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

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J U D G M E N T

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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. 1^st 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 given a choice not to have their hair cut.  Further, the answer to the simple question “would male prisoners (including the applicant) have received the same treatment from the Commissioner but for their sex” must be a negative one.

(4)  In the premises, SO 41-05 and thus the Decision made pursuant to that constitute direct discrimination under sections 5 and are unlawful under section 38 of the SDO.

25.The applicant’s submissions are convincing.

26.However, Mr Jin Pao for the Commissioner raises a number of contentions to argue why there is no direct discrimination.  I would look at these contentions one by one.

27.First, the Commissioner has filed evidence[15] to effectively say that SO 41-05 is to achieve the objective to provide a secure, safe, humane, decent and healthy environment for people in custody by maintaining prison security and custodial discipline.  It is the Commissioner’s case that SO 41-05 is a preventive operational measure which has the effect of reducing the number of risks which threaten the individual rights of prisoners while in custody.

28.These risks are in summary (a) the inherent vulnerability of prisoners with long hair in the case of an attack by another inmate involving violence; (b) the risk that long hair is used as a potential method of concealing prohibited items (eg, a razor blade or self-made weapons) which could be used by a prisoner both to attack other inmates, to inflict self-harm, or for suicide; (c) the risk of violence associated with triad or gang affiliation; and (d) the risk of prisoners using long hair as a readily accessible tool (as opposed to a method of concealment) for self-harm and suicide.  Importantly, it is the Commissioner’s evidence that, from experience (partly backed by some statistics), these risks are significantly higher in the male inmates population than the female inmates population.  It is therefore the Commissioner’s position that the real ground for the hair cutting requirement is not on the sex but on the maintenance of prison security and discipline.

29.Mr Pao accepts that generally the court applies the “but for” test to determine whether there is direct sex discrimination, and that the court under that test is not to look at the underlying reasons or purpose for the complained differential treatment.  However, counsel submits that this test is only applicable in clear cases, and in less clear circumstances, it is open to the court to look at the underlying reasons for the complained discriminatory treatment in order to determine the essential question of what is the real and effective cause of the act complained of and whether the real ground for the treatment is based on the sex but not otherwise.[16]

30.In further support, Mr Pao submits that it is now well established that for the purpose of determining whether there is direct discrimination under the relevant statutory provision, it involves first a consideration of whether the claimant received less favourable treatment and second whether the less favourable treatment was based on the proscribed ground: M v Secretary for Justice [2009] 2 HKLRD 298 (CA) at paragraph 45, per Tang VP (as the learned PJ then was).  In relation to that, save in clear cases (where the conduct complained of could not have admitted for any explanation other than the complained proscribed ground),[17] it is often that these two issues are intertwined and it may be necessary and appropriate to focus on the question on the reason why the treatment occurred and whether it was on the ground of the sex: Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 All ER 26 at paragraphs 7 - 11, followed in Hong Kong in Sit Ka Yin Priscilla v Equal Opportunities Commission (DCEO 11/1999, 11 February 2010, HH Judge Lok (as he then was)) at paragraphs 133 - 134; Sit Ka Yin Priscilla v Equal Opportunities Commission (HCMP 1117/2011, 4 November 2011, per Tang VP and Fok JA) at paragraphs 24 - 27, perTang VP (as the learned PJ then was) where the Court of Appeal in refusing leave to appeal rejected a submission challenging the judge’s approach below.

31.It is Mr Pao’s contention that the present case is one of those less clear cases that the court is entitled to and should look at the underlying reasons why the differential hair cut requirements occurred to determine whether it was on the ground of the sex.

32.Alternatively, Mr Pao submits that the case law shows clearly that in considering the prior question of whether there is less favourable treatment before considering whether the differential treatment is based on a protected ground, the court is entitled to, and should, look at the reasons for imposing the treatment.

33.In the premises, says Mr Pao, given the Commissioner’s above evidence:

(1)  the real and effective ground for implementing the complained treatment (ie, only male prisoners are required to have their hair cut) is not based on the sex but on the need to maintain proper prison security and custodial discipline; or

(2)  alternatively, Mr Pao submits that there is no less favourable treatment for male inmates insofar as the requirement of hair cutting is concerned.

34.Before I deal with Mr Pao’s above submissions, it must be noted that Mr Pun objects to the Commissioner’s reliance on the evidence showing the purported various higher security risks caused by allowing male prisoners to keep their hair long to support what the Commissioner says to be the underlying purposes and reasons for the hair cutting requirement.  Mr Pun says it is simply not open to the Commissioner to rely on this evidence and that these purported reasons are the Commissioner’s “after thoughts” in seeking to explain the requirement.  This is so because:

(1)  They are all inconsistent with the only and expressly stated aim of “Health and Cleanliness” for the hair cutting requirement set out in SO 41-05 and PR 34 and 119 (which are the legal basis for issuing SO 41-05).[18]

(2)  The subject differential treatment has existed for a long time (at least as early as 1979) and well before the years of the statistics (ie, 2010 to 2013) now relied on by the Commissioner in his evidence seeking to support the purported reasons.

35.These are, in my view, powerful objections which put doubts on the Commissioner’s reliance on this evidence and the purported reasons for issuing SO 41-05.  But at the end of the day, the objections relate more to the weight, if any, that the court should attach to the evidence and reasons advanced by the Commissioner in the context of the arguments advanced in this application.  In the premises, I think it is more appropriate to deal with them as and when I consider the Commissioners’ arguments.  This is what I would do next.

36.Despite the Commissioner’s evidence and case, with respect to Mr Pao, I am unable to accept his above submissions for a number of reasons.

37.In my view, this is a clear case that the complained differential treatment is based on the sex.  There is nothing in the present case or in the evidence to show that under SO 41-05, the Commissioner would examine any matters or factors other than gender before deciding in each case to require the applicant (or any other male prisoner) to have his hair cut.[19]  In other words, as in the case of Secretary for Justice v Chan Wah, the conduct complained of in the present case similarly could not have admitted for any explanation other than gender.  As submitted by Mr Pun, when one asks the simple question “would the applicant have received the same treatment (ie, the requirement to have his hair cut) if he were a female”, the answer is clearly and simply “no”.

38.In the premises, even accepting (without deciding) Mr Pao’s above legal proposition that it is open to the court in a less clear case to look at the underlying reasons to determine the real and effective ground for an alleged direct discriminatory treatment, it is neither open to nor necessary for the court in the present case to look at the underlying reasons in order to determine the effective and real cause for the complained treatment.

39.Further and in any event, even if the court is to look at the above reasons as now advanced by the Commissioner, I would still conclude that the compulsory hair cutting requirement for male prisoners is caught by section 5 of the SDO.

40.The Commissioner’s purported reasons are all based on stereotyped or generalised assumptions referable to the purported risks associated with male prisoners as a gender as a whole.  In other words, these grounds are solely premised on what the Commissioner now says to be the situations generally applicable to all male prisoners when compared with female prisoners.  These considerations are not based on individual situations or circumstances referable and peculiar to each male prisoner.

41.However, as concluded by Hartmann J in Equal Opportunities Commission v Director of Education, supra, as a matter of law, a purported ground based on stereotyped or generalised assumptions referable to a particular sex (even if supported by statistics) is similarly caught by section 5 of the SDO as a non-permissible ground of direct discrimination.

42.After reviewing a line of UK authorities on direct discrimination based on the Sex Discrimination Act 1975 (which is similarly worded as the SDO for that purpose)[20] and the underlining principle and purpose of the SDO, Hartmann J held in Equal Opportunities Commission at paragraphs 79 - 92 that the words “on the ground of [the person’s] sex” in section 5(1)(a) of the SDO cover not only cases where the sole factor influencing the complained decision of the alleged discriminator is the sex of the complainant, but also cases where the reason for the discriminatory treatment was based on a generalised assumption that people of the particular sex possess or lack certain characteristics.  This is so as the law against discrimination is to reflect and protect an individual’s right against sex discrimination.  This has also been explained by Browne-Wilkinson J (as he then was) in the Employment Appeal Tribunal in Horsey v Dyfed County Council [1982] ICR 755 at 760 as follows:

“... Under both sections 1 and 3 of the [1975] Act ... unlawful discrimination consists in treating someone less favourably ‘on the ground of’ sex, marital status or race. Do these words cover only cases where the sex, marital status or race of the complainant in isolation is the reason for the decision, or do they extend to cover cases where the alleged discriminator acts on the basis of generalised assumptions as to the characteristics of women...? In our view it is now established by authority that those words do not only cover cases where the sole factor influencing the decision of the alleged discriminator is the sex...of the complainant. The words ‘on the ground of’ also cover cases where the reason for the discrimination was a generalised assumption that people of a particular sex ... possess or lack certain characteristics, e.g. ‘I like women but I will not employ them because they are unreliable.’ ‘I will not lend money to married women because they are not wage earners’ or ... Most discrimination flows from generalised assumptions of this kind and not from a simple prejudice dependent solely on the sex or colour of the complainant. The purpose of the legislation is to secure equal opportunity for individuals regardless of their sex ... This result would not be achieved if it were sufficient to escape liability to show that the reason for the discriminatory treatment was simply an assumption that women ... possessed or lacked particular characteristics and not that they were just women ... The decision of the Court of Appeal in Skyrail Oceanic Ltd. v. Coleman [1981] I.C.R. 864 establishes that generalised assumptions of this kind constitute discrimination under the Act: see also Hurley v. Mustoe [1981] I.C.R. 490.” (emphasis added)

43.Indeed, the law on direct discrimination covers cases where the alleged differential less favourable treatment is based on stereotyped assumptions[21] is also echoed and endorsed in the House of Lords’ judgment in R (European Roma Rights Centre) v Immigration Officer at Prague Airport [2005] 2 AC 1 (“the Roma Case”).

44.In that case, the Secretary of State for the Home Department implemented (in agreement with the Czech government) pre-clearance immigration control at the Prague airport to screen potential visitors to the UK with the aim of stemming the flow of asylum seekers from the Czech Republic. Past statistics had shown that most of these asylum seekers were Roma.  As a result, under the pre-clearance screening, Roma visitors were subject to more lengthy and stringent screening than non-Roma visitors.  The applicants challenged this on, among others, the basis that the scheme amounted to racial discrimination as Roma visitors as a race were treated less favourably than non-Roma visitors and that violated the Race Relations Act 1976.

45.Their claims were dismissed both at first instance and by the Court of Appeal (by majority).  However, the House of Lords allowed the applicants’ appeal and held, among others, that the scheme amounted to racial discrimination.  In relation to this, Baroness Hale and Lord Carswell (approving Hartmann J’s above observations in Equal Opportunities Commission v Director of Education) agreed that a less favourable treatment based on a proscribed ground cannot be negated on the basis that such treatment was based on relevant general assumptions even backed by statistics.  They explained this respectively at paragraphs 82 - 83 (Baroness Hale) and 113 (Lord Carsell) as follows:

“82 On the factual premises adopted by the Court of Appeal, this conclusion must be correct as a matter of law. The Roma were being treated more sceptically than the non-Roma. There was a good reason for this. How did the immigration officers know to treat them more sceptically? Because they were Roma. That is acting on racial grounds. If a person acts on racial grounds, the reason why he does so is irrelevant: see Lord Nicholls of Birkenhead in Nagarajan, at p 511. The law reports are full of examples of obviously discriminatory treatment which was in no way motivated by racism or sexism and often brought about by pressures beyond the discriminators' control: the council which sacked a black road sweeper to whom the union objected in order to avoid industrial action (R v Commission for Racial Equality, Ex p Westminster City Council) [1985] ICR 827); the council which for historical reasons provided fewer selective school places for girls than for boys: R v Birmingham City Council, Ex p Equal Opportunities Commission [1989] AC 1155. But it goes further than this. The person may be acting on belief or assumptions about members of the sex or racial group involved which are often true and which if true would provide a good reason for the less favourable treatment in question. But ‘what may be true of a group may not be true of a significant number of individuals within that group’: see Hartmann J in Equal Opportunities Commission v Director of Education [2001] 2 HKLRD 690, para 86, High Court of Hong Kong. The object of the legislation is to ensure that each person is treated as an individual and not assumed to be like other members of the group. As Laws LJ observed, at para 108:

‘The mistake that might arise in relation to stereotyping would be a supposition that the stereotype is only vicious if it is untrue. But that cannot be right. If it were, it would imply that direct discrimination can be justified ...’

83 As we have seen, the legislation draws a clear distinction between direct and indirect discrimination and makes no reference at all to justification in relation to direct discrimination. Nor, strictly, does it allow indirect discrimination to be justified. It accepts that a requirement or condition may be justified independently of its discriminatory effect.

...

113 But it is at that very point that discrimination law as it has been developed requires particular care in the approach to a class of persons whose members are strongly suspected of advancing large numbers of false claims. As Hartmann J said in the High Court of Hong Kong in a regularly quoted sentence in Equal Opportunities Commission v Director of Education [2001] 2 HKLRD 690, para 86, ‘what may be true of a group may not be true of a significant number of individuals within that group’. It is not legitimate to apply a stereotype and commence with the assumption that applicants from Roma may be making false claims and that for that reason their claims require more intensive investigation. An officer who does so has, as Laws LJ, in my opinion correctly, said at para 109 of his judgment, ‘applied a stereotype; though one which may very likely be true’. The point is that it may not be true, and it is in law discriminatory to subject all applicants from Roma to longer and more intensive questioning because so many of them have been known in the past to merit such treatment. What the officers must do is treat all applicants, whatever their racial background, alike in the method of investigation which they carry out until in any individual case sufficient reason appears to prolong or intensify the examination.” (emphasis added)

46.Lord Steyn in disagreeing with the reasoning of the Court of Appeal’s majority decision also held that to recognise and accept the reliance on stereotyped assumptions to support differential treatment on a protected ground would amount to introducing the possibility of justification in the law of direct discrimination which is not permissible.  His Lordship explained this at paragraph 37 as follows:

“37 The reasoning of the majority of the Court of Appeal in this case had at first glance the attractiveness of appearing to be in accord with common sense: R (European Roma Rights Centre) v Immigration Officer at Prague Airport [2004] QB 811. Simon Brown LJ said, at p 840, para 86:

‘because of the greater degree of scepticism with which Roma applicants will inevitably be treated, they are more likely to be refused leave to enter than non-Roma applicants. But this is because they are less well placed to persuade the immigration office that they are not lying in order to seek asylum. That is not to say, however, that they are being stereotyped. Rather it is to acknowledge the undoubtedly disadvantaged position of many Roma in the Czech Republic. Of course it would be wrong in any individual case to assume that the Roma applicant is lying, but I decline to hold that the immigration officer cannot properly be warier of that possibility in a Roma's case than in the case of a non -Roma applicant. If a terrorist outrage were committed on our streets today, would the police not be entitled to question more suspiciously those in the vicinity appearing to come from an Islamic background?’

Mantell LJ agreed with this analysis. Laws LJ dissented. In ‘Equality: The Neglected Virtue’ [2004] EHRLR 141, Mr Rabinder Singh QC convincingly exposed the flaw in the reasoning of the majority. He stated, at p 154:

‘It is clear that there was less favourable treatment. It is also clear that it was on racial grounds. As all the judges acknowledged, the reason for the discrimination is immaterial: in particular, the absence of a hostile intent or the presence of a benign motive is immaterial. What the majority view amounts to is, on analysis, an attempt to introduce into the law of direct discrimination the possibility of justification. But Parliament could have provided for that possibility—as it has done in the context of allegations of indirect discrimination—and has chosen not to do so. In so far as the fields of immigration and nationality may be thought to require special treatment, permitting discrimination on certain grounds (ethnic or national origins) but not others (such as colour), again Parliament has catered for that possibility in enabling a minister to give an authorisation. The Government did not want to rely on the authorisation in the Roma case: that was a matter for its tactical choice but the courts should not bend over backwards to save the executive from what may have been its own folly. Their duty, as Laws LJ said, is to apply the will of Parliament as enacted in its laws. Moreover, the danger in the majority’s reasoning is that it is capable of application outside the limited areas with which the court was concerned. For example, it could be applied in the context of police stop and search powers. Simon Brown LJ expressly gives an example from just that context. This is potentially very damaging to race relations law going beyond what may have been perceived to be the problem in the Roma case itself.’

I am in respectful agreement with this analysis. In my view the majority was wrong. Laws LJ was right.” (emphasis added)

47.Mr Pao however submits that these observations in the Roma Case are not the final words on the question of generalised assumptions in the House of the Lords.  They should instead be read with circumspection in light of a later House of Lords’ decision in R (Gillan) v Commissioner of Police [2006] 2 AC 307 (“the Gillan Case”).

48.In the Gillan Case, the House of Lords considered the police power to stop and search persons for terrorism related articles.  Mr Pao points out that one of the issues in that case was whether the police was justified in stopping and searching only Asian travellers after a terrorist incident.  In this respect, Mr Pao says Lord Hope held at paragraph 46 that:

“an appearance which suggests that the person is of Asian origin may attract the constable's attention in the first place. But a further selection process will have to be undertaken, perhaps on the spur of the moment otherwise the opportunity will be lost, before the power is exercised. It is a further selection process that makes the difference between what is inherently discriminatory and what is not.”

49.Mr Pao therefore contends that, accordingly, Lord Hope accepted that the pool from which further selection was made can be constructed on racial lines.  The power to stop Asian travellers was based on the assumption that it is more likely that those travellers who would be a terrorist threat.  Significantly, Lord Brown indicated the decision in Gillan was difficult to reconcile with the Roma decision (at paragraph 90).  His attempted reconciliation was that the immigration officers did not sufficiently have regard to each Roma applicant as an individual but rather merely as a member of a group which was treated identically. Counsel submits that the House of Lords in Gillan backtracked from the wide and sweeping consequences in the Roma decision.

50.With respect to Mr Pao, I am unable to agree.  The above observations in Gillan should be examined carefully in its proper context.

51.In Gillan, the police was empowered under sections 44 and 45 of the Terrorism Act 2000 to stop and search people for articles of a kind which could be used in relation to terrorism.  Given the nature of things, much had to be left to the discretion of the individual police officer to decide who he would stop and search.  The claimants (respectively a student and a journalist) were in a demonstration against an arms fair in East London, and were stopped and searched by police exercising the aforesaid powers. Nothing incriminating was found consequent to the searches.  They then brought a judicial review challenging their treatment, the authorisation and its confirmation. Their judicial review was dismissed at first instance, and the Court of Appeal made no orders.  The House of Lords also dismissed their appeals from the lower courts’ decisions.  In the House of Lords, the challenges were made predominantly on the alleged arbitrariness and lack of legal certainty (and hence infringement of Human Rights Act 1998 and the European Convention) of the exercise of that power.

52.For the present purposes, two points should be noted in this case.

53.First, it is important to note that the question of racial discrimination did not arise directly in that case as both claimants were not Asian (see paragraph 43 of Lord Hope’s judgment).  The question of discrimination arose only by way of an example advanced by the claimants’ leading counsel seeking to demonstrate the alleged underlying potential arbitrariness of the exercise of that power (see paragraphs 81 - 82, perLord Brown).

54.Second, in any event, in dealing with the question of whether that power would be exercised in a discriminatory manner say by looking only at the ethnic origin of the suspected person being stopped and searched, the House of Lords in the Gillan Case does not question the general principle held in the Roma Case that it is not permissible to rely on stereotyped assumptions in the protected groups to support or justify a direct discrimination treatment.  Indeed, they endorsed that approach.  See: paragraphs 43 - 44, per Lord Hope, and paragraph 90, perLord Brown as follows:

“43 What then if it is found that the police are using the section 44 power more frequently to stop Asians than other racial groups in the community? Does this amount to direct discrimination contrary to domestic law, as Mr Rabinder Singh suggested from time to time in the course of his argument? The issue does not arise directly in this case, of course, because neither of the claimants is of Asian origin. But it cannot be overlooked, especially in view of the concern that the House expressed in the Roma Rights case about the fact that all Roma applicants were being routinely treated, simply because they were Roma, with more suspicion and subjected to more intensive and intrusive questioning than non-Roma. As Baroness Hale of Richmond said, at p 64b–c, para 97, the setting up of an operation to meet the challenge of dealing with an influx of asylum seekers from one comparatively easily identified racial or ethnic group required enormous care if it was to be done without discrimination. The evidence showed that the operation that was being conducted in that case was inherently and systematically discriminatory and unlawful.

44 The decision in the Roma Rights case reminds us that if a person discriminates on racial grounds the reason why he does so is irrelevant. The use of the section 44 power on racial grounds is not exempt for being treated as discriminatory simply because of the purpose for which it is being exercised. It is no answer to say that the time and place for the exercise of the section 44 power was selected in response to the threat of a terrorist outrage, any more than it was to say that the procedures that were being operated at Prague airport were designed to deal with an influx through that airport of asylum seekers of Roma origin. Nor is it an answer to say that a decision as to when and where to exercise the power was based on common sense, as Lord Brown points out (para 88). The whole point of making it unlawful for a public authority to discriminate on racial grounds is that impressions about the behaviour of some individuals of a racial group may not be true of the group as a whole. Discrimination on racial grounds is unlawful whether or not, in any given case, the assumptions on which it was based turn out to be justified.

...

90 The only basis I can see for a distinction (and I do not pretend to find it entirely satisfactory) is if one assumes that in the Roma Rights case the immigration officers had not sufficiently had regard to each Roma applicant as an individual, rather merely than as a stereotypical member of the group: see para 74 of Baroness Hale’s speech. It would, of course, have been wrong for immigration officers to have treated every Roma applicant identically irrespective of how his answers to questions put to him affected the interviewing officer's view as to the genuineness of his particular application. But that surely, so far from according with common sense, would have been not merely wrong but also silly. Nevertheless the House appears to have concluded that this was indeed the immigration officers’ approach and on that basis struck down the scheme.” (emphasisadded)

55.What the House of Lords however observed in the Gillan Case is that they accepted on the evidence of that case that the police in exercising the stop and search power was required to engage in a further selection process which was premised on the individual characteristics and matters concerning the stopped person, even though the police may also take into account as one of the factors the race of that person (eg, Asian).  It is on this basis that the House of Lords was not satisfied that there could be the question of discriminatory exercise of the power.  See: paragraphs 40 - 47, per Lord Hope, and paragraphs 81 - 92, perLord Brown.

56.The Gillan Case therefore does not support Mr Pao’s submissions questioning the correctness of the Roma Case.

57.In the premises, even if the purposes and reasons (which are based on generalised or stereotyped assumptions regarding the differences in the risk levels between male and female prisoners) are the bases upon which the Commissioner has implemented the different hair cut requirements between them, SO 41-05 still constitutes direct discrimination under section 5 of the SDO.

58.Mr Pao then alternatively submits that the Commissioner’s objectives and reasons underlying the implementation of the differential hair cut treatment, properly looked at, show that the requirement does not amount to a less favourable treatment accorded to male prisoners.  In support, counsel relies on a number of UK authorities which show that when opposite sexes are treated differently under a code on appearances, dress code and school policy in the respective context of employment and schools, it does not necessarily follow that the complainant receives a less favourable treatment.

59.Central to these submissions is Mr Pao’s reliance on the authority of Smith v Safeway plc [1996] ICR 868 (CA).  The Court of Appeal in Smith held that the employer’s rule of appearance in requiring male employees to have tidy hair not below collar length and no unconventional hair styles did not amount to a less favourable treatment and thus was not discriminatory.  Mr Pao submits that Smith supports the proposition that a different requirement on hair length and style between the sexes does not mean that there is less favourable treatment.

60.In Smith, the employer (a well known chain of supermarkets in the UK) adopted a code that governed its employees’ appearance.  The material parts of the codes in relation to male and female employees have been set out in the judgment of Phillips LJ at p 873C-E as follows:

“The employers, Safeway Plc., operate a well known chain of supermarkets. Their business is a competitive one, and they consider that the appearance of their staff can have an important effect on attracting or repelling customers. For this reason they have for a number of years required their staff to comply with a code that governs their appearance. This they promulgate in a leaflet entitled ‘Look how you should look.’ Those working in the food department are required to wear a uniform which differs in detail dependent on whether the wearer is male or female. Male staff are additionally required to comply with the following directions:

‘Freshly shaven, moustaches which do not extend beyond the lip line are allowed. No unconventional jewellery. ... Tidy hair not below shirt collar length. No unconventional hair styles or colouring.’

For female staff the following directions apply:

‘Make-up should be simple and kept to the minimum. Jewellery must be discreet and conventional. ... Your hair should be tidy. Shoulder length hair must be clipped back. No unconventional hair styles or colouring.’”

61.Mr Smith was an employee who wore his hair in a ponytail style.  He was dismissed for breach of the rule.  Mr Smith complained to the Industrial Tribunal that there was sex discrimination in this code under the 1975 Act.  The Industrial Tribunal dismissed his complaint but the Employment Appeal Tribunal (“EAT”) (Pill J dissenting) allowed the appeal.  The Court of Appeal allowed the employer’s appeal from the EAT and decided that there was no sex discrimination.

62.The fundamental reason for the Court of Appeal to conclude that there was no sex discrimination was that the code of appearance implemented by the employer on its employees enforced a common underlying principle of smartness or conventionality.  When treated as whole and not garment or item by item, neither gender was treated less favourably in enforcing that principle.  It was observed that a code which applied the same conventional standards was one which, so far as the criterion of appearance was concerned, applied an even-handed approach between men and women and not one which was discriminatory”.[22]  In this respect, Phillips LJ emphasised at 876G-H that:

“...In many instances discrimination between the sexes will result in treating one more favourably than the other, but this will not necessarily the case. If discrimination is to be established, it is necessary to show not merely that the sexes are treated differently, but that the treatment accorded to one is less favourable than the treatment accorded to the other...” (emphasis added)

63.In the present case, Mr Pao submits that SO 41-05 also applies a common principle of achieving custodial discipline (including health and cleanliness) and prison security for both male and female prisoners by reducing the risks that disproportionately affect male inmates population more. Thus, there is no less favourable treatment if, in enforcing that same principle, there are good reasons to justify requiring only the male prisoners to have hair cut.

64.I disagree as Smith is distinguishable.

65.Even assuming that (as contended by Mr Pao) in the present case, there is a principle of custodial discipline and prison security underlying SO 41-05, the crucial question to be asked is whether, under the treatment, it is the same and common principle that is applied to both sexes to render it not a less favourable treatment.  In relation to this, as observed by Keith J in Department for Work and Pensions v Thompson [2004] IRLR 348 at paragraphs 19 - 30,[23] the question as to whether the requirement of hair cut for only male prisoners amounts to a less favourable treatment is to be answered by asking this: is an equivalent or same level of custodial discipline and prison security as required of the female prisoners can only be achieved in the case of male prisoners by requiring all of them to have hair cut.

66.In my view, the answer is in the negative.  It is not the Commissioner’s case, nor is it the evidence, that there would not be any issue of similar security, discipline and health risks associated with keeping long hair in the context of female prisoners.  All he says is that those risks are generally higher in the male prisons than in the female prisons.  As such, the level of custodial discipline and prison security maintained at the female prisons (in not requiring all of them to have hair cut) is one that the Commissioner would accept the existence of a certain level of disciplinary and security risks that are associated with keeping long hair.[24]  On the other hand, in the male prisons setting, the Commissioner seeks to achieve a level of custodial discipline and prison security that does not permit any of those potential risks associated with the keeping of long hair to exist as all the male prisoners are required to have their hair cut.  The male prisoners are therefore treated less favourably in being required to have their hair cut in order to maintain a level of custodial discipline and prison security that is relatively higher than that required of the female prisoners.

67.In the premises, the hair cut requirement under SO 41-05 is a less favourable treatment given by the Commissioner to male prisoners when compared with female prisoners, and, as I already concluded above, is made on the ground of the sex.

68.Mr Pao also refers to Fuller v Mastercare [2001] EAT 0707/00, Re McMillen [2008] NIQB 21 and Dansie v Commissioner of Police for the Metropolis [2009] EAT 0234/09 to further support his submissions.

69.As Mr Pao recognises, the courts and tribunals in these authorities followed the reasoning and observations made in Smith v Safeway and found respectively in each of these cases a common conventional principle underlying the complained code implemented applied equally and neutrally to both sexes.  They therefore concluded that there was no sex discrimination as there was no less favourable treatment to one sex as opposed to the other. For the reasons I have explained above in distinguishing Smith, these cases are similarly distinguishable and could not assist Mr Pao.

70.Mr Pao finally relies heavily on R (On the application of James Dowsett) v Secretary of State for Justice [2013] EWHC 687 (Admin) to argue that the Commissioner is entitled to rely on general assumptions as reasons for the hair cut requirement to negate a case on direct sex discrimination.

71.In Dowsett, the claimant was a male prisoner and he challenged the defendant’s policy on “rub-down” searches.  Under the policy, a male prisoner cannot normally object to such searches conducted by female prison officer other than when his case fell within the exceptions based on “religious” or “cultural” grounds.  On the other hand, under the policy, female prisoners were not subject to cross-gender searching for reasons that they were likely to be suffering from feelings of distaste and indecency if they were searched by male officers.  The claimant found the searches carried out by female officers uncomfortable and embarrassing but he did not fall within the exceptions.  He however argued that the exceptions should be extended to a case where a male prisoner had “a genuine and sincere objection to cross-gender searching”.  He sought to challenge the policy with the limited exceptions on the basis, among others, of sex discrimination.  The claimant’s complaint under sex discrimination was essentially that those male prisoners who found it genuinely objectionable to cross-gender searches were being treated less favourably than the female prisoners as those male prisoners were deprived of the facility greatly prized by women of being searched by members of their own sex.[25]

72.Silber J dismissed the claimant’s application and rejected, among others, the challenge based on sex discrimination.  The learned judge (adopting Smith v Safeway)held that there was no less favourable treatment under the policy.

73.Mr Pao submits that in upholding the cross-gender rub-down search for male prisoners only as being non-discriminatory, Silber J referred to the established justifications for exempting women from a search by male prison officers.  That was based on an acceptance of what was regarded as being “more likely” to be the case for female prisoners, considerations of privacy and decency or victims of sexual abuse.[26] That is therefore (says Mr Pao) an acceptance of having regard to the attributes or characteristics of a particular gender of prisoners in a discrimination claim which may also be true, although to a lesser extent, to the opposite gender.  This approach was adopted in framing what was considered to be the “common principle” which applied to both genders equally, but adapted differently.

74.Counsel says Dowsett is similar to the present case, and the Commissioner is therefore entitled to base on the general differences in the risks level between male and female prisoners in the context of prison discipline and security and implement the SO 41-05 in respect of hair cut requirement.

75.With respect, I do not agree.

76.One must examine carefully the real basis as to why Silber J held in Dowsett that, under the policy, male prisoners were not treated less favourably.  As emphasized by Silber J in his judgment repeatedly, the claimant accepted that the defendant was entitled to adopt different policies for male and female prisoners in relation to rub-down searching.[27] As summarised above, the complaint made in that case was on a very narrow ground, in that male prisoners were given too limited grounds of exceptions to object to a cross-gender searching.  The claimant was saying that he and male prisoners should be given a wider basis to object to cross-gender search.  Under the claimant’s accepted position that there could be different policies for rub-down searching for different sexes and this limited scope of his complaint, Silber J then concluded there was no less favourable treatment in terms of the different grounds of exception given to male and female prisoners under the policy as it pursued a common principle of granting exceptions although the difference in the exceptions were justified on good reasons.  There was therefore no sex discrimination.  See paragraphs 54 - 64 of the judgment.

77.Dowsett is therefore similarly distinguishable. First, it is not accepted in the present case that there should be different policies for hair cut for male and female prisoners.  Second, when viewed against (as Silber J did) this fundamental conceded context that there could be different policies on rub-down searching for male and female prisoners, the common principle “of granting exceptions” under the different policies as accepted by Silber J is not a principle based on any general assumptions of the differences between the sexes.  In contrast, the common principle as formulated by Mr Pao for the Commissioner (see paragraph 63 above) is by itself premised on such general assumptions between male and female prisoners.

78.Mr Pao then refers to a number of United States authorities as to hair length requirements on male inmates in prisons and whether such restrictions are unconstitutional by virtue of gender discrimination prohibited under the Equal Protection Clause of the Fourteenth Amendment.  That Clause provides that no States shall deny any person within its jurisdiction the equal protection of laws.  Such challenges have been rejected by the Federal Courts. The authorities referred to are: Poe v Werner 386 F Supp 1014 (MD Pa 1974); Abordo v State of Hawaii 938 F Supp 656 (D Haw 1996); Davie v Wingard 958 F Supp 1244 (SD Ohio 1997); DeBlasio v Johnson 128 F Supp 2d 315 (ED Va 2000).[28]

79.Specifically, in Poe v Werner 386 F Supp 1014 (MD Pa 1974), the Court (by majority) accepted that the evidence relating to contraband, homosexuality and prisoner hygiene were sufficient considerations to justify the hair regulation in that case prohibiting male long hair and thus not in violation of the Equal Protection Clause under the Fourteenth Amendment.

80.I agree with Mr Pun that these US cases do not assist Mr Pao.

81.In these US cases, they concerned with the question of whether the relevant hair length regulations applicable to male inmates violated (a) the constitutional personal right to governance of hair length and style;[29] and (b) the right to equal protection of the law (ie, the Equal Protection Clause).[30]  When these constitutional rights were considered, the courts had to engage in considering the question of whether any alleged infringements of these constitutional rights could be justified.  It is therefore in the context of considering justification that the courts looked at the reasons and the evidence advanced by the relevant prison authorities to see whether such rights were justifiably limited.

82.As mentioned above, for direct discrimination under our SDO, there is no issue and hence no question of justification.  These cases are therefore not relevant to the present consideration under the SDO.

83.In the premises, I do not think these US authorities assist the Commissioner under this ground.

84.Finally, Mr Pao says if the court finds that there was direct discrimination, the Decision was still not unlawful under section 38(2)(b) of the SDO as it was necessary for the Decision to be made in order to comply with a requirement of an existing statutory provision.  Counsel’s arguments run as follows.

85.Section 38(2)(b) of the SDO provides as follows:

“subsection (1) shall not render unlawful any act done in relation to a woman if it was necessary for that act to be done in order to comply with a requirement of an existing statutory provision”

86.Section 2(9) of the SDO defines an “existing statutory provision” to mean, in essence, any Ordinance or subsidiary legislation.  “Subsidiary legislation” is defined in section 3 of the Interpretation and General Clauses Ordinance (Cap 1) to mean:

“any proclamation, rule, regulation, order, resolution, notice, rule of court, bylaw or other instrument made under or by virtue of any Ordinance and having legislative effect.”

87.Mr Pao submits that the PR are rules made under or by virtue of the power conferred upon the Chief Executive in Council under section 25 of the Prisons Ordinance.  It is clear that the PR constitute subsidiary legislation and are therefore “existing statutory provisions” within the meaning of section 38(2)(b) of the SDO.

88.Mr Pao then says from the PR, it is clear that the CSD, through its officers, is under an obligation to ensure that the Standing Orders and the PR are complied with by prisoners, including the applicant.

89.PR 77(1) provides that the Commissioner shall have administrative command and control of prisons.  PR 79 provides that the Superintendent, or other officer in charge of a prison shall supervise and control all matters in connection with the prison and be responsible to the Commissioner for the prisoners under his control and for due observance by prisoners of the PR and all orders issued thereunder.  PR 107 imposes an obligation on the Chief Officer to assist in the superintendence of prisoners in the details of his duties.[31]

90.PR 79, in particular, places an obligation on the Superintendent to be responsible to the Commissioner for due observance by prisoners of the PR and orders issued thereunder.[32]  The Standing Orders were issued under PR 77(2) and PR 77(4).

91.Mr Pao says these provisions have to be read in conjunction with PR 34 which places an obligation on the prisoner to obey such directions as may from time to time be prescribed as regards hair cutting.  PR 61 provides that every prisoner shall be guilty of an offence against prison discipline if he disobeys any prison rules.

92.In order to comply with the existing statutory provisions contained in PR 77, PR 79 and PR 107, it is submitted that it was necessary for the CSD and its officers to make the Decision to ensure that the applicant had duly observed the requirements of the SO 41-05 together with PR 34 in relation to hair-cutting.  This is important since a failure to comply is an offence against prison discipline which the officers of the CSD are obliged to maintain.  Had the CSD not made the Decision, there would have been a failure to discharge the legal responsibility imposed under the PR in ensuring that the applicant as a prisoner observed the PR and the orders issued thereunder.

93.At the same time, Mr Pao submits that it is also objectively necessary for the Commissioner to adopt SO 41-05 (albeit not a statutory provision itself) in order to safeguard the safety and security of male inmates from a variety of threats which were known to especially affect them as distinct class of prisoners supported both empirically and by the Commissioner’s judgment.  In doing so, the Commissioner is to comply with his obligations imposed under the relevant PR to supervise and control prisons and issue necessary orders for the government of penal institutions,[33] and (in discharging these obligations) to also effectively safeguard the relevant human rights of the prisoners under his custody protected by the relevant Articles of the Hong Kong Bill of Rights Ordinance (Cap 383).[34]

94.On the above analysis, it is submitted by Mr Pao that both the issue of SO 41-05 and the making of the Decision are not unlawful by virtue of section 38(2)(b) of the SDO.

95.I reject these submissions.

96.I agree with Mr Pun that the words “it was necessary for” in section 38(2)(b) of the SDO should be construed narrowly, as the section provides a complete defence to an act which has been regarded as discriminatory based on the sex.  In such a context, objectively construed, these words must be intended to mean acts done in the necessary performance of an express obligation in the relevant statutory provision and do not extend to acts done in the exercise of power or discretion conferred by that statutory provision.  Cf: Hampson v Department of Education and Science [1991] 1 AC 171 at 180F-182G and 184D-185F, perLord Lowry.

97.Bearing such a meaning in mind, I am not satisfied that it is objectively necessary for the Commissioner to comply with the above purported obligations by implementing the discriminatory practice on hair cut under SO 41-05 as there is obviously the alternative to adopt a non-discriminatory standing order by requiring both male and female prisoners’ hair to be kept shorter than a certain length.  This is particularly so as it is not the Commissioner’s case or evidence that the risks and security concerns that may occur if male prisoners are allowed to keep long hair would never also occur in female prisoners.  He also has not provided any other legitimate reasons to say why the rule should not and could not be applied to female prisoners.  In the circumstances, one cannot see why it would not at all be necessary for the Commissioner to also discharge those purported obligations in safeguarding prison security and human rights in the context of female prisoners.

98.For the all the above reasons, I reject all the Commissioner’s arguments and conclude that SO 41-05 and the Decision amount to direct sex discrimination and are thus unlawful.

D2.    2^nd Ground – the constitutional challenge

99.It is not necessary for the applicant to rely on this ground if the court accepts his challenge based on direct discrimination.

100.However, given that the parties have also made submissions under this ground, I would deal with them briefly for completeness.

101.Under the 2^nd Ground, the applicant says SO 41-05 and the Decision are discriminatory against male prisoners and the applicant based on the sex and thus infringe their right to equality protected under BL25.

102.BL25 provides that “All Hong Kong residents shall be equal before the law”.

103.For the purpose of BL25, it is now well established that the guarantee of equality before the law does not invariably require exact equality.  Differences in treatment may be justified for good reasons if it can satisfy the proportionality test in that:

(1)  the difference in treatment must pursue a legitimate aim;

(2)  the difference in treatment must be rationally connected to the legitimate aim; and

(3)  the difference in treatment must be no more than necessary to accomplish that legitimate aim.

See: Secretary for Justice v Yau Yuk Lung (2007) 10 HKCFAR 335 at paragraphs 19 - 22, per Li CJ.

104.As further explained by Ma CJ in Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409 at paragraphs 58 - 59, in considering this particular question of whether there is sufficient difference to justify differential treatment, the court usually would also have to take into account the issue of justification as well.

105.As mentioned above, the Commissioner seeks to explain that SO 41-05 (and thus the Decision) is necessary to achieve the purposes of maintaining proper custodial discipline, prison security and safeguard certain human rights enjoyed by the prisoners.

106.The principal issue arising from the parties’ contentions under this ground is whether these purported purposes justify the differential treatment by satisfying the proportionality test as mentioned in Yau Yuk Lung.  In particular, the real debate in the arguments is whether these purposes can be regarded objectively as no more than is necessary to accomplish the legitimate aim.

107.For the same reasons I explained at paragraph 97 above, I am not satisfied that this is the case.  It is quite obvious that the Commissioner could also achieve the same purposes in a non-discriminatory way by applying the same hair cut requirement to both male and female prisoners. It is particularly so as the Commissioner has not given any reasons to explain why the same rule could and should not be applied to female prisoners.

108.For these reasons, I would also hold, if necessary, that SO 41-05 and the Decision are inconsistent with BL25 and thus unlawful.

D3.    3^rd Ground – the Decision is Wednesbury unreasonable

109.Under this ground, the applicant says the Decision is Wednesbury unreasonable as it cannot be shown that the hair cut requirement imposed on the applicant could be reasonably connected to the purposes of “health and cleanliness” expressly stated under the SO 41-05 or even the other purported purposes advanced by the Commissioner.  This is particularly so as, says the applicant, long hair is his well recognised icon as a political activist.

110.As pointed out by Mr Pun at the hearing, the court would only need to consider this ground if it has rejected the 1^st and 2^nd Grounds.  Given that I have accepted the 1^st and 2^nd Grounds and concluded above that the Decision is unlawful as in constitutes sex discrimination, it is not necessary for the court to deal with this ground.

D4.   4^th Ground – the Decision violated the applicant’s right to be treated with respect for dignity under BOR 6(1)

111.BOR 6(1) (which incorporates Article 10 of the ICCPR[35]) provides that “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”.

112.Mr Pun submits that the applicant as a political activist with his long hair recognised by the general public as his icon, the cutting of his long hair amounts to a particularly serious insult to his dignity.

113.To aid this submission, Mr Pun seeks to draw support from the decision of the European Court of Human Rights (“ECHR”) in Yankov v Bulgaria (2005) 40 EHRR 36 at paragraph 112 where it was said:

“A particular characteristic of the treatment complained of, the forced shaving off of a prisoner’s hair, is that it consists in a forced change of the person’s appearance by the removal of his hair. The person undergoing that treatment is very likely to experience a feeling of inferiority as his physical appearance is changed against his will.”

114.With respect, I reject this ground.  I accept Mr Pao’s submissions that:

(1)  There is no basis, evidential or otherwise, to suggest that the hair-cutting requirement for male prisoners would undermine “the inherent dignity of the human person”.

(2)  This case is far removed from Yankov v Bulgaria because that case involved shaving off detainees’ hair. It is in that exceptional factual context that the ECHR’s conclusions about inferiority, debasing and humiliation must be considered.  That is not an authority for the proposition that any hair-cutting in penal institutions will involve a human rights violation.

(3)  Indeed no case has been cited by the applicant to demonstrate that BOR 6(1) (or any of its overseas equivalents) would be infringed in comparable circumstances.

115.This ground therefore fails.

E.      CONCLUSION

116.For the above reasons, the applicant succeeds in this judicial review under the 1^st and 2^nd Grounds. I would therefore make the following orders:

(1)  A declaration that SO 41-05 and the Decision constitute direct sex discrimination under section 5 of the SDO and are unlawful under section 38(1) of the SDO, or alternatively, SO 41-05 and the Decision violate BL25 and are unlawful.

(2)  An order of Certiorari to quash the Decision.

117.However, given the Commissioner’s position advanced in this case as to the purported necessity to implement SO 41-05, I appreciate that this judgment may have an impact on those matters in case I am wrong (though as I mentioned above, these concerns could be addressed by requiring both the male and female prisoners to have their hair cut).  In the premises, to allow the Commissioner sufficient time to consider whether he wishes to make any applications to this court or make any internal arrangements as he thinks necessary as a result of this judgment to address those concerns in the interim, I would direct that, subject to any further court orders, the above orders would only take effect on 1 June 2017.

118.There would also be an order nisi that costs of this application be to the applicant, to be taxed if not agreed, with certificate for two counsel.  The applicant’s own costs be taxed in accordance with Legal Aid Regulations.

119.Lastly, I must also thank counsel for their helpful assistance in this matter.

Mr Hectar Pun, SC and Ms Annie Leung, instructed by Ho Tse Wai & Partners, assigned by Director of Legal Aid, for the applicant

Mr Jin Pao, instructed by Department of Justice, for the respondent