• 【武漢肺炎】歧視奇譚|戴啟思
  • 2020-02-05    

 

A Case of Borderline Discrimination

The Chief Executive has, as everyone knows, been under pressure to close the border with the Mainland to deal with the current coronavirus problem. Closing all the border crossing points will eliminate the risk of infected visitors entering the HKSAR.

The Chief Executive has closed some border crossing points but not all of them. She has said that there are some practical problems in sealing them all and that the current situation does not require that to be done.

I do not claim specialised knowledge of public health matters. I assume that public health specialists have briefed the Chief Executive on what she could do to address the problem and what she must do because public health considerations require it.

My ignorance of these matters means I have to accept that public health considerations do not presently require the Chief Executive to close the borders completely.

However, I do know something about the law. I was surprised to read that the Chief Executive seemed to suggest that legal considerations got in the way of complete closure. She said that closing all the border crossing point could be 'discriminatory'.

I was surprised to hear this as a reason for not sealing the border. 'Discrimination' means treatment or making a distinction in favour or against a person based on the class or group to which that person belongs rather than on individual merit.

The law prohibits some kinds of discrimination. Discrimination on the grounds of sex, race and nationality, family status and disability are typical areas where laws prohibiting discrimination exist and Hong Kong law does indeed address discrimination in these areas.

The Chief Executive was vague, though about what kind of discrimination she had in mind. However, closing the borders with the Mainland to non-residents for public health reasons flags the possibility of discrimination under the Race Discrimination Ordinance ('RDO') and the Disability Discrimination Ordinance ("DDO").

I turn to the RDO first to get that law out of the way. Its provisions deal not only with race, but colour, descent, nationality and ethnic origin. Closing the borders with the Mainland will affect Mainland residents who are, overwhelmingly, Chinese nationals belonging to a Chinese 'race'. They are therefore indistinguishable from the vast majority of the residents in the HKSAR.

The Chief Executive might have thought that closing the borders to Chinese nationals from the Mainland but leaving them open to Chinese nationals who are resident in the HKSAR was discriminatory.

I doubt this. The Chief Executive should know some basic constitutional facts. It is not possible to say that Chinese nationals from the Mainland are comparable to Chinese nationals who are Hong Kong residents.

The latter enjoy under legal privileges under the Basic Law that the former does not have. Importantly, these include the right to leave and return to the HKSAR (Article 31) and, in the case of permanent residents, the right of abode meaning the right to enter and remain in the HKSAR free from immigration control (Article 24). A returning resident must be admitted on return to the HKSAR.

The Disability Discrimination Ordinance sounds more promising as a potential source of discrimination. This law defines 'disability' to include 'the presence in the body of organisms capable of causing disease or illness', and this definition extends to a condition that 'may exist in the future or is imputed to a person'.

It is possible, therefore, to imagine a scenario where two women travellers turn up at a crossing point seeking entry to Hong Kong.

Health officials examine both and question them about possible exposure to disease. Immigration officials grant entry to one but not the other. The officers tell the rejected traveller that she cannot enter because there are grounds to believe that there may be organisms in her body which could cause disease.

This case appears to be discrimination under the DDO. If the immigration officer is to stay within the terms of the ordinance, the officer must treat them equally. The officer must either admit them both or reject them both.

However, the act of discrimination occurs when HKSARG civil servant is performing immigration functions. Section 36(2) of the DDO makes this act of apparently unlawful discrimination lawful. The sub-section says that acts are not to be treated as unlawful 'as regards a person with a disability not having the right to enter and remain in Hong Kong, any act done under any immigration legislation governing entry into, stay in and departure from Hong Kong'.

The immigration officer can, therefore, exclude the traveller with a disability under the DDO and remain within the law.

You will have gathered that the RDO and the DDO examples given above are not really about closing borders but are about making individual exclusionary decisions that might be unlawful because discriminatory.

If there were any doubt about the lawfulness of the act of closing the border to non-Hong Kong Residents for public health reasons, you need to look no further than the Prevention and Control of Disease Ordinance ('PCDO'). The law was enacted in 2008, a few years after 'SARS' crisis.

The introduction to the PCDO makes clear its purpose. It is 'to provide for the control and prevention of disease among human beings; to prevent the introduction into, the spread in and the transmission from, Hong Kong of any disease, source of disease or contamination; to apply relevant measures of the International Health Regulations promulgated by the World Health Organization; and to provide for connected purposes.'

The HKSARG can only use the powers under the PCDO for public health purposes and no other reason.

This ordinance gives the Secretary for Food and Health the power to close the borders. Section 7(2)(e) says that the Secretary can make regulations for prohibiting or regulating ''the admission of persons into Hong Kong or their movements within or their departure from Hong Kong”.

There can be no question of 'discrimination' in the ordinary course of events if decision-making under the PCDO and regulations made under it if HKSARG officials are concerned with promoting public health. The decisions may include quarantining residents and non-residents alike and turning away non-residents at the border because of health concerns.

It may be that the Chief Executive was not trying to make a legal point after all. Discrimination is not always unlawful. Differentiating between individuals because of an attribute that one person has and the other has not is an everyday occurrence, e.g. looking for a height advantage when selecting players for a basketball team.

Perhaps she meant to say that refusing entry to near-neighbours and Chinese nationals was painful because it was a differentiation in treatment and 'discrimination'. However, whatever she meant to say, it is reasonably clear that it could not be a reference to unlawful discrimination under one or more of the laws mentioned above.

About the author

Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.

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