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

Judgment Cited authorities 20 Cited in Precedent Map Related
Vincent
Judgment Date17 January 2017
Year2017
Citation[2017] 1 HKLRD 1041
Judgement NumberHCAL109/2014
Subject MatterConstitutional and Administrative Law Proceedings
CourtHigh Court (Hong Kong)
HCAL109/2014 LEUNG KWOK HUNG also known as “LONG HAIR” v. COMMISSIONER OF CORRECTIONAL SERVICES

HCAL 109/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 109 OF 2014

_______________

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

_______________

Before: Hon Au J in Court
Dates of Hearing: 27 April and 8 May 2015
Date of Judgment: 17 January 2017

_______________

J U D G M E N T

_______________

A. INTRODUCTION

1. The applicant is a well known politician in Hong Kong. He has generally been known as “Long Hair” because of what he describes to be his “iconic” long hair style.

2. In June 2014, he was held in the Lai Chi Kok Reception Centre (“the Centre”) after his conviction on a number of criminal charges[1] was upheld on appeal with a sentence of four weeks imprisonment. While in custody at the Centre, he was required by the prison officer to have his hair cut. The decision (“the Decision”) to cut his hair was made pursuant to Standing Order 41-05 (“SO 41-05”). SO 41-05 was issued by the Commissioner of Correctional Services (“the Commissioner”), which requires all male prisoners to have their hair cut “sufficiently close, but not close clipped” but allows female prisoners to have a choice to keep their hair unless they request to have them cut.

3. In this judicial review, the applicant challenges the lawfulness of the Decision and SO 41-05 in requiring him and all male prisoners but not female prisoners to have their hair cut while imprisoned.

4. The applicant’s principal basis of the challenge is that SO 41-05 is unlawful as it constitutes sex discrimination prohibited under the Sex Discrimination Ordinance (Cap 480) (“SDO”) or Article 25 of the Basic Law (“BL25”). The applicant says the Decision itself is therefore also unlawful as it was made pursuant to the unlawful SO 41-05 or in any event because it is Wednesbury unreasonableor inconsistent with Article 6(1) of the Hong Kong Bill of Rights (“BOR 6(1)”) in violating the applicant’s right to be treated with respect for dignity. He asks in this application a declaration to that effect and an order to quash the Decision.[2]

5. The applicant is represented by Mr Hectar Pun SC, leading Ms Annie Leung, while the Commissioner is represented by Mr Jin Pao.

6. The relevant facts are brief and uncontroversial.

B. THE FACTS

7. On 19 March 2012, the applicant was convicted before a magistrate on a number of criminal charges. He was sentenced to a total of two months’ imprisonment to be served concurrently. The applicant appealed against conviction and sentence.[3] On 9 June 2014, Pang J (as he then was) upheld the convictions except one but reduced the sentence to four weeks’ imprisonment to be served concurrently.[4]

8. The applicant was then held in the Centre. On admission, the applicant requested to retain his hair. That evening a Chief Officer of the Correctional Services Department (“CSD”) explained to the applicant the hair-cutting requirement.[5] The applicant objected to it and indicated that he might apply for judicial review challenging that requirement.

9. However, after it was ascertained that the applicant had not filed a judicial review as he initially indicated that he might do, the Chief Officer subsequently instructed a Day Orderly Officer to arrange a haircut for the applicant later that evening.[6] Under the supervision of the Day Orderly Officer, an inmate barber proceeded to cut the applicant’s hair.[7]

C. SO 41-05 AND THE RELEVANT PRISON RULES

C1. SO 41-05

10. The Commissioner is under an obligation to issue such orders as may be necessary for the government of institutions under his control under rule 77(4) of the Prison Rules (Cap 234A) (“PR”).[8] Those are the Standing Orders, which are under constant review on a semi-annual basis.[9] SO 41-05 is one of these Standing Orders.

11. As mentioned above, SO 41-05 relates to hair cutting of prisoners and requires only male prisoners to have a hair cut while female prisoners are given a choice whether to keep their hair. It provides as follows:

“SO 41-05 Hair of Prisoner 囚犯的頭髮

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.

為保健康及清潔，所有已男子[sic]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。”[10] (emphasis added)

C2. The relevant PR

12. Under section 25(1) of the Prisons Ordinance (Cap 234), the Chief Executive in Council is given wide powers to make rules with respect to the regulation and government of prisons. Those are now contained in the PR, originally enacted in 1954 as part of a complete revision of the then existing prison rules.[11]

13. The PR are schematically separated into a number of divisions which make provision for a number of matters including accommodation, general treatment of prisoners, remission, staff, and other related prison officers and individuals.

14. PR 34, contained in the division relating to general treatment of prisoners, provides that:

“Every prisoner shall obey such directions as regards washing, bathing, shaving and hair cutting as may from time to time be prescribed.”

15. There is thus an obligation under PR 34 on every prisoner to obey such instructions as regards, among others, hair cutting as may from time to time be prescribed.

16. Further, the following provisions of the PR relate to the duties and powers of the Commissioner and senior officers of prisons which would feature in the arguments.

17. Under PR 77(1), the Commissioner shall have the administrative command and direction of all prisons and such other institutions as may be placed under his control. Under respectively PR 77(2) and (4), he may from time to time frame orders and regulation for the observance of all his subordinate officers and shall issue such orders as may be necessary for the government under all institutions under his control to confirm with the PR, and for the discipline of persons employed therein.

18. Further, senior officers, including the Superintendent and Chief Officer, are obliged to supervise and control all matters in connection with the prison for which they are responsible. This obligation includes a responsibility for due observance by prisoners with all orders issued under the PR (ie, the Standing Orders) under PR 79 and to maintain strict discipline under PR 81. Moreover, the Chief Officer is under a specific obligation to ensure that prisoners’ hair is kept trimmed and their hair clipping attended to under PR 119.[12]

D. THIS JUDICIAL REVIEW

19. The applicant raises four grounds of judicial review. I will deal with each of them in turn.

D1. 1st Ground – SO 45-01 and the Decision constitute direct discrimination under section 5 of the SDO

20. Section 5(1)(a) of the SDO prescribes what is known as direct sex discrimination. It provides as follows:

“(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; ...”

21. Section 6(1) of the SDO provides that section 5 equally applies to the treatment of men.[13]

22. Section 38(1) in Part 4 of the SDO provides that “it is unlawful for the Government to discriminate against a woman in the performance of its functions or the exercise of its powers”.[14]

23. It follows that the Government (including the Commissioner and his officers) are under a duty imposed by the SDO not to discriminate on the basis of a person’s sex in the discharge of their functions.

24. The applicant’s case on direct discrimination is a simple one. It runs as follows:

(1) The test to identify direct discrimination is the “but for” test, in that there is direct discrimination under section 5 of the SDO if there is less favourable treatment on the ground of sex, in that, if the relevant girl or girls would have received the same treatment as the boys but for the sex. It is an objective test and the court is to ask the simple question: would the complainant have received the same treatment from the defendant but for his or her sex. See: Secretary for Justice v Chan Wah (2000) 3 HKCFAR 459 at 476B-E, per Li CJ; Equal Opportunities Commission v Director of Education [2001] 2 HKLRD 690 at paragraphs 10 - 12, perHartmann J (as he then was) (adopting R v Birmingham City Council, ex p Equal Opportunities Commission [1989] 1 AC 1155 and James v Eastleigh Borough Council [1990] 2 AC 751 at 774).

(2) For direct discrimination and under the “but for” test:

(a) There is no question of justification as the SDO does not provide for that. See also R(E) v Governing Body of JFS [2010] 3 AC 728 at paragraphs 20 - 22, 57, 61 - 62, 64, 69 - 70, 143 - 145, and 195 - 196.

(b) The intention, motive, reason or purpose in treating another person less favourably on a protected ground is also irrelevant: R v Birmingham City Council, supra, at 1194A-C, per Lord Goff; Nagarajan v London Regional Transport [2000] 1 AC 501 at 511C-D, per Lord Nicholls.

(3) SO 41-05 requires male prisoners’ hair to be cut short but not female prisoners. The male prisoners are thus treated less favourably than the female prisoners by the Commissioner in not being...

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