ESCAP Regional Workshop - Country Paper

Materials : Country Papers :

A country paper for Hong Kong Special Administrative Region, China

Joseph Kwok[1]

1. General overview of disability-specific legislation

Hong Kong does not have a unified, comprehensive ordinance covering all areas of disability legislation. Ordinances concerning people with disability (PWD) appear in various chapters of the Laws of Hong Kong. The landmark ordinance concerning disabled people is the Disability Discrimination Ordinance (DDO), which became effective from 1996. DDO is the first Ordinance that gives a legal definition on disability, provides a comprehensive scope of application, and has an independent statutory body for its enforcement. Other laws with special provisions for PWD include:Disability Discrimination Ordinance (Cap. 487); Inland Revenue Ordinance (Cap. 112); Crimes Ordinance (Cap. 200); Criminal Procedure Ordinance (Cap. 221); Legislative Council Ordinance (Cap. 542); Mental Health Ordinance (Cap. 136); Buildings Ordinance (Cap. 123); Motor Vehicles (First Registration Tax) Ordinance (Cap. 330); Road Traffic Ordinance (Cap. 374). Appendix I gives a more detailed outline of major legislation in Hong Kong that is of special concern to PWD.

Disability Discrimination Ordinance (DDO)

The legal protection under DDO: DDO protects people with a disability and their associates against discrimination, harassment and vilification on the ground of their disability. The key elements under DDO are explained below:

Disability: It means total or partial loss of a person’s bodily or mental functions, total or partial loss of a part of the body, the presence of organisms causing disease or illness (such as HIV), the malfunction, malformation or disfigurement of a part of the person’s body, or a disorder, illness or disease that affects a person’s perception of reality, emotions or judgment or that results in disturbed behaviour, and learning difficulties. A disability includes not only a disability which presently exists, but also a disability which previously existed but no longer exists, which may exist in the future or which is imputed to a person. People with a disability will be protected by DDO only if their disability is covered by DDO’s definition of disability given above.
Associates: An associate includes a spouse, another person living with a person with a disability, relative, carer and a business, sporting or recreational partner.
Discrimination: Discrimination can be direct or indirect. Direct discrimination occurs when, on the ground of disability, a person with a disability is treated less favourably than another person without a disability in similar circumstances. Indirect discrimination occurs when a condition or requirement is applied to everyone, but in practice affects people with a disability more adversely, is to their detriment, and such condition or requirement cannot be justified.
Harassment: This is any unwelcome conduct on account of a person’s disability where it can be reasonably anticipated that the person would be offended, humiliated or intimidated; for example, insulting remarks or offensive jokes about a person’s disability.
Vilification: This is an activity in public which incites hatred towards, serious contempt for, or severe ridicule of people with a disability. For example, if a person speaks openly in public that people with a disability are useless and a burden to society, this may amount to vilification.
Scope of protection: PWD and their associates are protected in the areas of employment; education; access to, disposal and management of premises which are places that can be accessed by the members of public; provision of goods, services and facilities; practising as barristers; and clubs and sporting activities.

The Equal Opportunities Commission and the enforcement of DDO

The Equal Opportunity Commission was created by law to oversee and enforce discrimination ordinances, namely DDO, Sex Discrimination Ordinance, and Family Status Discrimination Ordinance. As a statutory body, its functions are defined by law. While it is fully funded by government, it is independent of it and can bring action against the government, and therefore serves an important role to check government actions. Members of the Commission are appointed on an individual basis by and at the discretion of the Chief Executive of the Government. While members are serving on a voluntary capacity, the Chair of the Commission is a paid post carrying a salary level on par with senior administrators in the Government. The main functions of EOC are in the following areas: mediation and conciliation concerning complaints, strategic litigation, formal investigation, publication of codes of good practices, and research and education.

2. Current level of implementation of BMF

The Rehabilitation Advisory Committee comprising officials and unofficial members, is set up by the Chief Executive of the Hong Kong SAR Government and serves as a central coordinating body. It advises the Government in the formulation of national plan of action, or Rehabilitation Program Plan (RPP), with the latest version published in 1999. This Plan is currently under a major review to take into consideration changes in modes of program delivery and funding, with a target completion by end 2005. The RPP includes all key policy targets of BMF. A significant example indicating HK’s commitment to BMF implementation would be the comprehensive review of the mandatory guidelines for barrier free access to buildings and premises completed by end of 2004. A discussion between HK’s RPP and the BMF Priority Areas is given below:

1. Self-help organizations of persons with disabilities and related family and parent associations

Hong Kong has single disability and cross disability self-help organizations of PWD, including also women with disability, and parents’ self-help groups. Most of these groups are also members of Joint Council for the Physically and Mentally Disabled, the central coordinating body of the NGO sector of and for people with disabilities. These organizations receive partial assistance from Government and some statutory funding bodies.

2. Women with disabilities

For mainstreaming and development purposes the needs, welfare and rights of women with disabilities are being incorporated actively in the Women’s Commission, a Government central coordinating body for women; and the Equal Opportunities Commission.

3. Early detection, early intervention and education

The following services and facilities are available:

Disability prevention services within overall health programmes;
Early detection and intervention services;
Rehabilitation and CBR services;
Inclusive education in regular schools and education in separate and specialized institutions

4. Training and employment, including self-employment

The following forms of work/employment are being promoted by both the GO and the NGO sectors: open employment, sheltered employment, supported employment, social enterprises, and self-employment. The Government has been taking an active role in providing technical business support as well as start up capital funding to encourage partnership between the NGO and the private sector. Specifically, the following measures are adopted by Government to promoting employment of persons with disabilities: anti-discrimination measures, market consultancy and job coach, retraining, micro credit/small grant for self-employment, vocational guidance, preferential contract to products / services by persons with disabilities, reasonable adaptations (i.e. physical accessibility of work place, job/training redesign), tax exemption, limited time wage subsidies, trial employment. Vocational rehabilitation and employment services for persons with disabilities are provided in specialized institution and mainstream institutions.

5. Access to built environments and public transport

Hong Kong has the following accessibility standards for public facilities, infrastructure and transport: “Design Manual: Barrier Free Access 1997” for buildings; “Transport Planning and Design Manual: Facilities for People with Disabilities, 1987”. A major review on the “Design Manual: Barrier Free Access 1997” was completed by 2004 with a target for publication in 2005.

6. Access to information and communications, including information, communication and assistive technologies

Hong Kong has taken the following measures to promote access to information, communications, including information and communication and assistive technologies:

Establishment of standards on information accessibility
Computer-literacy training and capacity building for persons with disabilities
Dissemination of public information in accessible format
Establishment of ICT accessibility focal point; closed/open captioning on TV
Incentives for buying accessible computers/assistive technology (for employment related purposes)

The Government of the HKSAR is committed to building a digitally inclusive society. In line with the BMF for Action, following significant progresses in enhancing ICT accessibility to the people with disabilities in the past few years are observed:

All Government websites have been revamped to conform with web accessibility guidelines that were drawn up with reference to international standards, such as the one developed by World-Wide-Web-Consortium (W3C), since end 2002.
A cross-department homepage committee has been set up to coordinate and promote web accessibility. It will review updates made to the web accessibility guidelines from time to time. All government web pages are continuously being monitored to ensure compliance with the guidelines.
Through working with professional bodies, the government is promoting the web accessibility concept to the private sector. A Web Care Campaign has been conducted to encourage the adoption of barrier-free design in the private sector.
The HKSAR Government has established the Hong Kong Supplementary Character Set (“HKSCS”) which is a collection of special characters commonly used by the local community in electronic communications. Through our participation in the continuous development of the ISO 10646 international coding standard for characters used in information systems, the main parts of the HKSCS have been included into the ISO 10646 standard.
Four government departments have launched in March 2004 a pilot sound version of selected information on their websites to enhance accessibility for the visually impaired persons.

7. Poverty alleviation through capacity-building, social security and sustainable livelihood programmes

People with disabilities suffering from financial hardship can apply for tangible and intangible allowances under our social security schemes. A number of earmarked government funds have been set up to support organizations of and for people with disabilities to develop mutual help programmes, income generating programmes and job opportunities. Early 2005, the Government set up a high level Commission on Poverty chaired by the Financial Secretary to study and identify the needs of the poor, make policy recommendations to alleviate poverty and promote self-reliance, encourage community engagement; delineate responsibility between the government, social welfare sector and community organisations; foster public-private partnerships and mobilise social capital in alleviating poverty

4. Why we need an international convention on disability:

to articulate specific human rights protection required by PWD, building upon existing UN human rights treaties, and human rights conventions;
to commit state parties on the provision of reasonable accommodation/positive measures to achieve equality;
to articulate accessibility (both physical access and access to information) as a critical element of the Convention;
through the elaboration process of the Convention, to reinforce the need for active participation and capacity building of persons with disabilities, and representatives of disability organizations in all processes of the Convention (preparation, implementation and monitoring)

5. Views and inputs on the components and elaboration of a proposed convention:

Preamble; objectives; scope/definitions: Defining disability has the essential purpose of identifying categories of people to be protected and covered by the Convention. This is a complex issue, and inputs from the Region should be duly heard at the elaboration process. UNESCAP should be invited and supported to raise the capacity of the Region to work on the issues of definitions by organizing workshops and seminars involving also UN system experts and other related experts of mainstream professional bodies.
The comprehensiveness of the Convention should be emphasized, and all rights including socio-economic and political rights are important. There is however, a need for a primary focus, which should be on disability-specific rights, including the accessibility rights.
States parties’ obligations; monitoring/review/remedy mechanisms: The following measures should be noted in the elaboration process and duly written into the relevant sections of Convention. (1) At the national level, national plan of action on disability, measures to promote a rights-based approach and support the process towards the Convention; disability statistics and common definitions of disabilities for planning; and strengthening CBR. (2) At the international level, there is a need for incorporating disability perspective and concerns in the Millennium Development Goals and other multilateral development projects of UN. In this regard there is an urgent need for UNESCAP's commitment to improve coordination between the UNESCAP disability team and the MDG focal point. (3) At the regional level, the monitoring and implementation of the BMF should proceed vigorously under the coordination of ESCAP as originally promulgated by all member governments.
Options for Convention monitoring mechanism would include the utilization of existing UN human rights mechanism, converging the existing monitoring mechanism of various human rights treaties and re-vitalizing the existing function of the Special Rapporteur on Disability Issues (of the Commission for Social Development). The issue about monitoring mechanisms and individual complaints (communication) procedures can be "contentious" and delay the elaboration process. The necessity for the convention international review mechanism to have provisions to receive individual complaints and to initiate inquiry is however debatable. To ensure full application of the Convention there is a need for creating international and national monitoring mechanisms with the proposed Convention with balanced participation of PWDs and organizations of PWDs.
The two UN normative documents, the Standard Rules and the World Programme of Action have built a solid base to support the elaboration of the proposed, and should be duly noted in the elaboration process.
To promote the implementation of the Convention, governments should include disability issues into technical cooperation framework, particularly in terms of technical support and transfer of resources, as appropriate, to help developing countries to overcome difficulties arising from the implementation. At the Regional level, UNESCAP could promote and support active networking of existing national coordinating committees and networks of NGOs/INGOs to support elaboration process of the Convention.

Appendix I

The Basic Law of Hong Kong Special Administrative Region (HKSAR):

The Basic Law of HKSAR of the People’s Republic of China is the constitutional law of Hong Kong. It stipulates the rights and freedoms enjoyed by all people in Hong Kong. It also stipulates that International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and International Labour Conventions are applicable to the HKSAR.

Laws with Special Provisions for PWD

Disability Discrimination Ordinance (Cap. 487): Under this Ordinance, it is unlawful to discriminate against or harass people with disabilities and their associates in a range of areas. The Equal Opportunities Commission, an independent statutory body, enforces this Ordinance.

Inland Revenue Ordinance (Cap. 112): This Ordinance provides that a taxpayer may claim a Disabled Dependent Allowance for maintaining a disabled dependant. In 1998-99, the rate is HK$60,000 (US$770).

Crimes Ordinance (Cap. 200): This Ordinance offers special protection to mentally disordered and mentally handicapped persons form sexual offences.

Criminal Procedure Ordinance (Cap. 221): Under this Ordinance, special rules and procedures are designed to protect mentally disordered and mentally handicapped persons in criminal proceedings involving them as victims or suspects of a crime. For example they can give evidence by way of a live television or a video recording to reduce the possible trauma.

Legislative Council Ordinance (Cap. 542): Like all other permanent Hong Kong residents, PWD enjoy the right to vote and the right to stand for election except as otherwise provided under the Ordinance.

Mental Health Ordinance (Cap. 136): The Ordinance has the following provisions for a person with mental disorder or mental handicap that affects his/her mental capacity: management of property and affairs; reception, detention and treatment in mental hospitals, guardianship, and consent to medical and dental treatment. Guardians appointed under the Ordinance may be empowered to make important decisions affecting the daily life of mentally disordered or mentally handicapped persons.

Buildings Ordinance (Cap. 123): The Building (Planning) Regulations under this Ordinance, together with the supplementary Design Manual, ensure a barrier-free environment, and apply to private buildings, e.g. composite building, domestic building, public entertainment and hotels.

Motor Vehicles (First Registration Tax) Ordinance (Cap. 330): Under the Ordinance, a PWD has considerable difficulty in walking, does not have to pay first registration tax on the first HK$300,000 of the taxable value of his motor vehicle provided that he is fit to drive that vehicle.

Road Traffic Ordinance (Cap. 374): Under the Ordinance, a PWD may be exempted from a range of fees, e.g. learner’s driving license fee, driving license fee, and annual vehicle license fee.

Legislation applicable to all people and with special relevance to PWD

Education Ordinance (Cap. 279): Under the Ordnance children aged 6 to 15 are required to attend school to receive free education.

Employment Ordinance (Cap. 57): This Ordinance protects the wages of employees, and regulates general conditions of employment and other related areas.

Occupational Safety and Health Ordinance (Cap. 509): The Ordinance ensures the safety and health of persons at work.

Employees’ Compensation Ordinance (Cap. 282): This Ordinance provides for compensation to all employees for work-related injuries.

Legal Aid Ordinance (Cap. 91): Under this Ordinance, eligible persons are provided with legal representation in certain civil or criminal proceedings either free, or with fee.

[1] Joseph Kwok is a Vice Chairman of Rehabilitation International Regional Committee for Asia and the Pacific, Executive Committee Member and Chair of the Information Committee of the Asia and Pacific Disability Forum. In Hong Kong he has been appointed by the Government Chief Executive to sit on four central and high level bodies, namely: Chair of the Rehabilitation Advisory Committee, member of the Women’s Commission, member of Community Investment and Inclusion Fund and chair its Committee on Evaluation and Development of Social Capital, Commission member of Equal Opportunities Commission which administers three ordinances, including the Disability Discrimination Ordinance.

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Main	Programme	Materials	Online	Bangkok

	UN ESCAP Workshop on Regional Follow-up to the Fifth Session and Preparation for the Sixth Session of the Ad Hoc Committee on an International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities Bangkok, Thailand, 26-27 July 2005