After a long wait, lasting 20 months, the District Court finally issued a judgment on May 30 in a racial discrimination case against the police. The events leading to the case took place six years ago, and involved a permanent resident of Indian ethnicity. Mr. Arjun Singh filed a case against the police for discriminating against him on the grounds of race by failing to provide adequate police services. The court held that the acts of the police in their investigation and arrest do not amount to ‘services’ for the purposes of section 27 of the Race Discrimination Ordinance, Cap 62 (“RDO”) and policing is not bound by the RDO.
Hong Kong Unison expresses our deep disappointment in the judgment. This case highlights a key weakness in the RDO, as it is the only Ordinance amongst the four Discrimination Ordinances that does not mention that it is unlawful for the Government to discriminate against persons on the grounds of race in the performance of its functions or the exercising of its powers.
This judgment has been eagerly awaited by all, particularly given that the complainant is a minor and that this is the first case adjudicated under the RDO involving a public authority since it came into operation in 2009. An 11-year-old at the time of the incident six years ago, Mr. Singh alleged that he was violently grabbed and held by an adult of Chinese ethnicity in Wan Chai MTR station, whilst the adult of Chinese ethnicity alleged that Mr. Singh assaulted her by bumping into her as he was walking up the escalator. Although both parties called “999”, the Chinese adult was not arrested or investigated; Mr. Singh, on the other hand, was brought to Wan Chai Police station and detained for several hours pending the arrival of a Punjabi-speaking interpreter, even though he asserted that he only understood English.
Ethnic minorities are often unfairly treated by the police, so much so that they are reluctant to seek help from the police even when they are in trouble. Mr. Singh chose to brave the system, which took great courage. Yet, Mr. Singh has had to spend one-third of his life waiting for justice to be done, from the time of the incident until the delivery of the judgment. The judgment added disappointment to the traumatic experience for Mr. Singh who had to go through this ordeal before he has even turned 18. The judgment shows that it is very difficult to bring a case under the RDO and the scope of the law is vague; it also proves just how essential it is to strengthen the RDO to make it apply to the government in the exercise of its functions and powers, rather than only binding the government in areas such as “service”. Unison cannot emphasize enough the dire need for the RDO to be amended; the Equal Opportunity Commission also made such a recommendation in its recent report of the Discrimination Law Review.
In the absence of the relevant provision in the RDO, the court was in a unique position to send a clear message about protecting ethnic minorities against racial discrimination, particularly in the context of law enforcement, in which the tendency towards racial profiling of ethnic minorities has been observed worldwide. All this also occurs against the backdrop of Hong Kong’s obligations under the International Convention on the Elimination of all forms of Racial Discrimination (ICERD). This was a missed opportunity for instilling confidence in Hong Kong’s commitment to protection against racial discrimination.
To rectify the current situation, Hong Kong Unison urges the Police Force to step up training and develop clear guidelines to raise awareness among police officers of human rights and racial discrimination. Without prejudging the motive of any party, the police should be aware of possible racial undertones in situations involving ethnic minorities. The Police Force has recruited a handful of ethnic minority constables in the last few years, but the task of enhancing the racial sensitivity of the Force is far from complete.
It is high time the government considered a racial equality mandate with a statutory duty to eliminate racial discrimination and promote racial equality and harmony within all sectors of the government, including the provision of its services, performance of its functions, and exercise of its powers.