ADMINISTRATIVE & CONSTITUTIONAL LAW – Differential hair-cutting requirement for male and female prisoners constitutes discrimination and violates the Sex Discrimination Ordinance as well as the Basic Law, Court of Final Appeal holds
Former Legislative Councillor Leung Kwok-hung, also known as “Long Hair”, has won his appeal against the Court of Appeal’s judgment to uphold the Correctional Service Department (“CSD”)’s differential hair-cutting requirement for male and female inmates, prescribed in Standing Order 41-05 (“SO 41‑05”) issued by the Commissioner of Correctional Services. Hectar Pun SC, leading Annie Leung and Anson Wong Yu Yat, acted for the Appellant in Leung Kwok Hung also known as “Long Hair” v Commissioner of Correctional Services (2020) 23 HKCFAR 456.
Under SO 41-05, the “hair of all male convicted prisoners will be kept cut sufficiently close … for the purposes of health and cleanliness”, whereas “a female prisoner’s hair shall not be cut shorter than the style on admission without her consent”.
In a unanimous judgment written by Chief Justice Ma, the Court of Final Appeal found that SO 41-05 constituted differential treatment on the basis of sex, contravening the Sex Discrimination Ordinance (Cap. 480) as well as the right to equality guaranteed by Article 25 of the Basic Law.
This case arose from Mr. Leung’s imprisonment at the Lai Chi Kok Reception Centre after a criminal conviction. At the time, Mr. Leung’s long hair got cut pursuant to the CSD’s order despite his objection.
In 2014, Mr. Leung filed his application for judicial review against the Commissioner of Correctional Services to challenge SO 41‑05, which application was allowed by the Court of First Instance. Subsequently, the Court of Appeal allowed the Commissioner’s appeal.
This case has garnered wide coverage in the press, including:
• (in English) SCMP, The Standard, and RTHK ;
• (in Chinese) Apple Daily and Ming Pao.
Further reading:
• Judgment
• Judgment on Relief and Costs
Representation:
Hectar Pun SC, leading Annie Leung and Anson Wong Yu Yat, acted for the Appellant.
| Hectar Pun SC
Hectar was called to the Bar in 1995 and appointed Senior Counsel in 2015. His practice spans many areas including constitutional and administrative law, human rights law, immigration law, criminal law, land law, company law and commercial law. He appears regularly on behalf of applicants in major judicial review proceedings. Recently, Hectar acted for the successful applicant in Chan Kung Shun and Others v. Commissioner of Police (19/11/2020, HCAL 2703/2019) [2020] HKCFI 2882, where the Court held that the failure of police officers to display unique identification markings during anti-extradition bill protest operations contravened the Hong Kong Bill of Rights. |
| Annie Leung
Annie was called to the Hong Kong Bar in 2006, in addition to admission to the Australian Bar and Solicitor in 2004. She has since practiced with an emphasis on criminal, constitutional and administrative, discrimination, regulatory and disciplinary, immigration and civil law at both first instance and appellate levels. A nod to her expertise in discrimination law, she was appointed as an external Investigator and Conciliator of the Equal Opportunities Commission. She has also co-authored a book on discrimination: Discrimination Law and Practice in Hong Kong, Sweet & Maxwell. In addition to Leung Kwok Hung also known as “Long Hair” v Commissioner of Correctional Services (2020) 23 HKCFAR 456 (see above), she has also appeared in a number of landmark Court of Final Appeal cases, including Secretary for Justice v Yau Yuk Lung [2007] 10 HKCFAR 335, a case concerning the constitutionality of the then homosexual buggery provision in the Crimes Ordinance and issues regarding the right to equality and discrimination on the ground of sexual orientation, laying down the “justification test” in dealing with differences in legal treatment, as well as Po Fun Chan v Winnie Cheung [2007] 10 HKCFAR 676, which revisited the requirement for leave to apply for judicial review. |
| Anson Wong Yu Yat
Anson has developed a broad civil practice with an emphasis on public law (such as Leung Kwok Hung v Secretary for Justice [2020] 2 HKLRD 771; [2020] 1 HKLRD 1, which challenged the constitutionality of the Emergency Regulations Ordinance and the “anti-mask” law), intellectual property litigations and competition law matters. Recently, Anson (led by Mr. Hectar Pun SC) acted for the successful applicant in Chan Kung Shun and Others v. Commissioner of Police (19/11/2020, HCAL 2703/2019) [2020] HKCFI 2882, where the Court held that the failure of police officers to display unique identification markings during anti-extradition bill protest operations contravened the Hong Kong Bill of Rights. |
Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photograph which appears in this article is included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related.