LEUNG KWOK HUNG also known as "LONG HAIR" v. COMMISSIONER OF CORRECTIONAL SERVICES

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

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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.

(1) The parties agree the form of declaratory relief, which is to include the Chinese translation of the phrase “sufficiently close” as adopted in the certified question for which leave to appeal to the CFA was granted.

(2) The parties agree that there should be an order of certiorari to quash the respondent’s decision dated 9 June 2014 requiring the appellant to have his hair cut.

(3) The parties agree that there should be an order under RHC O.53 r.9(5) that these proceedings should continue as if begun by writ insofar as they relate to the appellant’s claim for damages based on the tort of battery.  The parties can then seek to reach agreement or seek directions from the District Court or Small Claims Tribunal for the further conduct of this part of the appellant’s claim.

(4) The parties also agree that costs should follow the event.

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:

“… a male convicted PIC [person in custody] will be required to keep his hair sufficiently close. However, if the male PIC objects to the hair cut, he will be entitled to make representations. The CSD will consider each request based on the individual merits against a basket of factors, including the justification for the request as well as practical and operational needs. If the request is justified, a hair cut will not be required.”[3]

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:

“The respondent has the responsibility for and expertise in administering prisons. His duties are set out in the Prisons Ordinance. In this respect, he should be given a wide margin of discretion to adopt appropriate policies. However, he must do so consistently with applicable laws...”

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:

17.1.2017	Au J held that SO 41-05 involved discrimination under the SDO and a violation of BL25.  However, he granted a temporary suspension of his Order for almost five months until 1.6.2017.
February 2017	CSD lodged an appeal.
26.6.2017	CSD says it examined different proposals but could not find a suitable alternative and obtained a further extension of 9 months to 31.3.2018.
November 2017	CSD commissioned a consultancy study by a local university, sought legal advice and formulated “Option 1” as a scheme to replace SO 41-05.
3-4.1.2018	Hearing of appeal in Court of Appeal.  Judgment reserved.
9.4.2018	CFI granted yet a further extension until handing down of CA judgment.
30.4.2018	Court of Appeal allowed the appeal, holding that the practice was not discriminatory.
22.1.2019	Court of Appeal refused leave to appeal.
13.8.2019	Appeal Committee granted leave to appeal.
	CSD says it consulted DOJ on the possibility of implementing Option 1 if CFA should hold against the Commissioner.
27.11.2020	CFA allowed the appeal and declared SO 41-05 discriminatory.  CSD asked for opportunity to make submissions as to the form of the Order and the parties were granted a total of five weeks to make submissions.
11.12.2020	CSD filed its submissions proposing a form of Order and asking for the Declaration to be suspended for 6 months from the date of the Order.
28.12.2020	Appellant’s submissions filed, objecting to temporary suspension and asking for costs with a certificate for three counsel.
4.1.2021	CSD’s submissions in reply filed.

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:

(a) Option 1 (the option worked out after the consultancy study commissioned in November 2017) which involves adopting new specifications (“short to medium-short” for males and “chin-length to armpit length” for females) with hair cut to those lengths but subject to inmates being able to make representations for an exemption in particular cases;

(b) Option 2: all inmates to have hair cut at “medium short” subject to being able to make representations as above; and

(c) Option 3: males and females being allowed to keep their hair at its length on admission, subject to there being a medical need to cut it.

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:

(1) There be a declaration that 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”) 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.

(2) There be an order of certiorari to quash the decision of the respondent made on or about 9 June 2014 that the appellant be required to have his hair cut.

(3) There be an order that the present proceedings, insofar as they relate to the appellant’s claim for damages based on the tort of battery, continue as if they had been begun by writ, pursuant to Order 53, rule 9(5) of the Rules of the High Court (Cap.4A).

(4) The appellant’s costs here and below be paid by the respondent, to be taxed if not agreed, with a certificate for two counsel.

(5) The appellant’s own costs to be taxed in accordance with the Legal Aid Regulations (Cap.91A).