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Leung Kwok Hung Also Known As "Long Hair" v Commissioner Of Correctional Services

Judgment Cited authorities 16 Cited in 1 Precedent Map Related
Vincent
Judgment Date27 November 2020
Neutral Citation[2020] HKCFA 37
Year2020
Judgement NumberFACV8/2019
Subject MatterFinal Appeal (Civil)
CourtCourt of Final Appeal (Hong Kong)
FACV8/2019 LEUNG KWOK HUNG also known as "LONG HAIR" v. COMMISSIONER OF CORRECTIONAL SERVICES

FACV No. 8 of 2019

[2020] HKCFA 37

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 8 OF 2019 (CIVIL)

(ON APPEAL FROM CACV NO. 34 OF 2017)

________________________

BETWEEN
LEUNG KWOK HUNG Appellant
also known as “LONG HAIR”
and
COMMISSIONER OF Respondent
CORRECTIONAL SERVICES

________________________

Before: Chief Justice Ma, Mr Justice Ribeiro PJ, Mr Justice Fok PJ, Mr Justice Chan NPJ and Lord Collins of Mapesbury NPJ
Date of Hearing: 28 October 2020
Date of Judgment: 27 November 2020

________________________

J U D G M E N T

________________________

Chief Justice Ma:

A. INTRODUCTION

1. This appeal involves principally an analysis of the appropriate test to be used when dealing with alleged discrimination under the Sex Discrimination Ordinance[1] and of its application to the facts of the case. The guarantee of equality is found in the Basic Law.[2] Article 22 of the Hong Kong Bill of Rights[3] states:-

“Equality before and equal protection of law

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

2. The present case is concerned with custodial discipline in penal establishments. Section 9 of the Hong Kong Bill of Rights Ordinance states:-

“Armed forces and persons detained in penal establishments

Members of and persons serving with the armed forces of the government responsible for the foreign affairs of Hong Kong and persons lawfully detained in penal establishments of whatever character are subject to such restrictions as may from time to time be authorized by law for the preservation of service and custodial discipline.”

3. A constitutionality issue also arises in this appeal under Article 25 of the Basic Law, but as we shall see, this is of less importance than the issue of discrimination under the SDO.

A.1 The facts

4. The facts are straightforward. In March 2012, the appellant, a politician and activist who is widely known as “Long Hair”, was convicted in the Magistrates’ Court of charges of criminal damage (2 charges) and disorderly behaviour (2 charges) and sentenced concurrently to a total term of imprisonment of 2 months. On appeal, in June 2014, the conviction for one of the charges of criminal damage was quashed and the totality of his sentence was reduced to 4 weeks. At Lai Chi Kok Reception Centre, he was required to have his hair (then about 80 cm long) cut pursuant to Standing Order 41-05 (“SO 41‑05”). This standing order,[4] which appears to be the only provision dealing with the length of hair of prisoners, applies to both male and female prisoners:-

“1. The hair of all male convicted prisoners will be kept cut sufficiently close, but not close clipped, for the purposes of health and cleanliness unless the prisoner himself requests it.

為保健康及清潔，所有已男子定罪囚犯的頭髮須盡量剪短，但不用剪陸軍裝，除非囚犯本身要求如此。

2. Upon request, female prisoners will have their hair cut especially before discharge or production in court. Except as recommended by MO, a female prisoner’s hair shall not be cut shorter than the style on admission without her consent.

若女子囚犯申請剪髮，須為其作出安排，特別是在獲釋前或到法庭應訊前。未經囚犯同意，不可把其頭髮剪至較進入院所時的髮型更短，但如醫生建議這樣做，則屬例外。”

5. It was the decision to require the appellant to cut his hair (the Decision) that formed the basis for his application for leave to apply for Judicial Review. Essentially, the appellant’s complaint is that he was discriminated against on account of his sex: while the hair of male convicted prisoners like him had to be kept sufficiently close, by contrast female prisoners had a freer choice and, except as recommended by a Medical Officer, their hair could not be cut shorter than the style on admission to prison without their consent. In the language of the relevant provision of the Ordinance with which this appeal is concerned, the appellant says he has been treated less favourably than female prisoners.

A.2 The proceedings below

6. Before Au J, the Judicial Review challenge by the appellant was based on 4 grounds, namely, discrimination under the SDO, breach of the equality provisions under Article 25 of the Basic Law, Wednesbury unreasonableness and breach of the dignity provision in Article 6(1) of the Bill of Rights. The judge held[5] in favour of the appellant on the first 2 grounds, did not think it was necessary to deal with Wednesbury unreasonableness and rejected the 4th ground. Declarations were made that the Decision constituted direct sex discrimination under the SDO and also violated Article 25 of the Basic Law. An order was also made quashing the Decision.

7. On the respondent’s appeal, the Court of Appeal[6] allowed the appeal and set aside Au J’s order. There being no Respondent’s Notice, the Court of Appeal only dealt with the sex discrimination and Article 25 issues. Like the CFI Judgment, the Court of Appeal concentrated mainly on the sex discrimination issue. These are the same issues before us.

A.3 The certified question

8. Leave to appeal to the Court of Final Appeal was refused by the Court of Appeal,[7] but on 13 August 2019, the Appeal Committee[8] granted leave to appeal to the appellant on the following question of law:-

“Whether the Standing Order 41-05 issued by the Commissioner of Correctional Services requiring all male prisoners but not female prisoners to have their hair cut ‘sufficiently close’ (‘盡量剪短’):

(1) constitutes direct discrimination under section 5(1)(a) of the Sex Discrimination Ordinance, Cap 480 (‘SDO’) and is therefore unlawful under section 38 of the SDO; and/or

(2) is inconsistent with Article 25 of the Basic Law of the HKSAR and is therefore unconstitutional?”

9. It is convenient to deal first with the issue of sex discrimination under the SDO before dealing with the constitutionality issue under Article 25 of the Basic Law. I start by discussing the approach in discrimination cases under the SDO before applying the relevant principles to the facts in the present case. I will then deal with the Article 25 issue.

B. THE APPROACH IN DISCRIMINATION CASES UNDER THE SDO

B.1 Relevant statutory provisions

10. The SDO is fairly comprehensive in dealing with many aspects of sex discrimination including sexual harassment. The Ordinance also makes provision for the establishment and operation of the Equal Opportunities Commission. In relation to sex discrimination, there are set out detailed provisions relevant to employment (Part 3) and to other miscellaneous fields. The basic concept of sex discrimination is defined in Part 2 of the Ordinance in s 5(1):-

“Sex discrimination against women

(1) A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Ordinance if—

(a) on the ground of her sex he treats her less favourably than he treats or would treat a man; or

(b) he applies to her a requirement or condition which he applies or would apply equally to a man but—

(i) which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it;

(ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied; and

(iii) which is to her detriment because she cannot comply with it.”

Although this provision refers to discrimination against women, it equally applies to discrimination against men: see s 6(1).

11. Section 5(1)(a) of the SDO deals with what is known as direct discrimination. Section 5(1)(b) (in particular sub‑paragraphs (i) and (iii)) deal with indirect discrimination. These two types of discrimination were discussed by this Court in QT v Director of Immigration.[9] Further, in R (E) v Governing Body of JFS,[10] the difference was put in the following way:-

“56. The basic difference between direct and indirect discrimination is plain: see Mummery LJ in R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213, para 119. The rule against direct discrimination aims to achieve formal equality of treatment: there must be no less favourable treatment between otherwise similarly situated people on grounds of colour, race, nationality or ethnic or national origins. Indirect discrimination looks beyond formal equality towards a more substantive equality of results: criteria which appear neutral on their face may have a disproportionately adverse impact upon people of a particular colour, race, nationality or ethnic or national origins.”

We are in this appeal only concerned with direct discrimination.[11]

12. The discrimination provisions are relevant to the facts of the present case by reason of s 38(1) of the Ordinance which states that it is unlawful for the Government to discriminate in the performance of its functions or in the exercise of its powers.

B.2 The approach

13. In the context of the present case, what must be demonstrated by the appellant is that on the ground of his sex he has been treated by the respondent less favourably than the respondent has treated or would treat a female prisoner in similar circumstances. I will refer to a person in the position of the appellant as “the complainant” and the person who is alleged to have discriminated simply as “the discriminator”.

14. In Secretary for Justice v Chan Wah,[12] a case involving alleged sex discrimination in...

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  • 何毓桓 對 懲教署署長
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 5 August 2021
    ...Hall v Secretary for Justice (HCAL 5/2006，2006年6月30 日，未經彙編) 第108段；Leung Kwok Hung (Long Hair) v Commissioner of Correctional Services [2020] HKCFA 37第55段；China Trends Holdings Ltd v Stock Exchange of Hong Kong Ltd [2020] HKCFI 3045第 37(3) (三) 在上訴案件中，申請人不應該重複那些在原審法官席前已提出但被拒絕的論點，而是應該指出原審法官的裁定......

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