Leung Kwok Hung v. Commissioner of Correctional Services
Court of Appeal
Civil Appeal No 34 of 2017
Hon Cheung CJHC, Lam VP and Poon JA in Court
3, 4 January, 30 April 2018

Administrative law — Commissioner for Correctional Services — standing order issued by Commissioner requiring male prisoners, but not female prisoners, to have their hair cut — not direct sexual discrimination under s.5 or inconsistent with art.25 — Sex Discrimination Ordinance (Cap.480) ss.5, 10 — Basic Law art.25

Human rights — sexual discrimination — equality before the law — standing order issued by Commissioner requiring male prisoners, but not female prisoners, to have their hair cut — not unconstitutional for being discriminatory — Sex Discrimination Ordinance (Cap.480) ss.5, 10 — Basic Law art.25  

Standing Order 41–05 (SO 41–05) issued by the Commissioner of the Correctional Services (the Commissioner) states: “1. The hair of all male convicted prisoners will be kept cut sufficiently close, but not close clipped, for the purpose of health and cleanliness unless the prisoner himself requests it; 2. Upon request, female prisoners will have their hair cut especially before discharge or production in court. Except as recommended by MO [Medical Officer], a female prisoner’s hair shall not be cut shorter than the style on admission without her consent.” L, a convicted prisoner, had his long hair cut short despite his objections. On his application for judicial review of SO 41–05, the Judge declared it unlawful as direct sex discrimination contrary to s.5 of the Sex Discrimination Ordinance (Cap.480) (SDO) and an infringement of the right to equality before the law under art.25 of the Basic Law (BL25). The Commissioner appealed. Under s.10 of the SDO (SDO10), “a comparison of the cases of persons of … different sex under s.5(1) shall be such that the relevant circumstances in the one case are the same, or not materially different, in the other.”

Held, allowing the appeal, that:

1)    The Judge erred in narrowly confining himself to differences in hair length, without considering the restrictions on appearance as a whole for inmates or conventional standards of appearance, in assessing if there was less favourable treatment of male inmates in light of the common underlying objective of the policy to foster custodial discipline by imposing reasonable uniformity and conformity amongst inmates (Conway v Canada [1993] 2 SCR 872, Smith v Safeway plc [1996] ICR 868, Department for Work and Pensions v Thompson [2004] IRLR 348, Re McMillen [2008] NIQB 21, Dansie v The Commissioner of Police for the Metropolis (English Employment Appeal Tribunal, UKEAT/0234/09, 20 October 2009) applied). (See paras.39, 47, 52.)

2)      The restrictions here must be examined as a package in light of all relevant circumstances under SDO10, including that conventional standards of appearance for men and women in society were different and that such difference applied to hair length. Given that the restrictions applied the respective standards to male inmates and to female inmates respectively, there was no less favourable treatment as between male and female inmates. (See paras.53–56, 70.)

3)      There was also no discrimination by stereotyping, since there was an even-handed approach to the restrictions for male and female inmates. In the present context, once it was accepted that there were different conventional standards for appearance in our society, there was no question that what was true of a group in general might not be true of an individual within that group (Equal Opportunities Commission v Director of Education [2001] 2 HKLRD 690 considered; R (European Roma Rights) v Prague Immigration Officer [2005] 2 AC 1 distinguished). (See paras.75–76, 78.)

4)      L’s argument that gender-based attributes could not be relevant circumstances under SDO10 confused the comparator question, involving the examination of whether there had been less favourable treatment, with the causation question, involving the examination of whether such treatment was due to gender. In all the relevant circumstances, the restrictions imposed on male inmates were no less favourable than those imposed on female inmates. The treatment of L according to conventional standards of appearance to preserve custodial discipline was not more stringent than that of female inmates; and he was not subjected to any less favourable treatment or direct discrimination (Purvis v State of New South Wales (2003) 217 CLR 92, M v Secretary for Justice [2009] 2 HKLRD 298 applied; James v Eastleigh Borough Council [1990] 2 AC 751, Equal Opportunities Commission v Director of Education [2001] 2 HKLRD 690 distinguished). (See paras.80–83, 89, 92–94.)

5)      Given this finding, L’s argument based on BL25 must also fail. (See para.95.)

Appeal 

This was an appeal by the Commissioner of Correctional Services against the judgment of Thomas Au J allowing an application for judicial review of a standing order of the Commissioner requiring male prisoners, but not female prisoners, to have their hair cut (see [2017] 1 HKLRD 1041). The facts are set out in the judgment.

 

Jurisdictions: 

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