I must admit I have issues with York Chow. I have written here about why I think his performance after taking over the Equal Opportunities Commission (EOC) is less than satisfactory. Here is the latest example.

On April 22, Chow told a radio program that given that anti-tourist protests "have apparently receded" in recent weeks, proposed legal protection for mainland tourists might become unnecessary unless the situation deteriorates again. Apparently, he erred on both the facts and the principles.

I have no idea how Chow came to the conclusion that anti-tourist protests "have receded". Every sign points to the opposite. As if to slap him on the face, the "MK peeing incident" happened just days after his radio appearance, and a few Hongkongers reacted by sending both real and fake poo around the city.

While poor judgment of social trends is expected of a former government official, what really baffles me is how Chow understands these principles. The necessity of providing mainland tourists with legal protection against abuse, according to Chow, is based on numbers, not basic human rights.

The whole point of the EOC is to protect the disadvantaged. Here, the disadvantage is a relative and situational concept. Women certainly are not "weak," and they are as numerous as men. But they are still disadvantaged in many areas because of prejudices that prevent them from achieving what they deserve. In Hong Kong, mainlanders are disadvantaged. We cannot pretend otherwise.

Here comes Chow's biggest mistake, or deception (which I think it is): The whole debate on whether and how we should revise the Race Discrimination Ordinance (RDO) is a camouflage. It does nothing but distract us from one simple fact - that behavior such as the prejudice against mainlanders is already outlawed by the RDO. This misinterpretation of the RDO, perpetrated by government officials, experts and the academia alike, has misled the public, including this paper, which produced a report titled "HK faces hurdles to outlaw 'locust' bias" on March 31.

We did not "invent" the RDO. It is based on the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), under which Hong Kong has obligations. According to the RDO, race in relation to a person means the race, color, descent, national or ethnic origin of the person. A racial group means a group of people identified by reference to their race, color, descent, national or ethnic origin. The definition of race and racial group in the RDO is exactly the same as in the ICERD.

According to the "Code of Practice on Employment under the RDO", published by the EOC, the words "race", "color", "national" or "ethnic origins" in discrimination laws have broad popular meanings. They are not mutually exclusive. A person may fall into more than one racial group. For example, identifying people as Asian is an act done on the grounds of race. The same is true when identifying people as being of Chinese origin.

More importantly, the Code of Practice tells us that "a group is an ethnic group (and its members having the ethnic origin of the group) if it is a distinct segment of the population distinguished from others by a sufficient combination of shared customs, beliefs, traditions and characteristics derived from a long common history or presumed common history."

As a common practice of our "common law" system, the Code of Practice refers to cases decided in foreign courts to provide guidance on how we should interpret rather vague clauses in the RDO. One of them is BBC v Souster, where the Scottish Court of Session concluded that the English do have separate "national origins" to the Scots. As a consequence, the Race Relations Act 1976 does apply to discrimination between the Scots and English.

R v White, a recent criminal case from the English Court of Appeal, concerned a defendant, Mr White. White was black, and his offense was to call a bus conductress a "stupid African bitch". The questions which the court had to answer was whether "African" was a term which described a "racial group" or a "race", and whether a person can discriminate on racial grounds if they are of the same racial group as the victim. The answer given by the Criminal Division of the Court of Appeal was yes to both. The court held there is no reason why people from the same racial group cannot discriminate against people of the same group.

In response to pressure from the public and NGOs during the consultation period, the RDO was finally passed not to preclude race discrimination against new arrivals from the mainland. Ultimately, whether individual mainlanders or new mainland arrivals will be regarded as belonging to a distinct racial group have to be decided by Hong Kong courts based on common law principles.

I understand exactly why York Chow is so fixated on the issue of whether or not to revise the law - rather than testing the existing laws in court. It is a smart decision politically to make: Who would like to bring a Hongkonger to court in defense of mainlanders? It is always better to have endless consultations.

The author is a current affairs commentator.

(HK Edition 05/16/2014 page9)