In the recent judgment of Leung Kwok Hung (also known as “Long Hair”) v. Commissioner of Correctional Services  HKCFA 37, the Court of Final Appeal (CFA) ruled in favour of Leung Kwok Hung (Leung) in his fight against the Commissioner of Correctional Services (Commissioner). After being convicted and sentenced to imprisonment, Leung, the appellant, was required to have his hair cut at Lai Chi Kok Reception Centre pursuant to Standing Order 41-05. Leung applied for judicial review against such decision on the ground of sex discrimination contrary to the Sex Discrimination Ordinance (Cap 480) (SDO), contending that he had been treated less favourably than female prisoners, in that while the hair of male convicted prisoners like him had to be kept sufficiently close, by contrast, female prisoners had a freer choice and, except as recommended by a Medical Officer, their hair could not be cut shorter than the style on admission to prison without their consent.
Leung won in the Court of First Instance (CFI), but lost in the Court of Appeal. Leung then appealed to the CFA, which handed down its judgment on 27 November 2020, allowing Leung’s appeal.
The Commissioner accepted that there was a difference in treatment between male and female prisoners, they were (in terms of hair length) in comparable positions, and that such difference was on the basis of sex. The dispute was whether less favourable treatment, seen in the proper context, has been accorded to male prisoners like Leung. At the CFA hearing, the Commissioner explained the difference in treatment of male and female prisoners by reference to the policy of custodial discipline which required the imposition of reasonable uniformity and conformity in appearance among inmates. The difference in treatment was in turn explained as a reflection of the conventional standards of appearance in society for men and women.
The CFA took the view that when applying the “package” approach, one invariably needs to put matters in proper context to enable a proper comparison to be made. However, the approach in discrimination cases is not a “tit for tat” or “swings and roundabouts” approach. It is therefore always necessary to examine whether the particular act or policy said to be discriminatory does in context result in less favaourable treatment. Further, it is also necessary to demonstrate that the difference in treatment is logically and reasonably connected to the articulated objective, policy or reason, and only then will it be possible to determine whether or not there has been less favourable treatment.
The Commissioner had at the CFI hearing sought to contend that security risks are higher in the case of male inmates than female inmates. The CFA in its judgment criticised the evidence adduced by the Commissioner which fails to demonstrate any real link between the length of a prisoner’s hair and the asserted risks said to threaten the individual rights of prisoners while in custody, or explain why male and female prisoners should be treated differently. Absent a proper explanation, the CFA found it difficult to accept why individual choice should be denied to male prisoners but not female ones, and what this selective denial of choice has to do with a de-emphasis on a prisoner’s individuality to give way to custodial discipline (a point emphasised by the Commissioner).
With respect to the argument that there exist conventional standards of appearance for men and women in society regarding hair length, while the CFA accepts that resort to societal or conventional standards may be legitimate in some situations (e.g., different rules between men and women for reasons of privacy and decency, such as segregation in different toilets, or difference in cross gender rub down searches in prisons), some factual basis is required to support what is asserted to be a convention or conventional standards. The burden lies with the Commissioner to prove the conventional standards he sought to rely on, yet the evidence was far from establishing such belief. As such, the CFA found it unnecessary to deal with the point whether the asserted conventional standards regarding the length of men and women’s hair in society involved stereotyping, though the court noted that whilst generally speaking, there will be found discriminatory conduct if there has been stereotyping. The CFA considered the point capable of many nuanced arguments and is not without difficulty both conceptually and as applied in practice.
The judgment of the CFA is in line with the judiciary’s continual determination in upholding the SDO as a social legislation for protecting civil rights. At the same time, this case reminds us of the well-established principle that “he who asserts, must prove”. In the present case, the Commissioner’s argument was premised on the fact that there exist conventional standards of appearance for men and women in society in relation to the length of hair. The Commissioner had also contended before the CFI that security risks are higher in the case of male inmates than female inmates. Yet, the Commissioner had failed to discharge the burden of proof required in establishing either argument. If the evidence adduced had been sufficient to establish a conventional standard of appearance, or that real risks do exist which is higher in the case of male inmates, one wonders if it might then lead to a different finding.