Arbiters of hair fashion

May 07, 2018 18:10
Leung Kwok-hung had won a legal challenge against prison haircut rules on the grounds of sexual discrimination, but lost it after the court ruling was appealed. Photo:  AFP, HKEJ

Hair, hair, hair, hair, hair, hair, hair

Flow it, show it

Long as God can grow it

My hair

(From the musical “Hair”)

 

Who would have thought that the subject of hair could give rise to a hair-raising judgment in an appellate court in Hong Kong that is as painful to 21st Century ears as metal on glass.

Leung Kwok-hung, or "Long Hair", to use his nom de guerre, was sentenced to imprisonment and upon admission to Lai Chi Kok, over his objections, the chief officer of the Correctional Services Department (CSD) ordered that his mane be cut short.

Long Hair subsequently sued the CSD for breach of the Sex Discrimination Ordinance, arguing that the CSD rules which set different haircut requirements for male and female inmates were incompatible with the Ordinance and as such discriminatory.

Now, I readily accept that there is a section of the Hong Kong community that regularly sticks pins in wax models of Long Hair but the identity of the litigant has no bearing on the legal issue of what constitutes discrimination or, in a properly constituted court of law, it certainly should not.

The Ordinance provides that a person discriminates against a man in any circumstances relevant for the purposes of any provision of the Ordinance if on the grounds of his sex he treats him less favorably than he treats or would treat a woman.

The Ordinance also says that when comparing cases of people of different sex, the relevant circumstances in one case must be the same or not materially different in the other.

The obvious relevant circumstance is that both males and females are inmates in their respective prisons.

So what does the CSD standing order say? The hair of all convicted (male) prisoners will be kept cut sufficiently close, but not close-cropped, for the purpose of health and cleanliness. A mandatory provision.

Now compare that with the order applied to women: Except as recommended by a medical officer, a female prisoner’s hair shall not be cut shorter than the style on admission without her consent. One which gives them a choice.

The case was first heard by Mr. Justice Thomas Au who rightly and readily ruled that Long Hair had been discriminated against.

Lord Goff’s simple test that cases of direct discrimination can be considered by asking the simple question: Would the complainant have received the same treatment from the defendant but for his sex? The answer to which is blindingly obvious though not, apparently, to this appellate division.

Fresh evidence on appeal

The CSD, presumably on the advice of the Department of Justice whose profligacy with taxpayers’ money is legendary, then decided to embark on an appeal against this decision.

In an extraordinary departure from the normal rules that virtually prohibit evidence that was available but not adduced in the lower court from being introduced on appeal, the Court of Appeal itself directed the CSD to introduce fresh evidence, evidence which the Court thereupon deployed to qualify the definition of discrimination.

It seems that the Court also permitted an argument not pursued in the lower court to be pursued for the first time in the appeal court.

In what must be one of the most egregious examples of intellectual dishonesty, the Court declared that the relevant circumstances are not just that they are both inmates in their respective prisons but both male and female inmates are subjected to custodial requirements referable to conventional hairstyles in Hong Kong for the purpose of fostering custodial discipline.

According to the CSD, the requirements on physical appearance are in order to achieve reasonable uniformity and conformity among the inmates in their respective penal institutions.

So how, one may ask, does that justify discriminating between them based on the grounds of their sex?

You may wonder, as I do, what the length of your hair has to do with “fostering custodial discipline”? It is not as though we are considering Rapunzel-length tresses that would enable prisoners to escape.

Tucked away inside the Court’s formulation is a phrase that it is chilling to hear in a Common Law jurisdiction, namely that the CSD’s requirements involve de-emphasizing some aspects of individuality.

This is semantic sleight of hand. The italicized words are capable of encompassing a process of reducing people to numbers, a cardinal feature of regimes bent on a process of stripping away the individual’s identity.

To my ear, this is more redolent of a Russian Gulag than a CSD penal institution in 21st Century Hong Kong.

Conventional hairstyle

Before embarking on its tortuously constructed confection aimed at reversing the finding of discrimination by the CSD, a momentary flash of reason strikes the Court. “Superficially, a male inmate is treated less favourably than a female inmate because a male inmate having a long hair (sic) has no option but to have his hair cut short as per the male haircut requirement, whereas for a female inmate, the female haircut requirement simply leaves her hairstyle (and hair length) untouched unless she agrees otherwise.”

So how did the Court wheedle its way around the plain meaning of the words in this hair suit?

The CSD’s new submission, apparently not advanced or pursued in the lower court, was based on the deposition of a CSD officer who said that “the hairstyle requirements for both male and female prisoners are specified by making reference to the hairstyle of male and female persons in Hong Kong society...” In other words, prison hairstyles are subject to the CSD’s judgment on Hong Kong hairstyles.

So the question of discrimination now turns on the appellate judges' opinion that the conventional hairstyle for men in Hong Kong is a short hairstyle. A declaration they reached apparently without hearing any evidence on the subject.

Having given judicial authority to their opinion the court decided that “though the hair length restriction for male inmates appears to be stricter than that for female inmates one must bear in mind that the standard conventions in our society for hair length for men and women are also different… therefore by reference to the conventional standards in the society, there is no less favourable treatment between male and female inmates”. I can see no reference to "conventional standards" in the Ordinance.

It must come as something of a surprise to many if not most people in Hong Kong that the CSD and the Court of Appeal have set themselves up as the arbiters of hair fashion. Having regard to the wealth of ingeniously inventive ways that swathes of men now have their hair styled, can anything be more ridiculous than that three bewigged judges decide to become Mr. Teasy Weasy?

Surely, the eminent legal minds that grace the appellate bench have more grave and weighty matters to attend to than the length of Long Hair’s mane?

The mental gymnastics deployed to interpret the Ordinance so as to give a get-out-of-jail card to the CSD needs to be compared with the argument that the CSD did deploy before Mr. Justice Au, namely that the Order “is to achieve the objective to provide a secure, safe, humane, decent and healthy environment for people in custody by maintaining prison security and custodial discipline… a preventative operational measure”.

What, one asks, have the conventional standards of men’s hairstyles in Hong Kong got to do with any of this?

Rarely have I read a more obscurantist, tortured attempt to justify institutionalized discrimination.

Perhaps I should disclose that I keep my hair short not out of any wish to conform to the Court of Appeal’s concept of conventionality but because I swim regularly and find it far easier to cope with. But another judgment like this and I shall be tearing my hair out.

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CG

Queen's Counsel