The Failure of the Hong Kong Court of Appeal to Recognise and Remedy Disability Discrimination

Abstract

This article critiques the recent decision of the Hong Kong Court of Appeal in Ma Bik Yung v Ko Chuen, the first case to be tried under Hong Kong's Disability Discrimination Ordinance. The Court of Appeal upheld the District Court's finding of disability harassment but granted the appeal from the finding of disability discrimination. The author argues that the Court erred, by introducing a hypothetical factual scenario that was inconsistent with the District Court's findings of fact and by failing to apply s3 of the Ordinance. The article also criticises the Court's holding that an 'unwilling' apology is outside the scope of remedies allowed by the Ordinance. In fact, similar statutory language is regularly used in Australia as the basis for orders to apologise. The author concludes by considering the potential conflict between the right to free expression and court-ordered apologies and suggests two possible approaches to the issue.