Two non-indigenous villagers challenged the validity of the village representative election arrangements in the villages they lived in. This case involved a number of constitutional and administrative law issues, but the digest below will only focus on issues relating to the anti-discrimination ordinances.

Court’s decision

First, in the villages concerned, while non-indigenous females married to indigenous villagers had the right to vote, but non-indigenous males married to indigenous villagers were not entitled to such right, the Court held that this amounted to sex discrimination against men under s. 5 (1) , s. 6(1) and s. 35 (3) of the SDO.

Second, due to the above arrangement, married non-indigenous females enjoyed the right to vote, whereas single non-indigenous females did not. This amounted to marital status discrimination under s. 7 (1)(a) and s. 35 (3) of the SDO.

Third, in order to have the right to vote, married female indigenous villagers must have resided in the village for seven years while there was no such requirement for married male indigenous villagers. Fourth, female indigenous villagers were excluded from standing as candidates in elections, while there was no such prohibition against male indigenous villagers. These amounted to sex discrimination against women under s. 5 (1) and s. 35 (3) of the SDO.

The Court of Final Appeal restated the following general legal principles which are relevant to all set discrimination cases:

In considering whether a particular arrangement is discriminatory or not, the Court will adopt the “but for” test, to look at whether there is a less favourable treatment on the ground of a person’s sex. For example, if a female would have received the same treatment as a male but for her sex, then there is discrimination.

The intention or motive of the defendant to discriminate is not a necessary condition to liability, though it may be a relevant consideration. A prima facie case of discrimination will arise when a particular arrangement has the effect of favouring some persons because of his or her sex or marital status.

https://www.eoc.org.hk/eoc/graphicsfolder/showcontent.aspx?content=significant%20court%20cases#sd_c1