An Ordinance to render unlawful discrimination against persons on the ground of family status and to extend the jurisdiction of the Equal Opportunities Commission to include such discrimination and for connected purposes.
(Enacting provision omitted—E.R. 1 of 2013)
[21 November 1997] L.N. 552 of 1997
(Format changes—E.R. 1 of 2013)
(Amended E.R. 5 of 2018)
This Ordinance may be cited as the Family Status Discrimination Ordinance.
(Omitted as spent—E.R. 1 of 2013)
In this Ordinance unless the context otherwise requires—
access (獲得、享用) means access as construed in accordance with section 40; 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, and references to the publishing of advertisements shall be construed accordingly; 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; (Amended 29 of 2008 s. 103) Commission (委員會) has the same meaning as in the relevant Ordinance; commission agent (佣金經紀人) means commission agent as construed in accordance with section 16; committee (小組委員會) has the same meaning as in the relevant Ordinance; (Added 18 of 2014 s. 35) 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 that club; conciliator (調停人) has the same meaning as in the relevant Ordinance; (Amended 15 of 2012 s. 11) contract worker (合約工作者) means a contract worker as construed in accordance with section 9; discrimination (歧視), in relation to a person—(a)who has family status, means discrimination falling within section 5; and(b)who is victimised, means discrimination falling within section 6, and related expressions shall be construed accordingly; dispose (處置), in relation to premises, includes granting a right to occupy the premises, and any references to acquiring premises shall 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 (敎育) includes any form of training or instruction; educational establishment (敎育機構) means an educational establishment specified in column 1 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, and related expressions shall be construed accordingly; employment agency (職業介紹所) means a person who, for profit or not, provides services for the purpose of finding employment for workers or supplying employers with workers; enforcement notice (執行通知) means a notice under section 55(2); estate agent (地產代理) has the same meaning as in the Estate Agents Ordinance (Cap. 511); family status (家庭崗位), in relation to a person, means the status of having responsibility for the care of an immediate family member; firm (商號) means firm within the meaning of the Partnership Ordinance (Cap. 38); formal investigation (正式調查) means an investigation under section 48; general notice (一般通告), in relation to any person, means a notice published by him at a time and in a manner appearing to him suitable for securing that the notice is seen within a reasonable time by persons likely to be affected by it; immediate family member (直系家庭成員), in relation to a person, means a person who is related to the person by blood, marriage, adoption or affinity; 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; (Added 29 of 2008 s. 103) notice (通告、通知) means a notice in writing; prescribed (訂明) means prescribed in rules made under section 66; profession (專業) includes any vocation or occupation; relevant Ordinance (有關條例) means the Sex Discrimination Ordinance (Cap. 480); responsible body (負責組織), in relation to an educational establishment, means the body specified in column 2 of Schedule 1 opposite that establishment; trade (行業) includes any business; training (訓練) includes any form of education or instruction; vocational training (職業訓練) includes retraining and vocational guidance.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—
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;
to the termination of that person’s employment or partnership by any act of his (including the giving of notice) in circumstances such that he is entitled to terminate it without notice by reason of the conduct of the employer, or the other partners, as the case may be.
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 shall be 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 56(3).
(Repealed 29 of 2008 s. 103)
Where an Ordinance enacted after this Ordinance was enacted re-enacts (with or without modifications) a provision of an Ordinance enacted before this Ordinance was enacted, then that provision as re-enacted shall be treated for the purposes of subsection (5) as if it continued to be contained in an Ordinance enacted before this Ordinance was enacted.
This Ordinance binds the Government.
If an act is done for 2 or more reasons and one of the reasons is the family status of a person (whether or not it is the dominant or a substantial reason for doing the act), then for the purposes of this Ordinance, the act shall be taken to be done for the reason of the person’s family status.
(Format changes—E.R. 5 of 2018)
A person discriminates against a person who has family status in any circumstances relevant for the purposes of any provision of this Ordinance if—
on the ground of the second-mentioned person’s family status or that person’s particular family status (the relevant family status) he treats that person less favourably than he treats or would treat another person who does not have family status or the relevant family status, as the case may be; or
he applies to that person a requirement or condition which he applies or would apply equally to a person who does not have family status or the relevant family status, as the case may be, but—
which is such that the proportion of persons with family status or the relevant family status, as the case may be, who can comply with it is considerably smaller than the proportion of persons who does not have family status or the relevant family status who can comply with it;
which he cannot show to be justifiable irrespective of whether or not the person to whom it is applied has family status or the relevant family status, as the case may be; and
which is to that person’s detriment because he cannot comply with it.
A person (the discriminator) discriminates against another person (the person victimised) in any circumstances relevant for the purposes of any provision of this Ordinance if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised or any other person (the third person) has—
brought proceedings against the discriminator or any other person under this Ordinance;
given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Ordinance;
otherwise done anything under or by reference to this Ordinance in relation to the discriminator or any other person; or
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 by reason that the discriminator knows the person victimised or the third person, as the case may be, intends to do any of those things, or suspects the persons victimised or the third person, as the case may be, has done, or intends to do, any of them.
Subsection (1) does not apply to the treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith.
A comparison of the cases of persons with a particular family status with those who do not have that family status or any family status as the case may require, shall be such that the relevant circumstances in the one case are the same, or not materially different, in the other.
(Format changes—E.R. 5 of 2018)
It is unlawful for a person (the employer), in relation to employment by him at an establishment in Hong Kong, to discriminate against a person who has family status—
in the arrangements the employer makes for the purpose of determining who should be offered that employment;
in the terms on which the employer offers that other person employment; or
by refusing or deliberately omitting to offer that other person that employment.
It is unlawful for the employer, in the case of a person who has family status employed by him at an establishment in Hong Kong, to discriminate against that person—
in the way he affords that person access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them;
in the terms of employment he affords that person; or
by dismissing that person or subjecting him to any other detriment.
Subsections (1) and (2) shall not apply to employment where the number of persons employed by the employer, added to the number employed by any associated employers of his, does not exceed 5 (disregarding any persons employed for the purposes of a private home).
Nothing in subsection (1) or (2) renders it unlawful for an employer to restrict the employment of a person if—
that person is an immediate family member of an employee of the employer; or
that person is an immediate family member of an employee of another employer,
and the first-mentioned employer can demonstrate, after making reasonable enquiries, that there is a significant likelihood of collusion between that person and the employee which would result in damage to the business of the first-mentioned employer.
Subsection (2) shall 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 comprising the person concerned, unless—
that provision differs in a material respect from the provision of the benefits, facilities or services by the employer to his employees; or
the benefits, facilities or services relate to training.
Subsection (3) shall expire on the 3rd anniversary of the day on which this Ordinance is enacted.
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.
The Chief Executive in Council may, by notice in the Gazette— (Amended 66 of 1999 s. 3)
amend subsection (3) by substituting another number for the last number appearing in that subsection;
amend subsection (6) by substituting another anniversary for the anniversary appearing in that subsection.
Subsection (1)(b) or (2)(b) shall not apply to any term of employment under which an employer affords, or omits to afford, any immediate family member of the person concerned direct or indirect access to benefits, facilities or services. (Added 40 of 2000 s. 2)
Subsection (2)(a) or (c) shall not apply to any arrangement under which an employer affords, or omits to afford, any immediate family member of the person concerned direct or indirect access to benefits, facilities or services. (Added 40 of 2000 s. 2)
This section applies to any work for a person (the principal) which is available for doing by individuals (contract workers) who are employed not by the principal himself but by a contractor or sub-contractor of the principal. (Amended 29 of 2008 s. 104)
It is unlawful for the principal, in relation to work to which this section applies, to discriminate against a contract worker who has family status—
in the terms on which he allows the contract worker to do that work;
by not allowing the contract worker to do it or continue to do it;
in the way he affords the contact worker access to any benefits, facilities or services or by refusing or deliberately omitting to afford the contract worker access to them; or
by subjecting the contract worker to any other detriment.
Subsection (2)(c) shall 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 belongs, unless that provision differs in a material respect from the provision of the benefits, facilities or services by the principal to his contract workers.
Subsection (2)(a) shall not apply to any term under which a principal affords, or omits to afford, any immediate family member of a contract worker direct or indirect access to benefits, facilities or services. (Added 40 of 2000 s. 3)
Subsection (2)(c) or (d) shall not apply to any arrangement under which a principal affords, or omits to afford, any immediate family member of a contract worker direct or indirect access to benefits, facilities or services. (Added 40 of 2000 s. 3)
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. (Added 29 of 2008 s. 104)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 work wholly or mainly outside Hong Kong.
Subsection (1) shall not apply to—
employment on board a ship registered in Hong Kong; or
employment on aircraft or dynamically supported craft registered in Hong Kong and operated by a person who has his principal place of business, or 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 work wholly outside Hong Kong.
In the case of employment on board a ship registered in Hong Kong (except where the employee does his work wholly outside Hong Kong) the ship shall for the relevant purposes be deemed to be the establishment.
Where work is not done at an establishment it shall 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.
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 who has family status—
in the arrangements the firm makes for the purpose of determining who should be offered that position;
in the terms on which the firm offers that person that position;
by refusing or deliberately omitting to offer that person that position; or
in a case where that person already holds that position—
in the way the firm affords him access to any benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or
by expelling him from that position or subjecting him to any other detriment.
Subsection (1) shall apply in relation to persons proposing to form themselves into a partnership as it applies in relation to a firm.
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 of the Limited Partnerships Ordinance (Cap. 37).
The Chief Executive in Council may, by notice in the Gazette, amend subsection (1) by— (Amended 66 of 1999 s. 3)
substituting another number for the number appearing in that subsection; or
repealing the words and number appearing after “for a firm” and before “, in relation to”.
This section applies to an organization of workers, an organization of employers, or any other organization whose members carry on a particular profession or trade for the purposes of which the organization exists.
It is unlawful for an organization to which this section applies, in the case of a person who has family status and who is not a member of the organization, to discriminate against that person—
in the terms on which it is prepared to admit that person to membership; or
by refusing, or deliberately omitting to accept, his application for membership.
It is unlawful for an organization to which this section applies, in the case of a person who has family status and who is a member of the organization, to discriminate against that person—
in the way it affords that person access to any benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them;
by depriving that person of membership, or varying the terms on which he is a member; or
by subjecting that person to any other detriment.
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 who has family status—
in the terms on which it is prepared to confer on that person that authorization or qualification;
by refusing or deliberately omitting to grant that person’s application for it; or
by withdrawing it from that person or varying the terms on which he holds it.
Where an authority or body is required by law to satisfy itself as to his good character before conferring on a person an authorization or qualification which is needed for, or facilitates, his 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 he, or any of his employees or agents (whether past or present), has practised unlawful discrimination in, or in connection with, the carrying on of any profession or trade.
Subsection (1) shall not apply to discrimination which is rendered unlawful by section 18.
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.It is unlawful, in the case of a person who has family status seeking or undergoing training which would help that person fit for employment, for any person (the trainer) who provides, or makes arrangements for the provision of, facilities for such training to discriminate against the first-mentioned person—
in the terms on which the trainer affords the first-mentioned person access to any training course or other facilities concerned with such training;
by refusing or deliberately omitting to afford him such access;
by terminating his training; or
by subjecting him to any other detriment during the course of his training.
Subsection (1) shall not apply to—
discrimination which is rendered unlawful by any of the provisions of section 8(1) or (2) or 18; or
discrimination which would be rendered unlawful by any of those provisions but for the operation of any other provision of this Ordinance.
It is unlawful for an employment agency to discriminate against a person who has family status—
in the terms on which the agency offers to provide any of its services;
by refusing or deliberately omitting to provide any of its services; or
in the way it provides any of its services.
References in subsection (1) to the services of an employment agency include guidance on careers and any other services related to employment.
This section shall not apply if the discrimination only concerns employment which the employer could lawfully refuse to offer the person concerned.
An employment agency shall not be subject to any liability under this section if it proves—
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
that it was reasonable for it to rely on the statement.
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.
This section applies to any work for a person (the principal) which 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.
It is unlawful for the principal, in relation to work to which this section applies, to discriminate against a person who has family status who is a commission agent—
in the terms on which he allows that person to do that work;
by not allowing that person to do or continue to do that work;
in the way he affords that person access to any benefits, facilities or services or by refusing or deliberately omitting to afford him access to them; or
by subjecting that person to any other detriment.
Subsection (2)(c) shall 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 who is the commission agent belongs, unless that provision differs in a material respect from the provision of the benefits, facilities or services by the principal to his commission agents.
Subsection (2)(a) shall not apply to any term under which a principal affords, or omits to afford, any immediate family member of a commission agent direct or indirect access to benefits, facilities or services. (Added 40 of 2000 s. 4)
Subsection (2)(c) or (d) shall not apply to any arrangement under which a principal affords, or omits to afford, any immediate family member of a commission agent direct or indirect access to benefits, facilities or services. (Added 40 of 2000 s. 4)
Subject to subsection (2), without prejudice to the operation of the other provisions of this Part in relation to the Government, it is unlawful for the Government to discriminate against a person who has family status, in the performance of its functions or the exercise of its powers.
Subsection (1) shall not render unlawful—
as regards a person 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; or
any act done in relation to a person if it was necessary for that act to be done in order to comply with a requirement of an existing statutory provision.
(Format changes—E.R. 5 of 2018)
It is unlawful for the responsible body for an educational establishment to discriminate against a person who has family status—
in the terms on which it offers to admit that person to the establishment as a student;
by refusing or deliberately omitting to accept an application for that person’s admission to the establishment as a student; or
where that person is a student of the establishment—
in the way it affords him access to any benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or
by excluding him from the establishment or subjecting him to any other detriment.
For the avoidance of doubt, it is hereby declared that subsection (1) does not apply to any act done by the responsible body for an educational establishment in order to comply with—
the system commonly known as the Primary One Admission System or any scheme, system or programme that replaces that System in whole or in part;
the system commonly known as the Secondary School Places Allocation System or any scheme, system or programme that replaces that System in whole or in part; or
any provision of a law, being a provision relating to the admission of students.
It is unlawful for any 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 a person who has family status who seeks to obtain or use those goods, facilities or services—
by refusing or deliberately omitting to provide that person with any of them; or (Amended 29 of 2008 s. 105)
by refusing or deliberately omitting to provide that person with goods, facilities or services of the like quality, in the like manner and on the like terms as are normal in his case in relation to members of the public who do not have family status or a particular family status or (where that person belongs to a section of the public) to members of that section who do not have family status or a particular family status.
The following are examples of the facilities and services referred to in subsection (1)—
access to and use of any place which members of the public or a section of the public are permitted to enter;
accommodation in a hotel, guesthouse or other similar establishment;
facilities by way of banking or insurance or for grants, loans, credit or finance;
facilities for education;
facilities for entertainment, recreation or refreshment;
facilities for transport or travel;
the services of any profession or trade;
the services of—
(Repealed 78 of 1999 s. 7)
any department of the Government; or
any undertaking by or of the Government.
It is unlawful for a person, in relation to premises in Hong Kong of which he has power to dispose, to discriminate against a person who has family status—
in the terms on which he offers that person those premises;
by refusing that person’s application for those premises; or
in his treatment of that person in relation to any list of persons in need of premises of that description.
It is unlawful for a person, in relation to premises managed by him, to discriminate against a person who has family status occupying the premises—
in the way he affords that person access to any benefits or facilities, or by refusing or deliberately omitting to afford him access to them; or
by evicting that person, or subjecting him to any other detriment.
Subsection (1) shall not apply to a person who owns an estate or interest in the premises and wholly occupies them unless he 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.
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 discriminate against a person who has family status by withholding the licence or consent for disposal of the premises to that person.
Subsection (1) shall not apply if—
the person withholding a licence or consent, or a near relative of his (the relevant occupier) resides, and intends to continue to reside, on the premises;
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 his household; and
the premises are small premises as construed in accordance with section 22(2).
For the avoidance of doubt, it is hereby 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.
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 an agreement for a lease or sub-lease;(c)by a tenancy agreement; or(d)pursuant to any enactment.Sections 19(1) and 20 shall not apply to the provision by a person of accommodation in any premises, or the disposal of premises by him, if—
that person or a near relative of his (the relevant occupier) resides, and intends to continue to reside, on the premises;
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 his household; and
the premises are small premises.
Premises shall be treated for the purpose of subsection (1) as small premises if—
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, there is not normally residential accommodation for more than 2 such households and only the relevant occupier and any member of his household reside in the accommodation occupied by him;
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 household.
The Chief Executive in Council may, by notice in the Gazette, amend subsection (2)(b) by substituting another number for the number appearing in that subsection. (Amended 66 of 1999 s. 3)
This section applies to a body the activities of which are carried on otherwise than for profit.
Sections 19(1) and 20 shall not be construed as rendering unlawful—
the restriction of membership of any body to which this section applies with reference to family status or a particular family status; or
the provision of benefits, facilities or services to members of any body to which this section applies where the membership is so restricted,
even though membership of the body is open to the public, or to a section of the public.
Nothing in section 19 or 20 shall—
be construed as affecting a provision to which this subsection applies; or
render unlawful an act which is done in order to give effect to such a provision.
Subsection (3) applies to a provision for conferring benefits on persons of a particular family status (disregarding any benefits to others which are exceptional or are relatively insignificant), being a provision which constitutes the main object of a body to which this section applies.
Sections 19(1) and 20 shall not apply—
to discrimination which is rendered unlawful by Part III or section 18; or
to discrimination which would be so unlawful but for section 8(3) or 15(3).
A person who provides at any place facilities or services restricted with reference to family status or a particular family status, does not contravene section 19(1) if the place is, or is part of a reception centre or other establishment for persons requiring special care, supervision or attention.
In this section a reference to a relevant body means a public body, a public authority, a statutory advisory body, or a prescribed body.
In this section, a reference to a relevant position includes membership of a public body, a public authority and a prescribed position.
It is unlawful to discriminate against a person who has family status in—
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;
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;
determining the eligibility of a person 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;
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;
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
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.
This section shall have effect, notwithstanding the provisions of any Ordinance which provide that a person who has family status or a particular family status is not eligible to stand for election, or to be selected for, a relevant body or position, or to vote in elections for or to take part in the selection of members of a relevant body or the holder of a relevant position.
It is unlawful for a barrister or barrister’s clerk, in relation to any offer of a pupillage or tenancy, to discriminate against a person who has family status—
in the arrangements which are made for the purpose of determining to whom it should be offered;
in respect of any terms on which it is offered; or
by refusing, or deliberately omitting, to offer it to the person.
It is unlawful for a barrister or barrister’s clerk to discriminate against a person who has family status who is a pupil or a tenant in the chambers concerned—
in respect of any terms applicable to that person as a pupil or tenant;
in the opportunities for training, or gaining experience, which are afforded or denied to that person;
in the benefits, facilities or services which are afforded or denied to that person; or
by terminating that person’s pupillage or subjecting him to any pressure to leave the chambers or other detriment.
It is unlawful for any person, in relation to the giving, withholding or acceptance of instructions to a barrister, to discriminate against a person who has family status.
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 barristers’ chambers.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 has family status and who is not a member of the club—
by refusing or failing to accept that person’s application for membership; or
in the terms or conditions on which the club is prepared to admit that person to membership.
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 has family status and who is a member of the club—
in the terms or conditions of membership that are afforded to that person;
by refusing or failing to accept that person’s application for a particular class of membership;
by denying that person access or limiting his access, to any benefit, service or facility provided by the club;
by depriving that person of membership or varying the terms of membership; or
by subjecting that person to any other detriment.
Nothing in subsection (1) or (2) renders it unlawful to discriminate against a person who has family status if the discrimination occurs in relation to the use or enjoyment of any benefit provided by the club where it is not practicable for the benefit to be used or enjoyed simultaneously or to the same extent by persons—
who do not have family status and those who have family status; or
who have a particular family status and those who do not have that family status.
Subject to subsection (2), without prejudice to the operation of the other provisions of this Part in relation to the Government, it is unlawful for the Government to discriminate against a person who has family status in the performance of its functions or the exercise of its powers.
Subsection (1) shall not render unlawful—
as regards a person 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; or
any act done in relation to a person if it was necessary for that act to be done in order to comply with a requirement of an existing statutory provision.
Section 19(1)—
shall not apply to goods, facilities or services outside Hong Kong except as provided in subsections (2) and (3); and
shall not apply to facilities by way of banking or insurance or 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.
Section 19(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).
Section 19(1) applies on or in relation to—
any ship registered in Hong Kong;
any aircraft or dynamically supported craft registered in Hong Kong and operated by a person who has his principal place of business, or is ordinarily resident, in Hong Kong; or
any ship, aircraft or dynamically supported craft belonging to or possessed by the Government,
even if the ship, aircraft or dynamically supported craft is outside Hong Kong.
This section shall not render unlawful an act done in or over a place outside Hong Kong, or in or over that place’s territorial waters, if any, for the purpose of complying with the laws of that place.
Section 18 shall not apply to benefits, facilities or services outside Hong Kong except—
travel on a ship registered in Hong Kong;
benefits, facilities or services provided on a ship so registered.
(Format changes—E.R. 5 of 2018)
A person acts in contravention of this section if and so long as—
he applies a discriminatory practice; or
he operates practices or other arrangements which in any circumstances would call for the application by him of a discriminatory practice.
Proceedings in respect of a contravention of this section shall be brought only by the Commission in accordance with the provisions of sections 55, 56, 57, 58 and 59.
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 III or IV.
Subsection (1) shall not apply to an advertisement if the intended act would not in fact be unlawful.
For the purposes of subsection (1), use of a job description which is specific to a particular family status or the absence of family status shall be taken to indicate an intention to discriminate, unless the advertisement contains an indication to the contrary.
The publisher of an advertisement made unlawful by subsection (1) shall not be subject to any liability under that subsection in respect of the publication of the advertisement if he proves—
that the advertisement was published in reliance on a statement made to him 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
that it was reasonable for him to rely on the statement.
A person who knowingly or recklessly makes a statement of the kind referred to in subsection (4) which in a material respect is false or misleading commits an offence and is liable on conviction to a fine at level 4.
It is unlawful for a person—
who has authority over another person; or
in accordance with whose wishes that other person is accustomed to act,
to instruct him to do any act which is unlawful by virtue of Part III or IV, or procure or attempt to procure the doing by him of any such act.
It is unlawful to induce, or attempt to induce, a person to do any act which contravenes Part III or IV by—
providing or offering to provide that person with any benefit; or
subjecting or threatening to subject that person to any detriment.
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 is likely to hear of it.
(Amended 21 of 2024 s. 108)
Anything done by a person in the course of his employment shall be treated for the purposes of this Ordinance as done by his employer as well as by him, whether or not it was done with the employer’s knowledge or approval.
Anything done by a person as agent for another person with the authority (whether express or implied, and whether precedent or subsequent) of that other person shall be treated for the purpose of this Ordinance as done by that other person as well as by him.
In proceedings brought under this Ordinance against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description.
For the avoidance of doubt, it is hereby declared that this section shall not apply for the purposes of any criminal proceedings.
A person who knowingly aids another person to do an act made unlawful by this Ordinance shall be treated for the purposes of this Ordinance as himself doing an unlawful act of the like description.
For the purposes of subsection (1), an employee or agent for whose act the employer or principal is liable under section 34 (or would be so liable but for section 34(3)) shall be deemed to aid the doing of the act by the employer or principal.
A person does not under this section knowingly aid another to do an unlawful act if—
he acts in reliance on a statement made to him by that other person that, by reason of any provision of this Ordinance, the act which he aids would not be unlawful; and
it is reasonable for him to rely on the statement.
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.
(Format changes—E.R. 5 of 2018)
Nothing in Part III, IV or V shall render unlawful an act that is reasonably intended to—
ensure that persons who have family status or a particular family status have equal opportunities with other persons in circumstances in relation to which a provision is made by this Ordinance;
afford persons who have family status or a particular family status goods or access to services, facilities or opportunities to meet their special needs in relation to—
employment, education, welfare or clubs; or
the provision of premises, goods, services or facilities;
afford persons who have family status or a particular family status, grants, benefits, or programmes, whether direct or indirect, to meet their special needs in relation to—
employment, education, welfare or clubs; or
the provision of premises, goods, services or facilities.
Nothing in Part III, IV or V shall—
be construed as affecting a provision to which this subsection applies; or
render unlawful an act which is done in order to give effect to such a provision.
Subsection (1) applies to a provision for conferring benefits on persons of a particular family status (disregarding any benefits to others which are exceptional or are relatively insignificant), being a provision which is contained in a charitable instrument.
In applying this section, account shall be taken of section 88 of the Inland Revenue Ordinance (Cap. 112).
In 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.Nothing in Part III, IV or V shall render unlawful the treatment of a person in relation to any class of insurance business, or similar matter involving the assessment of risk, where the treatment—
was effected by reference to actuarial or other data from a source on which it was reasonable to rely; and
was reasonable having regard to the data and any other relevant factors.
Nothing in Part III, IV or V shall render unlawful any act done by any person in, or in connection with, affording persons access to facilities for training which would help to fit them for employment, where it reasonably appears to that person that those persons are in special need of training by reason of the period for which they have been discharging domestic or family responsibilities to the exclusion of regular full time employment.
For the avoidance of doubt, it is hereby declared that the discrimination in relation to which subsection (1) applies may result from confining the training to persons who have been discharging domestic or family responsibilities, or from the way persons are selected for training, or both.
This section shall not apply to any discrimination which is rendered unlawful by section 8.
References in this Ordinance to the affording by any person of access to benefits, facilities or services are not limited to benefits, facilities or services provided by that person himself, but 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).
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 shall extend also to the liability under this Ordinance of any actual provider.
Nothing in—
Part III or IV;
Part V so far as it has effect in relation to provisions in those parts,
shall render 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.
Nothing in Part IV or V shall—
be construed as affecting the operation of any of the provisions of the New Territories Ordinance (Cap. 97); or
render unlawful any act done by any person in, or in connection with, the operation of any of those provisions.
No provision or Part of this Ordinance specified in column 1 in Part 2 of Schedule 2 shall render unlawful any discrimination specified opposite thereto in column 2 of that Schedule.
Nothing in Part III, IV or V shall render unlawful any act done by any person—
in connection with any discrimination which is not unlawful by virtue of the operation of subsection (1); and
to the extent that it is done for the purposes of that discrimination.
(Format changes—E.R. 1 of 2013)
The Commission shall—
work towards the elimination of discrimination;
promote equality of opportunity between persons irrespective of family status;
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 the act relates to effect a settlement of the matter by conciliation, whether under section 62 or otherwise;
keep under review the working of this Ordinance and, when it is so required by the Chief Executive or otherwise thinks it necessary, draw up and submit to the Chief Executive proposals for amending this Ordinance; and (Amended 66 of 1999 s. 3)
perform such other functions as are imposed on it under this Ordinance or any other enactment.
The Commission may do all such things as are necessary for, or incidental or conducive to, the better performance of its functions and in particular but without prejudice to the generality of the foregoing, may—
with the prior approval of the Chief Executive, become a member of or affiliate to any international body concerned with (whether in whole or in part) the elimination of discrimination; (Amended 66 of 1999 s. 3)
exercise such other powers as are conferred on it under this Ordinance.
Without prejudice to the generality of section 44(1), the Commission, pursuant to its functions under paragraphs (a) and (b) of that section, shall keep Schedule 2 under review.
Whenever the Commission thinks it necessary, it shall draw up and submit to the Chief Executive proposals for amending Schedule 2. (Amended 66 of 1999 s. 3)
The Commission shall not under section 67 of the relevant Ordinance delegate any of its functions or powers under—
section 66;
any provisions of any regulations made under section 67 which are specified in the regulations as provisions which shall not be subject to section 67 of the relevant Ordinance;
any provisions of any rules made under section 66 which are specified in the rules as provisions which shall not be subject to section 67 of the relevant Ordinance.
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.
The protection conferred by subsection (1) on any person to whom that subsection applies in respect of any act or default does not in any way affect the liability of the Commission for that act or default.
Subsection (1) applies to the following persons—
a member of the Commission or a committee;
an employee of the Commission;
a conciliator.
(Added 18 of 2014 s. 37)
The Commission may issue codes of practice containing such practical guidance as it thinks fit for the purposes of—
the elimination of discrimination;
the promotion of equality of opportunity between persons irrespective of family status.
The provisions of section 69(2) to (15) of the relevant Ordinance apply to and in relation to a code of practice proposed to be issued or issued under subsection (1) subject to the modifications described in subsection (3).
The modifications referred to in subsection (2) are as follows—
any references to discrimination in the provisions referred to in subsection (2) shall be construed as references to discrimination under this Ordinance;
any reference to discrimination between men and women in those provisions shall be construed as a reference to discrimination under this Ordinance;
the references in those provisions to a code of practice shall be construed as references to a code of practice prepared, published or issued under this section, as the case may require; and
any reference in those provisions to another provision of section 69 of the relevant Ordinance shall be construed as a reference to the corresponding provision of this section incorporated by virtue of subsection (2).
Without prejudice to the generality of section 44(1), the Commission may if it thinks fit, and shall if required by the Chief Secretary for Administration, conduct a formal investigation for any purpose connected with the carrying out of any of its functions under that section.
(Amended L.N. 362 of 1997)
The Commission shall not embark on a formal investigation unless the requirements of this section have been complied with.
Terms of reference for the formal investigation shall be drawn up by the Commission, or if the Commission was required by the Chief Secretary for Administration to conduct the investigation, by the Chief Secretary for Administration after consulting the Commission. (Amended L.N. 362 of 1997)
It shall be the duty of the Commission to 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.
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 it proposes to investigate any act made unlawful by this Ordinance which it believes that a person so named may have done, the Commission shall—
inform that person of its belief and of its proposal to investigate the act; and
offer him an opportunity of making oral or written representations with regard to it (or both oral and written representations if he thinks fit),
and a person so named who avails himself of an opportunity under this subsection of making oral representations may be represented—
by counsel or a solicitor; or
by some other person of his choice, not being a person to whom the Commission objects on the ground that he is unsuitable.
The Commission 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; and subsections (1), (3) and (4) shall apply to the revised investigation and terms of reference as they applied to the original. (Amended L.N. 362 of 1997)
For the purposes of a formal investigation the Commission, by a notice in the prescribed form served on him in the prescribed manner—
may require any person to furnish such written information as may be described in the notice, and may specify the time at which, and the manner and form in which, the information is to be furnished;
may require any person to attend at such time and place as specified in the notice and give oral information about, and produce all documents in his possession or control relating to, any matter specified in the notice.
Except as provided by section 57, a notice shall be served under subsection (1) only where—
service of the notice was authorized in writing by or on behalf of the Chief Secretary for Administration; or (Amended L.N. 362 of 1997)
the terms of reference of the formal investigation state that the Commission believes that a person named in them may have done or may be doing acts of all or any of the following descriptions—
unlawful discriminatory acts;
contraventions of section 30;
contraventions of sections 31, 32 or 33,
and confine the investigation to those acts.
A notice under subsection (1) shall not require a person—
to give information, or produce documents, which he could not be compelled to give in evidence, or produce, in civil proceedings before the Court of First Instance; (Amended 25 of 1998 s. 2)
to attend at any place unless the necessary expenses of his journey to and from that place are paid or tendered to him.
If a person fails to comply with a notice served on him under subsection (1) or the Commission has reasonable cause to believe that he intends not to comply with it, the Commission may apply to the District Court for an order requiring him to comply with it 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) shall apply to failure without reasonable excuse comply with any such order as it applies to the cases there provided.
A person commits an offence if he—
wilfully alters, suppresses, conceals or destroys a document which he has been required by a notice or order under this section to produce; or
in complying with such a notice or order, knowingly or recklessly makes any statement which in a material respect is false or misleading,
and is liable to a fine at level 4.
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—
to make to any persons, with a view to promoting equality of opportunity between persons irrespective of family status who are affected by any of their activities, recommendations for changes in their policies or procedures, or as to any other matters; or
to make to the Chief Secretary for Administration any recommendations, whether for changes in the law or otherwise, (Amended L.N. 362 of 1997)
the Commission shall make those recommendations accordingly.
The Commission shall prepare a report of its findings in any formal investigation conducted by it.
If the formal investigation is one required by the Chief Secretary for Administration—
the Commission shall deliver the report to the Chief Secretary for Administration;
the Chief Secretary for Administration shall cause the report to be published in such manner as he thinks fit,
and unless required by the Chief Secretary for Administration the Commission shall not publish the report. (Amended L.N. 362 of 1997)
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). (Amended L.N. 362 of 1997)
Where under subsection (4) a report is to be made available for inspection, any person shall be entitled, on payment of such reasonable fee, if any, as may be determined by the Commission—
to inspect the report during ordinary office hours and take copies of all or any part of the report; or
to obtain from the Commission a copy, certified by the Commission to be correct, of the report.
The Commission may if it thinks fit determine that the right conferred by subsection (5)(a) shall be exercisable in relation to a copy of the report instead of, or in addition to, the original.
The Commission shall give general notice of the place or places where, and the times when, reports may be inspected under subsection (5).
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—
on the order of any court;
with the informant’s consent;
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;
in a report of the investigation published by the Commission or made available for inspection under section 51(5);
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;
for the purpose of any civil proceedings under this Ordinance to which the Commission is a party, or any criminal proceedings.
Any person who discloses information in contravention of subsection (1) commits an offence and is liable on conviction to a fine at level 4.
In preparing any report for publication or for inspection the Commission shall exclude, so far as it 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.
(Format changes—E.R. 1 of 2013)
Except as provided by this Ordinance no proceedings, whether civil or criminal, shall lie against any person in respect of an act by reason that the act is unlawful by virtue of a provision of this Ordinance.
Subsection (1) shall not preclude the making of an order of certiorari, mandamus or prohibition.
A claim by any person (the claimant) that another person (the respondent)—
has committed an act of discrimination against the claimant which is unlawful by virtue of Part III or IV; or
is by virtue of section 34 or 35 to be treated as having committed such an act of discrimination against the claimant,
may be made the subject of civil proceedings in like manner as any other claim in tort.
Subsection (1) shall not apply to a claim under section 13(1) of an act in respect of which an appeal, or proceedings in the nature of an appeal, may be brought under any enactment.
Proceedings under subsection (1) shall be brought in the District Court but all such remedies shall be obtainable in such proceedings as, apart from this subsection and section 53(1), would be obtainable in the Court of First Instance. (Amended 25 of 1998 s. 2)
Without limiting the generality of the power conferred by subsection (3), the District Court may—
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;
order that the respondent shall perform any reasonable act or course of conduct to redress any loss or damage suffered by the claimant;
order that the respondent shall employ or re-employ the claimant;
order that the respondent shall promote the claimant;
order that the respondent pay to the claimant damages by way of compensation for any loss or damage suffered by reason of the respondent’s conduct or act;
order that the respondent shall pay to the claimant punitive or exemplary damages; or
make an order declaring void in whole or 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.
By virtue of this subsection and notwithstanding any law, the District Court shall have jurisdiction to hear and determine any proceedings under subsection (1) and shall have 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.
In respect of an unlawful act of discrimination falling within section 5(b), no award of damages shall 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 claimant’s family status.
Subsection (6) does not apply in relation to an unlawful act of discrimination falling within section 5(b) that is committed on or after the commencement date of Part 9 of the Discrimination Legislation (Miscellaneous Amendments) Ordinance 2020 (8 of 2020). (Added 8 of 2020 s. 43)
For the avoidance of doubt, it is hereby declared that damages in respect of an unlawful act of discrimination may include compensation for injury to feelings whether or not they include compensation under any other head.
This section applies to any act which is—
an unlawful discriminatory act;
a contravention of section 30; or
a contravention of section 31, 32 or 33,
and so applies whether or not proceedings have been brought in respect of the act.
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 him a notice in the prescribed form requiring him—
not to commit any such acts (which may include discontinuing or changing any of his practices or other arrangements which occasioned those acts, in particular to avoid any repetition thereof); and
where compliance with paragraph (a) involves changes in any of his practices or other arrangements—
to inform the Commission that he has effected those changes and what those changes are;
to take such steps as may be reasonably required by the notice for the purpose of affording that information to other persons concerned.
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.
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 shall not be later than 5 years after the notice has become final.
Section 50(4) shall apply 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 50(1).
Not later than 45 days after an enforcement notice is served on any person he may appeal against any requirement of the notice to the District Court.
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.
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.
Subsection (1) shall not apply to a requirement treated as included in an enforcement notice by virtue of a direction under subsection (3).
If—
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 50(2)(b) does not apply; and
section 49(3) is complied with in relation to the investigation on a date (the 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 50(1) for the purposes of the investigation without needing to obtain the consent of the Chief Secretary for Administration. (Amended L.N. 362 of 1997)
The Commission shall establish and maintain a register (the register) of enforcement notices which have become final.
Any person shall be entitled, on payment of such reasonable fee, if any, as may be determined by the Commission—
to inspect the register during ordinary office hours and take copies of any entry; or
to obtain from the Commission a copy, certified by the Commission to be correct, of any entry in the register.
The Commission may, if it thinks fit, determine that the right conferred by subsection (2)(a) shall be exercisable in relation to a copy of the register instead of, or in addition to, the original.
The Commission shall give general notice of the place or places where, and the times when, the register or a copy may be inspected.
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—
an enforcement notice served on him;
a finding by the District Court under section 54 that he has done an unlawful discriminatory act,
it appears to the Commission that unless restrained he is likely to do an act falling within paragraph (b), or contravening section 30, the Commission may apply to the District Court for an injunction restraining him 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.
Proceedings in respect of a contravention of section 31, 32 or 33 shall be brought only by the Commission in accordance with the provisions of this section.
The proceedings shall be—
an application for a decision whether the alleged contravention occurred; or
an application under subsection (4),
or both.
An application under subsection (2)(a) shall be made to the District Court.
If it appears to the Commission—
that a person has done an act which by virtue of section 31, 32 or 33 was unlawful; and
that unless restrained he is likely to do further acts which by virtue of that section was unlawful,
the Commission may apply to the District Court for an injunction restraining him 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.
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 31, 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.
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 the same person.
With a view to helping a person (the person aggrieved) who considers he may have been discriminated against in contravention of this Ordinance to decide whether to institute proceedings and, if he does so, to formulate and present his case in the most effective manner, the Commission may prescribe—
forms by which the person aggrieved may question the respondent on his reasons for doing any relevant act, or on any other matter which is or may be relevant;
forms by which the respondent may if he so wishes reply to any questions.
Where the person aggrieved questions the respondent (whether or not in accordance with the forms referred to in subsection (1))—
the question, and any reply by the respondent (whether or not in accordance with such a form) shall, subject to subsections (3), (4) and (5), be admissible as evidence in the proceedings;
if it appears to the District Court that the respondent deliberately, and without reasonable excuse, omitted to reply within a reasonable period or that his reply is evasive or equivocal, the court may draw any inference from that fact it considers just and equitable to draw, including an inference that he committed an unlawful act.
The Commission may—
prescribe the period within which questions must be served in order to be admissible under subsection (2)(a);
prescribe the manner in which a question, and any reply by the respondent, may be served.
Rules under the District Court Ordinance (Cap. 336) may enable the District Court entertaining a claim under section 54 to determine, before the date fixed for the hearing of the claim, whether a question or reply is admissible under this section or not.
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.
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.
A representative complaint may be lodged under subsection (1) in accordance with rules made under section 66.
Subject to subsection (4), where a complaint is lodged under subsection (1), the Commission shall—
conduct an investigation into the act the subject of the complaint; and
endeavour, by conciliation, to effect a settlement of the matter which the act relates.
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—
it is satisfied that the act is not unlawful by reason of a provision of this Ordinance;
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;
a period of more than 12 months has elapsed beginning when the act was done;
in a case to which subsection (2) applies, it determines, in accordance with rules made under section 66, that the complaint should not be a representative complaint; or
it is of the opinion that the complaint is frivolous, vexatious, misconceived or lacking in substance.
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 him of—
that decision; and
the reasons for that decision.
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.
For the avoidance of doubt, it is hereby declared that subsection (6) shall not apply where—
a complaint is lodged under subsection (1); and
a settlement has been effected of the matter to which the act the subject of the complaint relates.
Where a complaint has been lodged under section 62(1) but, 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.
The Commission shall consider an application under subsection (1) and may grant it if it thinks fit to do so, in particular where—
the case raises a question of principle; or
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.
Assistance by the Commission under this section may include—
giving advice;
arranging for the giving of advice or assistance by a solicitor or counsel;
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;
any other form of assistance which the Commission may consider appropriate,
but paragraph (c) shall 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 (for the purposes of this Ordinance) in accordance with section 73D of the District Court Ordinance (Cap. 336).
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) shall constitute a first charge for the benefit of the Commission—
on any other 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
so far as relates to any costs or expenses, on his rights under any compromise or settlement arrived at in connection with that matter to avoid or bring to an end any proceedings.
The charge conferred by subsection (4) shall be 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.
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.The District Court shall not consider a claim under section 54 unless proceedings in respect of the claim are instituted before the end of the period of 24 months beginning—
when the act complained of was done; or
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 51,
whichever is later.
The District Court shall not consider an application under—
section 60(2)(a) unless it is made before the end of the period of 24 months beginning when the act to which it relates was done;
section 60(4) unless it is made before the end of the period of 5 years so beginning.
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 62(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 62(3) or (4), as certified in writing by the Commission, shall be disregarded. (Amended 29 of 2008 s. 106)
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.
For the purposes of subsection (4), the circumstances of the case include, in relation to any claim, whether the act to which the claim relates was the subject of a complaint lodged under section 62(1) and, if so, the period that elapsed between when the act was done and when the complaint was so lodged.
For the purposes of this section—
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;
any act extending over a period shall be treated as done at the end of that period; and
a deliberate omission shall be treated as done when the person concerned decided upon it,
and, in the absence of evidence to the contrary, a person shall be taken for the purposes of this section to decide upon an omission when he does an act inconsistent with doing the omitted act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it was to be done.
The Chief Executive in Council may, by notice in the Gazette, amend subsection (1) by substituting a longer period for the period specified in that subsection. (Amended 66 of 1999 s. 3)
(Format changes—E.R. 5 of 2018)
Section 87 of the relevant Ordinance applies in relation to the validity and revision of contracts, for the purposes of this Ordinance, subject to the modifications described in subsection (2).
The modifications referred to in subsection (1) are as follows—
the references in that section—
to the relevant Ordinance shall be construed as references to this Ordinance;
to any subsection of that section shall be construed as references to the corresponding subsection of this section incorporated by reference under subsection (1); and
the reference in that section to section 76 of that Ordinance shall be construed as a reference to section 54.
For the purposes of this Ordinance, the Commission shall have the same power to make rules as it has under the relevant Ordinance and accordingly section 88 of that Ordinance applies to this Ordinance subject to the modifications described in subsection (2).
The modifications referred to in subsection (1) are as follows—
the references in that section—
to section 84, 84(1) and 84(4)(d) of that Ordinance shall be construed as references respectively to section 62, 62(1) and 62(4)(d);
to rules shall be construed as a reference to rules made under this section;
to that section, a subsection or paragraph of that section shall be construed as a reference respectively to this section, the corresponding subsection or paragraph of this section incorporated by reference under subsection (1);
the reference in that section—
to section 35 of that Ordinance shall be construed as a reference to section 25; and
to that Ordinance shall be construed as a reference to this Ordinance.
The Secretary for Constitutional and Mainland Affairs shall have the same powers to make regulations for the purposes of this Ordinance as he has under the relevant Ordinance and accordingly section 89 of that Ordinance shall apply subject to the modification that the references to section 76(1) and 76(3) of that Ordinance shall be construed as references respectively to section 54(1) and 54(3). (Amended L.N. 130 of 2007)
Any regulations made under this section shall be subject to the approval of the Legislative Council.
The Chief Executive in Council may, by notice in the Gazette, amend Schedule 1 or 2 but any notice to amend Schedule 2 shall be subject to the approval of the Legislative Council.
(Amended 66 of 1999 s. 3)
(Omitted as spent—E.R. 5 of 2018)
(Format changes—E.R. 1 of 2013)
| Educational establishment | Responsible body | ||
| 1. | The University of Hong Kong established by the University of Hong Kong Ordinance (Cap. 1053) | The Court, the Council, the Senate or the Convocation, within the meaning of section 2 of the University of Hong Kong Ordinance (Cap. 1053), according to which of them has the function concerned | |
| 2. | The Chinese University of Hong Kong established by The Chinese University of Hong Kong Ordinance (Cap. 1109) | The Council, the Senate, the Convocation, the Faculties, the School of Studies or the Board of Studies, within the meaning of section 2 of The Chinese University of Hong Kong Ordinance (Cap. 1109), according to which of them has the function concerned | |
| 3. | The Hong Kong Polytechnic University established by The Hong Kong Polytechnic University Ordinance (Cap. 1075) | The Council or Senate, within the meaning of section 2 of The Hong Kong Polytechnic University Ordinance (Cap. 1075), according to which of them has the function concerned | |
| 4. | Any post secondary college registered under the Post Secondary Colleges Ordinance (Cap. 320) | The Board of Governors (or Board of Trustees where no Board of Governors exists) or the College Council, according to which of them has the function concerned | |
| 5. | Any technical college or technical institute defined in section 2 of the Vocational Training Council Ordinance (Cap. 1130) | The Vocational Training Council established by section 4 of the Vocational Training Council Ordinance (Cap. 1130) | |
| 6. | Any industrial training centre or skills centre defined in section 2 of the Vocational Training Council Ordinance (Cap. 1130) | The Vocational Training Council established by section 4 of the Vocational Training Council Ordinance (Cap. 1130) | |
| 7. | The Hong Kong Baptist University established by the Hong Kong Baptist University Ordinance (Cap. 1126) | The Council, Court or Senate, within the meaning of section 2 of the Hong Kong Baptist University Ordinance (Cap. 1126), according to which of them has the function concerned | |
| 8. | The City University of Hong Kong established by the City University of Hong Kong Ordinance (Cap. 1132) | The Council, Court or Senate, within the meaning of section 2 of the City University of Hong Kong Ordinance (Cap. 1132), according to which of them has the function concerned | |
| 9. | The Hong Kong Academy for Performing Arts established by The Hong Kong Academy for Performing Arts Ordinance (Cap. 1135) | The Council or the Academic Board, within the meaning of section 2 of The Hong Kong Academy for Performing Arts Ordinance (Cap. 1135), according to which of them has the function concerned | |
| 10. | The Hong Kong University of Science and Technology established by The Hong Kong University of Science and Technology Ordinance (Cap. 1141) | The Court, the Council, the Senate or the Convocation, within the meaning of section 2 of The Hong Kong University of Science and Technology Ordinance (Cap. 1141), according to which of them has the function concerned | |
| 11. | The Hong Kong Metropolitan University established by the Hong Kong Metropolitan University Ordinance (Cap. 1145) | The Council, the Court or the Senate, within the meaning of section 2 of the Hong Kong Metropolitan University Ordinance (Cap. 1145), according to which of them has the function concerned (Replaced 22 of 2021 s. 2) | |
| 12. | Lingnan University established by the Lingnan University Ordinance (Cap. 1165) | The Council, the Court or the Senate, within the meaning of section 2 of the Lingnan University Ordinance (Cap. 1165), according to which of them has the function concerned (Replaced 54 of 1999 s. 35) | |
| 13. | The Education University of Hong Kong established by The Education University of Hong Kong Ordinance (Cap. 444) | The Council or the Academic Board, within the meaning of section 2 of The Education University of Hong Kong Ordinance (Cap. 444), according to which of them has the function concerned (Amended 6 of 2016 s. 2) | |
| 14. | Any school which is registered or provisionally registered under the Education Ordinance (Cap. 279) | The management committee, within the meaning of section 3 of the Education Ordinance (Cap. 279), of the school | |
| 15. | Any school, within the meaning of section 3 of the Education Ordinance (Cap. 279), entirely maintained and controlled by the Government | The Permanent Secretary for Education (Amended 3 of 2003 s. 41; L.N. 130 of 2007) | |
(Format changes—E.R. 1 of 2013)
In this Schedule—
allowance (津貼) includes part of an allowance; benefit (利益) includes part of a benefit.| Provision creating illegality | Exception | |||
| 1. | Parts III, IV and V | Any discrimination against a person who has family status arising from a provision— | ||
| (a) | of— | |||
| (i) | the Civil Service Regulations; | |||
| (ii) | any contract of service or apprenticeship; or | |||
| (iii) | any contract personally to execute any work or labour; and (Amended 18 of 2014 s. 38) | |||
| (b) | relating to— | |||
| (i) | housing; | |||
| (ii) | education; | |||
| (iii) | air-conditioning; | |||
| (iv) | passage; or | |||
| (v) | baggage, | |||
| benefits or allowances. | ||||
(Omitted as spent—E.R. 1 of 2013)