NAVARRO LUIGI RECASA v. THE COMMISSIONER OF CORRECTIONAL SERVICES AND ANOTHER

HCAL 93/2015

[2018] HKCFI 1815

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 93 OF 2015

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J U D G M E N T

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A. INTRODUCTION

1.  This judicial review principally raises the questions of the lawfulness and constitutionality of the decisions to put a pre-operative male-to-female (“MtF”) transgender person-in-custody (“PIC”) into male correctional facilities with various detention conditions, and having male police and correctional officers to conduct body searches on that person.

2.  The applicant (“R”) is a Filipino who was born biologically male.  R’s passport also shows that R’s sex or gender is male.

3.  However, R suffers from gender dysphoria and identifies herself[1] as a female and is a MtF transgender person.  “Transsexualism” is defined in the International Statistical Classification of Diseases and Related Health Problems (10^th ed) as a “desire to live and be accepted as a member of the opposite sex, usually accompanied by a sense of discomfort with, or inappropriateness of, one’s anatomic sex and a wish to have hormonal treatment and surgery to make one’s body as congruent as possible with the preferred sex”.

4.  R has since the age of 12 been receiving hormone replacement treatment (“HRT”) and at 19 had breast argumentation surgery.  HRT has the effect of enabling R to develop breasts, maintain a female facial complexion and a slender feminine physique.  It has also made her male features such as facial hair growth, chest hair, Adam’s apple and a deep voice not to have developed.  On the other hand, R has not undergone any sex reassignment surgery (“SRS”)[2] and retained all the male genitalia intact.

5.  In other words, R, who also wears a long hair, has an outward female appearance with a feminine physique, although she retains all the male genitalia.

6.  On 3 June 2014, R entered Hong Kong as a visitor.  On 5 June 2014, during a police operation, she was found to have offered sex services for monetary reward, and to have possession of suspected dangerous drugs.  She was arrested and was later convicted on 31 July 2014 on guilty plea of the offences of “trafficking in a dangerous drug”; “possession of apparatus fit and intended for the inhalation of dangerous drug” and breach of conditions of stay.  She was sentenced to 20 months’ imprisonment.  By the time of the hearing of this application, she had already completed her sentence and has since 15 July 2015 been released from prison.

7.  In this judicial review, R has raised various grounds to challenge:

(1) The various decisions of the Commissioner of Correctional Services (“CCS”) to put her in male custodial facilities (both before and after the conviction) and to subject her to detention conditions which kept her effectively in a single cell and not allowing her to mingle with or participate in activities with other female inmates.

(2) The respective decisions of the Commissioner of Police (“COP”) and the CCS to conduct strip or cavity searches on her by male officers.

8.  In gist, R says these decisions were unlawful as they were discriminatory and in breach of the Sex Discrimination Ordinance (Cap 480) (“the SDO”) and the Disability Discrimination Ordinance (Cap 487) (“the DDO”), infringed her various fundamental rights protected under the Hong Kong Bill of Rights (“HKBOR”) and the Basic Law (“BL”), and in any event, were irrational in public law sense in the circumstances of R.

9.  Further, R also challenges the CCS’s alleged delay in providing her with the requested HRT.  In this respect, R first requested for the HRT in late July 2014, but was only eventually provided with it on about 19 March 2015.  R says the undue delay in providing the HRT amounted to direct disability discrimination under the DDO, was irrational in the public law sense, and in breach of the CCS’s duty under section 11 of the Prisons Ordinance (Cap 234) (“the PO”).

10.  R seeks various reliefs.  These principally include declarations to the effect that (a) the decisions to put her in male correctional facilities and subject her to the various detention conditions were unconstitutional, discriminatory and unlawful, (b) the decisions to subject her to body searches by male officers were unlawful, discriminatory and unconstitutional, (c) the delay in providing her with the HRT was discriminatory, unlawful and in breach of CCS’s duty.  R also seeks directions from the court for claiming damages against the CCS and the COP.

11.  I will elaborate on these grounds of challenge later.  But in order to properly understand them, it is necessary to set out the relevant context and background leading to these challenges first.

B.      BACKGROUND

B1.    Detention decisions and factors affecting such decisions as adopted by the CCS

B1.1 Segregation of PICs by sex or gender

12.  As highlighted in the CCS’s submissions, the statutory framework mentioned below draws a clear demarcation between male PICs and female PICs for the purpose of detention.

13.  Section 8 of the PO provides: “In a prison used for both men and women separate buildings or parts of a building shall be used for the men and for the women respectively so as to prevent the one from seeing or communicating with the other.”

14.  Rule 6 of the Prison Rules (Cap 234A) (“the PR”) further provides: “(1) In a prison for both men and women the whole of the premises allocated to women shall be entirely separate; (2) the keys of the premises allocated to women shall be under the control of female officers.”

15.  Relevantly, rule 5A of the PR stipulates: “No officer of the Correctional Services Department or other person employed in a prison shall enter a cell or dormitory allocated to a prisoner of the opposite sex unless accompanied by another officer or other person employed in the prison who is of the same sex as the prisoner to whom the cell or dormitory is allocated.”

16.  And rule 7 of the PR reads: “Female prisoners shall in all cases be attended by female officers.  A male officer shall not enter a prison or part of a prison appropriated for the use of female prisoners except on duty and in the company of a female officer.”

17.  In compliance with such statutory provisions, with the exception of Siu Lam Psychiatric Centre (“SLPC”), all other prisons in Hong Kong are either all male or all female.

18.  SLPC has been the only correctional institution under the Correctional Services Department (“the CSD”) that takes in both male and female PICs.  However, in compliance with section 8 of the PO and rule 6 of the PR, the respective parts of SLPC that are allocated to the detention of male and female PICs are completely separated.

19.  In general, it is the CSD’s policy and practice to assign a PIC to a male or female prison that corresponds with the gender as shown in the PIC’s identification document (such as identity card or passport) and biological sex.  In this respect, the CCS has relied on section 17B of the Immigration Ordinance (Cap 115) (“the IO”) which provides that a proof of identity of any person means, among others, the valid travel document held by him or her.

B1.2  Transgender PICs

20.  The CCS has filed evidence to set out the way he has in practice classified transgender PICs.

21.  In broad terms and for present purposes, transgender persons (“TG”) can be classified into four categories:

(1) Male-to-Female (ie, MtF) TG who has not received or completed SRS;

(2) Female-to-Male (“FtM”) TG who has not received or completed SRS;

(3) MtF TG who has completed SRS; and

(4) FtM TG who has completed SRS.

22.  Insofar as the classification of a PIC as a TG under any one of the above categories is concerned, this is to be carried out only by a medical officer (“MO” or “MOs” as appropriate) or a psychiatrist.  As emphasized by the CCS, change of gender is a process involving various stages.  Some TG PICs are in a relatively early stage of gender change and it may not be possible to identify their TG status by visual inspection.  While in other cases the TG characteristics of a PIC may be more apparent, medical expertise is needed to determine what stage of gender change the TG has reached or whether SRS has been completed.  In this regard, rule 14 of the PR provides that every PIC shall be examined by the MO of a correctional facility upon admission as soon as practicable, and in any case within 24 hours of admission.  In case a PIC claims himself or herself or is observed to be a TG, the MO may after the examination refer the case to the clinical psychologist (“CP”) or psychiatrist for further assessment.

23.  To accommodate, among others, TG in custody, in 1991, the CCS set up the Vulnerable Prisoners Unit (“VPU”) in SLPC.  As mentioned above, SLPC is the only CSD correctional institution that takes in both male and female PICs.  Initially, both TG PICs and PICs identified to be transvestites were referred to the VPU at SLPC for management.  Later, in around 2004, the CCS gave approval to revise the admission criteria for the VPU to the extent that PICs identified to be transvestites suffering from fetishistic transvestites but had male gender identity would not be admitted to the VPU, as such PICs might cause security concern when mixed with those who were TG.  Since then, the VPU has been specifically assigned to cater for the special needs of TG PICs only.  It is the CCS’s case that placing them in other institutions may expose them to higher risk of harassment.

24.  It is also the CCS’s position that the purpose of the VPU is to ensure fair treatment in compliance with the law in a way that is safe for TG PICs and others.  Given the unique needs and characteristics of a TG PIC, TGs (who have not had the sex or gender on their identification documents changed) before or at different stages of SRS will be assigned to the designated VPU at appropriate locations of SLPC.  For instance, a MtF TG who has completed sex reassignment surgery but still possesses a “male” identification document may be detained in the VPU located in the female wing of SLPC.  In the case of a TG who has not received or completed SRS, he or she is arranged to stay in the VPU with other TG PICs with the same intended sex (if any) during daytime but will be singly located in a cell at night with a view to protecting his or her personal safety.

25.  Given their special and varied needs, whenever there are issues to be resolved regarding the location assignment or other special treatment needs of a TG PIC, a case conference will be convened and a multi-disciplinary assessment will be made.

26.  In this respect, the CCS has issued a management guideline for the Care and Management of Transsexual Persons in the VPU (“the VPU Guideline”).[3] Relevant for the present purposes, the VPU Guideline provides:

“1.4 This management guideline sets out important points to be observed by all relevant personnel responsible for the care, management and treatment of transsexual persons detained in VPU of SLPC.

2 General Treatment

2.1 Treatment to persons in custody is essentially provided by Prisons Ordinance (Chapter 234, Laws of Hong Kong). CSD is committed to providing a secure, humane, decent and healthy environment for persons in custody; to providing opportunities for rehabilitation; and to working in collaboration with the community and other agencies.

2.2 A transsexual person in custody is entitled the same rights and treatment like any other persons in custody. The purpose of VPU is to ensure fair treatment in compliance with the law in a way that is safe for the transsexual person and others.

3  Location

3.1      Prisons Ordinance Section 8 and Prison Rule 6 provide for the accommodation of female persons in custody; and separation of male and female persons in custody respectively.  As a general rule, a transsexual person must be located according to the gender assigned at birth, which appears in the person’s identity documents.

3.2      A transsexual person will normally be singly located in a cell in the nightmare.

3.3 Where there are issues to be resolved in cases such as a transsexual person has undergone gender reassignment surgery and treatment to assume the opposite gender of the gender assigned at birth, a case conference will be convened and a multi-disciplinary assessment will be consolidated to determine how best to manage a transsexual person’s location.

3.4      For the purpose stated above, the case conference will comprise at least the Head of Institution or his Deputy as the Chairman; and a Medical Officer; a Clinical Psychologist; a uniformed staff responsible for discipline; a rehabilitation officer and a uniformed staff from the Security Section as members.  Where appropriate, a Visiting Psychiatrist may also be invited.  In case of doubt, directive from CSD HQ or legal advice may be sought.

4  Appearance and Attire

4.1      In general, a transsexual person will dress in uniform and keep the appearance clean and tidy appropriate to the general requirements applicable to other persons in custody of the same location.  Requests for any deviation from the general requirements, for example keeping long hair in a male location, will always be considered on the individual merits of each case, having regard to the opinion of the Medical Officer, Clinical Psychologist or Psychiatrist, where appropriate.

5 Searching

5.1 As a general rule, searching of a transsexual person will be conducted in accordance with Prison Rules 9 and 10 applicable to other persons in custody of the same location.  Requests for any deviation from the general requirements will always be considered on the individual merits of each case, having regard to the opinion of the Medical Officer, Clinical Psychologist or Psychiatrist, where appropriate.

6 Showers

6.1      No other persons will be allowed to use the same shower facility except those persons of the same VPU at the same location.

7  Daytime Activities

7.1      Transsexual persons will be offered as wide a regime of activities as other persons in custody.  Activities within VPU as a group in general will enable greater care and supervision insofar as it is reasonable and practicable to manage possible risk of transphobic harassment or transphobic hate crime.

7.2      Prior approval from the Chief Officer on duty is necessary for any associations of VPU persons with other persons in custody.  Any risks to and from a transsexual person must be identified and managed appropriately, as would be the case with any other persons in custody.

8  Medical Treatment

8.1      The Medical Officer shall have the medical charge and shall be responsible for the treatment when sick of all persons in custody.

8.2      Having regard to the medical history of a transsexual person, the Medical Officer will consider all requests for medical treatment for gender dysphoria or gender reassignment surgery; and refer the person to a gender dysphoria specialist if appropriate.  He will also take full account of any possible coexisting psychopathology that may require expert forensic psychiatric assessment and refer the person to a forensic psychiatric service if appropriate.”

B1.3 Classification of PICs by age – PICs under 21

27.  According to the CCS’s evidence, apart from gender, PICs are also classified by reference to their age.

28.  A PIC who is 14 years of age or upwards and under the age of 18 years is a juvenile.  Article 6(2)(b) and 6(3) of the HKBOR provide that accused juvenile persons and juvenile offenders shall be separated and segregated from adults and be accorded treatment appropriate to their age and legal status.

29.  As for PICs who are 18 years of age or upwards, sections 47 - 04 of Standing Order (“SO”) provides as follows:

“1. All prisoners who have not attained the age of 21 years will normally be treated as young prisoners. A prisoner who reaches the age of 21 years during his sentence may be transferred to adult section at the discretion of [the Head of Institution].

2.  A Classification Board may reclassify a young prisoner who has reached the age of 18 years as an adult with approval of [the Commission of Correction Services]. Such reclassification may be based on the grounds that the prisoner’s character or degree of criminal sophistication would have undesirable effect on other young prisoners, or on general grounds of personality.”

30.  Male remands and convicted PICs who are under the age of 21 will be transferred to Pik Uk Correctional Institution (“PUCI”) which is a reception centre established and designated for the detention of young males.

B2.    The detentions of R

31.  In the present case, at the time of arrest in June 2014, R was aged 19 (and hence under 21). It is also common ground that she is a pre-operative MtF TG and her passport identifies R as a male.  Given these circumstances, and in accordance with the above stated policy and practice, the undisputed or indisputable evidence shows that R was detained or kept in custody in the following male facilities from the time of her arrest to the time when she had completed her sentence.

32.  From 5 to 7 June 2014: R was detained in the Central Police Station (“the Police Station”) by the COP.  On 7 June 2014, she was brought to Kowloon City Magistrates’ Court for mention.  At the magistracy, she was handed over by the police to the CSD for custody.

33.  From 7 to 9 June 2014: R was transferred to PUCI for custody.  At that time, PUCI, which is a male institution, was notified that R was a suspected MtF TG.  At PUCI, she was examined and assessed by the resident MO.  In view of her feminine appearance and being a suspected TG, and the recommendation of the MO to locate her in the Hospital Block for observation of possible drug withdrawal symptoms, it was decided to keep her singly in the observation cell in the Hospital Block of PUCI.  The MO later confirmed that she was a MtF pre-operative TG and recommended her transfer to SLPC (which has the VPU catered for the custody of TGs).  She was eventually transferred to SLPC on 9 June 2014.  R’s detention at PUCI lasted for less than 48 hours.

34.  From 9 June 2014 to 15 July 2015: R was transferred to and kept in custody at the VPU of SLPC from 9 June 2014 until the day of her release.  During this period:

(1) From 9 to 11 June 2014, R went through the “sanitisation process” as she declared that she was a drug user and had taken dangerous drug (Ice) two days prior to his admission to PUCI and a positive result was show in her urine test conducted at PUCI.  During this process, she was admitted to a single cell for medical observation until her urine test became negative.

(2) A case specific multi-disciplinary assessment conference, as provided for in paragraph 3.3 of the VPU Guideline, was held on 11 June 2014,[4] at which the following was considered, discussed and concluded relating to R’s location assignment:

(a) that it would be inappropriate to assign R to the female wing of SLPC due to:

(i)     the statutory requirement to protect female PICs against unnecessary exposure to males;

(ii)       R having intact male genitalia and the potential risks to female PICs if she were allowed to associate with them;

(b) that the placement of R in the male section would have to be such that he would be protected from the substantial risk of sexual harassment from other male PICs.

(3) Further, pursuant to decisions made at this conference during the rest of her custody period:

(a) During daytime, R was kept in the Annex of the male Psycho-geriatric Ward and Sick Bay (Ward D).  Access to the Annex is restricted to a need basis and its entrances are installed with security gates.  Ward D keeps inmates with minor aliment, disability or in need of psycho-geriatric care.  The average population size of the Annex has been around 12 to 16 persons.

(b) R had the use of the toilet and shower room in the Annex.  Although it is a shared facility, prior to its being used by R, it would be searched and cleared to ensure that no other inmates would be present.  Mobile partitions would be placed inside the toilet and shower room near its entrance to keep R out of sight of other PICs from outside when he was using the shower facilities.  The presence of supervising staff at the Annex at all times sought to ensure that no other PICs would be allowed to enter or stay in the vicinity of the toilet and shower room when it was in use by R.

(c) During night time, R was assigned to single cell custody on the ground floor of Block E at SLPC.

(4) At the same time, during the period of custody, R was authorized to generally associate with other pre‑operative MtF TG PICs during day time as and when the other TGs were admitted to SLPC and assigned to the Annex.  It is however a fact that during her time in custody, there were no other MtF TG PICs in SLPC.

(5) She was also assigned to work as a cleaner in the Annex, and arranged to have daily exercise at the garden in the morning for an hour at designated time.  However, it was decided at the conference that it would be inappropriate to arrange R to participate in sports or games with other male PICs as close body contact would be inevitable, and that would expose R to substantial risk of sexual harassment because of her feminine appearance.

35.  It is also common ground that when R was required to be transported from the Police Station or from PUCI or SLPC to the Magistracies, she was put in a vehicle with other male PICs.

B3.    Request for and the provision of HRT

36.  On 10 June 2014, R disclosed to Medical Officer Ho (“MO Ho”) of the CSD that she had used female hormone in the Philippines since she was 12.  MO Ho was however concerned, among others, that, firstly, R could not provide any information or medical records to verify the nature and dosage of the HRT she had been taking, and secondly, from the Hong Kong local perspective, it was unethical to start such treatment before the patient’s full sexual maturity without careful pre-treatment assessment by relevant medical specialists.

37.  On 30 July 2014, R approached MO Ho and requested for feminizing hormone for the first time.  On 11 August 2014, in accordance with the Hospital Authority’s referral protocol, MO Ho approached the Medical Unit (Endocrine Section) of the Tuen Mun Hospital (“TMH”), being the only public hospital within the cluster of SLPC having a specialist outpatient clinic apparently pertinent to R’s case.  The Medicine & Geriatrics Specialist Outpatient Clinic of the TMH took it up, classified the case as “Routine” and gave an appointment date of 27 November 2015 according to their usual practice, given that there was no indication of underlying potential life threatening diseases or urgent serious medical conditions.  On 26 August 2014, R was informed that an appointment in November 2015 had been obtained for her.

38.  Between late August 2014 and late January 2015, R had been seen by the MO and CP at SLPC on several occasions.  It is the CCS’s case that R did not exhibit any psychiatric symptoms or request for an appointment with a psychiatrist.[5]

39.  Then, on 26 January 2015, R’s solicitors wrote a letter stating, among others, that she had been denied the HRT.  In view of the said letter, various actions were immediately taken to see if R could be given further help.

40.  On the one hand, on 30 January 2015, MO Ho referred R to the psychiatric specialist of the Department of Forensic Psychiatry outreach service of the Castle Peak Hospital (“CPH”).  On 6 February 2015, R was first seen by Dr Bonnie Siu (“Dr Siu”) (who was the visiting consultant psychiatrist at SLPC).  Dr Siu referred R’s case to Tuen Mun Mental Health Centre (“TMMHC”) for specialist assessment and baseline blood tests for determination of the appropriate hormone prescription.  On 19 March 2015, the HRT was prescribed by Dr Siu and administered to R, and such treatment continued until she was discharged from SLPC on 15 July 2015.

41.  On the other hand, on 28 January 2015, MO Ho approached the TMH in an attempt to advance the appointment date forward.  TMH later responded that it did not provide service for the management of transsexualism, and advised that R’s case could be referred to other centres including the Ruttonjee and Tang Siu Kin Hospital (“RTSKH”).

42.  MO Ho then approached the Plastic and Reconstructive Surgery Unit of the RTSKH.  On 4 February 2015 an appointment on 21 April 2015 was scheduled for R.  On 21 April 2015, R attended the RTSKH, and hormone in a different form in a different dosage was prescribed, but was subsequently changed back to the one prescribed by the specialist at the TMMHC.

43.  It can thus be seen that, as a matter of fact, it had taken some seven months for the HRT to be given to R after having requested it on 30 July 2014.

B4.    Body searches conducted on R

44.  Since her arrest and during her detention, R was subject to the following body searches by police officers and CSD officers:

(1)    A custody search (level 3 strip search)[6] by police officer at the Police Station on 5 June 2014.

(2)    A strip and rectum search on her admission to PUCI on 7 June 2014.

(3)    A strip and rectum search on her admission to SLPC on 9 June 2014.

(4)    A strip search on her return to SLPC from the Eastern Magistrate’s Court on 13 June 2014, 21 July 2014, 31 July 2014 and 19 August 2014.

(5)    An upper body strip search on each occasion before departing from SLPC for the HRT at the RTSKH since about 19 March 2015.

45.  It is common ground that all these searches were conducted only by male officers in the presence of other male officers.  It is also the CCS’s evidence all rectum searches were conducted by an enrolled nurse of the CSD.

C. THIS JUDICIAL REVIEW

46.  Having set out the above background, I will now examine the various grounds of judicial review raised by R.

47.  R is represented by Mr Clive Grossman, SC, leading Mr Earl Deng.  The CCS and the COP in opposing this application are represented by Ms Lisa Wong, SC, leading Mr Johnny Ma.

48.  R has raised myriad grounds of challenge.  The eight grounds of judicial review as set out in the Re-Re-Amended Form 86 are, with no disrespect, to some extent imprecise.  However, these grounds have become more well defined and focused given the way the arguments are presented by both parties in their respective detailed skeletons and, in particular, in the submissions made at the hearing. In light of those submissions, I think it is best and most convenient to examine these grounds and the arguments as advanced by looking in turn at the groups of complaints made against:

(1) The CCS’s decisions to put R in male correctional institutions (ie, PUCI and SLPC) and to effectively prevent her from participating in activities with other female PICs (collectively “the Detention Decisions”).

(2) The CCS and the COP’s decisions to conduct the various body searches on her by male officers and in the presence of only male officers (collectively “the Body Search Decisions”).

(3) The alleged CCS’s delay in providing her with the HRT (in this respect, it is R’s case that a reasonable period should have been around four weeks)[7] (“the Delayed HRT Provision”).

49.  This is what I seek to do now.

C1.    The Detention Decisions

C1.1  Ground 1 – the Detention Decisions are discriminatory

50.  Under this challenge, R essentially submits that the Detention Decisions resulted in subjecting her to the following detention conditions (“the Detention Conditions”):

(1) She was detained in effective single confinement, whether initially even when she was on remand and had not been convicted nor had she committed any violent offence, and subsequently after conviction.

(2) She was not allowed access to the general prison population of her self-identified gender (ie, female) within SLPC.

(3) She was not allowed to participate in activities such as playing basketball with the general prison population of her self-identified gender (ie, female) within SLPC.

(4) She was effectively required to share facilities with other males or in the vicinity of other males instead of females which reflects her self-identified gender, such as showers.

51.  R contends that the Detention Decisions with the Detention Conditions were discriminatory of R on account of:

(1) Sex under the SDO;

(2) Gender identity under BL 25 and HKBOR 22; and

(3) Disability under the DDO.

52.  I would consider each of these grounds of discrimination in turn.

C1.1.1    Sex discrimination under the SDO

53.  Under this complaint, R argues that the Detention Decisions with the Detention Conditions amounted to direct discrimination against her based on sex and thus were unlawful under the SDO.  Direct discrimination is provided under section 5(1)(a) of the SDO.[8]

54.  Section 5(1)(a) of the SDO should be read together with section 6(1), and they provide respectively that:

“5. Sex discrimination against women

(1) A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Ordinance if—

(a) on the ground of her sex he treats her less favourably than he treats or would treat a man; or

…

6. Sex discrimination against men

(1)  Section 5, …, shall be read as applying equally to the treatment of men, and for that purpose shall have effect with such modifications as are necessary.”

55.  Further, as submitted by Ms Wong, the comparison mandated under section 5(1) of the SDO is further provided for in section 10(a) of the SDO stating that:

“10. Comparison of cases under sections 5(1), 7(1) and 8

A comparison of the cases of persons—

(a) of different sex under section 5(1);

(b) …

(c) …

shall be such that the relevant circumstances in the one case are the same, or not materially different, in the other.” (emphasis added)

56.  Thus, in order to establish direct discrimination under section 5(1)(a) of the SDO, R has to show that she had been subjected to unfavourable treatment on the ground of sex when compared with a person of the opposite sex put in the same or not materially different circumstances.

57.  In this respect, I agree with Ms Wong’s submissions that R cannot show direct discrimination under the SDO.  My reasons are these.

58.  There is no definition of “man” and “woman” in the SDO and for the purposes of these provisions to make the relevant comparison to determine whether any unfavourable treatments are based on sex.  However, in EA White v British Sugar Corp [1977] IRLR 121, it was held that the word “woman” in the Sex Discrimination Act 1975 (“the 1975 Act”) should have the its ordinary dictionary meaning.  In this respect, it is noted that the wording of the above provisions of the SDO is similar to the relevant provisions in the 1975 Act.[9]

59.  In the present case, the CCS treated R as a “man” based on her passport identification and biological sex.  This accords with the ordinary dictionary meaning of a “man”.  In the premises, as submitted by Ms Wong, the relevant comparator in the same or not materially different circumstance would be a “woman” who is a FtM pre-operative TG, who retains all the biological female genitalia.

60.  In the comparator circumstance, according to the CCS’s practice and policy, the comparator would be put in a female correctional institution, instead of a male one as his chosen gender or sex.  Moreover, if a case conference is held which considers reasonably that he would be subject to the risk of any harassment (given his being a pre-operative TG having a male outward appearance but at the same time retaining the female genitalia), he would equally be subject to the same or similar detention conditions applied to R.[10] In other words, the comparator female would be subjected to the same treatment as applied to R.  In the premises, R was not subjected to less favourable treatment compared to the comparator female.

61.  In the Re-Re-Amended Form 86 at paragraph 116(1), R contends that in considering whether there is direct sex discrimination under the SDO in a TG circumstances, there is no requirement for a male/female comparison to be made.  Hence, it is only necessary for R to show that she was subjected to the complained treatments which were applied based on her transgenderism.  R relies on the judgment of the English Employment Appeal Tribunal (“EAT”) in Chessington World of Adventures v Reed [1998] ICR 97 to support this contention.

62.  In my view, Chessington is clearly distinguishable and does not apply in Hong Kong in relation to the consideration of the comparator requirement under the SDO.

63.  In Chessington, the applicant, who was a born biological male, was employed by the respondent as a rides technician.  However, after working there for some years, he announced his change of gender identity from male to female, and later he changed his forename to “Nikki”.[11] He however had not undergone the SRS.  Since announcing his change of gender, he had been subjected to continuous harassment and ostracism by some of his male colleagues at work based on his transsexuality.  Notwithstanding his repeated complaints, the employer effectively did not do anything to stop the co-workers from harassing him.  The applicant was eventually dismissed after he had gone off sick for a few months.  He later brought a claim against the employer in the industrial tribunal on the basis of, among others, sex discrimination under the 1975 Act.  The industrial tribunal held in favour of the applicant, including the ground of direct sex discrimination under the 1975 Act.  The employer appealed to the EAT.  One of the issues identified by the EAT in the appeal was whether the 1975 Act applied in a case where the complainant relied upon less favourable treatment following a notice of intention to undergo gender reassignment.

64.  Relevantly, similar to sections 5(1)(a), 6 and 10 of the SDO, sections 1, 2(1) and 5 of the 1975 Act provided:

“1.—(1) A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if –

(a) on the ground of her sex he treats her less favourably then he treats or would treat a man…

…

2.—(1) Section 1, and provisions of Parts II and III relating to sex discrimination against women, are to be read as applying equally to the treatment of men, and for that purpose shall have effect with such modifications as are requisite.

…

5.—(1) In this Act—

…

(3) A comparison of the cases of person of different sex … under section 1(1) or 3(1) must be such … that the relevant circumstances in the one case are the same, or not materially different, in the other.”

65.  The contention raised by the employer under this issue was that a purported case of unfavourable treatment based on a person’s intended transgenderism did not come within the 1975 Act since the basis of the Act was a comparison between a person of one sex and an actual or hypothetical member of the opposite sex.  In particular, the structure of section 1(1)(a) and the reference to a comparison of the cases of different sex in section 5(3) made clear that there must be a comparison between persons of different biological sexes.

66.  The EAT however decided that in order to read the provisions under the 1975 Act consistently with the European Community Directive 76/207/EEC (“Directive 76/207”), when considering whether there was discrimination under the 1975 Act based on transgenderism, there was no need to make a male/female comparator.  The Directive 76/207 was issued by the European Commission and binding on UK as a member.  The stated purpose of it is to put into effect the principle of equal treatment for men and women as regards access to employment and social security.  Article 5(1) of the Director 76/207 provided that “An application of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal, means that men and women shall be guaranteed the same conditions without discrimination on the grounds of sex”.

67.  In coming to this conclusion, the EAT applied the judgment of the European Court of Justice (“ECJ”) in P v S and Cornwall County Council [1996] 2 CMLR 247.  In P v S, P, a born male transsexual, was dismissed from her job after informing her employer of her intention to undergo a MtF gender reassignment surgery.  P then brought an action before the Industrial Tribunal based on sex discrimination under the 1975 Act.  The Tribunal held that the situation was not covered by the 1975 Act, as P would still have been dismissed if she had previously been a woman and undergone an operation to become a man.

68.  The ECJ judgment in P v S was given in the context of a reference by the Industrial Tribunal for preliminary ruling on the scope of the Directive 76/207.  Relevant in that case was Article 2(1) of the directive which reads: “the principle of equal treatment shall mean that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status.”

69.  The ECJ held that Directive 76/207 could not be confined simply to discrimination based on the fact that a person was of one or other sex, but also applied to discrimination arising from the gender assignment of the person concerned. Where a person was dismissed on the ground that he or she intended to undergo or had undergone, gender reassignment, he or she was treated unfavourably by comparison with person of the sex to which he or she was deemed to belong before undergoing gender reassignment.

70.  As it can be seen, the above rulings in Chessington and P v S were premised on construction that the purpose of the 1975 Act had to be consistent with Directive 76/207.

71.  However, Directive 76/207 is irrelevant in Hong Kong.[12] In my view, the plain and clear language under sections 5(1)(a) and 6(1) of our SDO makes it expressly a requirement that, in determining whether there is a discrimination based on sex, it is necessary to make a comparison between the complainant and a person of the opposite sex (the comparator) put in the same or not materially different circumstance.

72.  Chessington therefore does not take R’s case under the SDO ground any further.

73.  For the above reasons, I reject the sex discrimination challenge based on the SDO.

74.  Properly understood, R’s real and effective complaint in the present case is that she should have been treated by the CCS for detention purposes as a woman (as her chosen targeted gender) instead of as a man.  She says the CCS had wrongly treated her as a man (based on her biological sex and identification document).  As far as I can see, the complaint as such in nature and substance is really not one of a complaint of “discrimination” based on sex.  I agree with Ms Wong that it is thus ill-fitted to seek to support the complaint under the SDO.

C1.1.2    Gender identity discrimination under BL 25 and HKBOR 22

75.  Under this complaint, R relies on:

(1) BL 25,[13] which provides that every Hong Kong resident “shall be equal before the law”;

(2) HKBOR 1,[14] which provides that the rights recognised by the HKBOR shall be enjoyed without distinction of any kind, such as sex or other status; and

(3) HKBOR 22,[15] which provides, among others, that the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as sex or other status.

76.  Under these constitutional provisions is the law’s protection and guarantee of equal treatment.  The court’s approach when considering whether there is infringement to the right to equality has been explained by Li CJ in Secretary for Justice v Yau Yuk Lung (2007) 10 HKCFAR 335, at paragraphs 19 - 22 as follows:

“19. In general, the law should usually accord identical treatment to comparable situations. As Lord Nicholls observed in Ghaidan v Godin-Mendoza [2004] 2 AC 557 at p.566C:

Like cases should be treated alike, unlike cases should not be treated alike.

20. However, the guarantee of equality before the law does not invariably require exact equality. Differences in legal treatment may be justified for good reason. In order for differential treatment to be justified, it must be shown that:

(1) The difference in treatment must pursue a legitimate aim. For any aim to be legitimate, a genuine need for such difference must be established.

(2) The difference in treatment must be rationally connected to the legitimate aim.

(3) The difference in treatment must be no more than is necessary to accomplish the legitimate aim.

The above test will be referred to as ‘the justification test’. In the present case, the Court has had the benefit of submissions on its appropriate formulation. There is no material difference between the justification test and the test stated in R v Man Wai Keung (No 2) [1992] 2 HKCLR 207 at p.217 which was used by the Court in So Wai Lun v HKSAR (2006) 9 HKCFAR 530 at para.20.

21. The burden is on the Government to satisfy the court that the justification test is satisfied. Where one is concerned with differential treatment based on grounds such as race, sex or sexual orientation, the court will scrutinize with intensity whether the difference in treatment is justified. See Ghaidan v Godin-Mendoza [2004] 2 AC 557 at p.568G (Lord Nicholls).

22. In requiring differential treatment to be justified, the view has been expressed that the difference in treatment in question is an infringement of the constitutional right to equality but that the infringement may be constitutionally justified. See the Court of Appeal’s judgment in the present case at p.208B-C (Ma CJHC) and in Leung v Secretary for Justice [2006] 4 HKLRD 211 at p.234G-H. This approach is not appropriate. Where the difference in treatment satisfies the justification test, the correct approach is to regard the difference in treatment as not constituting discrimination and not infringing the constitutional right to equality. Unlike some other constitutional rights, such as the right of peaceful assembly, it is not a question of infringement of the right which may be constitutionally justified.” (emphasis added)

77.  Hence, the principle of equality is about like cases being treated alike, and unlike cases should be treated differently.  The law does not treat differential treatment between two groups of person as discrimination if there is sufficient relevant difference between them to warrant the differential treatment.  If the two groups of person are not in comparable situations, no question of discrimination arises as the law does not require them to be treated identically.  However, if they can be regarded as to be in comparable situations, there would be prima facie discrimination unless the differential treatment can be justified under the proportionality test.  The burden is on the respondent to show that the differential treatment satisfies the proportionality test.

78.  The above two-stage test has been further considered and explained by Ma CJ in Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409, at paragraphs 58 ‑ 59.  The learned Chief Justice has observed that “this two-stage approach can neatly be applied, it is important that it should not be regarded as if it were a statute and treated as such. A step by step approach is useful as far as it goes but it must not give rise to complicated and long-drawn out (but ultimately unproductive) arguments as to whether this step or that step has been overcome”.  Thus, Ma CJ further stated that in considering this particular question of whether there is sufficient difference to justify differential treatment (ie, the question of whether they are in comparable situations), the court may sometimes also have to take into account the justifications proffered by the decision maker under the proportionality test.

79.  Under this ground, Mr Deng says the Detention Conditions were not necessary for the protection of R (or other pre-operative MtF TG PICs in a similar position to R) because:

(1) R does not pose a threat to herself, or other prisoners, male or female;

(2) R should have been at least allowed to mix with other female prisoners if the true concern was that R would be vulnerable against male prisoners; and

(3) R does not have any history of violence.

80.  In the premises, Mr Deng submits that the Detention Conditions amounted to unequal treatment and not justifiable.  Counsel further submits that they were imposed for administrative ease and convenience only.  The CCS has therefore failed to provide prison facilities of the like quality, like manner and like terms to pre-operative TG prisoners like R, or a like comparator.

81.  Fundamental to these contentions is the submission that R (or other pre-operative MtF TG PICs like her) who had no history of violence at least would not pose any risks of danger to female PICs.  In the premises, these unjustified conditions were discriminatory against her based on her TG identity when compared with other non-TG PICs.

82.  With respect, I am unable to agree.

83.  First, it must be noted that the relevant statutory provisions relating to the custody and custodial discipline of PICs in correctional institutions anticipate and impose, among others, a segregation by sex between men and women.  See paragraphs 12 ‑ 16 above.

84.  Second, as Ms Wong has emphasized in her submissions, R was a person in transition from male to female sex.  She was at a stage where some parts of her body had been changed to conform with the feminine physique but still retained all the male genitalia.

85.  Third, given these transitional features, it is the CCS’s evidence that in considering R’s custody:[16]

(1) There was a concern that, given that she still retained all the male genitalia, if R was put in contact with non-transsexual female PICs, R might pose a potential risk to them if she were allowed association with non-transsexual female PICs.  This was particularly so when considered against the statutory intention to have a complete segregation between male and female for custodial purposes.

(2) At the same time, given R’s female physique outlook, and her transsexualism, it was also considered that there was a substantial risk that she might be subject to sexual harassment if she was in association or close contact with other non-transsexual male PICs of SLPC.

86.  It was based on these considerations that R was placed in the male wing of the VPU of SLPC with the Detention Conditions.

87.  When these considerations are looked at together, I agree with Ms Wong that R was in a materially different circumstances compared with either non-transsexual female PICs or male PICs:

(1) The presence of male genitalia on R’s body put her in a position that was materially different from that of a non-transsexual female PIC, which justified the non-allocation of R to a female prison.

(2) The presence of some feminine features on R put her in a position that was also materially different from that of a non-transsexual male PIC, which called for the protective measures that had been put in place for R in male prison.

88.  In the premises, the principle of equality does not demand R as a PIC to be treated the same way as either a non-transsexual female or male PIC for custodial purposes.

89.  However, as mentioned above, Mr Deng has argued that the CCS’s above considerations are unjustified, in particular given R’s non-violent history.

90.  I am however not persuaded.

91.  It must be noted that R in her own evidence has expressed her fear for and made allegations of actual harassments by male PICs[17] (which allegations are disputed by the CCS).  In the premises, it must be justified for the CCS to consider that there was a substantial risk that she might be subject to such harassment and hence treating her differently for the purpose of custody.

92.  Further, given her male genitalia, as a matter of common sense, it cannot be said to be unreasonable for the CCS to also consider that there was at least a risk that non‑transsexual female PICs might be subjected to R’s harassment.  It must be remembered that the CCS also has a duty to consider and protect the female PICs’ safety.

93.  In this respect, the authority of Synthia Kavanagh v Canada (Attorney General) 41 CHRR 119[18] helps to illustrate the CCS’s concern.  In that case Kavanagh was born male but suffered from gender dysphoria and regarded herself as a female.  She had been taking female hormones from the age of 15.  She was convicted of murder and sentenced to life without possibility of parole for 10 years.  At that time of incarceration, she was a pre-operative MtF TG although she had been approved for SRS.  She was put in a male prison in accordance with the Canadian Correctional Service’s policy, which stated that male inmates shall be held in male institutions unless SRS had been completed, and that SRS would not be considered during the inmate’s incarceration.  It was a condition in Canada that Kavanagh was only eligible to actually undergo the SRS after she had successfully completed 12 months of a continuous, full-time “real-life experience” living in the target gender (ie, as a female).

94.  Kavanagh complained to the Canadian Human Rights Commission in relation to, among others, her placement in a male institution, alleging discrimination on the basis of sex and disability.  The Commission together with Kavanagh brought the claim before the Canadian Human Rights Tribunal.  The issue before the Tribunal was whether the Correctional Service of Canada’s above policy regarding the placement of pre-operative transsexual inmates was discriminatory.

95.  After considering expert evidence from both sides on the impact that the placement of an anatomical male would have on non-transsexual woman inmates, the Tribunal concluded that the Correctional Service of Canada was justified in its pre‑operative transsexual placement policy.  The Tribunal explained its conclusion at paragraphs 155 to 161 of the judgment as follows (footnotes omitted):

“[155] The first issue to address is the Commission’s submission that the evidence with respect to the attitudes of female prisoners was entirely impressionistic, and did not meet the standard prescribed in Meiorin and Grismer. It is true that there was not a great deal of evidence led with respect to the vulnerability of female inmates as a group, and that more information in this regard would have been helpful. Having said that, both Ms. Laishes and Ms. Wrenshall described the results of the studies that have been conducted of the female inmate population with respect to their life experiences and their needs. Additional information was also provided about the findings of the Arbour Commission regarding the Prison for Women. Finally, Ms. Wrenshall, who was qualified as an expert in issues involving female inmates, provided us with her opinions on the issue. Based upon this information, we are satisfied that there is a legitimate, objective basis for concern with respect to the vulnerability of the female inmate population and the impact that the placement of an anatomical male would have on these women.

[156] The argument that we should not allow the discriminatory attitudes of female inmates to preclude the placement of pre‑operative male to female transsexuals in female prisons is an attractive one, at first glance, and one which accords with a line of human rights jurisprudence concerning ‘customer preference’ as a defence to an allegation of discrimination. It is indeed no defence to a complaint of discrimination that an employer or service provider acted in a discriminatory fashion because of the demands of his or her customers.

[157] However, having given this argument careful consideration, we have come to the conclusion that it does not fully take into account the unique context created by the carceral setting. What is being suggested here is that female inmates be asked to live, for extended periods of time, in very close quarters, with a person who is anatomically of the opposite sex. This would happen in a context where leaving would not be an option, were the situation to become intolerable for the female inmate.

[158] It also strikes us as overly simplistic to say that the female inmate population would be reacting out of fear and ignorance, and that, with a little education, they could be taught to accept an anatomically male inmate in their facility. The difficulties that female inmates have in dealing with men are based, in part on lack of knowledge, but are also based on painful life experience. It appears from the evidence that many of these women are psychologically damaged, as a consequence of the physical, psychological and sexual abuse they have suffered at the hands of men. Like transsexuals, female inmates are a vulnerable group, who are entitled to have their needs recognized and respected.

[159] In this regard, we note that the conclusion in Sheridan that pre-operative transsexuals in transition should be treated as members of the target gender, is one based upon the evidence adduced in that case, and was made in the context of access to washroom facilities in a bar. We agree with the British Columbia Human Rights Tribunal that there may well be situations where it is appropriate to treat pre-operative transsexuals as members of the target gender. In our view, however, the factual situation under consideration in this case readily distinguishable from that in issue in Sheridan, both as it relates to the close living conditions for inmates, and as well, to the particular vulnerability of the female inmate population.

[160] For these reasons we find that CSC has met its burden, and has demonstrated that, having regard to the unique nature of the carceral setting and the needs of the female inmate population, it is not possible to house pre-operative male to female transsexuals in women’s prisons.

[161] We have also considered the physical risk that would be posed by pre‑operative male to female transsexuals in a female prison. It is apparent from the expert testimony that the sexual orientation of transsexual inmates cannot be determined with any degree of certainty. This point was graphically illustrated by the testimony of Dr. Watson, who was forced to qualify her opinion that Ms. Kavanagh was exclusively attracted to men, in light of the fact that Ms. Kavanagh had been sexually involved with a woman at Joliette Institution. There is also no guarantee that pre-operative mate to female transsexuals will be unable to function sexually, notwithstanding their ingestion of female hormones. As a result, pre-operative male to female transsexuals pose a potential risk to female inmates. In our view, this is a factor to consider, although its significance should not be overstated: The unfortunate fact is that non-consensual sexual activity already occurs in the prison setting, although the evidence suggests that it happens less frequently in women’s prisons than it does in male institutions.”

96.  It can be seen that the Tribunal concluded that the evidence supported that placing a pre‑operative MtF TG inmate in a female prison would reasonably result in fear for, and increased risk of, harassment amongst the female inmates.  It must be noted that the evidence the Tribunal referred to was related to expert evidence concerning the general aspects of pre‑operative MtF TG, and had nothing to do with the particular history of violence concerning Kavanagh (being convicted of murder) specifically.

97.  I am of course aware of the fact that there is no similar medical expert evidence adduced in the present case.  But this part of the Tribunal’s judgment shows that it cannot be said that the CCS’s consideration in this respect is devoid of common sense and not reasonably justified.

98.  I therefore do not accept Mr Deng’s contention that, since R did not have a history of violence, there was no basis for the CCS to form the view that there might at least be a risk of harassment to the other non-transsexual female PICs if R was put to contact with them.

99.  For these reasons, I also reject this complaint based on right to equality protected under BL 25 and HKBOR 1 and 22.

C1.1.3    Discrimination under the DDO

100.  As in the claim of sex discrimination, again although reference has been made to section 6(b) of the DDO in the Re‑Re‑Amended Form 86, no analysis based on indirect disability discrimination has been advanced on behalf of R.  I shall therefore only look at R’s complaint based on direct disability discrimination.

101.  I agree with Ms Wong that R has failed to establish any direct disability discrimination under section 6(a) of the DDO as a matter of law.  I will explain why.

102.  The disability put forward is gender dysphoria which is a desire to live and be recognised as a member of the opposite sex.

103.  Direct disability discrimination is defined in section 6(a) of the DDO:

“A person discriminates against another person in any circumstances relevant for the purposes of any provision of the DDO if on the ground of that other person’s disability he treats him less favourably than he treats or would treat a person without a disability.”

104.  The comparison mandated in section 6 is further provided for in section 8:

“a comparison of the cases of persons with or without a disability under section 6 shall be such that the relevant circumstances in the one case are the same, or not materially different, in the other”

105.  It is now well established that sections 6(a) and 8 of the DDO require the court to compare the treatment of the complainant with the treatment of a suitable comparator (the comparator question), and in the event that less favourable treatment is established the court should decide whether the less favourable treatment was given “on the ground” of the complainant’s disability (the causation question).  They are two separate questions.  See M v Secretary for Justice [2009] 2 HKLRD 298 (CA), per Tang VP at paragraph 45 and Lam J at paragraph 98.  See also Tong Wai Ting v Secretary for Education (HCAL 73/2009, 24 August 2009), per A Cheung J (as the learned CJHC then was) at paragraph 72.

106.  Under the comparator question, section 8 requires the comparison to be with another person in the same, or not materially different, relevant circumstances.  As A Cheung J said in Tong Wai Ting at paragraph 79, “What matters is one must compare like with like and not otherwise.”

107.  The location of the comparator therefore requires first the identification of the relevant circumstances.

108.  The relevant circumstances must include the circumstances attending the supposedly less favourable treatment complained of.  See Purvis v State of New South Wales (2003) 217 CLR 92 at paragraphs 11 ‑ 12, per Gleeson CJ; paragraphs 222 ‑ 224, per Gummow, Hayne and Heydon JJ; M at paragraphs 46 ‑ 50, per Tang VP following the majority decision in Purvis.

109.  Hence, for examples,

(1) In Purvis, the appropriator comparator was another student without disability but in the actual circumstances of violent behaviour attending the treatment complained of (which was expulsion from school).

(2) In M, the appropriator comparator was another Administrative Officer without disability but in the actual circumstances of poor work performance attending the treatment complained of (which was being invited to resign).

110.  It follows that in ascertaining whether there is any, and (if so) who is the, comparator in the same, or not materially different, relevant circumstances, regard must be had to the supposedly less favourable treatment and the circumstances attending such treatment.

111.  In the present case, R was allocated to the VPU in the male wing of SLPC because she was a transsexual woman with male genitalia which created a risk and vulnerability to abuse or harassment by non-transsexual PICs.

112.  As submitted by Ms Wong, R (with gender dysphoria) should therefore be compared with a person without a (meaning “any”)[19] disability, ie, a non‑TG male inmate but who had, for some other reason not associated with any disability, a vulnerability to abuse or harassment by fellow inmates.

113.  However, R had not been treated any less favourably than such hypothetical comparator would have been treated because, like R, the comparator:

(1) would not have been assigned to a female facility;

(2) would have been allocated to a male facility, mostly likely also subject to measures that seek to protect her from possible abuse or harassment from fellow inmates.

114.  The causation question must also be answered in the negative:

(1) The CCS did not assign R to a female prison, not because she had gender dysphoria (ie, she wished to live as a woman), but because she had all his male genitalia intact.

(2) The CCS assigned R to the male wing of SLPC but put in place for her various protective measures, not because she had gender dysphoria, but because of the presence of feminine features on him that might make her vulnerable to abuse and harassment.

115.  Mr Deng however contends that on a proper construction, section 6(a) of the DDO prohibits also inter-disability discrimination.  In other words, the comparator in the present case can also be another prisoner (whether male or female) who is detained in SLPC and suffering from real or imputed non-violent psychiatric disorders (ie, a person who does not pose a threat to himself or others).  Mr Deng says in such a comparison, the comparator would not be subject to the Detention Conditions, and hence R was discriminated against because of her specific kind of disability (ie, gender dysphoria).

116.  Mr Deng has advanced submissions to say why the court should construe section 6(a) of the DDO to cover inter-disability discrimination.  These submissions are the same as or similar to the ones advanced to this court in Law Chi Yuen v Secretary for Education [2016] 5 HKLRD 302, where leading counsel for the applicant in that case also asked the court to conclude section 6(a) covered inter-disability discrimination.  I have rejected those submissions and concluded in paragraphs 78 - 92 of that judgment that section 6(a) of the DDO does not cover inter-disability discrimination.  It therefore does not permit an applicant to seek to establish discrimination by comparing with another person who is also suffering from a form disability other than that of the applicant.

117.  Those reasons in my view are still valid notwithstanding Mr Deng’s submissions.[20] Section 6(a) of the DDO therefore does not cover inter‑disability discrimination.  The comparator as advanced by Mr Deng at paragraph 115 above is not permissible under the DDO.

118.  In the premises, R also fails under this complaint.

C1.2  Grounds 3 and 4 – the Detention Decisions with the Detention Conditions are contrary to various constitutionally protected rights and in any event irrational in public law sense[21]

119.  These grounds are relied on by R in relation to her initial detention at PUCI and the Conditions of Detention imposed at SLPC.  Again, R complains that under the said detentions:

(1) R who had a female appearance with an imputed or real condition of gender dysphoria (having the target female gender) was however put in a male detention facility;

(2) R was not allowed to intermingle with the female prison population at all;

(3) she was also not allowed general access to the male prison population.

120.  R submits that the decisions to so detain her both in the initial period (between 7 and 9 June 2014) at PUCI and later at the male wing of the VPU of SLPC are contrary to:

(1) HKBOR 3[22] which protects against cruel, inhuman or degrading treatment (“CIDT”).

(2) HKBOR 5(1)[23] which provides that everyone has the right to liberty and security of person and no one shall be deprived of liberty unless on such grounds and in accordance with such procedures as established by law.

(3) HKBOR 6(1)[24] which provides that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

(4) HKBOR 14(1)[25] which provides that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

(5) BL 28[26] which provides that the freedom of the person of Hong Kong residents shall be inviolable and that no Hong Kong residents shall be subjected to arbitrary or unlawful arrest, detention or imprisonment.  Arbitrary or unlawful search of the body of any resident or deprivation or restriction of the freedom of the person shall be prohibited.  Torture of any resident or arbitrary or unlawful deprivation of life of any resident shall be prohibited.

121.  R’s principal submissions on why her said protected rights had been infringed can be summarized as follows.

122.  Fundamental to R’s reliance on the above provisions is the contention that R had already been feminized (in contrast to someone who is psychologically still seeking to transform from male to female).  In the circumstances, her fundamental right to dignity and private life includes her psychological compulsion and her autonomy as regards her own gender identity.  The above provisions protect R’s fundamental right to her gender identity and its expression while imprisoned.

123.  In this respect, R relies on R (on the application of B) v Secretary for Justice [2009] HRLR 35 in support, where Judge Elvin QC held at paragraph 21:

“21. The notion of the personal autonomy of every individual marches with the presumption of liberty enjoyed in a free polity: a presumption which consists in the principle that every interference with the freedom of the individual stands in need of objective justification. Applied to the myriad instances recognised in the Article 8 jurisprudence, this presumption means that, subject to the qualifications I shall shortly describe, an individual’s personal autonomy makes him – should make him – master of all those facts about his own identity, such as his name, health, sexuality, ethnicity, his own image, of which the cases speak; and also of the ‘zone of interaction’ (Von Hannover paragraph 50) between himself and others. He is the presumed owner of these aspects of his own self; his control of them can only be loosened, abrogated, if the State shows an objective justification for doing so.”

124.  It is also R’s case that HKBOR 3 and HKBOR 5 read together imposes a positive duty on detaining authorities (including thus the CCS) to ensure personal security of the detainee and to investigate circumstances in question where personal security be breached: Popo v Russia (App 26853/04, 13 July 2006); Canada (AG) v Bedford 2013 SCC 72.

125.  Therefore, HKBOR 3, 5(1), 6(1) and 14 and BL 28 read in conjunction protect R’s right to her expression of her womanhood, and in her expression of her womanhood, the ability to participate in the ordinary life of a prison and the CSD’s duty to secure the aforesaid freedoms while she is detained.  In other words, this means that:

(1) She should be placed in a facility that will enable her to take a shower securely without fear of being sexually assaulted or raped while detained.

(2) She should be placed in a facility that will allow her to intermingle and have access to normal prison life, including but not limited to exercise, outdoors air time, to eat with others, without fearing the security of her person while detained.

(3) She should not be placed in effective single confinement for 24 hours or be placed in more stringent conditions of imprisonment merely because of her gender identity and the manifestation of such.

126.  In detaining her at PUCI and SLPC, which are all-male facilities, R submits that these rights were breached or infringed as she was prevented from intermingling with other female PICs and hence could not properly and freely express her womanhood.

127.  In the premise, R says that she was detained in conditions that were arbitrary, in breach of her human dignity, her privacy and private life.

128.  Alternatively, R contends that the Detention Conditions unjustifiably and disproportionately interfered with her fundamental rights as a pre-operative TG female and were therefore in breach of her right against arbitrary detention, human dignity, privacy and private life insofar as such rights protect her expression of gender identity as a female.

129.  Finally, R says in any event, the decisions and the Detention Conditions are irrational in public law sense since:

(1) The CCS failed to take into account all the physical female outward characteristics that R possessed.  This is material as the CCS should direct his mind as to whether it was proper to detain and place R in PUCI and SLPC male wing, which would subject R to strip and cavity searches by male correctional officers.

(2) The CCS placed too much weight on her biological characteristics (in that she maintained all the male genitalia).

(3) No reasonable decision maker in the position of the CCS would have placed R in an all-male facility.

130.  I will now examine these arguments in greater detail in turn.  For reasons that would become obvious later, I would look at Ground 4 first.

C1.2.1    Ground 4 – Detention Conditions in PUCI and SLPC were contrary to HKBOR 3, 5(1), 6, 14 and BL 28

131.  Ground 4, as pleaded in Form 86 at paragraphs 130 - 138B, relates to the conditions of detention at PUCI and SLPC,[27] which R says infringed her rights under HKBOR 3, 5(1), 6(1), 14 and BL 28.

132.  More particularly, R relies on these articles “read in conjunction” as giving rise to rights to “expression of her womanhood” (said to have been breached by his being kept out of the female wing) and “to participate in the ordinary life of a prison” (said to have been breached by the limitations imposed upon him in the male wing).[28]

133.  Central to this ground is R’s submissions that, given the rights under the various constitutional provisions, the CCS has “a positive duty to provide a gender affirming, and not a gender denying, environment”.[29] R relies on R (B) v Secretary of State for Justice to support this contention.

134.  However, Ms Wong first contends that other than HKBOR 3, all of the rights relied on by R under HKBOR 5(1), 6 and 14 are not engaged in the present circumstances.  In support, Ms Wong’s submissions can be summarized as follows.

135.  It has been held that a prisoner retains all civil rights which are not taken away expressly or by necessary implication (for example, as being wholly inconsistent with the objectives of the correctional system).  See Chim Shing Chung v Commissioner of Correctional Services (1996) 6 HKPLR 313, per Litton VP at 316E and per Liu JA at 323I.

136.  In this respect, regarding the rights enshrined in the HKBOR:

(1) Section 2(2) of the Hong Kong Bill of Rights Ordinance (Cap 383) (“the HKBORO”) makes the HKBOR “subject to Part III” of the HKBORO.

(2) Section 9 of the HKBORO, which appears in Part III thereof headed “Exceptions and Savings” and is derived from the reservations entered by the UK upon ratification of the International Covenant on Civil and Political Rights,[30] provides, so far as pertinent, that:

“persons lawfully detained in penal establishments of whatever character are subject to such restrictions as may be authorized by law from time to time for the preservation of ... custodial discipline”

(3) Once the “restrictions” are “authorized by law” “for the preservation of custodial discipline”, the HKBOR “is simply not engaged” (Chim Shing Chung, supra, per Litton VP at 322D-323E and per Liu JA at 324C-D, 326A-D), except those rights that are non‑derogable and absolute, of which the right against CIDT protected by HKBOR 3 is one (Ubakama v Secretary for Security (2012) 15 HKCFAR 743).

137.  Ms Wong therefore submits, in the present context as mentioned above, the segregation of R (being regarded as a male) from the female prison population is authorized, indeed mandated, by law, ie, section 8 of the PO and rule 6 of the PR for the preservation of institutional security.

138.  In the premises, even if some articles of the HKBOR read together do give rise to a right for a pre-operative MtF transsexual (with male genitalia) to express his womanhood, such right is not engaged (save and except HKBOR 3) in the context of penal detention in Hong Kong by virtue of section 9 of the HKBORO.

139.  These are powerful submissions, but which I do have some reservations.  For example, HKBOR 6(1) provides: “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.” (emphasis added).  This article in my view seems at least to be intended to cover the very circumstances of lawful detention.  It is also a far-reaching proposition that a “restriction” authorised by domestic legislation, including subsidiary rules, even for custodial discipline could permit persons who are lawfully detained by the authorities not to be treated with and with respect for the most basic humanity and human dignity.

140.  The propositions as made therefore require serious and in depth analysis and consideration before they should be accepted.  However, I do not think for the present purposes it is necessary for me to decide conclusively whether HKBOR 5(1), 6 and 14 are simply not engaged in relation to the complaints now made by R on the basis that they are excepted by section 9 of the HKBORO.  This is so as for the reasons that follow, I do find that on the facts of the present case, R’s rights under these articles, even engaged, were not infringed in any event.

141.  First, insofar as the right under HKBOR 3 is concerned, Ms Wong has rightly accepted that it is non-derogable and absolute.  See Ubakama v Secretary for Security, supra, per Ribeiro PJ at paragraph 114.

142.  The question is thus whether R can bring herself within the terms of this article on the facts, and she must establish to “a very high threshold” that the treatment he had received was so “cruel, inhuman or degrading” that it attained “a minimum level of severity”, which “generally involves actual bodily injury or intense physical or mental suffering”.  Whether that is met is “ultimately a matter of judgment”, depending on “all the circumstances of the case such as the nature and context of the treatment or punishment that is in issue”.  See Ubakama at paragraphs 171 - 173.

143.  For CIDT to arise from conditions of detention in a penal establishment, the suffering and humiliation involved must go beyond the unavoidable level of suffering inherent in detention.  See Ahmad v United Kingdom (2013) 56 EHRR 1 at paragraph 202.

144.  In particular, the prohibition of contact with other prisoners for security or protective reasons does not itself amount to inhuman treatment or punishment.  See Ahmad at paragraph 202.

145.  In Hong Kong, under rule 68B of the PR, the Superintendent, and then the CCS, respectively has the power to order the removal of a prisoner from association with other prisoners either generally or for particular purposes for or not exceeding the prescribed period if he has reasonable grounds for believing it is desirable, for the maintenance of good order or discipline or in the interest of a prisoner, that such prisoner should not associate with other prisoners either generally or for particular purposes.

146.  In the present case, one must also not lose sight of the context that:

(1) We are concerned with custodial detention for which there are serious security considerations.  See R (Green) v Secretary of State for Justice [2013] EWHC 3491 (Admin), per Deputy Judge Jeremy Richardson QC at paragraph 2.

(2) Good order and discipline is very important in ensuring the safe and orderly running of prisons, and the PR vest a large measure of discretion in the CCS to determine how best that can be secured. See Hall v Secretary for Justice (HCAL 5/2006, 30 June 2006), per Hartmann J (as he then was) at paragraph 108.

147.  Bearing these in mind, the facts set out in paragraph 34 above in my view clearly shows that the Detention Conditions imposed on R were for maintaining custodial discipline and security and for the protection of the security of R herself as well as other non-transsexual female PICs.  These can hardly be regarded inhuman or degrading treatment meeting the requisite threshold of severity of causing intense physical or mental injury to her.

148.  It is thus clear that R had not been subjected to any CIDT.

149.  Second, in relation to the right to security under HKBOR 5(1), R submits that when that is read together with HKBOR 3, “there is a positive duty on detaining authorities to ensure personal security of the detainee and to investigate circumstances in question where personal security is breached”.[31]

150.  Even if such a duty exists, as in the case under HKBOR 3, the facts set out in paragraph 34 above in my view also clearly point to the proper and justified discharge of such duty by the CCS to R.

151.  Indeed, many of the measures now complained of by R as restrictive of her were or were seen to be necessary or reasonable to secure her personal safety, having due regard to R’s TG status and the risk she might face if she were to be associated with the general prison population.  They therefore simply cannot be regarded as infringing her right to security.

152.  Third, for HKBOR 6(1), R submits that the common law right to human dignity is also protected by HKBOR 6(1) even in relation to persons who are in lawful detention.  The right requires that persons detained must not be subject to any hardship or constraint other than resulting from the deprivation of liberty: General Comment No 21 (HRI/GEN/1/REV 9 (Vol I) by the Human Rights Committee.

153.  In this respect, I accept Ms Wong’s submission that, again the facts set out in paragraph 34 above show that R had not been treated with anything other than with humanity. As mentioned, those measures were imposed to protect the very security and safety of R and other non-transsexual female inmates.  In those measures, R had also been treated with dignity and humanity by seeking to protect her from the risks of being seen exposed, and harassed by other non-transsexual male PICs.

154.  Fourth, for the right to privacy protected under HKBOR 14, R submits that as a matter of law:

(1) HKBOR 14 protects the right to privacy, which is indistinguishable from the respect for “private life” as provided under Article 8 of the European Convention.  Right to privacy encompasses the right to personal development.  It also embraces aspects of an individual’s physical and social identity, and consists of elements including gender identification, sexual orientation and sexual life: Pretty v United Kingdom (2002) 35 EHRR 1 at paragraph 61; Goodwin v United Kingdom (2002) 35 EHRR 18 at paragraph 90.

(2) An interference with private life may arise when the law conflicts with a transgender person’s personal identity: Goodwin, paragraph 77.  Any interference with the right to privacy under HKBOR 14 must not be unlawful or arbitrary.  This means that the interference must be prescribed by law and proportionally justified, in that it is connected to a legitimate purpose and no more than necessary to accomplish the legitimate purpose: The Democratic Party v The Secretary for Justice (HCAL 84/2006, 21 May 2007, Hartmann J) at paragraphs 61 ‑ 65.

155.  Again, as explained above, the Detention Conditions were put in place for the protection of R and other non-transsexual PICs, and to maintain custodial discipline.  The CCS was empowered by the relevant PR to put them in place.  The conditions were thus prescribed by law.  Moreover, maintaining custodial discipline and protecting R (as a PIC) and other non-transsexual female PICs were clearly legitimate purposes, especially in custodial context, which were rationally connected to the conditions.  They were in my view no more than necessary to achieve those purposes.  As I have discussed above, allowing R to intermingle with other non-transsexual female PICs (even in daytime exercise sessions as suggested by R in this application) might still pose a risk of harassment to them, and the CCS has a duty to protect them by avoiding that.  I therefore do not find that R’s right to privacy was unjustifiably infringed by reason of the Detention Conditions.

156.  In this respect, the reliance on R (B) does not assist R.

157.  In that case, the claimant, a pre-operative transsexual who had been undergoing gender reassignment process and granted a certificate under the Gender Recognition Act 2004 (“GRA”) indicating her gender as female for all purposes, was sentenced to life imprisonment and allocated to the VPU in a male prison.  The claimant was not allowed to undergo SRS until she had spent a period living in role as a woman within a female prison.  The claimant challenged the decision to keep her within a male prison and not to transfer her to a female prison.

158.  Deputy Judge David Elvin QC considered the applicability of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”) which provides, among others, that “everyone has the right to respect for his private and family life, his home and his correspondence” and said (at paragraph 41) that the recognition and protection which the ECHR confers on transsexuals’ “personal autonomy and human dignity” is unassailable, citing Goodwin v United Kingdom (2002) 35 EHRR 18, Bellinger v Bellinger [2003] 2AC 467, and L v Lithuania (Application No 27527/03).  It was held (at paragraphs 49 - 54) that Article 8 rights were engaged on the facts of that case, which was predominantly negative as “the essence of the claim is the interference with the claimant’s ability to progress to full gender reassignment by continued detention in a male prison”, and “the question of transfer to the female estate is no more than a consequence of the fact that to hold the claimant in a male prison places a significant restriction on her autonomy and her wishes ... to seek to qualify for surgery” (emphasis added).

159.  As rightly submitted by Ms Wong, R (B) is clearly distinguishable from the present case on the facts:

(1) In that case, the claimant was serving a life sentence and the decision to keep detaining her in a male prison would deny her even the hope of progressing further towards surgery for almost the rest of her life (subject to the possibility of early discharge) notwithstanding that she had already been granted a certificate under the GRA indicating that she was a woman for all purposes.

(2) By contrast, R in this case was sentenced to imprisonment for 20 months, which she completed by serving only for about 13 months (from 7 June 2014 to 15 July 2015).  Detention of R in PUCI and SLPC (male wing) for such a period did not have the effect of denying or interfering with his “ability to progress to full gender reassignment” or “to seek to qualify for surgery”.  R has indeed accepted in her skeleton submissions at paragraph 6.24(6) that she was not seeking to transition to female while in prison.

160.  Finally, R’s reliance on BL 28 to say that the Detention Conditions were in breach of her right against arbitrary detention is in substance premised on the same submissions that those conditions were unjustified and disproportionate.  For the same reasons I have explained above, I do not regard those conditions to be unjustified and disproportionate.  R must similarly fail under this complaint.

161.  For all the above reasons, I must reject Ground 4.

C1.2.2    Ground 3 – Decision to detain R in PUCI is contrary to HKBOR 5(1), 6, 14 and BL 28, or in any event irrational in public law sense

162.  Ground 3, as pleaded in the Re-Re-Amended Form 86 at paragraphs 122 - 129, relates to the decision to detain R at PUCI between 7 and 9 June 2014.

163.  The gist of R’s complaint is that she ought to have been placed “immediately” in the VPU at SLPC for “immediate assessment”, and ought not to have been placed in PUCI before the VPU at SLPC.

164.  R has not advanced any argument in relation to the right to liberty and security under HKBOR 5(1).  In any event, I agree with Ms Wong’s submission that there can be no question that R was arrested, charged, remanded in custody, convicted and detained on grounds, and in accordance with procedure, established by law.

165.  As set out at paragraph 33 above, regarding the detention at PUCI, R was placed singly in an observation cell in the Hospital Block.  She was arranged to take shower alone, with measures being put in place to secure her privacy.  On those facts, there was clearly no infringement of R’s right to security of person when he was detained in PUCI.

166.  Insofar as the reliance on HKBOR 6, 14 and BL 28 is concerned, the same reasons I have rejected these complaints under Ground 4 above apply equally if not more forcefully in relation to the brief detention at PUCI, in particular by reference to the measures stated at paragraph 33 above.  Those measures were again clearly for the protection of R and to respect her dignity by avoiding her being seen exposed, or harassed by other male PICs.  They did not amount to infringement of her rights under these provisions.

167.  R alternatively alleges that the placement of her in PUCI was irrational in the public law sense, in that no decision maker “would have placed the Applicant in an all-male facility”.  In particular:

(1) The CCS failed to take into account the fact that R “looks like a female with female physique”.

(2) The CCS “placed too much weight on [her] biological characteristics”.

168.  As submitted by Ms Wong, this complaint has no merit on the facts:

(1) As mentioned above, SO 47-04 provides that prisoners who have not attained the age of 21 years will normally be treated as young prisoners and be separated from adult prisoners.

(2) PUCI is a reception centre for male remands and convicted persons to be detained under 21.

(3) At the time when R was remanded into custody on 7 June 2014, she was stated to be aged 19 and identified as male by her passport.

(4) While she had “feminine characteristics”, the highest that one could then put it was that she was suspected to be a TG.

(5) Whether she was or was not TG and, if so, at what stage of transition she was would be subject to and pending assessment by a MO, which by definition could only be done after R had been admitted into the CCS’s care in a prison.  The statutory framework contemplates that a medical examination would take place after admission (rule 14 of the PR).

(6) Prior to such assessment, and in the absence of any recognised medical certificate to such effect, there was simply no clinical basis to handle R as a PIC with “imputed or real condition of gender dysphoria” prior to her admission to any prison.

(7) Pending such assessment, PUCI was the most appropriate institution for the first reception of R, having regard to R’s stated age and sex in her official identification document and the CSD’s statutory duty and reception policy.

(8) It was therefore reasonable for R to be initially received at PUCI.  In any views, in light of the above, it cannot be said that no reasonable person in the position of the CCS would have put R in PUCI for her initial detention.

(9) R was not kept at PUCI for any longer than reasonable.  After her admission to PUCI, R was first examined by MO Chen on 8 June 2014 (Sunday) in compliance with rule 14 of the PR, and by MO Myint again on 9 June 2014.  R’s contention that PUCI did not have “specialist trained staff or medical staff” is neither here nor there.

(10) Once R was confirmed by the latter examination to be a pre‑operative male-to-female transsexual, special arrangement was made on an expedited basis to transfer R to the VPU at SLPC on the same day, ie, 9 June 2014.

169.  In this respect, I would add that the case of Kavanagh as discussed above also shows that the decision to put R (as pre-operative MtF TG) in a male correctional facility cannot be said to be one that no reasonable decision-maker in the position of the CCS would have made.

170.  R therefore fails under Ground 3.

C2.    The Body Search Decisions

C2.1  The complaints in summary

171.  It is common ground that R had been subjected to a number of stripped body searches by male police officers and male correctional officers during her detention respectively at the Police Station, PUCI and SLPC.  Some of the searches also involved cavities searches.  These searches were conducted when R was first admitted to the relevant detention facility and every time when she was to be brought out of and returned to the relevant facility.  See the summary at paragraph 44 above.

172.  R’s complaints about these searches are in summary these:

(1) Since R had been kept effectively alone when in custody and was not allowed to (and in fact did not) mingle with anyone while she was in custody (whether at the Police Station, PUCI or the VPU of SLPC), there was therefore no objectively justified reason to conduct strip and cavities searches on her every time she was admitted to, brought out of and returned to the respective detention facilities.  This was so as there could not be any appreciable risk that she would have hidden any contrabands in her body or body cavities.  In the premises, most, if not all of these intrusive searches were arbitrary and thus amounted to unlawful trespass to person.

(2) The decisions are unlawful since the COP and the CCS had wrongly directed themselves in law that the words “same gender” or “same sex” of the detained person provided under the respective orders or rules governing the conduct of searches on R to mean the “same biological gender” or “same biological sex” of the detained person.  On a plain proper construction, or when read consistently with HKBOR 3, 6, 14 and BL 28, the words “same gender” or “same sex” should mean “same self-identified gender” or “same self-identified sex” of the detained person.  Alternatively, those provisions are unconstitutional and thus the searches were unlawful.

(3) The searches infringed R’s protected right to dignity, privacy under HKBOR 3, 6 14 and BL 28 (as they did not respect and infringe her freedom to express her own choice of gender).  Alternatively, they amounted to CIDT as they were all conducted by male officers, and she was not given a choice to have a female officer (ie, of the same gender of her choice) to conduct the search.

(4) The searches in the actual manner in which they were conducted were unlawful as they infringed R’s protected right to dignity, privacy under HKBOR 3, 6 14 and BL 28, or alternatively, amounted to CIDT. In this respect, R alleges that during some of these searches, the officers in fact and unnecessarily without justification touched her breasts and other body parts (which allegations are however disputed by the respondents).

173.  As will be elaborated in greater detail below, given these complaints, the principal issues raised under the specified grounds of challenge are in summary that:

(1) Whether the provisions pursuant to which the searches in question were carried out, as a matter of proper construction, mandated a pre-operative MtF transsexual with intact male genitalia to be searched by a male officer (Ground 7).[32]

(2) If so, whether such provisions so construed are unconstitutional and should either be read down or struck down (Ground 8).[33]

(3) Whether the manner in which the searches were conducted infringed any of R’s rights (Grounds 5 and 6).[34]

174.  With this in mind, I now turn to look at each of the grounds of challenge relating to the searches.

175.  Logically and conveniently, I would first consider Grounds 7 and 8 which relate to the proper construction of the relevant underlying orders and rules which govern the searches respectively by the police and CSD officers.

C2.2  Grounds 7 and 8

176.  Under these grounds, R submits that on a proper construction, the relevant provisions providing for strip and cavities searches to be conducted by the police and the correctional service officer should permit searches on pre-operative MtF transsexual to be conducted by female officers as the chosen gender of the transsexual.  Alternatively, as such searches conducted only by male officer would amount to infringement of a pre-operative MtF transsexual’s constitutionally right to dignity, privacy, or would amount to CIDT, these provisions must be read down (to make them constitutionally compliant) to permit the searches to be conducted by female officers.  Otherwise, these provisions should be declared by the court as unconstitutional.

177.  Given that the provisions governing police search and searches in prisons are different and separate, I propose to look at these grounds of challenge against each of them separately.

C2.2.1    The Police General Orders concerning searches

178.  The police conducted searches pursuant to the provisions under the Police General Orders (“PGOs”).  The PGOs are made by the COP under section 46 of the Police Force Ordinance (Cap 232) (“the PFO”).  As provided thereunder, the purpose of the making of the PGO is “to enable [the COP] to administer the police force, render the police force efficient in the discharge of its duties and for carrying out the objects and provisions” of the PFO.

179.  The PGOs are in the form of instructions or directions to the police officers, and not in the form of a statute, with ordinary language being used: Leung Fuk Wah Oil v Commissioner of Police [2002] 3 HKC 1, per Cheung JA at paragraph 78.  The interpretation and application of the PGOs are “vested with the respective Authorising Commanders”: PGO Chapter 1-01, paragraph 1.

180.  PGOs are mandatory and non-compliance will make a police officer liable to disciplinary action: PGO Chapter 1-02, paragraph 4.

181.  The COP has determined that a custody search “will be conducted” on all persons “to be” detained (ie, “prior to” the person being detained) in a police detention facility, “in order for Police officers to properly discharge their statutory functions and fulfill the Force’s duty of care to persons detained in police detention facilities and to ensure the safety of others who may come into contact with them”: PGO Chapter 49-04, paragraph 1.

182.  The Duty Officer will determine the scope of the custody search “on a case-by-case basis, based upon the prevailing circumstances”: PGO Chapter 49‑04, paragraph 3.

183.  PGO Chapter 49-04 paragraphs 9 - 13 stipulate the manner in which a custody search is to be conducted.

184.  Paragraph 9 (“PGO 49-04, paragraph 9”) in particular provides that custody searches (levels II and III of which entail removal of clothing by the detained person) “shall be” conducted by police officers as stipulated thereunder.  Paragraph 9 provides relevantly as follows:

“9. Custody searches shall be conducted by police officers as follows:-

(a) only officers of the same gender as the detained person will be present when a custody search is conducted;

(b) only officers of the same gender as the detained person will conduct the custody search;

(c) at least two officers of the same gender as the detained person will be present;

(d) the custody search will be conducted only in an area offering privacy; and

(e) the custody search will be conducted in a search room within the report room designated by the DVC or equivalent, which is not in view of persons other than those officers required to carry out, witness or supervise the custody search.  The door of the search room where the custody search is conducted shall be locked or the access restricted during the search.  Such room(s) shall be equipped with a proper lock to ensure unauthorized persons cannot enter during a custody search.  If the door is fitted with a glass panel, a blind shall be installed to ensure persons outside the room cannot see inside.”

185.  In other words, under PGO 49-04, paragraph 9:

(1) Only officers of “the same gender as the detained person” will conduct the custody search.

(2) Only officers of “the same gender as the detained person” will perform the role as guarding/witnessing officer when the custody search is being conducted.

(3) At least two officers of “the same gender as the detained person” will be present.

(4) The custody search will be conducted “only in an area offering privacy”.

(5) The custody search will be conducted “in a search room” “which is not in view of persons other than those officers required to carry out, witness or supervise the custody search”.

C2.2.2    Plain proper construction of PGO 49-04, paragraph 9

186.  Ms Wong submits that “same gender” as provided under the PGOs, on a proper objective construction in context, means the same gender as shown on the identification document of the person being searched.

187.  I agree with Ms Wong’s submissions as follows.

188.  These provisions must be construed in the context of the purpose of the PGOs as mentioned above, which is to enable the police to efficiently and effectively discharge his duties under the PFO.

189.  In this respect, as submitted by Ms Wong, operation-wise, in the course of discharging his duties for carrying out the objects and provisions of the PFO, a police officer would often have to make a prompt decision as to whether, and if so, how a search of a person is to be conducted.

190.  For example, section 54 of the PFO confers the power upon police officers to stop any person in the street or other public place for the purpose of demanding that person to produce “proof of his identity” (which has the same meaning as “proof of identity” as in section 17B of the IO) for inspection and to detain and search such person for the purposes prescribed therein.

191.  With regard to searches under section 54 of the PFO, PGO Chapter 44-05 at paragraphs 3 - 5 similarly provide that a search involving removal, partial removal, looking into, search, request for removal of items of clothing worn to cover a subject’s private parts, will only be carried out by a police officer of “the same sex” in the presence of another officer of “the same sex” as a guarding/witnessing officer, and that in the absence of a “woman officer”, an officer shall escort a “female” suspect to a police station or police launch for search by “a female officer”.

192.  Properly construed in its context and in light of the police’s operational needs, the objective intention of the PGOs must be that police officers would have to be placed in a position to identify, by reference to some objective means of identification with clarity and certainty and within a short time, whether a person to be searched is a man or a woman in order to ensure strict compliance with the requirements in the PGOs that the search will be conducted by an officer of “the same gender” as that person.

193.  The same phrase “same sex” as provided under the PGOs at different paragraphs should bear the same and consistent meaning.

194.  In the premises, consistent with section 54 of the PFO, for the purposes of the PGOs, the gender of the person to be searched is that as shown on the identification document, or the “proof of identity” as defined in section 17B of the IO, of that person, and that phrases like “opposite sex”, “same sex” and “same gender” in PGOs Chapters 44-05 and 49-04 shall be construed accordingly.

195.  R has put forward a number of rival contentions to say otherwise.

196.  First, R submits that:[35]

(1) The words “same sex” should not be construed as “same biological sex”; and that the words “same sex”, “taken as an ordinary word or phrase, necessarily include a transsexual whose outer appearances looks for all purposes like that of their self-identified gender and/or sex”.

(2) In other words, PGO 49-04, paragraph 9(a) should be construed as meaning that a pre-operative male-to-female transsexual whose outer appearance looks for all purposes like a female shall be searched only by a female police officer.

197.  I am not persuaded.

198.  As clarified by Ms Wong:

(1) It can be seen from above that it is not the COP’s case that the phrase “same sex” or “same gender” should be construed as meaning “same biological sex or gender”.

(2) Rather, the sex or gender of the person to be searched is that as shown in his or her “proof of identity”, and “same sex” or “same gender” is construed accordingly.

(3) In most cases, the “proof of identity” would point to the biological sex of the person to be searched.

(4) But a person in the position of say the applicant in W v Registrar of Marriages (2013) 16 HKCFAR 112, who was born male but whose new identity card and new passport showed her acquired sex as female following completion of SRS, would be searched by and in the presence of female officers.

199.  In any event, I also agree with Ms Wong that R’s above construction that a MtF TG whose outer appearance looks for all purposes like a female should be regarded as a female, notwithstanding that his proof of identity shows his sex as male, would result in impracticability:

(1) In the absence of a general guideline providing objective factors for reference and consideration, gender identification of a person on the basis of a police officer’s personal judgment or impression as to whether that person’s outer appearance looks for all purposes like that of his or her self‑identified gender is too subjective and uncertain to be feasible. Opinion on such a matter may legitimately differ.

(2) It is also unclear and uncertain whether such “outer appearances” should or should not include the private parts of the person involved.

(3) Adopting such a basis will not only frustrate the intention of rendering the police force efficient in the discharge of its duties, but is also likely to give rise to more complaints of arbitrary or unlawful search being done on a person.

200.  R’s above construction is therefore untenable.

201.  Second, R appears to also argue that PGOs Chapter 49-04 paragraph 9, properly construed, requires a police officer “to offer a pre-operative transgender female such as [R] and who has been living as a member of her self-identified gender, to be searched by a police officer corresponding to her self‑identified gender and/or at her election”.[36]

202.  This construction is however also untenable as impracticable for the same reasons mentioned at paragraph 199 above.

203.  It must be noted that at present, there is no objective standard by which a police officer can ascertain, let alone verify, whether a person to be searched is a transgender person “who has been living as a member” of his or her self-identified gender. For instance, a person whose “proof of identity” shows that his sex is male but dresses himself as a female may simply be a “transvestite” and not a “transgender”.

204.  Furthermore, such a construction would oblige police officers to abide by the choice made by the person to be searched.  This would be obviously inconsistent with the express wording of PGO 49-04, paragraph 9, and is unjustifiable as a matter of interpretation.

205.  Third, R also contends that the expression “same gender” includes the gender identity choice of a pre-operative MtF transgender, such that when a police officer is confronted with such a person, the officer must consider all relevant factors in determining in the circumstances of each case the most appropriate manner that would balance the rights of that transgender against operational necessity.[37]

206.  This construction effectively is to introduce a special rule governing custody search of “Partial SRS male-to-female” transgender.  This amounts to re-writing PGO 49-04, paragraph 9 and is not permissible as matter of pure construction.

207.  Moreover, such a “rule” requires frontline police officers to judge (without any assistance of medical opinion) whether a person is or is not a “Partial SRS” MtF TG.  R’s suggestion[38] that the “external appearance” of a “Partial SRS” MtF transgender is “indistinguishable from a biological female” cannot be correct.  Most notably, such a transgender (like R) retains male genitalia and is clearly distinguishable from a biological female.  In the premises, the problems outlined in paragraph 199 above are equally apposite.

208.  Such a construction must also be rejected.

209.  I now turn to consider R’s submissions that Chapter 49-04, paragraph 9 should be read down as a matter of construction to be constitutionally compliant.

C2.2.3    Constitutional compliant construction of PGO 49-04, paragraph 9

210.  Under this challenge, R argues that a search “by a person that is not consonant with [a pre-operative MtF transgender’s] gender identification” failed to “protect [her] expression of gender identity as a female”.  This would be in breach of a pre-operative MtF TG’s rights protected under HKBOR 3, 6(1) and 14 and BL 28.  R therefore submits that the court should read down the PGO 49-04, paragraph 9 to make it compliant with these constitutional provisions, or declare it unconstitutional.[39]

211.  In support of this, R relies on her submissions on the scope of the right to dignity and right to privacy as I have summarized in paragraphs 152 and 154 above as well as the following:

(1) In determining whether a detained person’s right to dignity is breached as amounting to CIDT, the complained treatment must obtain a minimum level of severity and must involve bodily injury or “intense physical and mental suffering”.  It must deny the “most basic needs of any human being” “to a seriously detrimental extent”.  The absence of an intention to humiliate does not necessarily mean that the conduct or treatment is not cruel, inhuman or degrading: MA v Director of Immigration (HCAL 10, 73, 75, 81 & 83/2010, 6 January 2011, A Cheung J) at paragraph 78, applying Ubamaka, supra, at paragraphs 71 - 83.

(2) It is further submitted that the scope of the right to dignity is further informed and read together with HKBOR 3 (ie, persons are protected against CIDT), although an impairment which does not fall under CIDT does not necessary means that there is no breach of the right to dignity: SSHD ex parte Herbage (No 2) [1987] QB 1077 and R(Haidar Ali Hussein) v The Secretary of State for Defence [2014] EWCA 1087 at paragraph 45 per Lloyd Jones LJ.

212.  Given the above submissions, R contends that if PGO 49-04, paragraph 9 is construed to mean only male officer could strip search a pre-operative MtF transgender PIC, it infringes her right to privacy in not respecting at all her right to own gender identification.  It also infringes her right to dignity even as a detained person, since the treatment or conduct causes additional undue hardship (given the mental and physical humiliation and embarrassment caused to her in light of her own identification as a female, and in particular when possessing female physique appearance such as breasts), which hardship is resulted other than from the loss of liberty.[40] The infringement would not satisfy the proportionality, since it cannot be shown that a search by male officer only on a pre-operative MtF transgender PCI is rationally connected to any of the pronounced purposes of the search, or even if so connect, the infringement is no more than necessary to achieve that purpose.[41]

213.  In the premises, R submits that PGO 49-04, paragraph 9 should be construed insofar as possible, including by reading down it, to comply with these constitutional protections.

214.  I agree.

215.  As submitted by R, the authorities do support that a right to privacy does include respect for the person’s private life, and private life as protected includes someone’s own choice of gender identity and the person’s interaction with others: Pretty, supra, at paragraph 61.  Hence, whena person who suffers from gender dysphoria and identifies herself as a female is stripped or cavity searched by a male officer (someone of a gender opposite to the person’s own identification), it does prima facie interfere her privacy.  The right is therefore engaged.

216.  For the same reason, a lawfully detained person’s right to dignity is similarly engaged, as it must be obvious that that detained pre-operative MtF TG (who identifies her as female) would feel subjected to embarrassment and humiliation to be stripped or cavity searched by an officer of a gender opposite to her self-identified gender.

217.  However, these rights are not absolute and can be proportionally and justifiably limited in law.  In considering whether the limitation is so justified, it must be considered in the proper context and purpose.

218.  In this respect, Ms Wong has rightly highlighted the following impracticability and problems if R’s proposition that PGO 49-04, paragraph 9 should be read to give the transgender PIC a right to choose the gender of the officer to search him or her is correct:

(1) As mentioned above, for the purposes of a custody search at a police station, the police officers would not have any assistance from any specialist with the relevant medical qualifications to ascertain or verify whether a detainee to be searched is or is not a transgender.

(2) R’s contention in effect means that any detained person who self‑proclaims (truly or falsely) to be a transgender would be, or would at least be entitled at his or her choice to be, searched by a police officer of a gender opposite to the detained person’s gender as shown in his or her proof of identity.  Such a system may be susceptible to abuse, and unfair to police officers who may find themselves potentially exposed to unwarranted requests or complaints.

(3) Further, as Baroness Hale observed in Chief Constable of West Yorkshire Police v A (No 2) [2005] 1 AC 51, at paragraph 59, “there are many occupations which involve physical contact with members of the opposite sex” and “we generally depend upon the professionalism of the individual backed up by the ordinary law and complaints mechanisms, to protect people’s sensibilities”.  Whether a particular search had been so conducted as to amount to an infringement of a detained person’s right to respect of his dignity and privacy would depend on a host of factors, including but not limited to whether the search had been conducted in a professional manner.

219.  Moreover, as observed by Hartmann J in The Democratic Party, supra, at paragraph 59, “privacy” has its limits.  For example, respect for an individual’s privacy will be “narrower” when it is brought into contact with public life or is in conflict with other protected interest.

220.  In this respect, it is pertinent to note that it is trite that detainees, in particular those detained in prisons, generally must expect a substantially reduced level of privacy, since prison cells are exposed and require observation and for security reasons.  As observed by La Forest J in Weatherall v Canada (AG) [1993] 2 SCR 872 at paragraphs 5 - 6 as follows:

“5. Imprisonment necessarily entails surveillance, searching and scrutiny. A prison cell is expected to be exposed and to require observation. The frisk search, the count and the wind are all practices necessary in a penitentiary for the security of the institution, the public and indeed the prisoners themselves. A substantially reduced level of privacy is present in this setting and a prisoner thus cannot hold a reasonable expectation of privacy with respect to these practices. This conclusion is unaffected by the fact that the practices at times may be conducted by female guards. There being no reasonable expectation of privacy, s.8 of the Charter is not called into play; nor is s.7 implicated.

6. It is also doubtful that s.15(1) is violated.  In arguing that the impugned practices result in discriminatory treatment of male inmates, the appellant points to the fact that female penitentiary inmates are not similarly subject to cross-gender frisk searches and surveillance.  The jurisprudence of this Court is clear: equality does not necessarily connote identical treatment and, in fact, different treatment may be called for in certain cases to promote equality. Given the historical, biological and sociological differences between men and women, equality does not demand that practices which are forbidden where male officers guard female inmates must also be banned where female officers guard male inmates.  The reality of the relationship between the sexes is such that the historical trend of violence perpetuated by men against women is not matched by a comparable trend pursuant to which men are the victims and women the aggressors.  Biologically, a frisk search or surveillance of a man’s chest area conducted by a female guard does not implicate the same concerns as the same practice by a male guard in relation to a female inmate.  Moreover, women generally occupy a disadvantaged position in society in relation to men. Viewed in this light, it becomes clear that the effect of cross-gender searching is different and more threatening for women than men.  The different treatment to which the appellant objects thus may not be discrimination at all.”

221.  Further, as also observed by the Ontario Human Rights Tribunal in Forrester v Regional Municipality of Peel – Police Services Board 2006 HRTO 13 (where it also had to deal with the lawfulness of the rules governing body searches by the police officers on detained transgender persons), there are also concerns in this respect for emergency situations.  Any construction of the search rules in the context of privacy right must also be considered in this context.  The Tribunal says this at paragraph 448:

“[448] Finally, there may be emergency situations beyond the control of any police officer that necessitate measures not contemplated in this decision, which Ms. Dinnert characterized in her written brief as, ‘the need for assistance, which may include officers of the opposite gender identity, to be available and to be used in the event of unreasonable resistance.’”

222.  Thus, even though I agree that PGO 49-04, paragraph 9 should be construed to be consistent with the right to privacy and right to dignity for transgender PICs, it must be construed in the context of the above considerations.  When these are all considered together, I accept Ms Wong’s fall back construction that, properly construed to be consistent with the constitutional protection of privacy and dignity (read together with HKBOR 3) of PICs, the requirement of a search being conducted upon a detained person by officers of “the same sex” under PGO 49-04, paragraph 9 is only intended to be a general rule, leaving a discretion to be exercised by the police officers as to how a custody search is to be properly and lawfully conducted in the light of all the relevant circumstances, having regard to, among others, the individual circumstances of the detained person, the need to protect the detained person’s fundamental human rights to respect to dignity and privacy, and the appropriateness of the gender of the officers conducting and witnessing the search.

223.  In other words, when PGO 49-04, paragraph 9 provides that “Custody search shall be conducted by police officers follows”, it is only to mean that the searches should generally be conducted in accordance with the requirements provided in the subparagraphs.  The police officers retain a discretion to decide how a custody search is to be conducted properly and lawfully in a transgender circumstance.

224.  In this respect, to address the practicable problems as identified at paragraphs 199, 218 and 221 above, the COP should consider providing a guideline in the PGOs in relation to custody searches to be conducted concerning pre‑operative transgender PICs.  The guideline should provide the relevant and relatively objective factors, considerations and circumstances that a frontline police officer can take into account to consider how best to conduct such searches on a TG, which would respect his or her right to the chosen gender identity.  For the COP’s consideration, I believe the observations made by the Tribunal in Forrester v Regional Municipality of Peel – Police Services Board, supra, at paragraphs 427 ‑ 449 would be a good starting point for the COP to take into account in formulating the guideline, with reference to the circumstances of Hong Kong.

C2.2.4    The prison rules concerning body searches in prisons

225.  Rules 9 and 10 of the PR are relevant to the body searches conducted by CSD officers on PICs.

226.  Rule 9 (“Rule 9”) of the PR provides, among others,as follows:

“9. Searching

(1) Every prisoner shall be searched on admission and at such times subsequently as the Superintendent or other officers in charge may direct ...

(1A) The Medical Officer, or a Chief Officer, Principal Officer, Officer or Nurse, authorized by the Medical Officer, may, for the purpose of paragraph (1), search the rectum, nostrils, ears, and any other external orifice of a prisoner.

(2) The searching of a prisoner shall be conducted with due regard to decency and self-respect, and in as seemly a manner as is consistent with the necessity of discovering any concealed articles.

…”

227.  Rule 10 (“Rule 10”) of the PR provides relevantly that “no prisoner shall be searched other than by an officer of the same sex”.  (emphasis added)

C2.2.5    Plain proper construction of Rule 10

228.  For the following reasons, I agree with Ms Wong that on an ordinary plain construction, the requirement of an officer of the “same sex” of the prisoner to conduct a search means it is the same sex of the prisoner’s biological sex.

229.  Rule 10 should be construed in its context, in the light of the PO and the PR as a whole.

230.  In this regard, in identifying whether a PIC is a man or a woman for the purpose of deciding whether that PIC should be allocated to a male prison or a female prison, it must have been the legislative intention that the PICs gender should be identified by reference to some objective means of identification with clarity and certainty and the gender as shown in the PICs “proof of identity” is justifiably adopted in determining his or her gender in general.

231.  Once the PICs gender has been so identified and is then sent to a prison appropriate to his or her gender accordingly, Rule 9(1) provides that such PIC shall be searched “on admission”.  For such a search, Rule 10 then provides that it shall be conducted by an officer of “the same sex” as that PIC.  Medical examination of such PIC would only be done by the MO for the first time “after his admission”: Rule 14 of the PR.

232.  Construing Rule 10 in the light of the aforesaid, it must have been the legislative intention that, for the purpose of carrying out the “on admission” search under rule 9(1) of the PR, CSD officers would have to be placed in the position to identify the gender of a PIC by reference to the same objective means of identification adopted by the CCS for the purpose of deciding allocation of that PIC to a male or female prison, ie, the gender as shown on that PICs “proof of identity”.

233.  And for a non-transsexual PIC, once his sex or gender has been so ascertained with reference to his “proof of identity”, he or she will continue to be searched “at such times subsequently as the Superintendent or other officers in charge may direct” by CSD officers of the same sex as his pursuant to Rule 10.

234.  Difficulty may arise regarding subsequent searches in the case of a PIC who is a transsexual:

(1) If the transsexual PIC had undergone SRS, then there should not be a problem even if his “proof of identity” has not been changed to reflect his or her acquired gender, as the CCS would accept him or her as a member of the acquired sex.

(2) The position of a pre-operative transsexual (such as R) is not so straight‑forward.

235.  R argues that she “is a female for the purpose of strip searches”[42] notwithstanding that she:

(1) had not undergone any genital SRS;

(2) retained all her male genitalia; and

(3) held a passport which described her as “male”.

236.  The question arising is whether, vis-a-vis a pre-operative MtF transgender PIC having R’s attributes, the words “officers of the same sex” refer to female officers.

237.  As pointed out by Ms Wong, there appears to be no direct authority on this.

238.  R relies heavily on the CFA’s departure in W from the biological criteria in determining sex.  However, W dealt with the capacity of a post-operative male-to-female transsexual to enter into a heterosexual marriage with a man. I agree that the gender of a pre-operative male‑to‑female transsexual for the purpose of strip search by the law enforcement and penal authorities is wholly different.  W therefore does not add anything to R’s contention.

239.  R also submits that “[t]he meaning of ‘same sex’ as understood in the natural or ordinary meaning today for the purpose of a strip and cavity search is sufficiently wide to include [R] as a Partial SRS MtF who displays significant feminine features”.  Notwithstanding the undisputed notion of the “always speaking” nature of the law, I am unable to accept this submissions as R has not identified the basis upon which the alleged expanded current usage of “same sex” rests.[43]

240.  At the same time, Ms Wong for the CCS refers this court to Chief Constable of West Yorkshire Police v A, supra.  In this case:

(1) The applicant, a MtF post-operative transsexual, was rejected for appointment to the police force for the reason that she would not be able to carry out personal searches of detained persons which were required by section 54(9) of the Police and Criminal Evidence Act 1984 to be carried out by a constable “of the same sex as the person searched”.  It was thought that she remained a man despite the SRS that she had undergone and could not lawfully search women.  On the other hand, as an apparent woman, she could not in practice search man.

(2) It was held that the European Community principle of equal treatment under Directive 76/207 required transsexual persons who had successfully undergone SRS to be treated, as far as possible, equally with non‑transsexual members of their acquired gender and that “the same sex” in section 54(9) of the 1984 Act had to be interpreted as applying to the acquired gender of a post-operative transsexual.

241.  Although A was concerned with the status of a post-operative MtF transsexual, the court’s reasons for treating her as a woman to whom a female detained person could not object to being searched is instructive for our purpose:

(1) Lord Bingham was much influenced by the fact that a post‑operative transsexual was visually and for all practical purposes indistinguishable from non-transsexual members of that gender and that no one of that gender searched by such a person could reasonably object to that search.  See paragraph 11.

(2) Baroness Hale observed at paragraph 61:

“... Ms A has done everything that she possibly could do to align her physical identity with her psychological identity. She has lived successfully as a woman for many years. She has taken the appropriate hormone treatment and concluded a programme of surgery. She believes she presents as a woman in every respect.” (emphasis added)

242.  In the present case, the court notes the repeated assertion in R’s submissions[44] that R’s external appearance is not at all indistinguishable from that of a biological female.  However, it is also pertinent to note that, as similarly repeatedly stressed by the respondents, R had all her male genitalia intact.  Whether R’s external appearance is indistinguishable from that of a biological female is rather a circular question depending on how one looks at it.

243.  In this respect, as submitted by the CCS, a body and cavity search is a process during which the body of the person being searched would be exposed or even invaded for the scrutiny and examination of the person conducting the search.  The physical difference between a post-operative transsexual and a pre-operative is critical because it would inevitably become apparent in the type of searches under consideration.

244.  The requirement for the person conducting the search and the person to be searched to be of the same sex or gender is obviously intended to protect the sensibilities of the person being searched by not exposing his or her body to a person of the opposite sex and those of the person conducting the search by not being exposed to the body of a person of the opposite sex.

245.  That being the case, the words “same sex” in Rule 10 have to mean, as a matter of ordinary construction in context, a person being of one sex or another as determined with reference to his or her existing physical sexual attributes.

246.  R seeks to rely on four cases[45] to support her contention that for the purposes of strip searches, the words “same sex” does not need to be equate with “same biological sex”.  They do not assist R, as they are clearly distinguishable: none of those cases even involved transgender claimants.  In this regard, the proper construction of the meaning of “same sex” must be contextually sensitive.

247.  If R’s construction is correct, in that if “sex” and “gender” in this context meant the gender identity as chosen by the person being searched, then:

(1) A man who suffers from gender dysphoria as a result of which he identifies himself as a woman and lives as a woman but has not undergone any hormonal or surgical treatment would, despite being in possession of all his male sexual attributes, be able to insist on being searched by a female officer.

(2) A woman who suffers from gender dysphoria as a result of which she identifies herself as a man and lives as a man but has not undergone any hormonal or surgical treatment would, despite being in possession of all his female sexual attributes, be able to insist on being searched by a male officer.

 This, as contended by Ms Wong, is problematic and not right.

248.  For these reasons, for objective practicality and relative certainty, purely as a matter of construction, a pre-operative MtF TG, meaning one who has not had genital SRS and still possesses intact male genitalia, would remain as a man (albeit one with gender dysphoria) and should be searched by a male officer under Rule 10.

C2.2.6    Constitutional compliant construction of Rule 10

249.  As in the case of PGO 49-04, paragraph 9, R advances the alternative case that even if she was to be regarded as a “male”, the requirement of a search being conducted upon her by CSD officers of “the same sex” under Rule 10 is unconstitutional and should thus be “read down”, to the effect that only CSD officers of the “same self-identified gender” as the PIC will conduct the search, or alternatively, the PIC should be offered a choice regarding the gender of the CSD officer conducting the search.[46]

250.  For the same reasons I have set out in relation to PGO 49-04, paragraph 9, I agree that to construe Rule 10 to be constitutionally compliant with the right to privacy and right to dignity, the requirement of a search being conducted upon a PIC by officers of “the same sex” under Rule 10 is only objectively intended to be a general rule.  CSD officers under that rule retains a discretion to be exercised as to how a search is to be properly and lawfully conducted in the light of all the relevant circumstances, having regard to the individual circumstances of the PIC, the need to protect the PICs fundamental human rights to respect to dignity and privacy, and the appropriateness of the gender of the officers conducting and witnessing the search.  Whether a particular search had been so conducted as to amount to an infringement of a PICs right to respect of his dignity and privacy would depend on a host of factors, including but not limited to whether the search had been conducted in a professional manner.

251.  This construction is indeed also consistent with the discretion provided under the VPU Guideline relating to the searches of transgender PICs.  Paragraph 5.1 provides that: “As a general rule, searching of a transsexual person will be conducted in accordance with PRs 9 and 10 applicable to other persons in custody of the same location.  Requests for any deviation from the general requirements will always be considered on the individual merits of each case, having regard to the opinion of the Medical Officer, Clinical Psychologist or Psychiatrist, where appropriate”.  Thus, even in the CCS’s own understanding, Rule 10 does permit a residual discretion to be exercised by the CSD officers in conducting searches on transgender PICs.

252.  In the present case, on the CCS’s evidence, during R’s detention in PUCI and SLPC, she had made a request to depart from the general requirement for her to keep her long hair, which request was acceded to.  However, R had never made any request to be searched by female officers.  This is supported by the objective evidence that when R wrote to those who helped her during her detention in SLPC, she did not voice out any concern or protest against being strip-searched by male officers.[47]

253.  There is therefore no breach of Rule 10 in the circumstances of the present case concerning the searches conducted on R by the CSD officers.

C2.3  Grounds 5 and 6

254.  Under these two grounds, R says the various searches conducted at the Police Station, PUCI and SLPC were unlawful in the way they were factually conducted as they were either (a) arbitrary in nature, (b) in breach of dignity or degrading treatment, (c) in breach of privacy, or (d) trespass to the person.

255.  R in her affidavits has said and complained in essence that (a) she was not explained to as to the reasons and purpose of the searches; (b) some of the officers conducting the searches had touched or contacted her body parts unnecessarily; (c) there were the presence of other male PICs in the vicinity where the searches were conducted who could see her stripped and searched; (d) she did not know whether the cavities searches were indeed conducted by enrolled nurses and how they were done as now alleged by the CCS; and (e) she had made complaints regarding these searches by male officers in the manner she said they were conducted.

256.  R therefore says the searches were unlawful since:

(1) They were arbitrary, as she was never explained to by the relevant officers the purposes of the searches.  Further and in any event, the searches conducted in PUCI and SLPC were unnecessary since she had been kept singly and never had the chance to mingle with other persons.  As such, there was never any risk, let alone reasonable risk, that she would conceal or hide any contrabands in her body.

(2) The mere fact that searches were conducted by only male officers by itself amounted to infringement of her right to privacy and right to dignity.  Further, as some of the male officers in fact touched and contacted her breasts and body parts unnecessarily, and had been mocking her during some of the searches, these were again infringement of her right to privacy and right to dignity.

257.  Before considering the merits of these grounds, it must however be noted that, in relation to these searches, the CCS and the COP have respectively filed various affirmations and statements to dispute the allegations made by R set out in paragraph 256 above and show in summary that:

(1) R had always been explained with the reasons for and purpose of a search and what it entailed and given his consent.

(2) Each search was conducted in a closed or shielded private space, away from sight of others, by one officer in the presence of only one other officer as witness.

(3) R undressed by herself.

(4) There was no physical contact between R and the searching officer save for the hair inspection which was done with gloved hands.

(5) Rectum searches were conducted by enrolled nurses in the presence of one other officer using lubricated gloved hand and in a professional, clinical manner.

(6) Despite being asked on some occasions if he had any complaints, R raised no objection.

258.  Bearing these disputes of fact mind, I now turn to look at the specific complaints raised under these grounds in relation to specific searches.

C2.3.1    Whether search at the Police Station on 5 June 2014 conducted in manner were in breach of R’s rights

259.  R says under Ground 5 that the search conducted at the Police Station was arbitrary and infringed her rights to privacy and dignity because:

(1) The police officers gave next to no consideration as to whether the search by male police officers only against R would be justified or empathetic, practical or sensible, especially since there was no operational necessity to utilize only male officers.

(2) The police officers did not ask if R would prefer to be searched by a male or female police officer.

(3) There was no operational need for multiple police officers to be involved in the strip search.

(4) There was no justifiable reason to touch R’s breasts and penis for the purpose of ascertaining if she had hidden drugs in her body cavity.

(5) The police strip search was therefore arbitrary and unlawful in that it was conducted in a manner that amounted to an unlawful trespass of R’s person and in breach of the duties and policies set out in PGO Chapter 49‑04.

260.  However, I agree with Ms Wong that R has failed to show that the search was unlawful as contended.

261.  First, given the serious factual dispute over the precise manner in which the police custody search was conducted and the nature of such dispute, it is difficult to see how the court can determine the merits of the complaint under Ground 5 based simply on affidavit evidence in the absence of cross‑examination.  R (who bears the burden of proof) has therefore failed to establish Ground 5 on the basis of the disputed evidence.

262.  Second, R has also complained that the custody search was arbitrary in that “there was no objective reason” for such a search “requiring removal of all undergarments”, and that even if there was an objective reason for such a search, the person to be searched should be “suitably informed that a search is about to be made, the extent of the search required, why such extent of the search is required”.[48]

263.  R has not pursued and developed this in the submissions.  But, in any event, I agree with Ms Wong that there is no merit in this complaint:

(1) There are clearly legitimate reasons for a custody search to be conducted as a general rule.  As stated in PGO Chapter 49-04 paragraph 1, the COP determined that a custody search should be conducted on all persons to be detained “in order for Police officers to properly discharge their statutory functions and fulfill the Force’s duty of care to persons detained in police detention facilities and to ensure the safety of others who may come into contact with them”.  Indeed, R acknowledges that “there is an operational need for Police Officers ... to have the power to do [strip or body cavity searches] in their custody”.[49]

(2) Moreover, PGO Chapter 49-04 paragraphs 3 - 5 and paragraphs 9 - 13 set out guidelines to be followed by police officers in determining the scope of custody search in each case (differentiating into three levels, with Level 3 involving the removal of underwear) and the manner in which a custody search is to be conducted.  These guidelines are supplemented by a Force Procedures Manual Chapter 49-04 and Standard Custody Search Procedures.

(3) PGO Chapter 49-04 paragraph 6 has also expressly provided that prior to conducting a custody search, the designated police officer “will explain to the detained person the reason(s) for the custody search and the scope of the custody search to be carried out”. Paragraph 7 further provides that prior to a custody search, the Duty Officer “will ensure” that a Custody Search Form (Pol 1123) “is served on the detained person”.

(4) The objective evidence shows that R had read and signed the Custody Search Form.

(5) In the premises, based on the objective evidence, the custody search conducted upon R was not arbitrary as alleged.

264.  Third, there is also no merit in respect of R’s complaint that as “a female for the purpose of strip searches”, a custody search conducted by male police officers amounted to degrading treatment or a breach of his human dignity or right to privacy:[50]

(1) R made reference to “searching of detained persons with special needs”.

(2) However, the Guidelines on Custody Search on Transsexuals and Transvestites actually provide that “for the purposes of custody search and related procedures, a detained person claiming to be a ‘transsexual’ should be treated appropriate to the gender specified in the identification documents” and the custody search would be conducted by a police officer of “the same gender” as the detained person whose gender had been so identified.[51]

(3) At the time when a person is detained in the police station pending to be searched, the police officers would not have any assistance from any specialist with the relevant medical qualification to ascertain or verify whether that person is or was not a transgender, and it was understandable and rational for the police officers to identify the gender of a person claiming to be a transgender by reference to his or her “proof of identity”.

(4) In the premises, and for reasons explained earlier above, there is no legal basis for R, whose “proof of identity” showed that he was a male, to be regarded as “a female for the purposes of strip searches”.  The premise of R’s first complaint of her being a “female” is unfounded.

(5) Indeed, the COP’s evidence shows that R had not even claimed herself to be a transgender at the time.  This is supported by the objective evidence: the Custody Search Form, read and signed by R, stated (at paragraphs 2 - 3) that detained person with special needs includes detained transsexuals, and such a detained person was asked to bring it to the attention of the Duty Officer before a custody search was conducted.  R did not make any complaint or request at the time.

(6) In the premises, even under PGO 49-04, paragraph 9, the police officers still retain a discretion to decide how best to conduct a body search on a transgender PIC as I have concluded above, in the circumstances of the present case where R did not claim to be a transgender and did not make any complaint or request at that time, I am not satisfied that R’s rights to privacy and dignity were infringed by the search as conducted.

(7) This is very different from Forrester v Regional Municipality of Peel – Police Services Board, where the complainant repeatedly requested female officers to perform the strip searches but such requests were denied.

265.  For all these reasons, I reject Ground 5 in relation to the police search conducted at the Police Station.

C2.3.2    Whether strip search and rectum search at PUCI and SLPC conducted in manner were in breach of R’s rights

266.  These challenges are raised under Grounds 5 and 6.

267.  Specifically, under Ground 5, R submits that the strip searches conducted on admission to PUCI and the strip searches conducted at SLPC (a) on her first reception there, (b) on her return from after attending the Eastern Magistrates for her second mention on 13 June 2014, (c) on her return from after attending Eastern Magistrates Court for her third mention on 21 July 2014, (d) on her return from after attending the Eastern Magistrates where she pleaded guilty to the charges on 31 July 2014, and (e) on her return from after attending the Eastern Magistrate seeking a review of her sentence on 19 August 2014 were arbitrary or had infringed her privacy or dignity rights because:

(1) The requirement for a physical strip search upon each admission was based on a presumption that R has concealed contraband items.

(2) However, objectively, there could have been no reasonable suspicion that R would have been able to access and conceal in her body or clothing, any articles which contravened the PR, or any item that would endanger herself or others in that at all material times.  This is so as R was not allowed to intermingle with the general prison population, or receive any visitors apart from her duty lawyer when at Kowloon City or Eastern Magistrates Court.

(3) R was placed in a single confinement at the Police Station where she had already been subjected by police officers to a strip and body cavity search[52] before being transferred to Kowloon City Magistrates Court, where she was also kept in a single cell at all times.

(4) She was kept isolated in a single cell at Eastern Magistrates Court and she was similarly placed in effective single confinement and isolated from the general prison population at PUCI at all times.

(5) R did not have any history of violence nor was she incarcerated for a violent offence.

(6) In these circumstances, a simple pat down search upon reception at PUCI from Kowloon City Magistrates Court, and at SLPC from PUCI would have sufficed as she had already been body cavity searched[53] by the Police at the Police Station.

(7) A simple pat down search upon reception when returning from Eastern Magistrates Court to SLPC each time, would have also sufficed as she was not allowed to interact with any other detainees at Eastern Magistrates Court.

(8) There was therefore no operational requirement for the purpose of service or custodial discipline to require R to be further strip or body cavity (where applicable) searched.

(9) Further, the manner in which the search was conducted was oppressive because:

(a) The CSD Officers gave next to no consideration as to whether the search by male CSD Officers only against R would be justified in the circumstances of the present case.

(b) The CSD Officers did not ask if R would prefer to be searched by a male or female CSD Officer.

(c) If the CSD Officers decided that the strip and body cavity searches against R by male CSD Officers was made on the bases of Rule 10, they misdirected themselves in law, or were adhering to an unconstitutional requirement.

268.  Under Ground 6, R complains that all the departure strip searches conducted at SLPC every time when she was to depart to RTSKH were arbitrary or infringements to her privacy or dignity rights for the similar reasons raised under Ground 5.

269.  I am unable to accept R’s submissions.

270.  It is the CCS’s evidence that:

(1) At PUCI, all newly admitted PICs “will first be arranged to undergo strip search one by one by the security staff to forestall any introduction of contraband articles into the penal institution”.[54]

(2) Similarly, at SLPC, strip search on a PIC upon his admission was a routine search conducted by the security staff for the purpose to “detect any concealed articles” on the PIC.[55]

271.  Also, whenever a PIC is escorted to a location outside the prison for court attendance and medical appointment whereupon the PIC would be allowed to change into his or her private clothing, he or she is required to undergo strip search when changing into another type of clothing before departure “to forestall PICs from concealing any articles which may facilitate escape or pose other risks to the public”, and upon return “to prevent the smuggling of contrabands into the prison”.[56]

272.  In view of the CSD’s above general practice on all PICs, R’s contentions suggest that she should have been treated differently from the other PICs, on the grounds that (a) she had been subjected to a strip search at the police station; (b) she had been kept in single cell confinement in the police station and magistrates’ court; (c) she was not allowed to intermingle with the general prison population; (d) she did not have any history of violence; (e) there was no operational requirement for him to be further strip searched.[57]

273.  However, in a prison context, there are always serious security consideration. See: R (Green), supra,at paragraph 2 and Weatherall v Canada (AG), supra, at paragraphs 5 - 6.  That is also self-evident, and reinforced by the legislature enacting section 9 of the HKBORO.

274.  Similarly, as observed in HKSAR v Lau Sui Sing, per Ribeiro PJ at paragraph 10 (in the context of section 18 of the PO), strict control of items brought into a prison is an obvious necessity.

275.  In this respect, the CCS should be allowed “significant latitude in terms of exercise of his discretionary judgment” and “to adopt an approach which is a precautionary one given the need to balance the various competing interests in running the prison estate”: R (B) at paragraph 55.

276.  Once considered in these contexts, I do not regard any or all of the above five matters relied upon by R militates against the CSD’s well established precautionary preventive policy or practice to conduct a strip search of all PICs on admission into a prison, and on every occasion when they go to an outside location and upon return.

277.  R seeks to rely on Frerot v France (Application No 70204/01) to support her contentions.  In that case, the European Court of Human Rights (“ECtHR”) recognized (at paragraph 45) that in a case after a prisoner “had been in contact with the outside world or other prisoners – in other words, in a position where he might have been handed prohibited objects or substances”, a full body search was “clearly necessary in order to maintain security or prevent crime”.

278.  However, as Ms Wong has rightly submitted, R’s reliance on Frerot does not assist her, as it is distinguishable on the facts.  In that case, the ECtHR only found that the systematic performance of a full body search including anal inspection where the prisoner had had a meeting with any person in a visiting room within the detention facility could not be said to have been based on convincing security needs and thus involved a degree of humiliation exceeding the tolerable level that strip-searches of prisoners inevitably involved (paragraphs 12, 20, 47 ‑ 48).  On the other hand, in the present case, R was subject to strip search when he was escorted to an outside location and in circumstances where he was allowed to change into his private clothing.  Such strip searches were clearly necessary for security needs.

279.  I therefore conclude that these searches were not arbitrary and did not infringe R’s rights to privacy or dignity as they were proportionally justified for the purpose of maintaining security in prison setting.

280.  Further, insofar as R is relying on the disputed manner in which the searches were said to have been conducted on her to support her complaints under these two grounds, the court is not a position to determine them based purely on the conflicting affidavit evidence in the absence of cross-examination.

281.  For all these reasons, I therefore also reject Grounds 5 and 6 in relation to the searches conducted by CSD officers in PUCI and SLPC.

C2.4  The Delayed HRT Provision

C2.4.1    Ground 2 – the CCS’s delay in providing prompt HRT to R is in contravention of section 6 of the DDO, is in breach of statutory duty to refer R for medical treatment, and is irrational in any event in public law sense

282.  Under this ground, R’s fundamental complaint is that it had taken some seven months for the CCS to provide the HRT to her after she made her request on 30 July 2014. R says this delay amounted to (a) a disability discrimination based on her disability of gender dysphoria, (b) a breach of the CCS’s statutory duty under section 11 of the PO in failing to provide prompt medical treatment, and (c) in any event the delay period is irrational in the circumstances of the present case.

283.  In support, it is R’s case that, after she had made the request for HRT, R should have been promptly referred to the visiting psychiatrist at SPLC with experience in transgenderism for consultation (who would and could be in position to prescribe hormone after some initial consultations and blood tests had been carried out), instead of allowing R’s request to go through the six months’ period in the “routine” referral system as outlined above.

284.  I will now turn to examine R’s specific complaints raised under this ground.

C2.4.2    Discrimination under section 6 of the DDO

285.  I have no hesitation in rejecting this complaint.

286.  Leaving aside the question whether the court accepts there is a delay in providing HRT to R in the present case, as rightly accepted by Mr Deng, this challenge is in law fundamentally premised on his contention that, on proper construction, section 6 of the DDO covers inter-disability discrimination and thereby permitting a comparator with a different disability.

287.  For the reasons I have explained above, I do not accept this construction.

288.  This ground must therefore fail.

C2.4.3    Breach of duty and irrationality complaints

289.  These two complaints can be conveniently considered together, as both of them are premised on the submissions that there was an unreasonable and undue delay in providing HRT to R on the facts of this case, and the said delay amounted to a breach of CCS’s duty under section 11 of the PO to provide HRT to R in a timely manner or was Wednesbury unreasonable in the circumstances.

290.  Section 11 of the PO provides that the CCS “on being satisfied that a prisoner is suffering from a disease and cannot properly be treated in a prison … may order that the prison be taken to a Government hospital or other suitable place for the purpose of treatment … and while absent from a prison in pursuance of such order the prisoner shall be deemed to be in legal custody”.

291.  Although without accepting that section 11 gives rise to an actionable duty against the CCS, Ms Wong is prepared to argue the case on the basis that there is such a duty.  I would therefore proceed to consider these complaints on the presumption that there is a duty on the CCS to provide necessary medical treatments to prisoners under his custody, and if such treatments are necessary, they should be provided within a reasonable time considered in the context of each case.

292.  It is pertinent to first note that all these grounds are premised upon R’s case that the seven months taken for R to receive HRT amounted to undue delay.  In this respect, the actual events underlying the process for R to finally receive HRT have been set out above in paragraphs 36 ‑ 43 above.  These facts are largely not disputed or indisputable.

293.  Based on these facts, it is R’s principal case that the HRT should have been prescribed for R about four weeks after she made the initial request for it.  This is so since it is Dr Winter’s (R’s own psychologist evidence) view that the approximately four weeks’ time taken for the visiting consultant psychiatrist (Dr Siu) to prescribe hormone for R was a reasonable one after she first saw R on 6 February 2015.[58]

294.  In this respect, Ms Wong submits that there was no undue delay in the present case.  This is so as the pertinent facts show that:

(1) After R first made a request for feminizing hormone on 30 July 2014, an appointment date of 27 November 2015 at the TMH was soon obtained.  When R was informed of the appointment date, she made no further request or enquiry.

(2) For the period from August 2014 to January 2015, R had been under the medical care of SLPC’s MO and CP who, in their clinical judgment and medical opinion, considered that R did not exhibit any psychiatric symptoms calling for any specialist psychiatry assessment in the interim.

(3) For the period prior to January 2015, the circumstances did not reveal any medical or clinical reason for the CCS to be satisfied that he should exercise his power under section 11 of the PO to order the removal of R from SLPC for her to be taken to the TMH or any other hospital or other place to receive any treatment for any disease.

(4) After R through her solicitors voiced out her concern in late January 2015, the Superintendent of SLPC (upon MO Ho’s recommendation) swiftly got in touch with Dr Siu, who thereafter followed the case up.  Upon the relevant specialists’ opinion, R was removed from SLPC and attended the TMMHC on 10 March 2015 and 16 March 2015 for assessment and baseline blood test respectively.  Thereafter, HRT had been prescribed and administered to R since 19 March 2015 until her discharge.

295.  In other words, Ms Wong emphasizes that the CCS had followed the referral protocol and regime under the Hospital Authority (“HA”) (something which the CCS has no control) in relation to R’s request for HRT.  In particular, given that hormone treatment in transgender person is a specialist area and requires careful consideration, the steps taken by the MOs in referring R to the various hospital departments were a matter of professional clinical decision, and could not be regarded as unreasonable in any sense.  This is particularly so as it is the CCS’s case that R did not make any complaint or ask for urgent treatment until sometime in January 2015 through her solicitors.  Once MO Ho was aware of it, R was promptly referred to Dr Siu and at the same time the MO Ho sought an earlier appointment time within the HA system.

296.  Despite Ms Wong’s persuasive submissions, on further reflection, I am unable to agree.  I will explain why.

297.  As I mentioned above, the crust of R’s present complaint is that it was reasonable in the circumstances of R’s case that she should have been referred to the visiting consultant psychiatrist for assessment of her request for HRT earlier instead of waiting until late January 2015 when R’s solicitors had made a complaint to SLPC.

298.  In this respect, it is important to note that as a matter of fact, R was eventually referred to see the visiting consultant psychiatrist for her HRT request, who had also in fact prescribed hormone for R.  In other words, as an option, in an appropriate case, it is open to the MO of the CSD to directly refer a prisoner to the visiting consultant psychiatrist for treatment without going through and waiting for an appointment for consultation at one of the HA hospitals and clinics.  Further, as the facts show, R was eventually regarded as an appropriate case to do so.  The only question that arises in the present complaints is whether R should have been so referred much earlier.

299.  In relation to this, it is pertinent to note what the CSD’s Senior Medical Officer Dr Lau has said at paragraphs 13 and 29 of his 1^st Affirmation as follows:

“13. During the period from late August 2014 to late January 2015, the Applicant was seen by a MO / CP at SLPC on several occasions on 1 September 2014, 11 September 2014, 27 October 2014 and 21 November 2014, for miscellaneous complaints about easy bruising, acne on his face and right side breast pain. As the Applicant did not exhibit any psychiatric symptoms or request for an appointment with a psychiatrist, no referral was made to the visiting consultant psychiatrist.

…

29.      I have reviewed the Applicant’s case with care in the course of preparing this Affirmation.  I consider MO HO’s decision to refer the Applicant’s case to the various specialties of the Hospital Authority for treatment as well as pre-treatment assessment to be an exercise of rational clinical judgment.  I agree entirely with MO HO that the prescription of femininzing hormone therapy for male to female transgender persons is a highly specialized form of treatment.  Such hormone is well known to be associated with increased risks to a number of adverse side effects, some of which are transient (e.g. mood change, sleep disturbance), some irreversible (e.g. infertility) and some potentially fatal (e.g. thromboembolic disease).  In Hong Kong, it can be initiated on patients with GID only after the conduct of appropriate pre-treatment assessments by doctors of relevant specialties in the Hospital Authority such as endocrinologists, psychiatrists and plastic surgeons.  Taking into consideration all the available circumstances, including the medical services provision currently available from the Hospital Authority for people with GID, the Applicant had indeed been treated reasonably and in the same way as any other members of the general public in Hong Kong who wish to have transgender medical treatment.”

300.  Hence, it is Dr Lau’s evidence that it was then reasonable for MO Ho to have waited for the appointment fixed on 27 November 2015 to assess R’s request for HRT because:

(1) There was nothing unusual to have alerted the MO for an earlier referral to the visiting consultant psychiatrist since R did not exhibit “any psychiatric symptoms” or “request for an appointment with a psychiatrist”.

(2) Further, administration of hormone treatment is highly specialised form of treatment, especially on teenagers.  Hence, it is a rational clinical judgment to first refer R to the endocrinologist in the HA setting for assessment and consultation for her HRT request.

301.  Notwithstanding Dr Lau’s evidence, which the court fully respects and takes note of, I agree with Mr Deng’s submissions that, objectively looked at, a reasonable person standing in the position of the referring MO should have referred R to the visiting consultant psychiatrist earlier in the circumstances of the present case:

(1) Even on Dr Lau’s own evidence, appropriate pre-treatment assessment on whether HRT should be given to a transgender person can be conducted by, among others, psychiatrists.  See: paragraph 29 of Dr Lau’s 1^st affirmation.

(2) Further, it is the CCS’s own case that since 2004, the VPU of SLPC has been a specialised unit designated to keep custody of transgender PICs and is catered for the special needs of transgender PICs.[59] The staff at the VPU, including the medical personnel, should therefore be expected to be experienced in dealing with transgender PICs’ conditions, including their medical conditions and demands.

(3) At the same time, R had already alerted to MO Ho that she had been on HRT since the age of 12.  In other words, she had been having HRT for some seven years at the time when she was imprisoned.  Further, on admission to SLPC, she was already recognised and confirmed as a pre-operative MtF transgender person with breast augmentation and HRT.  She is, in Mr Deng’s description, already feminised.

(4) In the premises, medical officers at the VPU attending R should at least be generally familiar with and sensitive to the potential adverse effects that would be caused to R as a MtF transgender without the HRT.  It is not disputed that the withdrawal of HRT ordinarily would result in (a) the reappearance of male bodily features such as the growing of body hair, the roughing of skin texture, the appearance of the Adam’s apple and the increased deepness of her voice, and (b) potential adverse psychological stress on R caused in turn by these physical changes.

(5) As emphasized by Mr Deng (and supported by Dr Winter’s evidence), it would not be too difficult to understand and appreciate the kind of stress a transgender person like R would have had in being visited with the re‑appearance of male physical features.  For seven years, she had identified herself and been living as a female, bearing female physical features (including soft and hairless skin, gentle voice and without the appearance of an Adam’s apple).

(6) In the premises, the medical officer attending her should have recognised that there was some urgency in R’s request for HRT given all these potential adverse physical and mental effects.  Hence, upon being notified of the particularly long original consultation appointment date given by TMH (which was 27 November 2015, some 15 months away from the referral), the medical officer should reasonably have referred R to the visiting consultant psychiatrist for an earlier assessment for the provision of HRT, at least as an interim consultation, or sought an earlier appointment date from TMH.

302.  I therefore agree that it was Wednesbury unreasonable in the circumstances of the present case for the CCS to only have referred R to the visiting consultant psychiatrist in February 2015.  In my view, R should have reasonably been so referred to the visiting consultant psychiatrist sometime in late September 2014 (ie, within a month or so after the November 2015 TMH appointment date was made known to the CCS and R).  In other words, had that been done, R was likely to be able to be seen by a visiting consultant psychiatrist at SLCP sometime in early October 2014, and to have received HRT sometime in early or mid November 2014 (ie, some four weeks after early October 2014).

303.  R therefore was successful under this complaint.

C2.5  Other matters

304.  After having dealt with all the grounds of challenge above, it remains for this court to mention a few other matters that have been raised at the hearing.

305.  First, it is noted that Mr Grossman has referred me both in his skeleton and at the hearing to various principles set out in the Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and General Identity (“the Yogyakarta Principles”).[60] The Yogyakarta Principles represent a principled consensus of a distinguished group of human rights experts from diverse background, including judges, academics, UN High Commissioner for Human Rights and Special Rapporteurs.  However, as rightly accepted by Mr Grossman, these principles are not statements of law and are not legally binding.  They represent and are aspirational statements formed by these distinguished people.

306.  Similarly, Mr Grossman in the skeleton also refers to various studies and reports on the rights of transgender people generally or while in detention specifically.  Again these are not statements of law nor are they legally binding.

307.  In relation to the relevance of materials of such nature in aiding the court’s task of resolving question of construction, Ms Wong has drawn my attention to relevant observations made by Gummow, Hayne and Heydon JJ in Purvis, supra, at paragraph 206:

“Considerable care must be taken, therefore, before applying what has been said about either the aims or the effect of other forms of disability discrimination legislation from other jurisdictions to the construction of the Act. Even more care must be taken before adopting the necessarily general forms of aspirational, as distinct from normative, statements found in international instruments as an aid to resolving the particular questions of construction which now arise. Aspirational statements are commonly concerned to state goals, not to identify the particular methods by which the stated goals will be achieved.”

308.  I agree with these observations.

309.  Indeed, fairly, Mr Grossman has said in his oral submissions that he is not asking the court to treat the various observations and statements in these materials as binding.  What leading counsel wishes to rely on is only to say that, as this the first time the court has to grapple with the various issues raised in this application concerning a transgender PIC, the court may find them useful as aspirational benchmarks references.

310.  In light of Mr Grossman’s fair submissions, I hope I could be forgiven in not referring to these materials in an already long judgment.  To the extent that they are referred to in Mr Grossman’s skeleton, I have considered them.  But as demonstrated in the judgment above, I have sought to determine the issues raised in this application by resorting to what I regard as principles and authorities that are either legally binding on me, or legally relevant.

311.  Second, R has put in and relied on a large number of case authorities in this application.[61] As Ms Wong has carefully analysed, most of them are not directly or indirectly concerned with scenarios relating to the rights or complaints of pre-operative transgender persons in detention.

312.  Mr Grossman again has fairly submitted that the reliance and reference to these authorities are really only to show that the courts and tribunals generally have adopted what he describes as a “sympathetic” approach to claims brought by transgender persons.  Leading counsel urges this court to adopt a similar approach.

313.  In the premises, I hope I can again be forgiven in not referring to many of these cases in this judgment as I do not find them to be of further assistance or adding anything to those authorities that I have referred to, which I have found to be most relevant to this application.

314.  Third, there are various major disputes of fact raised by the evidence filed by R and the respondents.  They relate essentially to how the searches were conducted and some of the matters concerning what happened during the detention in PUCI and SLPC:

(1) Whether R was explained to as to the reasons and purposes of the body searches conducted on her.

(2) Whether R’s body parts, including the breasts, were touched or contacted unnecessarily by some of the male officer searching her, and whether rectum search was conducted on R by the police officer at the Police Station.

(3) Whether R was cooperative and without making any complaints during the searches.

(4) Whether some of the officers conducting some of the searches had harassed R by mocking her.

(5) Whether there was the presence of other male PICs when the strip searches were conducted on R who could see her (as there was no or inadequate mobile partition put in place as a screen where the searches were conducted).

(6) Whether R was told the reasons why she was put in a single cell.

(7) Whether in the door to the shower room in the prison was translucent and did not adequately shield R from being seen by other male PICs as to her body shape and silhouette.

(8) Whether she had in fact been harassed by some male PICs.

(9) Whether she had asked to go outside and see the sky and take a rest, which was refused.

(10) Whether R had requested for playing slides and swings during exercise time but was refused.

(11) Whether R had been subject to actual solitary confinement in PUCI and SLPC.

(12) Whether R had requested for wearing a bra, which was refused.

315.  Mr Grossman has rightly told the court the court that it needs not resolve these disputes of fact in this judicial review.[62] Leaving aside the fact that the court simply cannot and should resolve these disputes in this judicial review, in particular in the absence of cross-examination of the respective deponents, most of them are indeed not relevant to the central issues raised under the various grounds of challenge, as I have explained above.  As is clear from the challenges, the principal basis of R’s complaint is she was classified as a male for custodial purposes, which she says is unconstitutional and irrational.

316.  Finally, I have strictly only dealt with in this judgment the issues I regard to have been properly raised in the Re-Re-Amended Form 86.  As pointed out by Ms Wong in her submissions, R has in her long skeleton submission sought to raise some arguments which do not properly fall within the issues in the Form 86.  I do not intend to address those arguments.

D. CONCLUSION

317.  R is successful partially under Grounds 2 and 7 as explained above.  She fails in all the other grounds.

318.  On the grounds that she is successful, I will make the following declaration:

(1) On a proper construction of PGO 49-04, paragraph 9 and Rule 10, these provisions are only intended as a general rule where the relevant officers conducting body and cavities search on a transgender PIC should be of the same biological sex of that transgender PIC and as shown on his or her identification document.  However, the relevant officers retain a discretion to decide how the search could be properly and lawfully conducted in the light of all the relevant circumstances, having regard to the individual circumstances of the detained person, the need to protect the detained person’s fundamental human rights to respect to dignity and privacy, and the appropriateness of the gender of the officers conducting and witnessing the search.  In this respect, the COP and the CCS’s attention is drawn to what this court has observed at paragraph 224 above.

(2) The delay in referring R to the visiting consultant psychiatrist at SLPC in relation to her HRT request was, in the particular circumstances of the present case, Wednesbury unreasonable. The CCS was in breach of his duty to provide HRT to R within a reasonable time.

319.  I note R has also sought directions for her damages claim in this application.  Given my above ruling, R should consider whether it is still open to her, and whether she still wishes, to pursue that aspect of the reliefs.  I therefore direct that if R still wishes to do so, she should write to this court (copied to the respondents) within 28 days to set out the directions she wishes to seek.  The respondents shall also file and serve their reply to the proposed directions, if any, 14 days thereafter.  The court may determine the application for directions on papers, but reserve the right to direct a further oral hearing for that purpose.

320.  Given that R is only partially successful in this application and significant time has been incurred in dealing with her other unsuccessful grounds, I think it is only fair and just in all the circumstances that she should be entitled to one-third of her costs.  I therefore further make an order nisi that one‑third of the costs of this application be R, to be taxed if not agreed, with certificate for two counsel.  R’s own costs shall also be taxed in accordance with legal aid regulations.

321.  Last but not the least, I thank counsel on both sides for their helpful assistance.