course of the person’s employment is to be treated for the purposes of this Ordinance as done by that person’s employer as well as by that person, whether or not it was done with the employer’s knowledge or approval.

(2) Anything done by a person (“the first-mentioned person”) as agent for another person (“the second-mentioned person”) with the authority (whether express or implied, and whether precedent or subsequent) of the second-mentioned person is to be treated for the purposes of this Ordinance as done by the second-mentioned person as well as the first-mentioned person.

(3) In proceedings brought under this Ordinance against any other person in respect of an act alleged to have been done by an employee of that person, it is a defence for that other person to prove that he or she took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of the employee’s employment acts of that description.

(4) For the avoidance of doubt, it is declared that this section does not apply for the purposes of any criminal proceedings.

48. Aiding unlawful acts

(1) A person who knowingly aids another person to do an act made unlawful by this Ordinance is to be treated for the purposes of this Ordinance as himself or herself doing an unlawful act of the like description.

(2) For the purposes of subsection (1), an employee or agent for whose act the employer or principal is liable under section 47 (or would be so liable but for section 47(3)) is deemed to aid the doing of the act by the employer or principal.

(3) A person (“the first-mentioned person”) does not under this section knowingly aid another person (“the second-mentioned person”) to do an unlawful act if—

(a) the first-mentioned person acts on a statement made to him or her by the second-mentioned person that, by reason of any provision of this Ordinance, the act which the first-mentioned person aids would not be unlawful; and

(b) it is reasonable for the first-mentioned person to rely on that statement.

(4) A person who knowingly or recklessly makes a statement of the kind referred to in subsection (3)(a) which in a material respect is false or misleading commits an offence and is liable on conviction to a fine at level 4.

PART 6
Matters not Affected by Parts 3, 4 and 5

49. Special measures

Nothing in Part 3, 4 or 5 renders unlawful an act that is reasonably intended to—

(a) ensure that persons of a particular racial group have equal opportunities with other persons in circumstances in relation to which a provision is made by this Ordinance;

(b) afford persons of a particular racial group goods or access to services, facilities or opportunities to meet their special needs in relation to—

(i) employment, education, welfare or clubs; or

(ii) the provision of premises, goods, services or facilities; or

(c) afford persons of a particular racial group grants, benefits or programmes, whether direct or indirect, to meet their special needs in relation to—

(i) employment, education, welfare or clubs; or

(ii) the provision of premises, goods, services or facilities.

50. Charities

(1) Nothing in Part 3, 4 or 5—

(a) is to be construed as affecting a provision to which this subsection applies; or

(b) renders unlawful an act which is done in order to give effect to such a provision.

(2) Subsection (1) applies to a provision for conferring benefits on persons of a particular racial group (disregarding any benefits to persons of another racial group which are exceptional or relatively insignificant), being a provision which is contained in a charitable instrument.

(3) In applying this section—

“charitable instrument” (慈善文書) means an enactment or other instrument so far as it relates to charitable purposes;

“charitable purposes” (慈善目的) means purposes which are exclusively charitable according to any enactment or rule of law.

51. Discriminatory training by certain bodies

(1) Nothing in Part 3, 4 or 5 renders unlawful any act done in relation to particular work by any person in, or in connection with—

(a) affording only persons of a particular racial group access to facilities for training which would help to fit them for that work; or

(b) encouraging only persons of a particular racial group to take advantage of opportunities for doing that work,

where it reasonably appears to that person that at any time within the 12 months immediately preceding the doing of the act—

(c) there were no persons of the racial group concerned doing that work in Hong Kong; or

(d) the number of persons of that racial group doing the work in Hong Kong was comparatively small.

(2) Subsection (1) does not apply in relation to any discrimination that is rendered unlawful by section 10.

52. Discriminatory training by employers, organizations of workers or employers or professional or trade organizations, etc.

(1) Nothing in Part 3, 4 or 5 renders unlawful any act done by an employer in relation to a particular work in his or her employment at a particular establishment in Hong Kong, being an act done in, or in connection with—

(a) affording only those of his or her employees working at that establishment who are of a particular racial group access to facilities for training which would help to fit them for that work; or

(b) encouraging only persons of a particular racial group to take advantage of opportunities for doing that work at that establishment,

where at any time within the 12 months immediately preceding the doing of the act—

(c) there were no persons of the racial group concerned among those doing that work at that establishment; or

(d) the number of persons of that racial group among those doing that work was comparatively small.

(2) Nothing in section 18 renders unlawful any act done by an organization to which that section applies in, or in connection with—

(a) affording only members of the organization who are of a particular racial group access to facilities for training which would help to fit them for holding a post of any kind in the organization; or

(b) encouraging only members of a particular racial group to take advantage of opportunities for holding such posts in the organization,

where at any time within the 12 months immediately preceding the doing of the act—

(c) there were no persons of the racial group concerned among persons holding such posts in the organization; or

(d) the number of persons of that racial group holding such posts was comparatively small.

(3) Nothing in Part 3, 4 or 5 renders unlawful any act done by an organization to which section 18 applies in, or in connection with, encouraging persons of a particular racial group to become members of the organization where at any time within the 12 months immediately preceding the doing of the act—

(a) no persons of the racial group were members of that organization; or

(b) the proportion of persons of the racial group among members of that organization was comparatively small.

53. Indirect access to benefits, etc.

(1) References in this Ordinance to the affording by any person of access to benefits, facilities or services—

(a) are not limited to benefits, facilities or services provided by that person himself or herself; but

(b) include any means by which it is in that person’s power to facilitate access to benefits, facilities or services provided by any other person (“actual provider”).

(2) Where by any provision of this Ordinance the affording by any person of access to benefits, facilities or services in a discriminatory way is in certain circumstances prevented from being unlawful, the effect of the provision is to extend also to the liability under this Ordinance of any actual provider.

54. Nationality law, etc. not affected

Nothing in this Ordinance—

(a) is to be construed as affecting in any way any law concerning nationality, citizenship, resident status or naturalization; or

(b) renders unlawful any act done by any person in, or in connection with, the operation of any such law.

55. Immigration legislation

Nothing in Part 3, 4 or 5 affects, as regards a person not having the right to enter and remain in Hong Kong, any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation.

56. Acts done under statutory authority not affected by Parts 3, 4 and 5

Nothing in Part 3, 4 or 5 renders unlawful any act done by a person if it was necessary for that person to do it in order to comply with a requirement of an existing statutory provision.

57. Application to New Territories land

Nothing in Part 4 or 5—

(a) is to be construed as affecting the operation of any of the provisions of—

(i) the New Territories Ordinance (Cap. 97); or

(ii) the New Territories Leases (Extension) Ordinance (Cap. 150); or

(b) renders unlawful any act done by any person in, or in connection with, the operation of any of those provisions.

58. Other matters not affected

(1) No provision or Part of this Ordinance specified in column 2 of Schedule 5 renders unlawful any discrimination specified opposite thereto in column 3 of that Schedule.

(2) Nothing in Part 3, 4 or 5 renders unlawful any act done by any person—

(a) in connection with any discrimination which is not unlawful by virtue of the operation of subsection (1); and

(b) to the extent that it is done for the purposes of that discrimination.

PART 7
Commission

Commission

59. Functions and powers of Commission

(1) The Commission shall—

(a) work towards the elimination of discrimination;

(b) promote equality of opportunity and harmony between persons of different racial groups generally;

(c) work towards the elimination of harassment and vilification;

(d) in the case of any act alleged to be unlawful by virtue of this Ordinance, encourage persons who are concerned with the matter to which act relates to effect a settlement of the matter by conciliation, whether under section 78 or otherwise;

(e) keep under review the working of this Ordinance and when required to do so by the Chief Executive, or when it otherwise thinks fit, draw up and submit to the Chief Executive proposals for amending this Ordinance; and

(f) perform such other functions as are imposed on it under this Ordinance or any other enactment.

(2) The Commission may do all such things as are necessary for, or incidental or conducive to, the better performance of its functions.

(3) Without limiting subsection (1), the Commission may in particular—

(a) with the prior approval of the Chief Executive, become a member of or affiliate to any international body concerned (whether in whole or in part) with the elimination of discrimination; or

(b) exercise such powers as are conferred on it under this Ordinance.

60. Review of Schedule 5

(1) Without limiting section 59(1), the Commission, pursuant to its powers under paragraphs (a) and (b) of that section, shall keep Schedule 5 under review.

(2) Whenever the Commission thinks it necessary, it shall draw up and submit to the Chief Executive proposals for amending Schedule 5.

61. Restrictions on delegation by Commission

The Commission may not under section 67(1) of the Sex Discrimination Ordinance (Cap. 480) delegate any of its functions or powers under—

(a) section 82;

(b) any provisions of any regulations made under section 83 which are specified in the regulations as provisions which are not subject to section 67 of the Sex Discrimination Ordinance (Cap. 480); or

(c) any provisions of any rules made under section 82 which are specified in the rules as provisions which are not subject to that section 67.

62. Protection of members of Commission, etc.

(1) No person to whom this subsection applies, acting in good faith, is personally liable in damages for any act done or default made in the performance or purported performance of any function, or the exercise or purported exercise of any power, imposed or conferred on the Commission under this Ordinance.

(2) The protection conferred by subsection (1) on any person to whom that subsection applies in respect of any act or default shall not in any way affect the liability of the Commission for that act or default.

(3) The persons to whom subsection (1) applies are—

(a) any member of the Commission or a committee;

(b) any employee of the Commission; or

(c) any conciliator.

Codes of practice

63. Codes of practice

(1) The Commission may issue codes of practice containing such practical guidance as it thinks fit for the purposes of—

(a) the elimination of discrimination;

(b) the promotion of equality of opportunity and harmony between persons of different racial groups; or

(c) the elimination of harassment and vilification.

(2) When the Commission proposes to issue a code of practice, it shall prepare and publish (otherwise than in the Gazette) the code; it shall consider any representations made to it about the code and may modify the code accordingly.

(3) In the course of preparing any code of practice for eventual publication under subsection (2), the Commission shall consult such associations, organizations, associations of organizations or bodies as appear to the Commission to be appropriate including any associations, organizations, associations of organizations or bodies specified by the Secretary for Constitutional and Mainland Affairs by notice published in the Gazette.

(4) If the Commission determines to proceed with a code of practice published under subsection (2), it shall cause the code to be—

(a) published in the Gazette; and

(b) laid on the table of the Legislative Council at the next sitting after its publication in the Gazette.

(5) The Legislative Council may, by resolution passed at a sitting of the Legislative Council held not later than 28 days after the sitting at which a code of practice is laid on the table of that Council (“the relevant period”), provide that the code of practice shall be amended in any manner consistent with this section.

(6) If the relevant period would but for this section expire after the end of a session or a dissolution of the Legislative Council, but on or before the day of its second sitting in the next session, the period for amending the code is deemed to be extended and expire on the day after that second sitting.

(7) The Legislative Council may, before the expiration of the relevant period, by resolution extend the period for amending the code of practice to the first sitting of that Council held not earlier than the twenty-first day after the day of such expiration.

(8) Where the relevant period is extended under subsection (6), the Legislative Council may, before the expiration of the extended period, by resolution extend that extended period to the first sitting of that Council held not earlier than the twenty-first day after the day of the second sitting in the next session referred to in that subsection.

(9) A resolution passed by the Legislative Council in accordance with this section shall be published in the Gazette not later than 14 days after the passing of the resolution or within such further period as the Chief Executive may allow in a particular case.

(10) A code of practice shall come into operation—

(a) if on the expiration of the relevant period or that period as extended under subsection (6), (7) or (8), the Legislative Council has not passed a resolution amending the code of practice, on the expiration of the relevant period or that period as so extended (as the case may be); and

(b) if the Legislative Council passes a resolution amending the code of practice, at midnight on the day before the day on which the resolution is published in the Gazette.

(11) A code of practice may contain such transitional provisions or savings as appear to the Commission to be necessary or expedient in connection with the matters which are the subject of the code.

(12) The Commission may from time to time revise the whole or any part of a code of practice and issue the revised code, and subsections (2), (3), (4), (5), (6), (7), (8), (9), (10) and (11) apply (with appropriate modifications) to a revised code.

(13) Without limiting subsection (1), a code of practice may include such practical guidance as the Commission thinks fit as to what steps it is reasonably practicable for employers to take for the purpose of preventing their employees from doing in the course of their employment acts made unlawful by this Ordinance.

(14) A failure on the part of any person to observe any provision of a code of practice shall not of itself render the person liable to any proceedings; but in any proceedings under this Ordinance before any court any code of practice issued under this section shall be admissible in evidence, and if any provision of such a code appears to the court to be relevant to any question arising in the proceedings it shall be taken into account in determining that question.

(15) In this section, “sitting” (會議), when used to calculate time, means the day on which the sitting commences and only includes a sitting at which subsidiary legislation is included in the order paper.

Investigations

64. Power to conduct formal investigations

Without limiting section 59—

(a) if the Commission thinks fit, it may conduct a formal investigation for any purpose connected with the carrying out of any of its functions under that section; and

(b) if required by the Chief Secretary for Administration, the Commission shall conduct a formal investigation for any purpose connected with the carrying out of any of its functions under that section.

65. Terms of reference

(1) The Commission shall not embark on a formal investigation unless the requirements of this section have been complied with.

(2) The terms of reference for the formal investigation are to be drawn up by the Commission or, where the Chief Secretary for Administration requires the Commission to conduct the investigation, by the Chief Secretary for Administration after consulting the Commission.

(3) The Commission shall give general notice of the holding of the formal investigation unless the terms of reference confine it to activities of persons named in them, but in such a case the Commission shall in the prescribed manner give those persons notice of the holding of the investigation.

(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 the investigation proposes to investigate any act made unlawful by this Ordinance which it believes a person so named may have done, the Commission shall—

(a) inform that person of its belief and its proposal to investigate the act; and

(b) offer that person an opportunity of making oral or written representations with regard to it (or both oral and written representations as that person thinks fit).

(5) A person who avails himself of an opportunity to make oral representations under subsection (4)(b) may be represented—

(a) by counsel or a solicitor; or

(b) by some other person of the person’s choice, not being a person to whom the Commission objects on the ground that he or she is unsuitable.

(6) The Commission may or, if the Commission was required by the Chief Secretary for Administration to conduct the formal investigation, the Chief Secretary for Administration after consulting the Commission may, from time to time, revise the terms of reference.

(7) Subsections (1), (3), (4) and (5) apply to the revised investigation and terms of reference as they apply to the original.

66. Power to obtain information

(1) For the purposes of a formal investigation, the Commission, by a notice in the prescribed form served on a person in the prescribed manner, may—

(a) require the person to furnish such written information as may be described in the notice;

(b) specify the time at which, and the manner and form in which, the information is to be furnished; and

(c) require the person to attend at the time and place specified in the notice and give oral information about, and produce all documents in the person’s possession or control relating to, any matter specified in the notice.

(2) Except as provided in section 73, a notice may be served under subsection (1) only where—

(a) service of the notice has been authorized in writing by or on behalf of the Chief Secretary for Administration; or

(b) the terms of reference of the formal investigation—

(i) state that the Commission believes that a person named in them may have done or may be doing all or any of the acts described in subsection (3); and

(ii) confine the investigation to those acts.

(3) The acts referred to in subsection (2)(b)(i) are acts of the following descriptions—

(a) unlawful discriminatory acts;

(b) unlawful acts of harassment;

(c) contraventions of section 41, 42, 43, 44 or 45.

(4) A notice under subsection (1) may not require a person—

(a) to give information, or produce any documents, which the person could not be compelled to give in evidence, or produce, in civil proceedings before the Court of First Instance; or

(b) to attend at any place unless the necessary expenses of the person’s journey to and from that place are paid or tendered to him or her.

(5) If—

(a) a person fails to comply with a notice served on that person under subsection (1); or

(b) the Commission has reasonable cause to believe that that person intends not to comply with it,

the Commission may apply to the District Court for an order requiring the person to comply with the notice or with such directions for the like purpose as may be contained in the order; and section 66A of the District Court Ordinance (Cap. 336) applies to failure without reasonable excuse to comply with any such order as it applies in the cases there provided.

(6) A person who—

(a) wilfully alters, suppresses, conceals or destroys a document which he or she has been required by a notice or order under this section to produce; or

(b) in complying with such a notice or order, knowingly or recklessly makes any statement which in a material respect is false or misleading,

commits an offence.

(7) A person who commits an offence under subsection (6) is liable on conviction to a fine at level 4.

67. Recommendations and reports on formal investigations

(1) If in the light of its findings in a formal investigation it appears to the Commission necessary or expedient, whether during the course of the investigation or after its conclusion—

(a) to make to any persons, with a view to promoting equality of opportunity and harmony between persons of different racial groups who are affected by any of their activities, recommendations for changes in their policies or procedures, or as to any other matters; or

(b) to make to the Chief Secretary for Administration any recommendations, whether for changes in the law or otherwise, the Commission shall make those recommendations accordingly.

(2) The Commission shall prepare a report of its findings in any formal investigation conducted by it.

(3) If the formal investigation is one required by the Chief Secretary for Administration, the following applies—

(a) the Commission shall deliver the report to the Chief Secretary for Administration;

(b) the Chief Secretary for Administration shall cause the report to be published in such manner as he or she thinks fit; and

(c) unless required by the Chief Secretary for Administration, the Commission shall not publish the report.

(4) If the formal investigation is not one required by the Chief Secretary for Administration, the Commission shall publish the report or make it available for inspection in accordance with subsection (5).

(5) Where under subsection (4) a report is to be made available for inspection, any person shall be entitled, on payment of a reasonable fee, if any, as may be determined by the Commission—

(a) to inspect the report during ordinary office hours and take copies of the whole report or any part of it; or

(b) to obtain from the Commission a copy, certified by the Commission to be correct, of the report.

(6) The Commission may, if it thinks fit, determine that the right conferred by subsection (5)(a) is exercisable in relation to a copy of the report, instead of, or in addition to, the original.

(7) The Commission shall give general notice of the place or places where, and the times when, the report or a copy of it may be inspected.

68. Restrictions on disclosure of information

(1) No information given to the Commission by any person (“the informant”) in connection with a formal investigation shall be disclosed by the Commission, any member of the Commission or a committee, any employee of the Commission, any conciliator, or any person who has been such a member, employee or conciliator, except—

(a) on the order of any court;

(b) with the informant’s consent;

(c) in the form of a summary or other general statement published by the Commission which does not identify the informant or any other person to whom the information relates;

(d) in a report of the investigation published by the Commission or made available for inspection under section 67(5);

(e) to members of the Commission or a committee, employees of the Commission or conciliators or, so far as may be necessary for the proper performance of the functions of the Commission, to other persons; or

(f) for the purpose of any civil proceedings under this Ordinance to which the Commission is a party, or any criminal proceedings.

(2) Any person who discloses information in contravention of subsection (1) commits an offence and is liable on conviction to a fine at level 4.

(3) In preparing any report for publication or for inspection, the Commission shall exclude, so far as it is consistent with its functions and the object of the report, any matter which relates to the private affairs of any individual or business interests of any person where the publication of that matter might, in the opinion of the Commission, prejudicially affect that individual or person.

PART 8
Enforcement

General

69. Restrictions on proceedings for contravention of Ordinance

(1) Except as otherwise provided by this Ordinance, no proceedings, whether civil or criminal, lie against any person in respect of an act by reason that the act is unlawful by virtue of a provision of this Ordinance.

(2) Subsection (1) does not preclude the making of an order of certiorari, mandamus or prohibition.

70. Claims in respect of discrimination, harassment and vilification

(1) A claim by or on behalf of any person (“the claimant”) that another person (“the respondent”)—

(a) has committed an act of discrimination against the claimant which is unlawful by virtue of Part 3 or 4;

(b) has committed an act of harassment against the claimant which is unlawful by virtue of Part 3 or 4;

(c) has committed an act which is unlawful by virtue of section 45; or

(d) is to be treated, by virtue of section 47 or 48, as having committed an act of discrimination or harassment referred to in paragraph (a) or (b) against the claimant or an act referred to in paragraph (c),

may be made the subject of civil proceedings in like manner as any other claim in tort.

(2) Subsection (1) does not apply to a claim under section 19(1) of an act in respect of which an appeal, or proceedings in the nature of an appeal, may be brought under any enactment.

(3) Proceedings under subsection (1) are to be brought in the District Court but all such remedies shall be obtainable in such proceedings as, apart from this subsection and section 69(1), would be obtainable in the Court of First Instance.

(4) Without limiting 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;

(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 and either ab initio or from such date as may be specified in the order, any contract or agreement made in contravention of this Ordinance.

(5) By virtue of this subsection and notwithstanding any law, the District Court has jurisdiction to hear and determine any proceedings under subsection (1) and has all such powers as are necessary or expedient for it to have in order to provide, grant or make any remedy, injunction or order mentioned in this Ordinance.

(6) In respect of an unlawful act of discrimination falling within section 4(1)(b), no award of damages is to be made if the respondent proves that the requirement or condition concerned was not applied with the intention of treating the claimant unfavourably on the ground of the race of the claimant.

(7) For the avoidance of doubt, it is declared that damages in respect of an unlawful act of discrimination or harassment, or an act which is unlawful by virtue of section 45, may include compensation for injury to feelings whether or not they include compensation under any other head.

Enforcement notices

71. Issue of enforcement notices

(1) This section applies to any act which is—

(a) an unlawful discriminatory act;

(b) an unlawful act of harassment;

(c) a contravention of section 41; or

(d) a contravention of section 42, 43, 44 or 45,

and so applies whether or not the proceedings have been brought in respect of the act.

(2) If in the course of a formal investigation the Commission becomes satisfied that a person is committing, or has committed, any acts to which this section applies, the Commission may in the prescribed manner serve on the person a notice in the prescribed form requiring the person—

(a) not to commit any such acts (which may include discontinuing or changing any of the person’s practices or other arrangements which occasioned those acts, in particular to avoid any repetition thereof); and

(b) where compliance with paragraph (a) involves changes in any of the person’s practices or other arrangements—

(i) to inform the Commission that he or she has effected changes and what those changes are; and

(ii) to take such steps as may be reasonably required by the notice for the purpose of affording that information to other persons concerned.

(3) An enforcement notice may also require the person on whom it is served to furnish the Commission with such other information as may be reasonably required by the notice in order to verify that the notice has been complied with.

(4) An enforcement notice may specify the time at which, and the manner and form in which, any information is to be furnished to the Commission, but the time at which any information is to be furnished in compliance with the notice must not be later than 5 years after the notice has become final.

(5) Section 66(5) applies to requirements under subsections (2)(b), (3) and (4) contained in an enforcement notice which has become final as it applies to requirements in a notice served under section 66(1).

72. Appeal against enforcement notice

(1) Not later than 45 days after an enforcement notice is served on any person, he or she may appeal to the District Court against any requirement in the notice.

(2) Where the District Court considers a requirement in respect of which an appeal is brought under subsection (1) to be unreasonable because it is based on an incorrect finding of fact or for any other reason, the Court shall quash the requirement.

(3) On quashing a requirement under subsection (2), the District Court may direct that the enforcement notice shall be treated as if, in place of the requirement quashed, it had contained a requirement in terms specified in the direction.

(4) Subsection (1) does not apply to a requirement treated as included in an enforcement notice by virtue of a direction under subsection (3).

73. Investigation as to compliance with enforcement notice

(1) If—

(a) the terms of reference of a formal investigation state that its purpose is to determine whether any requirements of an enforcement notice are being or have been carried out, but section 66(2)(b) does not apply; and

(b) section 65(3) is complied with in relation to the investigation on a date (“commencement date”) not later than the expiration of the period of 5 years beginning when the enforcement notice became final,

the Commission may within the relevant period serve notices under section 66(1) for the purposes of the investigation without needing to obtain the consent of the Chief Secretary for Administration.

(2) In subsection (1), “relevant period” (有關期間) means the period beginning on the commencement date and ending on the later of the following dates—

(a) the date on which the period of 5 years referred to in subsection (1)(b) expires;

(b) the date 2 years after the commencement date.

74. Register of enforcement notices

(1) The Commission shall establish and maintain a register (“the register”) of enforcement notices which have become final.

(2) A person is entitled, on payment of a reasonable fee, if any, as may be determined by the Commission—

(a) to inspect the register during ordinary office hours and take copies of any entry; or

(b) to obtain from the Commission a copy, certified by the Commission to be correct, of any entry in the register.

(3) The Commission may, if it thinks fit, determine that the right conferred by subsection (2)(a) is exercisable in relation to a copy of the register, instead of, or in addition to, the original.

(4) The Commission shall give general notice of the place or places where, and the times when, the register or a copy of it may be inspected.

Other enforcement by Commission

75. Persistent discrimination, harassment or vilification

If, during the period of 5 years beginning on the date on which either of the following became final in the case of any person, namely—

(a) an enforcement notice served on the person;

(b) a finding by the District Court that the person has done—

(i) an unlawful discriminatory act;

(ii) an unlawful act of harassment; or

(iii) an act contravening section 45,

it appears to the Commission that unless restrained the person is likely to do one or more acts falling within paragraph (b), or contravening section 41, the Commission may apply to the District Court for an injunction restraining the person from doing so; and the District Court, if satisfied that the application is well-founded, may grant the injunction in the terms applied for or in more limited terms.

76. Enforcement of sections 42, 43 and 44

(1) Proceedings in respect of a contravention of section 42, 43 or 44 may be brought only by the Commission and in accordance with this section.

(2) The proceedings must be—

(a) an application for a decision whether the alleged contravention occurred; or

(b) an application under subsection (4),

or both.

(3) An application under subsection (2)(a) must be made to the District Court.

(4) If it appears to the Commission—

(a) that a person has done an act which by virtue of section 42, 43 or 44 was unlawful; and

(b) that unless restrained the person is likely to do further acts which by virtue of that section are unlawful,

the Commission may apply to the District Court for an injunction restraining the person from doing so; and the District Court, if satisfied that the application is well-founded, may grant the injunction in the terms applied for or in more limited terms.

(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 42, 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 that person.

Help for persons suffering discrimination, harassment or vilification

77. Help for aggrieved persons in obtaining information, etc.

(1) With a view to helping a person (“the person aggrieved”) who considers he or she may have been discriminated against or harassed in contravention of this Ordinance, or the subject of an unlawful act under section 45—

(a) to decide whether to institute proceedings; and

(b) if the person does so, to formulate and present his or her case in the most effective manner,

the Commission may prescribe—

(c) forms by which the person aggrieved may question the respondent on the respondent’s reasons for doing any relevant act, or on any other matter which is or may be relevant; and

(d) forms by which the respondent may if he or she so wishes reply to any questions.

(2) Where the person aggrieved questions the respondent (whether or not in accordance with a form referred to in subsection (1))—

(a) the question, and any reply by the respondent (whether or not in accordance with such a form) is, subject to subsections (3), (4) and (5), admissible as evidence in the proceedings; and

(b) if it appears to the District Court that the respondent deliberately, and without reasonable excuse, omitted to reply within a reasonable period or that the respondent’s reply is evasive or equivocal, the Court may draw any inference from that fact it considers it just and equitable to draw, including an inference that the respondent committed an unlawful act.

(3) The Commission may—

(a) prescribe the period within which questions must be served in order to be admissible under subsection (2)(a); and

(b) prescribe the manner in which a question, and any reply by the respondent, may be served.

(4) Rules under the District Court Ordinance (Cap. 336) may enable the District Court entertaining a claim under section 70 to determine, before the date fixed for the hearing of the claim, whether a question or reply is admissible under this section or not.

(5) This section is without prejudice to any other enactment or rule of law regulating interlocutory and preliminary matters in proceedings before the District Court, and has effect subject to any enactment or rule of law regulating the admissibility of evidence in such proceedings.

(6) In this section, “respondent” (答辯人) includes a prospective respondent.

78. Assistance by way of conciliation

(1) A person may lodge with the Commission a complaint in writing alleging that another person has done an act which is unlawful by virtue of a provision of this Ordinance.

(2) A representative complaint may be lodged under subsection (1) in accordance with rules made under section 82.

(3) Subject to subsection (4), where a complaint is lodged under subsection (1), the Commission shall—

(a) conduct an investigation into the act the subject of the complaint; and

(b) endeavour, by conciliation, to effect a settlement of the matter to which the act relates.

(4) The Commission may decide not to conduct, or to discontinue, an investigation into an act the subject of a complaint lodged under subsection (1) if—

(a) it is satisfied that the act is not unlawful by reason of a provision of this Ordinance;

(b) it is of the opinion that the person aggrieved by the act does not desire (or, in a case to which subsection (2) applies, none of the persons aggrieved by the act desires) that the investigation be conducted or continued;

(c) a period of more than 12 months has elapsed beginning when the act was done;

(d) in a case to which subsection (2) applies, it determines, in accordance with rules made under section 82, that the complaint should not be a representative complaint; or

(e) it is of the opinion that the complaint is frivolous, vexatious, misconceived or lacking in substance.

(5) Where the Commission decides not to conduct, or to discontinue, an investigation into an act the subject of a complaint lodged under subsection (1), it shall by notice served on the person who lodged the complaint advise the person of—

(a) that decision; and

(b) the reason for that decision.

(6) Evidence of anything said or done by any person in the course of conciliation under this section (including anything said or done at any conference held for the purposes of such conciliation) is not admissible in evidence in any proceedings under this Ordinance except with the consent of that person.

(7) For the avoidance of doubt, it is declared that subsection (6) does not apply where—

(a) a complaint is lodged under subsection (1); and

(b) a settlement has been effected of the matter to which the act the subject of the complaint relates.

79. Assistance other than by way of conciliation

(1) Where—

(a) a complaint has been lodged under section 78(1); but

(b) for whatever reason, there has not been a settlement of the matter to which the act the subject of the complaint relates,

then any person who may institute proceedings under this Ordinance in respect of that act may make an application to the Commission for assistance in respect of those proceedings.

(2) The Commission shall consider an application under subsection (1) and may grant it if it thinks fit to do so, in particular where—

(a) the case raises a question of principle; or

(b) it is unreasonable, having regard to the complexity of the case or the applicant’s position in relation to the respondent or another person involved or any other matter, to expect the applicant to deal with the case unaided.

(3) Assistance by the Commission under this section may include—

(a) giving advice;

(b) arranging for the giving of advice or assistance by a solicitor or counsel;

(c) arranging for representation by any person including all such assistance as is usually given by a solicitor or counsel in the steps preliminary or incidental to any proceedings, or in arriving at or giving effect to a compromise to avoid or bring to an end any proceedings;

(d) any other form of assistance which the Commission may consider appropriate,

but paragraph (c) does not affect the law and practice regulating the descriptions of persons who may appear in, conduct, defend and address a court in, any proceedings except to the extent permitted under rules made in accordance with section 73E of the District Court Ordinance (Cap. 336).

(4) In so far as expenses are incurred by the Commission in providing the applicant with assistance under this section the recovery of those expenses (as taxed or assessed in such manner as may be prescribed by relevant rules) constitutes a first charge for the benefit of the Commission—

(a) on any costs or expenses which (whether by virtue of a judgment or order of the District Court or an agreement or otherwise) are payable to the applicant by any other person in respect of the matter in connection with which the assistance is given; and

(b) so far as relates to any costs or expenses, on his or her rights under any compromise or settlement arrived at in connection with that matter to avoid or bring to an end any proceedings.

(5) The charge conferred by subsection (4) is subject to any charge under the Legal Aid Ordinance (Cap. 91) and to any provision in that Ordinance for payment of any sum into the Supplementary Legal Aid Fund established under that Ordinance.

(6) In this section—

“relevant rules” (有關規則) means any rules made under the District Court Ordinance (Cap. 336);

“respondent” (答辯人) includes a prospective respondent.

Period within which proceedings to be brought

80. Period within which proceedings to be brought

(1) The District Court shall not consider a claim under section 70 unless proceedings in respect of the claim are instituted within 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.

(2) The District Court—

(a) shall not consider an application under section 76(2)(a) unless it is made within the period of 24 months beginning when the act to which it relates was done; and

(b) shall not consider an application under section 76(4) unless it is made within the period of 5 years so beginning.

(3) 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 period that elapsed between the date when the complaint was lodged and the date when the complaint was disposed of under section 78(3) or (4), as certified in writing by the Commission, shall be disregarded.

(4) Notwithstanding subsections (1) and (2), the District Court may consider any claim or application which is out of time, if, in all the circumstances of the case, it considers that it is just and equitable to do so.

(5) For the purposes of subsection (4), the circumstances of the case include, in relation to any claim—

(a) whether the act to which the claim relates was the subject of a complaint lodged under section 78(1); and

(b) if so, the period that elapsed between when the act was done and when that complaint was so lodged.

(6) For the purposes of this section—

(a) where the inclusion of any term in a contract renders the making of the contract an unlawful act, that act shall be treated as extending throughout the duration of the contract;

(b) any act extending over a period shall be treated as done at the end of that period; and

(c) a deliberate omission shall be treated as done when the person concerned decided upon it.

(7) In the absence of evidence to the contrary, a person shall be taken for the purposes of this section to decide upon an omission, that is deciding upon omitting to do an act (“relevant act”)—

(a) when the person does an act inconsistent with doing the relevant act; or

(b) if the person has done no such inconsistent act, when the period expires within which he or she might reasonably have been expected to do the relevant act if it were to be done.

(8) The Chief Executive in Council may, by notice published in the Gazette, amend subsection (1) by substituting a longer period for the period specified in that subsection.

(9) 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 (whether or not the report mentions the act or the report 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 3, 4 or 5.

PART 9
Miscellaneous

81. Validity and revision of contracts

(1) A term of a contract is void where—

(a) its inclusion renders the making of the contract unlawful by virtue of this Ordinance;

(b) it is included in furtherance of an act rendered unlawful by this Ordinance; or

(c) it provides for the doing of an act which would be rendered unlawful by this Ordinance.

(2) Subsection (1) does not apply to a term the inclusion of which constitutes, or is in furtherance of, or provides for, unlawful discrimination against a party to the contract, but the term shall be unenforceable against that party.

(3) A term in a contract which purports to exclude or limit any provision of this Ordinance is unenforceable by any person in whose favour the term would operate apart from this subsection.

(4) Subsection (3) does not apply to a contract settling a claim to which section 70 applies.

(5) On the application of any person interested in a contract to which subsection (2) applies, the District Court may make such order as it thinks just for removing or modifying any term made unenforceable by that subsection; but such an order shall not be made unless all persons affected—

(a) have been given notice of the application (except where under rules made under the District Court Ordinance (Cap. 336) notice may be dispensed with); and

(b) have been afforded an opportunity to make representations to the Court.

(6) An order under subsection (5) may include provision as respects any period before making the order.

82. Rules

(1) The Commission may make rules—

(a) prescribing the persons, or persons belonging to a class of persons, who may lodge a representative complaint under section 78(1);

(b) prescribing the bodies and positions for the purposes of section 34;

(c) prescribing the matters to be taken into account by the Commission for the purposes of a determination under section 78(4)(d);

(d) to enable the Commission to require such persons, or persons belonging to such class of persons, as are specified in the rules to furnish information to the Commission for the purposes of section 78;

(e) restricting the disclosure of any information referred to in paragraph (d) furnished to the Commission;

(f) to enable the Commission to direct persons to attend any conference held for the purposes of section 78;

(g) regulating the procedure of any conference held for the purposes of section 78;

(h) prescribing any other thing that is required or permitted to be prescribed under this Ordinance.

(2) Any rules made under subsection (1) may—

(a) make different provisions for different circumstances and provide for a particular case or class of cases;

(b) be made so as to apply only in such circumstances as are prescribed by the rules;

(c) specify forms for the purposes of the rules;

(d) be made generally for the better or more effectual carrying out of the provisions of this Ordinance, including incidental, consequential, evidential and supplemental provisions.

(3) Any rules made under this section may prescribe offences in respect of contraventions of the rules, and may provide for the imposition of a fine not exceeding level 4 and of imprisonment for a period not exceeding 2 years.

83. Regulations to empower Commission to bring certain proceedings

(1) The Secretary for Constitutional and Mainland Affairs may make regulations—

(a) where any person may bring proceedings under section 70 but has not done so, empowering the Commission, in such circumstances 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.

(2) Any regulations made under this section shall be subject to the approval of the Legislative Council.

(3) This section is without prejudice to the Commission’s power to bring proceedings by way of judicial review, in relation to this Ordinance or any other law, pursuant to its functions under section 59(1).

84. Amendment of Schedules 1, 2, 3, 4 and 5

The Chief Executive in Council may, by notice published in the Gazette, amend Schedule 1, 2, 3, 4 or 5 but any notice to amend Schedule 2, 3, 4 or 5 shall be subject to the approval of the Legislative Council.

Consequential and Related Amendments

Labour Tribunal Ordinance

85. Jurisdiction of tribunal

Section 7 of the Labour Tribunal Ordinance (Cap. 25) is amended by adding—

“(6) Subsection (2) shall not operate to prevent the transfer of any claim to the tribunal in accordance with any rules made under section 73E of the District Court Ordinance (Cap. 336).”.

86. Declining jurisdiction

Section 10 is amended by adding—

“(6) This section shall not apply to any claim transferred to the tribunal in accordance with any rules made under section 73E of the District Court Ordinance (Cap. 336).”.

Employment Ordinance

87. Exclusion

Section 32Q of the Employment Ordinance (Cap. 57) is amended—

(a) in paragraph (c), by repealing the full stop and substituting “; or” ;

(b) by adding—

“(d) discrimination against a person on the ground of the race of the person or his or her near relative within the meaning of the Race Discrimination Ordinance (29 of 2008).”.

District Court Ordinance

88. Section added

The District Court Ordinance (Cap. 336) is amended by adding immediately after section 73D—

“73E. Rules in relation to jurisdiction under Race Discrimination Ordinance

(1) The Rules Committee may make rules regulating the practice of the Court in the exercise of its jurisdiction under the Race Discrimination Ordinance (29 of 2008) and the forms of proceedings therein.

(2) The power to make rules under subsection (1)—

(a) shall extend to—

(i) all matters of procedure or practice; and

(ii) matters relating to or concerning the effect or operation in law of any procedure or practice in any case within the cognizance of the Court as to which rules of the High Court have been or might be made for cases within the cognizance of the High Court; and

(b) shall include the power to make rules—

(i) as to proceedings by or against the Government;

(ii) as to the persons who may appear in, conduct, defend and address the Court in, any proceedings therein;

(iii) to make special provision for any proceedings in the Court where regulations made under section 83 of the Race Discrimination Ordinance (29 of 2008) apply to the proceedings.

(3) Each party to any proceedings in the Court in the exercise of its jurisdiction under the Race Discrimination Ordinance (29 of 2008) shall bear its own costs unless the Court otherwise orders on the ground that—

(a) the proceedings were brought maliciously or frivolously; or

(b) there are special circumstances which warrant an award of costs.

(4) Without prejudice to the generality of the provisions of subsections (1) and (2), the power to make rules under this section shall extend to—

(a) prescribing the place or places which shall be the venue or venues for proceedings to which this section relates;

(b) requiring the judge or judges sitting at such venue or venues to give priority, to such extent as may be specified in the rules, to hearing and disposing of proceedings to which this section relates;

(c) empowering any such judge at any stage of any proceedings, of his or her own motion, to order that any claim be transferred to the tribunal within the meaning of the Labour Tribunal Ordinance (Cap. 25) where the claim is—

(i) beyond the jurisdiction of the Court; and

(ii) within the jurisdiction of that tribunal.

(5) The Court in the exercise of its jurisdiction under the Race Discrimination Ordinance (29 of 2008)—

(a) shall not be bound by the rules of evidence; and

(b) may inform itself of any matter in such manner as it sees fit, with due regard to—

(i) the rights of the parties to the proceedings therein to a fair hearing;

(ii) the need to determine the substantial merits of the case; and

(iii) the need to achieve a prompt hearing of the matters at issue between the parties.

(6) Subject to subsection (5), any rules made in accordance with the provisions of this section may be made so as to modify, with respect to proceedings in the Court, any rule of law or practice as to the proof of any matter or as to the reception or admissibility of any matter in evidence.

(7) No rule made in accordance with the provisions of this section shall apply to any proceedings by or against the Government except in so far as it expressly purports so to do.

(8) It is hereby declared that—

(a) subject to paragraph (c), this section—

(i) shall not of itself operate to prevent the making of any rules—

(A) under the provisions of any other section of this Ordinance; and

(B) which relate, whether in whole or in part, to the jurisdiction conferred on the Court by virtue of the Race Discrimination Ordinance (29 of 2008); and

(ii) shall not of itself operate to prevent any rules made under the provisions of any other section of this Ordinance from applying to and in relation to such jurisdiction;

(b) where there is any conflict or inconsistency between—

(i) any rules made under subsection (2)(b); and

(ii) any rule of law and practice regulating the description of persons who may appear in, conduct, defend and address the Court in, any proceedings therein,

then those rules shall, to the extent of that conflict or inconsistency, as the case may be, prevail over that rule of law and practice;

(c) where there is any conflict or inconsistency between any rules made under the provisions of this section and any rules made under the provisions of another section of this Ordinance, then those first-mentioned rules shall to the extent of that conflict or inconsistency, as the case may be, prevail over those second-mentioned rules.

(9) For the avoidance of doubt, it is hereby declared that no rule made in accordance with this section shall empower the Court to hear and determine any proceedings involving any claim beyond its jurisdiction.”.

District Court Equal Opportunities Rules

89. Interpretation

Rule 2 of the District Court Equal Opportunities Rules (Cap. 336 sub. leg. G) is amended, in the definition of “relevant Ordinance”—

(a) in paragraph (b), by repealing “or”;

(b) in paragraph (c), by adding “or” at the end;

(c) by adding—

“(d) the Race Discrimination Ordinance (29 of 2008);”.

90. Application of other rules

Rule 4 is amended by repealing “73C(8) and 73D(8)” and substituting “73C(8), 73D(8) and 73E(8)”.

Sex Discrimination Ordinance

91. Interpretation

(1) Section 2(1) of the Sex Discrimination Ordinance (Cap. 480) is amended—

(a) in the definition of “club”, by repealing everything after “purposes” and substituting “and which provides and maintains its facilities, in whole or in part, from the funds of the association;”;

(b) by repealing the definition of “estate agent” and substituting—

““estate agent” (地產代理) has the same meaning as in the Estate Agents Ordinance (Cap. 511);”;

(c) by adding—

““near relative” (近親), in relation to a person, means—

(a) the person’s spouse;

(b) a parent of the person or of the spouse;

(c) a child of the person or the spouse of such a child;

(d) a brother or sister (whether of full blood or half blood) of the person or of the spouse or the spouse of such a brother or sister;

(e) a grandparent of the person or of the spouse; or

(f) a grandchild of the person or the spouse of such a grandchild,

and, in determining the above relationships, children born out of wedlock are to be included, an adopted child is to be regarded as a child of both the natural parents and the adoptive parent or parents and a step child as the child of both the natural parents and any step parent;”.

(2) Section 2(4) is repealed.

(3) Section 2(5)(b) is amended—

(a) by repealing “sexually”;

(b) by repealing “work”.

(4) Section 2(6) is repealed.

92. Discrimination against contract workers

(1) Section 13(1) is amended by repealing everything after “but” and substituting “by a contractor or sub-contractor of the principal.”.

(2) Section 13 is amended by adding—

“(5) In this section—

“contractor” (承判商) means a person who undertakes any work for the principal under a contract that is entered into by the person directly with the principal;

“sub-contractor” (次承判商) means a person who enters into a contract with another person (whether or not a contractor of the principal) to undertake all or any part of the work that a contractor of the principal has undertaken.”.

93. Discrimination in provision of goods, facilities or services

Section 28 is amended, in the Chinese text, by repealing subsection (1) and substituting—

“(1) 從事向公眾人士或部分公眾人士提供貨品、設施或服務 (不論是否為此而收取款項) 的人，如藉以下做法歧視一名謀求獲得或使用該等貨品、設施或服務的女性，即屬違法——

(a) 拒絕向她提供或故意不向她提供任何該等貨品、設施或服務；或

(b) 該人在正常情況下，會按某方式及某些條款向男性公眾人士，或 (如她屬於某部分的公眾人士) 向屬該部分的男性公眾人士，提供具有某種品質或質素的貨品、設施或服務，然而該人拒絕按相同方式及相同條款 (或故意不按相同方式及相同條款) 向她提供具有相同品質或質素的該等貨品、設施或服務。”.

94. Discrimination in disposal or management of premises

Section 29(3) is amended, in the Chinese text, by repealing “地產中介人” and substituting “地產代理”.

95. Claims under Part III or IV

Section 76(1) is amended—

(a) by repealing paragraph (b);

(b) in paragraph (c), by repealing the comma and substituting “; or”;

(c) by adding—

“(d) is to be treated, by virtue of section 46 or 47, as having committed an act of discrimination or sexual harassment referred to in paragraph (a) or (c) against the claimant,”.

96. Period within which proceedings to be brought

Section 86(2A) is amended by repealing “conciliation under section 84 was concluded” and substituting “the complaint was disposed of under section 84(3) or (4)”.

Disability Discrimination Ordinance

97. Interpretation

(1) Section 2(1) of the Disability Discrimination Ordinance (Cap. 487) is amended—

(a) in the definition of “club”, by repealing everything after “purposes” and substituting “and which provides and maintains its facilities, in whole or in part, from the funds of the association;”;

(b) by repealing the definition of “estate agent” and substituting—

““estate agent” (地產代理) has the same meaning as in the Estate Agents Ordinance (Cap. 511);”;

(c) by adding—

““near relative” (近親), in relation to a person, means—

(a) the person’s spouse;

(b) a parent of the person or of the spouse;

(c) a child of the person or the spouse of such a child;

(d) a brother or sister (whether of full blood or half blood) of the person or of the spouse or the spouse of such a brother or sister;

(e) a grandparent of the person or of the spouse; or

(f) a grandchild of the person or the spouse of such a grandchild,

and, in determining the above relationships, children born out of wedlock are to be included, an adopted child is to be regarded as a child of both the natural parents and the adoptive parent or parents and a step child as the child of both the natural parents and any step parent;”.

(2) Section 2(5) is repealed.

98. Discrimination against contract workers

(1) Section 13(1) is amended by repealing everything after “but” and substituting “by a contractor or sub-contractor of the principal.”.

(2) Section 13 is amended by adding—

“(6) In this section—

“contractor” (承判商) means a person who undertakes any work for the principal under a contract that is entered into by the person directly with the principal;

“sub-contractor” (次承判商) means a person who enters into a contract with another person (whether or not a contractor of the principal) to undertake all or any part of the work that a contractor of the principal has undertaken.”.

99. Vilification

(1) Section 46 is amended by adding—

“(1A) For the purposes of subsection (1), it is immaterial whether a person is actually incited, by an activity, to—

(a) hatred towards;

(b) serious contempt for; or

(c) severe ridicule of,

another person with a disability or members of a class of persons with a disability.”.

(2) Section 46(2)(b) is repealed and the following substituted—

“(b) an activity in public that—

(i) is a communication or the distribution or dissemination of any matter; and

(ii) consists of a publication which is subject to a defence of absolute privilege in proceedings for defamation; or”.

100. Section substituted

Section 47 is repealed and the following substituted—

“47. Offence of serious vilification

(1) A person commits an offence if—

(a) the person, by any activity, incites hatred towards, serious contempt for, or severe ridicule of, another person (“the second-mentioned person”) with a disability or members of a class of persons with a disability;

(b) the person intentionally incites such hatred, serious contempt or severe ridicule; and

(c) the activity is an activity in public and consists of threatening physical harm, or inciting others to threaten physical harm—

(i) towards, or towards any premises or property of, the second-mentioned person or the members of the class of persons; or

(ii) towards the premises or property of any other person to which the second-mentioned person or the members of the class of persons have access.

(2) For the purposes of subsection (1)(a), it is immaterial whether a person is actually incited, by an activity, to—

(a) hatred towards;

(b) serious contempt for; or

(c) severe ridicule of,

another person with a disability or members of a class of persons with a disability.

(3) A person who commits an offence under subsection (1) is liable on conviction to a fine at level 6 and to imprisonment for 2 years.”.

101. Claims under Part III or IV

Section 72(1)(d) is repealed and the following substituted—

“(d) is to be treated, by virtue of section 48 or 49, as having committed an act of discrimination or harassment referred to in paragraph (a) or (b) against the claimant or an act referred to in paragraph (c),”.

102. Period within which proceedings to be brought

Section 82(2A) is amended by repealing “conciliation under section 80 was concluded” and substituting “the complaint was disposed of under section 80(3) or (4)”.

Family Status Discrimination Ordinance

103. Interpretation

(1) Section 2(1) of the Family Status Discrimination Ordinance (Cap. 527) is amended—

(a) in the definition of “club”, by repealing everything after “purposes” and substituting “and which provides and maintains its facilities, in whole or in part, from the funds of the association;”;

(b) by adding—

““near relative” (近親), in relation to a person, means—

(a) the person’s spouse;

(b) a parent of the person or of the spouse;

(c) a child of the person or the spouse of such a child;

(d) a brother or sister (whether of full blood or half blood) of the person or of the spouse or the spouse of such a brother or sister;

(e) a grandparent of the person or of the spouse; or

(f) a grandchild of the person or the spouse of such a grandchild,

and, in determining the above relationships, children born out of wedlock are to be included, an adopted child is to be regarded as a child of both the natural parents and the adoptive parent or parents and a step child as the child of both the natural parents and any step parent;”.

(2) Section 2(4) is repealed.

104. Discrimination against contract workers

(1) Section 9(1) is amended by repealing everything after “but” and substituting “by a contractor or sub-contractor of the principal.”.

(2) Section 9 is amended by adding—

“(6) In this section—

“contractor” (承判商) means a person who undertakes any work for the principal under a contract that is entered into by the person directly with the principal;

“sub-contractor” (次承判商) means a person who enters into a contract with another person (whether or not a contractor of the principal) to undertake all or any part of the work that a contractor of the principal has undertaken.”.

105. Discrimination in provision of goods, facilities or services

(1) Section 19(1)(a) is amended, in the English text, by adding “or” at the end.

(2) Section 19 is amended, in the Chinese text, by repealing subsection (1) and substituting—

“(1) 從事向公眾人士或部分公眾人士提供貨品、設施或服務 (不論是否為此而收取款項) 的人 (“前者”)，如藉以下做法歧視任何具有家庭崗位且謀求獲得或使用該等貨品、設施或服務的人 (“後者”)，即屬違法——

(a) 拒絕向後者提供或故意不向後者提供任何該等貨品、設施或服務；或

(b) 前者在正常情況下，會按某方式及某些條款向並無家庭崗位或並無某家庭崗位的公眾人士，或 (如後者屬於某部分的公眾人士) 向屬該部分的並無家庭崗位或並無某家庭崗位的公眾人士，提供具有某種品質或質素的貨品、設施或服務，然而前者拒絕按相同方式及相同條款 (或故意不按相同方式及相同條款) 向後者提供具有相同品質或質素的該等貨品、設施或服務。”.

106. Period within which proceedings are to be brought

Section 64(3) is amended by repealing “conciliation under section 62 was concluded” and substituting “the complaint was disposed of under section 62(3) or (4)”.

SCHEDULE 1

[ss. 2(1) & 84]

Educational Establishments and their Responsible Bodies

SCHEDULE 2

[ss. 14 & 84]

Employee in Existing Employment

1. An employee specified in section 2, 3, 4, 5 or 6 is an employee in an existing employment for the purposes of section 14 of this Ordinance.

2. An employee specified in this section is an employee (other than a public officer or specified English teacher) of an employer where—

(a) the employee—

(i) began his or her employment with the employer pursuant to an offer of employment made to him or her before the commencement date; and

(ii) continues to be employed by the employer without a break in service since he or she began service pursuant to the offer; or

(b) the employee is employed by the employer following one or more transfers of employment, all being transfers within the same group of companies within the meaning of section 13(3)(b) of this Ordinance, where the employment immediately preceding the first transfer was pursuant to an offer of employment made to him or her before the commencement date and there is no break in the employee’s service since he or she began his or her employment pursuant to the offer.

3. An employee specified in this section is a judicial officer—

(a) who—

(i) began serving as a judicial officer pursuant to an offer of employment made to him or her before 27 November 1997; and

(ii) continues to serve as such officer without a break in service since he or she began service pursuant to the offer; or

(b) who—

(i) began serving as a public officer (other than a judicial officer) pursuant to an offer of employment made to him or her before 1 January 1999;

(ii) had continued to serve as a public officer without a break in service since he or she began service pursuant to the offer and until he or she began serving as a judicial officer; and

(iii) continues to serve as a judicial officer without a break in service since beginning serving as such.

4. An employee specified in this section is an ICAC officer—

(a) who—

(i) began serving as an ICAC officer pursuant to an offer of employment made to him or her before 1 January 1999; and

(ii) continues to serve as such officer without a break in service since he or she began service pursuant to the offer; or

(b) who—

(i) began serving as a public officer (other than an ICAC officer) pursuant to an offer of employment made to him or her before 1 January 1999;

(ii) had continued to serve as a public officer without a break in service since he or she began service pursuant to the offer and until he or she began serving as an ICAC officer; and

(iii) continues to serve as an ICAC officer without a break in service since beginning serving as such.

5. An employee specified in this section is a public officer (other than a judicial officer or an ICAC officer) who—

(a) began serving as such officer pursuant to an offer of employment made to him or her before 1 January 1999; and

(b) continues to serve as such officer without a break in service since he or she began service pursuant to the offer.

6. An employee specified in this section is a specified English teacher who—

(a) began his or her employment as such pursuant to an offer of employment made to him or her before the commencement date; and

(b) continues to be employed as such without a break in service since he or she began service pursuant to the offer.

7. An employee (other than a public officer or specified English teacher) who is an employee specified in section 2 remains an employee so specified, whether or not the employment of the employee by the employer concerned, or (where section 2(b) applies) by any of the employers within the group of companies concerned, was or is pursuant to any extension, any renewal or re-engagement after termination and whether or not the employee was or has been promoted.

8. A judicial officer, an ICAC officer or any other public officer, who is an employee specified in section 3, 4 or 5 remains an employee so specified, whether or not the service of the officer was or is pursuant to any extension, any renewal or re-engagement after termination and whether or not the officer was or has been promoted.

9. A specified English teacher who is an employee specified in section 6 remains an employee so specified whether or not the service of the specified English teacher was or is pursuant to—

(a) any extension, any renewal or re-engagement after termination; or

(b) any transfer from one primary or secondary school to another, or from a primary or secondary school to the Native-speaking English Teacher Section of the Education Bureau or vice versa.

10. Provisions of this Schedule apply irrespective of whether or not an employee is or has become a Hong Kong permanent resident.

11. For the purposes of this Ordinance—

“ICAC officer” (廉署人員) means a public officer who is an officer within the meaning of section 2 of the Independent Commission Against Corruption Ordinance (Cap. 204);

“judicial officer” (司法人員) means a judicial officer holding a judicial office specified in Schedule 1 to the Judicial Officers Recommendation Commission Ordinance (Cap. 92);

“local terms of employment” (本地僱用條款) and “overseas terms of employment” (海外僱用條款)—

(a) in relation to any employee (other than a public officer), mean respectively—

(i) such conditions or terms of service as apply, from time to time, primarily to the appointment or employment by the employer concerned of a person who is a Hong Kong permanent resident; and

(ii) such conditions or terms of service as apply, from time to time, primarily to the appointment or employment by the employer concerned of a person who is not a Hong Kong permanent resident;

(b) in relation to a judicial officer, an ICAC officer or any other public officer, respectively mean the local conditions or terms of service and overseas conditions or terms of service within the meaning of such regulations, administrative rules, circulars and circular memoranda as apply, from time to time, generally to the appointment or employment of judicial officers, ICAC officers or other public officers (as the case may be);

“public officer” (公職人員) does not include a specified English teacher who is employed—

(a) in a primary or secondary school entirely maintained and controlled by the Government; or

(b) in the Native-speaking English Teacher Section of the Education Bureau;

“specified English teacher” (指明英語教師) means a teacher—

(a) who is a native-speaker of English or possesses native-speaker English competency;

(b) who is normally first recruited from a place outside Hong Kong; and

(c) who—

(i) is employed in a secondary school under the Enhanced Native-speaking English Teacher Scheme administered by the Education Bureau;

(ii) is employed in a primary school under the Native-speaking English Teacher Scheme administered by that Bureau; or

(iii) is employed as an Advisory Teacher or a Regional Natives-peaking English Teacher Coordinator in the Native-speaking English Teacher Section of that Bureau.

SCHEDULE 3

[ss. 19(2) & 84]

Authorization or Qualification Specified for the Purposes of Section 19(2) of this Ordinance

Any authorization or qualification conferred for the purposes of—

(a) the Professional Accountants Ordinance (Cap. 50);

(b) the Pharmacy and Poisons Ordinance (Cap. 138);

(c) the Dentists Registration Ordinance (Cap. 156);

(d) the Legal Practitioners Ordinance (Cap. 159);

(e) the Medical Registration Ordinance (Cap. 161);

(f) the Midwives Registration Ordinance (Cap. 162);

(g) the Nurses Registration Ordinance (Cap. 164);

(h) the Supplementary Medical Professions Ordinance (Cap. 359);

(i) the Chiropractors Registration Ordinance (Cap. 428);

(j) the Civil Aviation Ordinance (Cap. 448); or

(k) the Chinese Medicine Ordinance (Cap. 549).

SCHEDULE 4

[ss. 33(2) & 84]

Discrimination to which Sections 27(1) and 28 of this Ordinance Do Not Apply

Item	Provision creating illegality	Exception
1.	Part 3 and section 26	Sections 10(3), (4) and (7), 11(1)(b), 12, 13, 14, 15(4) and (5) and 21(3).

SCHEDULE 5

[ss. 58(1), 60 & 84]

Other Matters Not Affected by this Ordinance

Item	Provision creating illegality	Exception
1.	Part 4	Any discrimination between persons of different racial groups arising from that policy of the Government known as the portable comprehensive social security assistance scheme under which eligibility for certain assistance is extended only to persons who take up permanent residence in certain places outside Hong Kong.

This work is a Hong Kong ordinance, which is copyrighted in Hong Kong for 50 years after publication pursuant to section 183(2) and paragraph 36 of Schedule 2 of the Copyright Ordinance (Cap. 528). However, as an edict of a government, it is in the public domain in the U.S.

According to Section 3 of the Interpretation and General Clauses Ordinance (Cap. 1), the term "ordinance" also includes any subsidiary legislation made under any ordinances of Hong Kong that does not contravene with the Hong Kong Basic Law.

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