Leung Kwok Hung also known as "Long Hair" v. Commissioner of Correctional Services
Read the full judgment text of on BabelCite. was delivered on 18 January 2021.
1. Following the handing down of the Court’s judgment in this appeal on 27 November 2020, the parties have filed written submissions pursuant to paragraph 57 of that judgment. We therefore now have: (i) the respondent Commissioner’s submissions dated 11 December 2020; (ii) the appellant’s submissions dated 28 December 2020; and (iii) the respondent’s reply submissions dated 4 January 2021.
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FACV No. 8 of 2019 [2021] HKCFA 2 IN THE COURT OF FINAL APPEAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION FINAL APPEAL NO. 8 OF 2019 (CIVIL) (ON APPEAL FROM CACV NO. 34 OF 2017) _________________________
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___________________________________ JUDGMENT ON RELIEF AND COSTS ___________________________________ The Court: 1.Following the handing down of the Court’s judgment in this appeal on 27 November 2020, the parties have filed written submissions pursuant to paragraph 57 of that judgment. We therefore now have: (i) the respondent Commissioner’s submissions dated 11 December 2020; (ii) the appellant’s submissions dated 28 December 2020; and (iii) the respondent’s reply submissions dated 4 January 2021. 2.There is much that is agreed.
3.These matters are wholly uncontroversial and appropriate orders addressing these matters are set out below. 4.There are two matters that remain in dispute between the parties. First, the respondent seeks a temporary suspension order in respect of the declaration. Secondly, and less controversially, the appellant seeks a certificate for three counsel in respect of costs, which the respondent resists. 5.Dealing with the latter point first, we are not inclined to grant a certificate for three counsel. We do not think there is “something exceptional” in this case to justify a certificate for three counsel. The decision in Comilang, Milagros Tecson & Another v Director of Immigration[1] (on which the appellant relies) only concerned the taxation of the losing appellants’ own costs, so it provides no parallel to this case as the issue here is the taxation of costs between the parties. We agree with the respondent’s submission (in the Reply at [21]) that this case was not sufficiently complex in law or in fact to justify instructing three counsel. 6.The temporary suspension of the declaration is less straight forward. The respondent asks for a suspension of the declaration for 6 months. The basis of this request is supported by an affirmation of a Superintendent Leung of the Correctional Services Department (“CSD”), explaining that the respondent needs more time “to devise a policy that would best suit all stakeholders”. The time needed is estimated to be around 26 weeks.[2] 7.In the meantime, an interim policy is to be implemented whereunder:
8.The appellant opposes the temporary suspension. The appellant submits that the respondent has had more than ample time to devise a compliant policy in the event Au J’s first instance judgment was upheld. Indeed, the respondent already had the benefit of a lengthy suspension of Au J’s original declaration because it is now 3 years and 11 months since the CFI judgment. Yet, the respondent concedes that the interim measure is, in substance, closely similar to SO 41-05. Orders for temporary suspension 9.The Court’s decision that the SO 41-05 practice is unlawfully discriminatory has been handed down and is not subject to modification. As Koo Sze Yiu & Another v Chief Executive of the HKSAR[4]established, temporary suspension of the Court’s order is exceptional. It only arises for consideration where the Court’s decision carries substantial social or public interest implications going beyond the interests of the immediate parties. A public authority seeking a temporary suspension has to justify this request by showing that it reasonably needs time to put in place changes necessary to bring itself into alignment with the Court’s decision. The effect of a temporary suspension is to enable the authority to avoid finding itself in contempt of court during this interim period. If there is a temporary suspension but the authority’s interim conduct is nonetheless unlawful in some actionable way, while not being in contempt of the suspended court order, the authority remains potentially liable to anyone who has standing and a constituted basis for action. Any temporary suspension should obviously not be any longer than is properly required. 10.What is the justification put forward for a temporary suspension here? Essentially, the CSD’s argument is that the Court’s ruling has implications going well beyond the interests of the immediate parties. The changes needed to eliminate discrimination between male and female prison inmates require the CSD to put in place a non-discriminatory hair length regime which will be broadly acceptable and not give rise to resistance among inmates or cause other problems involving prison discipline or administration. 11.We said at [55] of our judgment:
12.Nevertheless, even allowing the Commissioner that margin of discretion in deciding on appropriate policies, the request now made for a six-month temporary suspension must be considered in the light of the policy decisions involved and examined against the background of what has already occurred. The policy decisions required 13.The Court’s decision is relatively simple. We held that the requirements for proving sex discrimination had been proved, namely, that there had been differential treatment between male prisoners and female prisoners in circumstances which were not materially different, with the treatment given to male prisoners being less favourable than that given to female inmates, that difference in treatment being on the basis of sex. [5] 14.It follows that to bring the CSD’s practice into line with the Court’s decision, the Commissioner has to substitute a policy in place of that contained in SO 41-05 which requires the hair of all male prisoners to be kept cut “sufficiently close” while allowing female prisoners to keep their hair at its length on admission unless they consent to a shorter cut. 15.SO 41-05 is a Standing Order internally issued by the Commissioner. It is not a piece of legislation and so, unlike in cases like W v The Registrar of Marriages,[6] where a 12 month suspension was granted, changing the Standing Order does not involve any lengthy and uncertain legislative processes. It involves the Commissioner having to decide what non-discriminatory policy should appropriately be adopted. 16.This is not an issue that has been newly sprung on the Commissioner. The chronology, taking into account what is stated in the Affirmation of Leung Chung Yin on behalf of the CSD, is as follows:
17.The chronology shows that after Au J’s judgment, the Commissioner obtained temporary suspensions totalling over 15 months before his appeal was determined by the Court of Appeal submitting on each occasion that he needed the suspension to devise an alternative to SO 41-05. Throughout this period, he was bound by Au J’s order, although temporarily suspended, to replace SO 41-05 unless and until it was overturned on appeal. The Commissioner had decided to appeal but he obviously could not predict that he would necessarily succeed in that forum. So acting reasonably, he could have been expected to have prepared an alternative to SO 41-05 which complied with the Judge’s order. Indeed, the lengthy temporary suspensions were sought on the basis that he was diligently pursuing such a course, having commissioned a university consultancy study, sought legal advice and formulated “Option 1” as a potential replacement scheme. That Option was apparently in place by mid-2018 and, we are now told, it is still one of three possible policy choices described in paragraph [21] below (the lawfulness of which is not a matter before us). 18.Superintendent Leung states that when, on 30 April 2018, the Court of Appeal allowed the Commissioner’s appeal “the need of CSD to implement a new policy in place of SO 41-05 went away”.[7] However, it was clear that the appellant was seeking leave to appeal to the CFA and, after leave was refused by the Court of Appeal, the Appeal Committee granted leave in August 2019, fixing the hearing date for 18 February 2020.[8] Obviously, since the appeal might succeed, the need to consider a new policy in place of SO 41-05 had not “gone away”. Indeed, the Commissioner states that at that stage, he consulted the Department of Justice as to the possibility of implementing Option 1. That was of course a prudent course to take after having previously invested time and effort towards identifying that Option. If it had been thought that further options merited consideration in case the CFA appeal succeeded, there was in the event over a year to do so before the appeal was heard. 19.Then after judgment was handed down on 27 November 2020, a further period of five weeks was allowed for submissions to be made regarding the form of the Order. Knowing that SO 41-05 had been held to be unlawful, it was incumbent on the Commissioner to settle on an SDO-compliant policy and to propose an Order in an appropriate form. 20.Instead, what we have before us is an application for a temporary suspension of the Court’s Declaration for a further six months. On what basis? We are told that this is because three options are being considered and the CSD “does not wish to make a hasty decision”.[9] This rings completely hollow in the light of the chronology examined above. 21.The three options are explained as follows:
22.In the meantime, the Commissioner proposes an interim regime under which male prisoners will continue (as under SO 41-05) to keep their hair cut “sufficiently close” but with the right to make representations to be exempted, to be considered case by case. 23.On their face, the three options are not complicated and the task for the Commissioner is simply to decide which of them to choose and accordingly to issue a fresh Standing Order in place of SO 41-05. The implications of a change in the existing regime have been under consideration literally for years, advice having been taken from consultants and lawyers. 24.It is impossible to understand why a temporary suspension of 6 months is required. It is submitted first that 6 weeks are required to “[compare] the existing options for full compliance with CFA judgment”.[10] But there is nothing complex about that judgment. It simply requires elimination of the less favourable treatment regarding hair length requirements based on sex. The Commissioner has sought and been given more than ample time to study alternative options for comparison. Option 2 differs from Option 1 only regarding the hair length specifications to be adopted, although a proposal to force all female prisoners to have their hair cut “sufficiently close” in order to achieve equality appears at first blush to be rather unattractive. And Option 3 requires nothing to be done except to remove the hair-cutting requirement for men under SO 41-05. 25.It is said that 14 weeks will be needed to seek advice from the Department of Justice and to “refine the new haircut policy”. That is wholly unconvincing. The legal obligation is to comply with the Court’s Order, it being left to the Commissioner’s discretion as to which policy he wishes to adopt while seeking to ensure that it does not involve adverse differential treatment based on sex. Then two weeks are said to be needed for “policy endorsement”, but this is not explained. Training of officers is then said to take 4 weeks. 26.In all the circumstances, we are not persuaded that any case has been made out for the temporary suspension requested. 27.We accordingly make the following Orders, namely that:
Written Submissions by Mr Hectar Pun SC, Ms Annie Leung and Mr Anson Wong Yu Yat, instructed by Ho Tse Wai & Partners, assigned by the Director of Legal Aid, for the Appellant Written Submissions by Mr Jin Pao SC, instructed by the Department of Justice, for the Respondent [2] Affirmation of Leung Chung Yin filed on 11 December 2020 (“Leung affirmation”) at [26]. [3] Commissioner’s submissions at [6]. [4] (2006) 9 HKCFAR 441. [5] CFA judgment at [15] and [54]. [6] FACV 4 of 2012, Orders and Costs, 16 July 2013. [7] Leung affirmation at [14]. [8] The hearing was subsequently re-fixed, due to Covid-19 related disruptions, to 28 October 2020. [9] Commissioner’s submissions at [9] and [10]. [10] Commissioner’s submissions at [12]. |
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