Leung Kwok Hung also known as “Long Hair”V. Commissioner of Correctional Services

CACV 34/2017

[2019] HKCA 56

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 34 OF 2017

(ON APPEAL FROM HCAL 109/2014)

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Before: Hon Lam VP, Barma and Poon JJA in Court

Dates of Written Submissions: 28 September and 12 October 2018

Date of Judgment: 22 January 2019

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.The Court (Cheung CJHC, Lam VP and Poon JA) handed down its judgment on 30 April 2018 allowing the appeal and dismissing the application of the applicant.

2.By a notice of motion of 28 May 2018, the applicant seeks leave to appeal to the Court of Final Appeal.  In the notice, the applicant put forward the following questions as questions of great general or public importance for the determination of the Court of Final Appeal,

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

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

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

3.The manner in which these questions are formulated is, with respect, not helpful to the assessment whether the questions are actually of great general or public importance.  As presently framed, the questions merely restated the basis on which the applicant sought relief.  They do not identify any questions of legal principle which could be applicable to situations other than those concerning Standing Order 41-05. 

4.Submissions were lodged by the applicant on 28 September 2018 (as time was taken up in his legal aid application[1]).  The respondent opposed the application and submissions were lodged on 12 October 2018.

5.The submissions focused on arguability of the appeal: Mr Pun SC (together with Ms Leung) contending on behalf of the applicant that the intended appeal is reasonably arguable whilst Mr Pao SC contending on behalf of the respondent that the intended appeal is not reasonably arguable.

6.Contrary to the guidance in Ho Sin Ying v Chan Yui Ling CACV 221/2013, 14 November 2014 at [2]-[3] which is now summarized at Practice Direction 2.1 paragraph 3(e), the submissions do not provide much assistance on the assessment whether there are any questions of great general or public importance involved. 

7.In Mr Pun’s submissions, he dealt with this aspect of his application tersely at paragraph 3:

“3. Since the above Questions concern the lawfulness and/or constitutionality of SO 41-05 which governs the hair cutting requirement for all prisoners in Hong Kong, they are undoubtedly of great general or public importance. Further, for the reasons set out below, they are reasonably arguable.”

8.With respect, we are not satisfied that simply because the haircut requirement is applicable to all prisoners in Hong Kong, those questions per se are questions of great general or public importance.  As explained in our judgment, the questions are raised in the context of a prison setting where freedom of inmates is necessarily subject to restrictions and disciplinary considerations are highly relevant.  Further, the restrictions were set in accordance with conventional standards of appearance of male and female in the society.     

9.Though the questions can be regarded as having general or public importance, the statutory criteria are “great general or public importance”.  The questions as presently framed relate solely to the specific context discussed above.  Though the prison population is generally affected, the distinction in male and female haircut restrictions do not have so great an impact on the inmates so as to give rise to questions of great general or public importance per se.   

10.As we said, Mr Pun did not formulate any legal questions based on general principles of discrimination law which can be applicable in other settings.  It is not the function of this Court to perform such task in place of counsel.  We therefore refrain from saying whether such questions can be formulated to satisfy the statutory criteria.  We can only process the application in the way it is presented to us. 

11.On the arguability of the questions, as submitted by Mr Pao, Mr Pun basically rehashed arguments which had been considered at the substantive appeal and duly addressed by the Court in the judgment of 30 April 2018.  As explained in that judgment, in the context of direct discrimination, the crucial issue is whether the differentiation based on conventional standards of appearance in the society is less favourable treatment.  Mr Pun failed to persuade the Court at the appeal hearing that conventional standards of appearance cannot be a relevant circumstance under section 10 of the Sex Discrimination Ordinance.  The Court also rejected his argument based on stereotyping, see [57] to [92].  Notwithstanding his submissions in support of the present application, we are not persuaded that he has a reasonably arguable case in these regards.

12.The Basic Law point was advanced on the basis of the applicant successfully establishing less favourable treatment, see [95] of the main judgment.  In light of our above observations, this point is also not reasonably arguable.

13.For these reasons, we dismiss the notice of motion. We also order the applicant to pay the costs of the respondent.  Having considered the statement of costs of the respondent, we fixed the costs at $53,572.

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