Leung Kwok Hung also known as "Long Hair" v. Commissioner of Correctional Services

CACV 34/2017

[2018] HKCA 225

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 34 OF 2017

(ON APPEAL FROM HCAL NO 109 OF 2014)

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JUDGMENT

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Hon Cheung CJHC:

1.The facts and arguments involved in this appeal are so fully set out in Lam VP’s judgment that I would simply adopt them gratefully for the purpose of this concurring judgment.

Types of discrimination

2.Discrimination is a huge subject that has generated a tremendous amount of literature and debates. It straddles many disciplines and law is just one of them.  Discrimination law is informed, traditionally, by the familiar saying that like cases should be treated alike, unlike cases should not be treated alike.  Translated into discrimination law in the context of sex with which this appeal is concerned, there are three types of discrimination.

3.First, direct discrimination, that is, under comparable circumstances, a woman is treated less favourably than a man (or vice versa).  When direct discrimination occurs, there can be no justification for the differential treatment under the Sex Discrimination Ordinance (Cap 480), even though justification is permissible under article 25 of the Basic Law and article 22 of the Hong Kong Bill of Rights both dealing with equality.  In other words, the legislature has decided to go one step beyond the minimum constitutional protection for equality provided under the Basic Law and the Hong Kong Bill of Rights and make direct discrimination based on sex unlawful regardless of any possible justification (save for some areas, with which we are not concerned, where the Ordinance specifically permits justification).

4.Secondly, indirect discrimination: under comparable circumstances, a less favourable treatment is meted out to a woman by reference to an apparently gender‑neutral criterion which, by nature or in practice, favours a man as compared to a woman (or vice versa).  For indirect discrimination, there can be justification under the Ordinance as well as the Basic Law and the Hong Kong Bill of Rights.  An example of indirect discrimination is where admission fees are charged by reference to a person’s pensionable age, a criterion which on the face of it is gender neutral, when as a matter of law a man has a higher pensionable age than a woman[1].  Another example is a job requirement that an applicant must be taller than 6 feet, again an apparently gender neutral criterion, when as a matter of statistics, men are on average taller than women, and the chances of a man reaching the height requirement are, on average, greater than a woman.

5.Thirdly, Thlimmenos discrimination[2] or what I would call “indiscrimination”.  This is based on “unlike cases should not be treated alike”, and may take place where although the circumstances are not comparable, both a man and a woman are accorded the same treatment. Justification is again permissible, and the situation can sometimes be tricky. Taking an example not related to sex, awarding two school students who have scored respectively full marks and zero mark in an examination equally a “Distinction” would be guilty of this type of discrimination unless this could be justified.  Yet, awarding all students who have scored less than 50 marks a “Fail” grade may, depending on the facts in terms of justification, not be discriminatory even though a student who has scored 49 marks is “lumped together” with those who have scored lesser or even no mark.

Comparable circumstances

6.For the first type of discrimination, that is, direct discrimination, a form of discrimination which, uniquely, admits of no justification under the Ordinance, the correct identification of the “comparable circumstances”, that is, relevant circumstances that are “the same, or not materially different”, as per section 10 of the Ordinance, is of great importance.  On the facts of the present case, these relevant circumstances include: (1) those males and females affected by the haircut requirements in issue are inmates in male and female prisons respectively; (2) both are, for the purpose of fostering custodial discipline which involves de‑emphasising some aspects of individuality, subjected to custodial requirements, including requirements on physical appearance, in order to achieve reasonable uniformity and conformity amongst the inmates in their respective penal institutions.  (At one stage, security concerns were mentioned as one of the reasons for the haircut requirements.  But at the oral hearing before us, the focus plainly shifted to custodial discipline.)

What exactly are the treatments?

7.These being the comparable circumstances, do the different haircut requirements for male and female inmates respectively constitute direct discrimination against the former by treating them less favourably than their female counterparts?  Here, likewise, a correct and complete description of the treatments involved is of crucial importance.

The narrow approach

8.The matter can be approached from two perspectives, one narrow and one wide.  First, the narrow approach.  Under this approach, one focuses only on the haircut requirements, putting to one side the fact that the haircut requirements are but part of the more general requirements regarding physical appearance of inmates. Superficially, a male inmate is treated less favourably than a female inmate because a male inmate having a long hair has no option but to have his hair cut short as per the male haircut requirement, whereas for a female inmate, the female haircut requirement simply leaves her hairstyle (and hair length) untouched unless she agrees otherwise.

9.However, it is here that the case becomes tricky.  The haircut requirements do not exist in a vacuum.  The haircut requirements are, according to the unchallenged evidence, based on and by reference to the conventional hairstyles of male and female persons in Hong Kong society.  In other words, a full and complete description of the treatment that one is concerned with in the present case is that an inmate, whether male or female, is required to wear a hairstyle that conforms to the conventional hairstyle of people in Hong Kong of his or her own sex. As, according to the evidence, the conventional hairstyle of male persons in Hong Kong is a short hairstyle, male inmates are therefore required to wear a similar short hairstyle.  On the other hand, as the conventional hairstyle of Hong Kong women is that it may either be long or short (putting the matter in a simplified way), female inmates are therefore allowed under the female haircut requirement to keep their own hairstyles.  Female inmates are not required to have their hair cut short only because according to the conventional hairstyle for women in Hong Kong as it is, it may either be long or short as women hairstyles do vary and a predominant hairstyle with a particular hair length cannot be identified.

The case of direct discrimination

10.Thus analysed, so far as direct discrimination is concerned, whilst a male inmate is indeed treated differently from a female inmate in terms of the applicable haircut requirement, he is not treated less favourably than a female inmate.  Both are simply required to wear a hairstyle that conforms to the conventional hairstyles for men and women in society respectively.

11.The case of direct discrimination must therefore be rejected, even on this narrow approach advocated by Mr Pun SC for the applicant.

The real grievance – a case of indirect discrimination

12.In my view, the real grievance of the applicant, in the context of the different haircut requirements in question, lies in the fact that whilst the conventional hairstyle of men in Hong Kong is a short hairstyle, by definition, there are many men, like the applicant himself, who wear a long hairstyle.  Whilst the male haircut requirement is quite irrelevant to a male inmate who has already been having a short hair when admitted to prison, it presents a problem for someone like the applicant who wears and prefers to wear a long hairstyle.  And when he looks at the treatment accorded to female inmates, he feels being discriminated against.

13.One can understand perfectly the sentiments.  After all, hairstyles are important to people for more reason than one.  Yet, when examined analytically, this sense of grievance, when translated into legal terms, is in fact a complaint not of direct discrimination, but of indirect discrimination.  What the applicant really complains about is that like the pensionable age in the example I gave earlier concerning admission fees, conformity to the conventional hairstyle in Hong Kong as a criterion for deciding whether one’s hair has to be cut short is an inherently unfavourable criterion for men as opposed to women because, for men, the conventional hairstyle is a short one, thereby leaving all those having a long hair liable to have their hair cut short, whereas the conventional hairstyle for women is so varied that there is no single hairstyle to which female inmates are required to conform, with the net result that women inmates are simply not required to have their hair cut short (or cut in any other way).

14.Viewed in this light, male inmates are in practice and in reality treated less favourably than female inmates because no matter how many male persons in Hong Kong wear a short hairstyle, there is still a substantial number of men, the applicant included, who prefer to and do wear a long hairstyle.

15.In my view, this is also the best way to understand Mr Pun’s complaint about stereotyping in the context of a conventional hairstyle in Hong Kong.  His complaint really boils down to that by saying there is a conventional hairstyle for male persons in Hong Kong, that is, a short hairstyle, one is simply stereotyping men’s hairstyle, thereby discriminating against those male persons who prefer to wear a long hairstyle like his client.  By allowing the prison authority to base its haircut requirements on conventional hairstyle, one is perpetuating the vice of stereotyping.

16.Thus understood, it seems to me quite plain that Mr Pun’s real case is a case of indirect discrimination.  The problem with this is that not only is such a case not pleaded in the form 86 or relied on before the judge or before us, but also that as explained, indirect discrimination can be justified and for the reasons given by Lam VP (in the context of justification under article 25 of the Basic Law), the differential haircut requirements for male and female inmates can be justified on the facts.

A wider, package approach

17.So much for this narrow approach.  But the applicant’s case on discrimination is even weaker than discussed above.  For a wider (and even more correct) approach to the differential haircut requirements is to view these requirements as forming part of a more general requirement for reasonable uniformity and conformity in physical appearance amongst inmates of the same institution.  Hairstyle or hair length is simply part of the general appearance required.  Whilst someone like the applicant may be particularly sensitive to a requirement about haircut, many female inmates, understandably, would be more concerned about disciplinary requirements or restrictions on matters such as wearing make‑up or prison uniform, as compared to male inmates.  As explained in Lam VP’s judgment, the cases have established that one should adopt a package approach.  Here, both a male inmate and a female inmate are required, to the extent necessary, to have his or her general appearance, including hairstyle, so changed and maintained as to conform to a particular appearance stipulated by the prison authority for the purpose of fostering custodial discipline, and so far as hairstyle is concerned, that is determined by reference to the conventional hairstyles of male and female in society.  Put that way, it can be seen easily that neither sex is favoured or disadvantaged in terms of this requirement to conform in terms of physical appearance.  For hairstyle, for example, some male inmates may have to have their hair cut short to conform to the hairstyle requirement; for other matters such as wearing of make‑up, probably many more female inmates will be affected by the prison requirements and restrictions, whilst a much smaller number of male inmates would care about these latter matters at all. When one takes a package or global approach, it is simply not established, on the material before the court, that there is a less favourable treatment for one sex or another, whether for the purpose of direct discrimination or indirect discrimination.  And in relation to the latter, the question of justification does not even come into play.

18.In short, under this wider approach which I consider to be an even more correct approach as compared to the narrow one, the applicant’s case must fail.

Disposition

19.For these reasons and for those other reasons given in the detailed judgment of Lam VP, I agree this appeal must be allowed as proposed by his Lordship.

Hon Lam VP:

Introduction

20.In this appeal, the Court is asked to examine if the policy of the Commissioner of Correctional Services [“the Commissioner”] having different hair cut requirements for male prisoners and female prisoners is compatible with the Sex Discrimination Ordinance Cap 480 [“SDO”] and article 25 of the Basic Law [“BL 25”].  The applicant succeeded at the court below in persuading Au J that such policy is incompatible with these legal provisions.  The Commissioner, represented by Mr Wong SC and Mr Pao, appealed against the judgment of Au J given on 17 January 2017.  Mr Pun SC, leading Ms Leung, represented the applicant in resisting the appeal.

21.The relevant facts are not controversial.  For present purposes, it is sufficient for me to take them from [7] to [9] of the judgment of Au J:

“ 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.  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.

8. The applicant was then held in the [Lai Chi Kok Reception] 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.  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.  Under the supervision of the Day Orderly Officer, an inmate barber proceeded to cut the applicant’s hair.”

22.The policy of the Commissioner is set out in Standing Order 41-05 [“SO 41-05”] which was issued by him pursuant to the power conferred under rule 77(4) of the Prison Rules Cap 234A.  Rule 77(4) provides that the Commissioner “shall issue such orders as may be necessary for the government of all institutions under his control in conformity with these rules, and for the discipline of the persons, other than subordinate officers, employed therein.”

23.SO 41-05 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。”

24.In the evidence, photographs showing the difference in hairstyle standards for male and female prisoners were produced as exhibit LKY-17 in the affirmation of Leung Kam Yan, a Superintendent of the Penal Administration Section, Operations Division in the Correctional Services Department.  As deposed at para 36 of that affirmation, though female prisoners could keep their hair at a length in par with the one on admission, they are also subject to restrictions in terms of hair style.  In Lo Wu Correctional Institution, female prisoners with long hair are required to tie back their hair in accordance with the standard prescribed by the institution.  According to the deponent:

“ The hairstyle requirements for both male and female prisoners are specified by making reference to the hairstyle of male and female persons in Hong Kong society without carrying any stigmatization. It is not as if male prisoners are required to shave off all their hair, they simply must keep their hair about the length of a standard haircut. Such length is objectively reasonable and does not impose an undue burden upon prisoners, whose rights and privileges are more limited as a result of lawful incarceration.”

25.The superintendent also highlighted the custodial discipline concerns in a prison setting at paras 6 to 8 of his affirmation.  He emphasized that it is fundamental to custodial discipline that there is reasonable uniformity and conformity amongst the inmates.  As part of the correctional environment, it is necessary to de-emphasize some aspects of individuality. The Standing Orders, including SO 41-05, are issued to enforce custodial discipline.

26.The administration of correctional institutions by the Commissioner with such philosophy in mind cannot be gainsaid.  Nor did Mr Pun wish to challenge such philosophy in this appeal.  However, Mr Pun submitted that the Commissioner could not lawfully implement a policy which is discriminatory in nature in contravention of the SDO and BL 25.  Is the policy set out in SO 41-05 discriminatory? That is the crucial question we have to answer.

27.Before Au J, the applicant advanced four grounds to challenge SO 41-05:

(a) SO 41-05 constituted direct discrimination against the applicant by reason of his gender under section 5 of the SDO;

(b) SO 41-05 infringed the applicant’s right to equal protection under BL 25;

(c) The decision to cut the applicant’s hair made pursuant to SO 41-05 was Wednesbury unreasonable;

(d) The decision to cut the applicant’s hair violated his right to be treated with respect for dignity under article 6(1) of the Hong Kong Bill of Rights.   

28.The learned judge accepted the applicant’s contentions on (a) and (b).  He did not find it necessary to address (c).  He rejected the applicant’s challenge under (d).

29.The Commissioner appealed against the judgment.  As the applicant did not put in any respondent’s notice and no submission was advanced in respect of grounds (c) and (d), we are only concerned with grounds (a) and (b) in this appeal.

SDO: less favourable treatment

30.Direct sex discrimination is defined in the following terms in Section 5(1)(a) of SDO, read together with Section 6(1):

“ A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Ordinance if on the ground of her sex he treats her less favourably than he treats or would treat a man. (Section 5(1)(a) SDO)

Section 5, and the provisions of Parts 3 and 4 relating to sex discrimination against women, shall be read as applying equally to the treatment of men, and for that purpose shall have effect with such modifications as are necessary. (Section 6(1) SDO)”

31.The expression “direct sex discrimination” is not used in the SDO. However, it is used by lawyers to contrast it with the other form of discrimination in Section 5(1)(b), which is commonly referred to as “indirect sex discrimination”.  Unlike direct sex discrimination, an element of justification is built into the concept of indirect discrimination, see Section 5(1)(b)(ii).  The present appeal is not concerned with indirect discrimination.  There is no room for justification in respect of direct discrimination.

32.Apart from these two forms of discrimination, there is a third form of discrimination which has come to be known as Thlimmenos discrimination. In the recent judgment of this Court in QT v Director of Immigration [2017] 5 HKLRD 166, Poon JA succinctly described this form of discrimination at [93]:

“ The second form of discrimination arises where those whose relevant circumstances are different are, without justification, treated in the same way. Under this form of discrimination, people whose circumstances are relevantly different are simply lumped together and treated in the same way without justification: Thlimmenos v Greece (2001) 31 EHRR 15 at [42] and [44].”

33.See also [36] of QT where Lam VP referred to the tenet that different cases should be treated differently.

34.As I shall explain below, whilst the applicant does not rely on this form of discrimination in the present case, it has some relevance to the assessment on whether the applicant has been subject to less favourable treatment.

35.Section 5(1) should also be read together with Section 10 of the SDO which (insofar as it is relevant for my purposes) provides:

“ A comparison of the cases of persons of different sex under section 5(1) … shall be such that the relevant circumstances in the one case are the same, or not materially different, in the other.”

36.As it is clear from a fair reading of Section 5(1)(a), a difference in treatment on the ground of sex would only be regarded as discrimination if it is a less favourable treatment.  In this connection, Section 10 is highly relevant.

37.In QT v Director of Immigration, supra, at [19] the Chief Judge alluded to the concept of less favourable treatment (albeit in the context of BL 25 instead of SDO) in these words:

“ … it reminds us that it is not every differential treatment that is actionable. Only one that results in less favourable treatment to the complainant may be sued on. The group of core rights and obligations reminds one that in considering whether unfavourable treatment is involved, depending on the facts and context, very often one should not only focus on individual rights/privileges, but must also look at the associated or corresponding obligations; in other words, one must consider all relevant rights, privileges and obligations as a whole package.”

38.Mr Wong submitted that the judge erred in equating the difference in the standards for hair style for male and female inmates with less favourable treatment for the former.  The fact that the applicant was not treated identically as a female inmate does not necessarily mean that he was treated less favourably.  Counsel cited the following authorities to support his contention that different dress/uniform or appearance codes based on contemporary conventional standards for male and female may not constitute discrimination and it is necessary to have regard to the context in which the code was imposed: Schmidt v Austicks Bookshops Ltd [1978] ICR 85; Burrett v West Birmingham Health Authority [1994] IRLR 7; Smith v Safeway plc [1996] ICR 868; Fuller v Mastercare Service & Distribution [2001] UKEAT/0707/00; Department for Work and Pensions v Thompson [2004] IRLR 348; Re McMillen [2008] NIQB 21; Dansie v Commissioner of Police for the Metropolis [2009] UKEAT/0234/09/RN.

39.In the context of custodial discipline for prisoners, Mr Wong submitted that the Commissioner is entitled to set lawful restrictions which curtail a prisoner’s individuality in terms of appearance.  The formulation of different standards for the hairstyle restrictions imposed on male and female inmates by reference to the conventional standards in our society is not a less favourable treatment for the male prisoners.  Counsel drew our attention to Section 9 of the Hong Kong Bill of Rights Ordinance Cap 383 which provides:

“ … 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 … custodial discipline.”

40.Counsel also referred us to some overseas authorities which upheld difference in treatments between male and female inmates.  I have read those cases but I do not find it necessary to cite all of them in this judgment.  For our purposes, I would only cite a part of the judgment of La Forest J in the Supreme Court of Canada in Conway v Canada [1993] 2 SCR 872 at 877:

“ The jurisprudence of this Court is clear: equality does not necessarily connote identical treatment and, in fact, different treatment may be called for in certain cases to promote equality. Given the historical, biological and sociological differences between men and women, equality does not demand that practices which are forbidden where male officers guard female inmates must also be banned where female officers guard male inmates. The reality of the relationship between sexes is such that the historical trend of violence perpetrated by men against women is not matched by a comparable trend pursuant to which men are the victims and women the aggressors. Biologically, a frisk search or surveillance of a man’s chest area conducted by a female guard does not implicate the same concerns as the same practice by a male guard in relation to a female inmate. Moreover, women generally occupy a disadvantaged position in society in relation to men. Viewed in this light, it becomes clear that the effect of cross-gender searching is different and more threatening for women than for men.”

41.These were said in the context of a challenge to the practice of frisk search by an officer of an opposite sex in a prison.  I do not suggest that the same concern arises in relation to the restrictions on hairstyle. However, some may say that inherently the reasoning in this dictum has an element of stereotyping which Mr Pun submitted has no place in the jurisprudence of discrimination law.  As we shall see, Au J was persuaded by the arguments by Mr Pun at the court below.  On my part, I agree with Mr Wong’s submission that there is a risk of arguments against stereotyping going overboard without recognizing that it may not be too helpful to run an argument based on such labelling without regard to the substance of alleged discrimination. Arguments along that line carry with them the risk of overshadowing the real issues on less favourable treatment.  I shall come back to stereotyping later.

42.The judge addressed the issue of less favourable treatment at [65] to [67] of the judgment,

“ 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, 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.  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.”

43.With respect, insofar as his Lordship relied on Department for Work and Pensions v Thompson, supra, in coming to the conclusion that less favourable treatment was accorded to male inmates, the learned judge failed to apply the approach of Keith J correctly.  At [27] in Thompson, after citing the judgment of Phillips LJ in Smith v Safeway plc, supra, Keith J said:

“ Thus, an even-handed approach does not necessarily mean that members of one sex are treated less favourably than members of the other simply because members of one sex are required to wear clothing of a particular kind but members of the other are not. It will depend on ‘the overall context of the code as a whole’. The relevant context … was [the code’s] overarching requirement for its staff to dress in a professional and businesslike way. The issue which the employment tribunal should have addressed, therefore, was whether the requirement for male members of staff to wear a collar and tie whereas no particular form of dress was required for female staff were being treated less favourably than female members of staff in the context of that overarching requirement which applied to all members of staff ...”

44.To the same effect is the judgment of Phillips LJ in Smith v Safeway plc, supra, at p.877A to E:

“ The next element of the principle in the Schmidt case is that one considers the effect of a code governing appearance overall, not item by item …

In my judgment, a package approach to the effect of an appearance code necessarily follows once one accepts that the code is not required to make provisions which apply identically to men and women. … This is not to say that when applying the test, the requirement of one particular item of a code may not of itself have the effect that the code treats one sex less favourably than the other. But one has to consider the effect of any such item in the overall context of the code as a whole.

… Appearance depends in part on ephemera, clothes, rings and jewellery worn, but it depends also on more permanent characteristics, tattoos, hair style, hair colouring and hair length.  The approach adopted in the Schmidt case can, in my judgment, properly be applied to both types of characteristic.”

45.Phillips LJ further alluded to the relevance of conventional standards in setting different codes for male and female at p.877H to 878D:

“ I can accept that one of the objects of the prohibition of sex discrimination was to relieve the sexes from unequal treatment resulting from conventional attitudes, but I do not believe that this renders discriminatory an appearance code which applies a standard of what is conventional. On the contrary, I am inclined to think that such a code is likely to operate unfavourably with regard to one or other of the sexes unless it applies such a standard. An appearance code may have effects which go beyond appearance, comfort and health are examples, but the most obvious and immediate effect that it has, axiomatically, is on appearance. The primary reasons why an individual is likely to object to an appearance code is because of the way it makes that individual appear to others, or indeed in the mirror. As Mr Elias has pointed out, a code which made identical provisions for men and women but which resulted in one or other having an unconventional appearance, would have an unfavourable impact on that sex being compelled to appear in an unconventional mode. Can there be any doubt that a code which required all employees to have 18-inch hair, earrings and lipstick, would treat men unfavourably by requiring them to adopt an appearance at odds with conventional standards? I put that question to Mr Bibby, and he accepted that such a requirement would operate unfavourably towards men. The reason for that is that the appropriate criterion to be applied when considering that question is: what is the conventional standard of appearance? Indeed, it seemed to me that Mr Bibby implicitly conceded that when he submitted to us that what is discrimination can change as society changes. A code which applies conventional standards is one which, so far as the criterion of appearance is concerned, applies an even-handed approach between men and women and not one which is discriminatory.” (emphasis added)

46.Keith J adopted the same approach in Thompson at [30],

“ 30. It is unquestionably the case that the requirement on male members of staff to wear a collar and tie meant that female members of staff had a far greater choice in what they could wear than men. But the Employment Tribunal acknowledged Jobcentre Plus's right to introduce and enforce a dress code whose aim was to achieve a uniform level of smartness on the part of all its staff. Thus, in the context of the overarching requirement for its staff to dress in a professional and businesslike way, the question for the Employment Tribunal was whether, applying contemporary standards of conventional dresswear, the level of smartness which Jobcentre Plus required of all its staff could only be achieved for men by requiring them to wear a collar and tie.”

Au J focused on the latter part of [30] of that judgment where Keith J said:

“ The level of smartness which Jobcentre Plus thought appropriate for women can be seen from the photographs of Mr Thompson's five women colleagues. If, for example, a level of smartness for men which equates to dressing in a professional and businesslike way which is appropriate for an undertaking like Jobcentre Plus can be achieved by men dressing otherwise than in a collar and tie, then the lack of flexibility in the dress code introduced by Jobcentre Plus would suggest that male members of staff are being treated less favourably than female members of staff because it would not have been necessary to restrict men's choice of what to wear in order to achieve the standard of smartness required. The issue is not resolved by asking whether the requirement on men to wear a collar and tie meant that a higher level of smartness was being required of men rather than women. It is resolved by asking whether an equivalent level of smartness to that required of the female members of staff could only be achieved, in the case of men, by requiring them to wear a collar and tie.”

47.With respect, Au J fell into error in that he narrowly confined himself to the difference in hair length without considering the restrictions on appearance as a whole for inmates and without paying regard to conventional appearance standards in assessing if there is less favourable treatment for male inmates in light of the common objectives to be served by the policy on different hair cut requirements.  That, as we have seen, was not the approach espoused by Keith J or Phillips LJ.

48.Dansie v The Commissioner of Police for the Metropolis UKEAT/0234/09 is a more recent case in which difference in hair-length requirements for male and female employees was at issue.  The Employment Appeal Tribunal applied the approach set out in the cases cited above and upheld the decision of the Tribunal that the policy in question, considered as a whole, was fair-handed between the sexes and fit within the conventions of the society and the needs of the profession, as such not a less favourable treatment.

49.In the setting of a school, difference in hair-length restrictions for boys and girls was the subject of consideration in Re McMillen [2008] NIQB 21.  Weatherup J applied the principles in Smith v Safeway plc, supra, and found that the school’s dress and appearance policy (which contained difference in treatment for hair-length) was not discriminatory.  At [21] of the judgment, the judge explained the relevance of the objectives of a policy in assessing if there is less favourable treatment:

“ … There are interrelated questions as to whether the restriction on appearance could properly be justified by the objective of the code and whether the restriction, in the context of the code as a whole, resulted in less favourable treatment for the boys. The initial assessment is made with reference to the objectives of the code in question ... This approach is not to judge the quality of the reasons or the motives for introducing the code, because there can be no justification if there is direct discrimination, but it is to consider whether there is less favourable treatment by establishing a legitimate objective for the code and then assessing the treatment of those affected against the standard that has been adopted by the code to determine whether males or females are disadvantaged compared to each other … The issue is not concerned with the extent of the general use of the prohibited items but whether a package that includes requirements which differ between men and women, is directed at the objective of the code and whether it imposes a particular disadvantage on one or other sex…” (emphasis added)

50.In my judgment, the same approach is called for in assessing if the relevant circumstances in the restrictions for the male prisoners are the same as, or not materially different from, the restrictions for the female prisoners under Section 10 of the SDO.  

51.Au J distinguished these cases at [64] to [67] and [69] of his judgment.  I have already explained the flaw in that respect. 

52.Had the learned judge correctly applied Section 10 in line with the approach adopted in these cases, he would have found that the common underlying objective of the policy in issue is to foster custodial discipline by imposing reasonable uniformity and conformity amongst the inmates (both male and female inmates) and reasonable restrictions are set by reference to the respective conventional standards for appearance for male and female inmates.

53.And these restrictions have to be examined in a package.  Thus, it is not correct to single out hair length requirement without paying regard to other elements in the restrictions on appearance on inmates.  There is no evidence to suggest that the restrictions for male inmates as a whole were at greater variance from conventional standard of appearance for men in our society as compared with those for the female inmates in light of conventional standard of appearance for women in our society.  The Commissioner has placed before us further evidence on other restrictions on appearance placed on inmates in the Affirmation of Wong Chi Wai of 17 January 2018 filed in accordance with our directions.  It is obvious that both male and female inmates are subject to some restrictions, some may have more relevance for female inmates and some have more relevance for male inmates.  For example, in respect of the restrictions on keeping (and using) make-ups, female inmates are allowed to keep (and use) specified lipsticks but not allowed to keep other forms of cosmetic makeup.  Obviously there is a difference between male and female inmates in that regard.  However, because of the conventional standard for appearance in our society, such difference cannot be regarded as less favourable treatment for male inmates.  Further, given the prevalence of use of makeup for women as compared with men in our society, the restriction is more relevant for female inmates.  However, taking other restrictions on appearance into account, on the whole it cannot be said that a more stringent set of restrictions are imposed on female inmates.  This highlights the need to examine all the restrictions as a package overall.    

54.Though the hair length restriction for male inmates appears to be stricter than that for female inmates, one must bear in mind that the standard conventions in our society for hair length for men and women are also different.  Thus, in terms of these restrictions being a restraint imposed on inmates by reference to conventional standards in the society, there is no less favourable treatment between male and female inmates.   

55.To hold otherwise will not be correct in light of Section 10 because it fails to take account of all relevant circumstances in assessing if the situations for male and female inmates are the same or materially different.  Setting the same hair length standard for male and female inmates can actually constitute discrimination in the Thlimmenos sense as the prejudice occasioned to female inmates by imposing on them the same standard for male inmates would be much greater because of the conventional standards of appearance for women in the society in Hong Kong.  In other words, a greater variance from the conventional standard will then be imposed on female inmates as compared with male inmates.

56.For these reasons, the applicant had not been subject to less favourable treatment and his case on SDO cannot be sustained.

57.Mr Pun placed great reliance on his argument against stereotyping to resist the appeal.  Counsel cited the judgment of Hartmann J in Equal Opportunities Commission v Director of Education [2001] 2 HKLRD 690 and the judgment of the House of Lords in R (European Roma Rights) v Prague Immigration Officer [2005] 2 AC 1 to support his contention.  Mr Pun’s submission was that as a matter of law, a purported ground based on stereotyped or generalized assumptions referable to a particular sex (even if they are supported by statistics) is direct discrimination under section 5(1)(a) of the SDO.

58.To be fair to Mr Pun, the submission was initially advanced with its focus upon the concern for security as the objective for the hair length policy.  At the hearing, this Court made the observation that on the evidence the objective is actually more widely based and, as explained above, the maintenance of custodial discipline necessitates the imposition of reasonable uniformity and conformity standards amongst the inmates by the Commissioner. Mr Pun repeated his submission on stereotyping in the context of custodial discipline.

59.Mr Pun referred us to Equal Opportunities Commission v Director of Education, supra, in particular the following parts of the judgment:

“ 86. It is not disputed that the right to equal treatment free of sex discrimination is in our society a fundamental right; as Lord Lester expressed it, a right of high constitutional importance. As an individual right, it must follow, in my view, that it is a right which cannot be undermined or negatived by broad assumptions or generalisations. What may be true of a group may not be true of a significant number of individuals within that group. …

…

91. That being the case, I am satisfied that the force of s.5(1)(a) of the Ordinance is not to be deflected by broad assumptions, even if statistically well-founded, that categorise women according to stereotypes.

92. Even if such broad assumptions have some general or statistical validity, they still derogate from the rights of the individual …”

60.These observations were made in the context of a case where the operation of a scaling system for transfer of students from primary schools to secondary schools.  The system was held to be discriminatory against girls because higher scores were required for girls to get into the preferred bands. The system was devised by the Director on account of the inherent developmental differences between boys and girls.

61.Hartmann J held that the notion of inherent developmental differences did not give sufficient recognition to the variations of character and ability of the individuals (as opposed to general assumptions of genders) and fell foul of the underlying philosophy of the SDO, as expressed in the extract of para 16 of the White Paper, Cmnd 5724, September 1974, cited at [82] of the judgment.  I only need to quote part of it:

“ … Beyond the basic physiological differences between men and women lies a whole range of differences between individual men and individual women in all aspects of human ability. The differences within each sex outweigh the differences between the sexes. But there is insufficient recognition that the variations of character and ability within each sex are greater and more significant than the differences between the sexes. Women are often treated as unequal because they are alleged to be inferior to men in certain respects, and the consequences of their unequal treatment are seen as evidence of their inferiority. Their unequal status has been caused less by conscious discrimination against women than by stereotyped attitudes of both sexes about their respective roles.”

62.Thus, Hartmann J said at [80],

“ …It is apparent to me that the Director has looked essentially at what I will call ‘group fairness’ and, in so doing, has turned a blind eye to the rights of individual boys and girls not to have their school careers (perhaps profoundly) disadvantaged simply on the basis of their sex.”

63.And at [81]:

“ 81. In his defence of the Director's policies, Mr Pleming has spoken of the "purely temporary" advantage in matters academic enjoyed by girls over boys at about the age of puberty. But, of course, he does not talk of all girls being advantaged or of all boys being disadvantaged. Accordingly, in realistic terms, he is only able to talk of boys in the sense of them being a broad group (for example, the top 30% of boys who have achieved better scores in the AATs than girls) or as a gender. In so doing, as I have said, a blind eye is turned to individuals. But, in my opinion, it is exactly to those individuals which our system of law extends protection.”

64.Further light is shed on the kind of stereotyping Hartmann J had in mind by [88] where his Lordship quoted from art 10 of the Convention on the Elimination of All Forms of Discrimination Against Women, in particular sub-para (c) thereof:

“ The elimination of any stereotyped concept of the roles of men and women at all levels and in all forms of education by encouraging co-education and other types of education which will help to achieve this aim and, in particular, by the revision of textbooks and school programmes and the adaptation of teaching method.”

65.Therefore, the concept of stereotyping which is to be eliminated is the discrimination of people in terms of their ability or role to be played solely by reason of their gender without proper regard to the variations of character and ability within each sex which are greater and more significant than the differences between the sexes.  However, as I have mentioned earlier, there are limits to the usefulness of the label of stereotyping.  Many international sport events like the Olympic Games hold competitions for men and women separately.  Many entertainment industry awards like the Oscar and the BAFTA awards give acting awards to male and female artists separately.  Such differentiation between the genders is accepted.  The segregation of men and women in lavatories is another everyday example. 

66.In the present case, we are not concerned with difference in treatments based on generalisation or assumptions on skill or ability or the role played by male and female inmates.  As explained above, the policy of the Commissioner was set by reference to the conventional standards of appearance for men and women in our society.

67.Though some people might regard the conventional standards of appearance as a kind of stereotyping or a form of hidden direct sex discrimination[3], it is an objective fact that these conventional standards exist and they are observed by most people in our society. Whilst it is right that we should not continue with past discriminatory practices, it remains a fact of life that men and women have different physical attributes which, together with traditions and customs, mandate different conventional standards of appearance for men and women in a society.  Like rules as to manners, these conventional standards of appearance are adhered to in order to maintain proper and decent presentation of oneself in the interaction with others in society.  These codes of behavior are part of the cohesive force of a society.  For the reasons adumbrated by Phillips LJ in Safeway[4], I do not accept that a “sex-appropriate” social code is necessarily a discriminatory practice.  

68.I can illustrate these propositions by reference to designs for swimsuits which are different for men and women.  The maintenance of such differences cannot by any stretch of imagination be regarded as discriminatory on the ground of stereotyping.  Likewise, the segregation of male and female lavatories is another illustration on the limited utility of the label of stereotyping as a basis for finding discrimination.  It is not without significance that Mr Pun quite properly accepted that it is not discriminatory to segregate male and female inmates in correctional institutions[5].  

69.I recognize that the conventional standards for appearance can change over time and some aspects of these standards change faster than others.  There are also people who embraced changes more readily than others. However, at a particular point in time, it is still possible for those in a society to discern the conventional standards observed by the majority in it. In the present case, there is no suggestion (and there is no evidence to support any such suggestion) that the standards adopted by the Commissioner are not based on conventional standards of appearance in Hong Kong.  As Mr Wong submitted, the evidence was that the Commissioner reviewed his policy from time to time and changes in conventional standards were taken into account.

70.In light of the above analysis, I hold the view that the conventional standards of appearance are part of the relevant circumstances which should be taken into account under section 10 of the SDO.  I do not agree with Mr Pun’s submission that they should be disregarded as the perpetuation of stereotyping. 

71.Mr Pun relied on R (European Roma Rights) v Prague Immigration Officer [2005] 2 AC 1.  It is a case on racial discrimination and there was no equivalent to conventional standards of appearance that could have an impact on the assessment of whether there had been less favourable treatment.  In the arguments, in the context of discrimination, counsel for the respondent focused on the question of causation, see p.20D to 21C.  In view of the facts of the case, as highlighted by Lord Steyn at [34] to [36][6], less favourable treatment was regarded by the judges as beyond dispute.  The main judgment on the discrimination aspect of the case was given by Baroness Hale.  Her judgment also proceeded on the basis that less favourable treatment was self-evident on the facts of that case, see [82] of the judgment.

72.Baroness Hale alluded to stereotyping at [74] of the judgment:

“ If direct discrimination of this sort is shown, that is that. Save for some very limited exceptions, there is no defence of objective justification. The whole point of the law is to require suppliers to treat each person as an individual, not as a member of a group. The individual should not be assumed to hold the characteristics which the supplier associates with the group, whether or not most members of the group do indeed have such characteristics, a process sometimes referred to as stereotyping. Even if, for example, most women are less strong than most men, it must not be assumed that the individual woman who has applied for the job does not have the strength to do it. Nor, for that matter, should it be assumed that an individual man does have that strength. If strength is a qualification, all applicants should be required to demonstrate that they qualify.”

73.These comments were made on the premise that the four elements of direct discrimination set out at [73] are established, including less favourable treatment.  Further the kind of stereotyping that Her Ladyship alluded to was illustrated by the example given in [74] on the strength of a person.  On the facts of the Roma case, the stereotyping was identified by Lord Carswell at [113] as follows:

“ 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 …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.”

74.Contrasting that with the case before us, I have explained earlier that the policy of the Commissioner is not solely based on security concern, but also on the need to maintain reasonable uniformity and conformity to foster custodial discipline.  With that in mind, the restrictions on hair length were set by reference to conventional standards in our society for appearance.  The applicant did not challenge in the evidence that objectively there are different conventional standards of appearance for men and women. The policy is to apply the conventional standard for men to male prisoners and the conventional standard for women to female prisoners.  As a matter of law and reality, a prisoner is either a man or a woman.  Unlike the situation in Roma (where a stereotyped assumption could be applied to a Roma who harboured no intention to make a false claim to seek asylum), there is no scope for the misapplication of the conventional standard of appearance to a man who is actually a woman.

75.In the context of the present case, once it is accepted that there are different conventional standards for appearance in our society, there is no room for the proposition that what is true for a group in general may not be true for an individual within that group.

76.No doubt there are male prisoners who would not wish to conform to the conventional standard of appearance.  But custodial discipline requires conformity even if it is against the wish of the individual concerned.  In this respect, there is a common even-handed thread in the restrictions set for male and female inmates. 

77.The same logic applies to the segregation of male prisoners from female prisoners.  As mentioned previously, Mr Pun fairly accepted that he could not challenge such segregation as being discriminatory based on stereotyping.

78.For these reasons, I do not find anything in Roma which takes the applicant’s case further.  Mr Pun also referred to Baroness Hale’s and Lord Carswell’s endorsement of the judgment of Hartmann J.  For the reasons already given, I do not find any inconsistency between the judgment of Hartmann J and my analysis.     

79.In the analysis under section 10, Mr Pun also placed some reliance on [98] of Hartmann J’s judgment and James v Eastleigh Borough Council [1990] 2 AC 751.  Counsel submitted that those authorities established that attributes flowing from gender cannot be a relevant circumstance under section 10.

80.With respect, that submission confuses the causation question with the comparator question.  In M v Secretary for Justice [2009] 2 HKLRD 298, Tang V-P (as he then was) highlighted these two separate questions in the context of the Disability Discrimination Ordinance (which contains similar provisions to those in the SDO) at [45]:

“ I am also of the view that as a matter of plain construction, s6(a) and s8[7] require the court to compare the treatment of the complainant with the treatment of a suitable comparator (the comparator question) and in the event that less favourable treatment was given “on the ground” of the complainant’s disability (the causation question). The comparison under s8 ‘shall be such that the relevant circumstances in the one case are the same, or not materially different, in the other.’ The comparator question and the causation question are separate questions…”

81.In so holding, Tang VP followed the reasoning adopted by Gummow, Hayne and Heydon JJ in the High Court of Australia in Purvis v State of New South Wales (2003) 217 CLR 92.

82.I respectfully agree with the distinction drawn between the two questions by Tang VP which is also binding on us.

83.The comparator question requires the examination of whether there has indeed been less favourable treatment.  The causation question requires the examination of whether such less favourable treatment was occasioned by reason of the gender of the complainant.

84.As submitted by Mr Wong, James v Eastleigh Borough Council, supra, is primarily a decision on the causation question and the House of Lords addressed the test to be applied under s1(1)(a) of the Sex Discrimination Act 1975, the equivalent of s5(1)(a) of the SDO.  Though there was reference to s5(3) of the Act (the equivalent of s10 of the SDO), the argument revolved around whether the policy in question was based on gender difference.  Mr Beloff QC representing the council submitted that the similar circumstance at issue was the attainment of pensionable age, see p.760B.  This submission was rejected by Lord Bridge at p.766D to E who held that as pensionable age was itself discriminatory it could not be treated as a relevant circumstance for comparison under s5(3).

85.Mr Pun relied particularly on the judgment of Lord Goff at p.774:

“ Whether or not the treatment is less favourable in the relevant sense, i.e. on the ground of sex, may derive either from the application of a gender-based criterion to the complainant, or from selection by the defendant of the complainant because of his or her sex; but, in either event, it is not saved from constituting unlawful discrimination by the fact that the defendant acted from a benign motive.”

86.In that paragraph Lord Goff was dealing with the question of causation and highlighting that the motive of a defendant was no defence to a case of direct discrimination.  So much is clear as Lord Goff continued to explain at that part of the judgment:

“ However, in the majority of cases, I doubt if it is necessary to focus upon the intention or motive of the defendant in this way. This is because, as I see it, cases of direct discrimination … can be considered by asking the simple question: would the complainant have received the same treatment from the defendant but for his or her sex? This simple test possesses the double virtue that, on the one hand, it embraces both the case where the treatment derives from the application of a gender-based criterion, and the case where it derives from the selection of the complainant because of his or her sex; and on the other hand it avoids, in most cases at least, complicated questions relating to concepts such as intention, motive, reason or purpose, and the danger of confusion arising from the misuse of those elusive terms.”

87.In James v Eastleigh Borough Council, supra, there was no doubt that the treatment was less favourable and the sole issue was whether the criterion of pensionable age was gender-based.  It was in such context that Lord Goff gave the answer in the affirmative at p.771F:

“We are concerned in the present case with the application of a requirement or condition --- pensionable age --- which is itself gender-based.”

88.That statement did not address the question of less favourable treatment.

89.In contrast, in the present case, the issue is whether the restrictions based on conventional standards of appearance led to less favourable treatment for male inmates.  As explained above, taking all relevant circumstances into account I conclude that the restrictions imposed on male inmates were no less favourable than those imposed on female inmates.  Thus, James v Eastleigh Borough Council, supra, is of no assistance to Mr Pun.

90.The observation of Hartmann J in Equal Opportunities Commission v Director of Education, supra, [98] addressed the submission of Mr Pleming (counsel for the Director of Education) based on the scaling exercise which the learned judge found to be palpably discriminatory, see [101] and [102].  For the same reason, that observation cannot assist Mr Pun in the present case.

91.Given my analysis above, I respectfully disagree with the opinions expressed by Professor Wintemute[8] (adopted by Mr Pun in this appeal) that the Safeway line of cases was inconsistent with James v Eastleigh Borough Council, supra. 

92.I hold that by reason of Section10, in comparing the treatment meted out to the applicant with those provided for female inmates, the correct approach is to assess if there is a more stringent treatment on the former in terms of adherence to conventional standard of appearance for custodial discipline.  Viewed in that light, I cannot find any less favourable treatment for the applicant.

93.Mr Pun placed some emphasis on the deprivation of choice for the applicant whilst female inmates could determine for themselves whether to have their hair cut to a greater extent than the style they had when they first arrived at prison.  I reject this submission.  As I held above, the restriction on hair length should not be viewed in isolation from other restrictions on appearance.  When the restrictions are examined in a package in the context of maintenance of conformity and reasonable uniformity, female inmates as well as male inmates are subject to similar levels of custodial discipline and I see no basis for suggesting that the applicant was treated less favourably.

94.For these reasons, I do not accept that a case of direct discrimination under the SDO has been established.

BL 25

95.Mr Pun very properly accepted that should the Court reach the conclusion that there is no direct discrimination under the SDO by reason of the Court not being satisfied there is less favourable treatment, the challenge based on BL 25 must also fail.  This must be correct in light of the analysis of the right under BL 25 in Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409 where the Court of Final Appeal held that the object of the exercise was ultimately to consider whether there was enough of a relevant difference between the complainant and the comparators to justify differential treatment.

96.In the circumstances, I would confine to a brief discussion on two issues in relation to BL 25.

97.Unlike the case of direct discrimination under SDO, a challenge under BL 25 (assuming that less favourable or unequal treatment is established) can be justified under the proportionality test.  The proportionality test has recently been discussed by the Court of Final Appeal in Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372 and Kwok Cheuk Kin v Secretary for Constitutional and Mainland Affairs (2017) 20 HKCFAR 353.

98.In Kwok Cheuk Kin v Secretary for Constitutional and Mainland Affairs, supra, at [30] to [31], the Chief Justice explained the matters that have to be identified before the proportionality test is engaged:

“ 30. The proportionality analysis … does not arise unless three prior steps are satisfied by the person asserting unconstitutionality: the identification of a constitutionally guaranteed right, the identification of the relevant legislation or measure said to infringe such constitutional right and the infringement itself.

31. Once these three initial steps are satisfied, the next step in the analysis is to look at the constitutional right itself to see whether there are any built-in qualifications.  Where the right is contained in the Basic Law, there may be some qualifications that are expressly stipulated.  Qualifications to rights also appear in the Hong Kong Bill of Rights.”

99.The right relied upon by the applicant is the right under BL 25 which reads as follows:

“ All Hong Kong residents shall be equal before the law.”

100.BL 25 is to be considered together with article 22 of the Hong Kong Bill of Rights (“HKBOR”) which reads:

“ 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 effect 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.”

101.The basic tenet of the right to equality is like cases should be treated alike, unlike cases should not be treated alike, see Ghaidan v Godin-Mendoza [2004] 2 AC 557 at 566, adopted by Chief Justice Li in Secretary for Justice v Yau Yuk Lung (2007) 10 HKCFAR 335 at 348.  Chief Justice Li also said at [20]:

“ However, the guarantee of equality before the law does not invariably require exact equality. Differences in legal treatment may be justified for good reason.”

His Lordship then referred to the justification test which is now more commonly called the proportionality test.

102.At [22], the Chief Justice set out the correct approach upon a finding of justified differential treatment:

“ … Where the difference in treatment satisfies the justification test, the correct approach is to regard the difference in treatment as not constituting discrimination and not infringing the constitutional right to equality.”

103.Returning to the observations in Kwok Cheuk Kin at [31], in the context of custodial discipline for prison inmates, in the assessment of the right under BL 25 and article 22 of the HKBOR, one must also have regard to section 9 of the Hong Kong Bill of Rights Ordinance Cap 383. Section 9 provides:

“ … 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.”

104.The implication of that statutory provision on the rights under the HKBOR was considered by the Court of Appeal in Chim Shing Chung v Commissioner of Correctional Services (1996) 6 HKPLR 313.  That case concerned the right of a prisoner under art 16(2) of the HKBOR.  Litton V-P said at p.323C on the proportionality of the imposition of censorship on materials to be received by a prisoner:

“ Here the argument revolves round in a full circle, and immediately comes up against the exclusion in s9 of the Bill of Rights Ordinance: prisoners are subject to ‘custodial discipline’ and do not enjoy the full range of rights in Part II of the Ordinance. They are subject to restrictions ‘authorized by law’.”

105.Hence, I am of the view that the Court must pay regard to section 9 and the importance placed by the legislature on custodial discipline in the assessment of the right of a prison inmate under BL 25 and art 22 of the HKBOR. At the very least, the maintenance of custodial discipline must be regarded as a legitimate aim in the application of the proportionality test.

106.I accept that there is a rational connection between the hair-length restriction and the maintenance of custodial discipline by setting a standard of conformity.  The other issue on BL 25 which I would discuss in this judgment is the standard that should be applied in the third step of the proportionality test.  

107.In this connection, Mr Wong advocated that in view of the exercise of professional judgment by the Commissioner in matters concerning custodial discipline the Court should adopt the standard of “manifestly without reasonable foundation” giving a wide margin of discretion to the Commissioner. Mr Pun advocated that as the right not to be discriminated on the ground of gender is a fundamental right the Court should adopt the “no more than necessary” standard. 

108.In Hysan Development, the Court of Final Appeal reviewed the proportionality test in Section G of the judgment and held that in addition to the three steps set out in the previous authorities there should be a fourth step in assessing whether a reasonable balance has been struck between the societal benefits of the encroachment and the inroads made into the constitutionally protected rights of the individual.  There was an also analysis on the different standards that can be applied at the third step in assessing the permissible extent of the incursion into the protected right.  At [139] to [141], the Court explained as follows:

“ [139] The “manifest” standard has been used in cases where the Court recognizes that the originator of the impugned measure is better placed to assess the appropriate means to advance the legitimate aim espoused. This has occurred in cases involving implementation of the legislature’s or executive’s political, social or economic policies but the principle is not confined to such cases.

[140] The location of the standard in the spectrum of reasonableness depends on many factors relating principally to the significance and degree of interference with the right, the identity of the decision-maker; and the nature and features of the encroaching measure relevant to setting the margin of discretion.

[141] The difference between the two standards is one of degree, with the Court in both cases, scrutinizing the circumstances of the case and the factual bases claimed for the incursion.

109.In Kwok Cheuk Kin, the Chief Justice reiterated this analysis and added further observations at [37] to [46].  On the issue identified at [106] above, these paragraphs provide further guidance:

“ 37. As can be seen therefore, the difference in approach of the courts at the third stage varies depending on the particular circumstances of any given case and this is critical to bear in mind when looking at the impugned measure to see whether: (a) the stricter test of the measure being ‘no more than necessary’ to deal with its legitimate aim; or (b) the test of the measure merely being ‘manifestly without reasonable foundation’, ought to be applied. One should not of course be preoccupied with labels and instead adopt a flexible, though principled and structured, approach …

38. Though a matter of degree, there are three aspects to consider:

(1) The nature of the right in question and the degree to which it has been encroached on;

(2) The identification of the relevant decision-maker …

(3) Relevance of the margin of appreciation.

…

40. The term margin of appreciation refers to that area of discretion which the Court will accord to a decision-maker … It reflects the separate constitutional and institutional responsibilities of the judiciary and other organs of the Government …

…

45. … The margin of appreciation to be accorded is but one factor in the overall consideration by the Court of proportionality albeit depending on the circumstances it may assume a greater or lesser degree of importance. It will usually be determinative in the sliding scale as to whether the Court will veer towards applying the ‘no more than necessary’ approach or the ‘manifestly without reasonable foundation’ one.

46. In either situation of course, a consideration of the extent of the encroachment on the constitutional right will be important.  At all times, it will be essential for the Court to keep firmly in mind the value of the right in question.  As stated earlier, the question of constitutionality is a legal question for the courts to determine …”

110.Hence, it is a multi-facet assessment by reference to the particular circumstances of a given case.  The respective approach of Mr Wong and Mr Pun, each singling out just one aspect of the relevant circumstances, is therefore not the right approach.

111.In the present case, given that the applicant was incarcerated in a male correctional institution (and there is no challenge to the segregation of male and female inmates), the incursion to the right to equality (if any) is limited.  The restriction on hair-length was set by reference to the conventional standard of appearance for men in our society and it was applied to all male inmates in the prison.  And female inmates were not exempted from restrictions set by reference to the conventional standard of appearance for women in society.  In this regard, one must not confuse the right to equality and the right to private life.  The challenge based on the latter right had been rejected by Au J and there is no appeal against the same.  Hence, the relevant incursion is not to be considered by reference to the use of a standard of conformity to override the applicant’s own wish to maintain his hair length as his icon.  Rather, the relevant incursion is the concern of the applicant in respect of the difference in the standards of conformity for male inmates and for female inmates. 

112.The policy was set by the Commissioner who was entrusted by the legislature to issue such orders as may be necessary for the government of all institutions, see Rule 77(4) of the Prison Rules.  The management of prison and maintenance of custodial discipline are matters within the expertise and professional judgment of the Commissioner.  The courts are not equipped with the same professional expertise in the assessment of the significance of conformity in reformation and discipline.

113.Though the right to equality is a most important right, in the circumstances of the present case, I am of the view that the correct standard is the manifestly without reasonable foundation standard.

114.Applying such standard, I have no doubt that the third step in the proportionality test is satisfied.

115.In a prison setting, in view of the satisfaction of the first three steps in the proportionality test, I do not see any basis to suggest that the fourth step as explained in Hysan is not met.  Mr Pun did not advance any submission to such effect.

116.In the circumstances, the challenge based on BL 25 cannot succeed.

Disposition

117.For the reasons given above, I will allow the appeal, set aside the order of the judge and dismiss the application of the applicant.

118.I will also make an order nisi that the applicant shall pay the costs of the Commissioner and such costs are to be taxed if not agreed.  The applicant’s own costs shall be taxed in accordance with Legal Aid Regulations.

119.Last but not least, I thank counsel for their assistance in this appeal. 

Poon JA:

120.I agree with both the judgment of the Chief Judge and the judgement of Lam VP.  For the reasons articulated by their Lordships, I would also allow this appeal.

Hon Cheung CJHC:

121.Accordingly, we allow this appeal in terms of the orders proposed in paragraphs 117 and 118 above.

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

Mr Stewart KM Wong SC and Mr Jin Pao, instructed by the Department of Justice, for the respondent