Read the full judgment text of DCEO 9/2011 on BabelCite. This District Court judgment was delivered on 5 March 2014 before Justin Ko.
Race Discrimination Ordinance (Cap 602) – public authority – first case under RDO involving a public authority to go to trial – plaintiff is an 11-year-old Indian boy of Punjabi ethnicity suing by his mother and next friend – alleged incident at Wanchai MTR Station on 6 January 2010 – scuffle with Chinese lady (Madam Chan) at escalator – Police Constable Hung attended scene – plaintiff alleges police officers discriminated against him on ground of race by refusing or omitting to provide police services in contravention of sections 27(1)(a)-(b) and (2)(h)(i) of the RDO – also alleges unlawful arrest and false imprisonment – Commissioner of Police and PC Hung sued – interlocutory applications at pre-trial review on 3 March 2014 – trial fixed for 7 April 2014 (8 days) – EOC granted leave to appear as amicus curiae – plaintiff's supplemental witness statement application unopposed – whether Professor Benjamin Bowling's expert report should be admitted – 74-page report addressing four questions including whether police law enforcement powers are services and best practice in law enforcement – general test for admissibility of expert evidence at interlocutory stage – whether section 73E(5) District Court Ordinance alters the test for RDO proceedings – section 73E(5)(a) court not bound by rules of evidence – section 73E(5)(b) touchstones of fair hearing, substantive merits, and prompt hearing – minimum threshold of relevance applies to RDO proceedings – extended meaning of relevancy may include broader social context – whether report satisfies threshold – report addresses whether law enforcement is a service (matter of statutory interpretation for the court) – generic commentary on police investigation (common sense) – academic discussion of racial stereotyping and institutional racism – research on discrimination against South Asians – commentary on disputed facts (usurps function of trier of fact) – plaintiff did not plead institutionalised racism in HKPF – Johnson v Halifax Regional Police Service and Nassiah v Peel Regional Police Services Board distinguished – undue delay in seeking leave to adduce expert evidence – application made on 18 February 2014 with report only provided on 26 February 2014 – case commenced October 2011 – trial dates are immoveable – application would derail trial timetable – expert evidence summons dismissed – whether academic articles concerning racial discrimination against South Asians in Hong Kong can be adduced by way of hearsay notice – four articles including EOC-commissioned study, Pakistani minority paper, anti-discrimination paper, and Racial Acceptance Survey – section 73E(5)(b) empowers court to inform itself of any matter in such manner as it sees fit – articles provide broad social context, not case-specific evidence – distinguished from Hussain Tanwear v Focus Roller Shutter Ltd – no need to cross-examine makers – defendants may adduce similar evidence by consent – strike-out summons dismissed – costs – section 73E(3) District Court Ordinance – each party to bear own costs, plaintiff taxed in accordance with Legal Aid Regulations – no special circumstances warranting costs order
Legal issues: Admissibility of expert evidence at interlocutory stage in RDO proceedings · Admissibility of academic articles via hearsay notice · Costs of interlocutory applications in RDO proceedings
Outcome: Plaintiff's summons for leave to adduce expert evidence dismissed; defendants' summons to strike out hearsay notice dismissed; each party to bear its own costs.
Cites 4 cases