Prisons lose appeal to delay haircut ruling

Local | Wallis Wang 19 Jan 2021

The SAR's highest court has rejected the Correctional Services Department's request to temporarily suspend a ruling that says its current haircut requirement for male inmates is discriminatory.

The CSD had asked the court of final appeal to suspend the ruling for six months in the case of former lawmaker "Long Hair" Leung Kwok-hung while it considered three options for inmates in order to "devise a policy that would best suit all stakeholders."

However, in a written judgment the five judges, including former chief justice Geoffrey Ma Tao-li, were "not persuaded" and rejected the request.

On November 27, the court ruled that the treatment given to male prisoners is less favorable than that given to female inmates and the difference in treatment is based on sex.

However, the CSD estimated it would need around 26 weeks to revise the policy, including six weeks to compare existing options with the court's order, 14 to seek advice from the Department of Justice, two to get the policy endorsed and another four for officers to be trained.

During that period, male prisoners would be required to keep their hair "sufficiently close" to what was previously required, the CSD said.

But the court said it is "impossible to understand" why a temporary suspension of six months is required.

It said the CSD should have prepared alternatives after the court of first instance ruled in Leung's favor in January 2017.

"There is nothing complex about that judgment," the judges said. "It simply requires elimination of the less favorable treatment regarding hair length requirements based on sex.

"The legal obligation is to comply with the court's order, it being left to the [Commissioner of Correctional Services'] discretion as to which policy he wishes to adopt while seeking to ensure that it does not involve adverse differential treatment based on sex."

But the judges said the proposal to force all female prisoners to have their hair cut short to achieve equality "appears at first blush to be rather unattractive."

In response, the CSD said it respects the court's judgment and will seek advice from the Department of Justice and implement plans as soon as possible.

In 2014, when Leung was jailed for four weeks, he launched a judicial review after having his hair cut when he was jailed at the Lai Chi Kok reception center, arguing the prison rule violated the Sex Discrimination Ordinance and the Basic Law.

The CSD in its CFA suit, said it was considering three options to replace the current requirement. One is to require short to medium-short hairstyle for males and chin-length to armpit length for females.

Two requires all inmates to have their hair cut medium-short while option three would allow male and female inmates to keep their hair length on admission, allowing a cut for medical needs.

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