The Correctional Services Department has won an appeal, overturning a lower court decision which stated that cutting the hair of male prisoners amounted to sexual discrimination.
Last year, then-lawmaker “Long Hair” Leung Kwok-hung won a judicial review against the rule, after his iconic locks were cut short in 2014 as he served a jail sentence over a protest.
The department said that the rule was in place for hygiene reasons, and that there was a risk of male prisoners hiding weapons under lengthy hair. The department studied a plan whereby both male and female prisoners would have their hair cut short, before filing an appeal which was heard in January.
The judgment said that, though some might regard the conventional standards of appearance as a kind of stereotyping or a form of hidden direct sex discrimination, it is an objective fact that the conventional standards exist and they are observed by most people in 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… I do not accept that a ‘sex-appropriate’ social code is necessarily a discriminatory practice,” Mr Justice Johnson Lam wrote in the judgment.
Lam added that in the case, the incursion to the right to equality was limited since the applicant was incarcerated in a male correctional institution and there was no challenge to the segregation of male and female inmates. He said the conventional standard of appearance applied to both men and women in prison, although separately.
“The management of prison and maintenance of custodial discipline are matters within the expertise and professional judgment of the Commissioner [of Correctional Services]. The courts are not equipped with the same professional expertise in the assessment of the significance of conformity in reformation and discipline.”
“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.”
Court of Appeal Chief Judge Andrew Cheung and Mr Justice Jeremy Poon also agreed with Lam in the judgment.
Judicial reviews are first considered by the Court of First Instance and examine the decision-making processes of administrative bodies. Issues under review must be shown to affect the wider public interest.
Leung said he was not surprised by the result, but maintained there was direct discrimination: “I still think this is unfair.”
He said conventions in society change throughout time: “I believe the judiciary should give judgments in accordance to the latest development of civilisation.”
Leung said he may file a final appeal to the highest court, but he has to obtain legal aid from the government to do so. He has already paid around HK$900,000 as a deposit for the legal aid for the case, which he cannot take back.