Tuesday, December 8, 2020

Do Judges Run Prisons? (Henry Litton)

Henry Litton

The Scenario
In Hong Kong there are male prisons, and there are female prisons. There are no mixed prisons. The disciplinary regime in each is different, for obvious reasons.

The Disciplinary Rules
As regards hair style, this is what the Prison Rule says about male prisoners:
The hair of all male convicted prisoners will be kept cut sufficiently close, but not close cropped, for the purpose of health and cleanliness, unless the prisoner himself requests it”. 
But for female prisoners it is different. The rule says:
Upon request, female prisoners will have their hair cut especially before discharge or production in court. Except as recommended by MO [Medical Officer] a female prisoner’s hair shall not be cut shorter than the style on admission without her consent.” 
These two rules are set out in the Standing Orders for prisons, but grouped together in SO 41-05. However presented, they are clearly different rules.
      Another Prison Rule requires the Chief Officer to ensure that male prisoners’ clothing is kept in a good state of repair, and “their hair kept trimmed, and their washing, hair clipping and personal ablution attended to”. 
     Then Prison Rule 34, regarding general treatment of all prisoners, says:
Every prisoner shall obey such directions as regards washing, bathing, shaving and hair cutting as may from time to time be prescribed”. 
The “Long Hair” case
In March 2012 Leung Kwok Hung (also known as “Long Hair”) was convicted before a magistrate of criminal charges. In June 2014, after an appeal, he was required to serve a sentence of four weeks imprisonment. This he did at the Lai Chi Kok Reception Centre. On admission he objected to having his hair cut short and said he might apply for judicial review to challenge such requirement. After ascertaining that no application had been made, the Chief Officer authorized the hair-cutting to proceed. That was done. 
     Leung subsequently did apply for leave to start judicial review proceedings: Hence the case Leung Kwok Hung aka “Long Hair” v Commissioner for Correctional Services [HCAL 109/2014] heard by Au J in April and May 2015.
     In a 39-page judgment handed down 1.5 years later, he made the following orders:
(1) A declaration that the rule for male prisoners constituted “direct sex discrimination under s.5 of the Sex Discrimination Ordinance and was made unlawful under s.38(1) of the Ordinance; or alternatively the rule violated Article 25 of the Basic Law and was unlawful”. 
(2) An order to quash the Chief Officer’s decision to enforce the rule.
Statutory Offence 
The offence of sex discrimination is a pure creature of statute. The common law knew nothing of such offence.
     Before WWII, there was not a single female judge on the Bench anywhere in England. The common law gave no redress for sex discrimination. It was not the common law judges but legislators who, bit by bit, came to realize that this was an ethical issue.
     It follows, as night follows day, that the ingredients of such offence are to be found in the statute itself. Nowhere else.
     The Hong Kong Sex Discrimination Ordinance was first enacted in May 1996. Its long title says that it is an Ordinance to render unlawful “certain kinds of sex discrimination ….”. There then follows many different kinds of discrimination. For example:
  • Discrimination by way of victimization: s. 9
  • Discrimination by employers against contract workers: s. 13
  • Discrimination by barristers: s. 36.
  • Governmental discrimination: s.38(1).
Section 5(1)(a) 
Here, the judge held that the rule concerning male hair-style in prison was what he called “direct discrimination”, as defined in s.5(1)(a). That section, taken together with s. 6 and s.38(1) reads thus:
'The Commissioner discriminates against a man in any circumstances relevant for the purposes of any provision of this Ordinance if, on the ground of his sex, he treats him less favourably than he treats a woman' 
Note the words: “in any circumstances relevant for the purposes of any provision of this Ordinance”. 
     The statutory 'purpose' in this case is the prohibition in s.38(1) which makes it unlawful for the government, in the exercise of its functions, to discriminate against Leung Kwok Hung.
     But what were the relevant circumstances? They were those in a male prison. The prison regime relevant in a male prison does not apply in a female prison, for obvious reasons. And vice-versa. In judging whether s.5(1)(a) is engaged in a case concerning male prisoners, comparison with circumstances in a female prison is not relevant.
     If there be any doubt about this, it would be dispelled by s.10 which says:
A comparison of the cases of different sex under s. 5(1) ….shall be such that the relevant circumstances in the one case are the same, or not materially different, in the other.” 
     Any ordinary person, not learned in the law, would have found this a matter of plain common sense. In life, there is no ethical framework that transcends context. Ethical values are not free-standing. When someone says: 'This is sex discrimination', that statement has no meaning unless you know the context in which it is said.
     The Sex Discrimination Ordinance was simply not engaged in this case. End of story.

How Did the Judge Get To The Result He Did? 
The judge identified “three types of discrimination”: Direct, indirect and Thlimmenos discrimination. These are labels used in overseas case law. The term Thlimminos discrimination came from a case of that name decided in the European Court of Human Rights.  The expression “direct discrimination” identified the kind of discrimination set out in s. 5(1)(a). 
     Au J, instead of focussing on the words in the Hong Kong statute, got totally entangled in overseas case law concerning “direct discrimination”, as if this was a generic term detached from its statutory roots. He never focussed on the simple words in s.5(1)(a).
     Before Au J, the exercise in court seemed like a running dialogue between Bench and Bar, with case after case being dissected and discussed.
     For instance in para. 56 of his judgment one finds this sentence:
The Gillan Case therefore does not support Mr Pao’s submissions questioning the correctness of the Roma Case.” 
Mr Pao was counsel for the Commissioner. Why was he questioning the correctness of the Roma Case ? Right or wrong, what purpose did that serve? 
     The running dialogue on these two cases began in para.44 of the judgment where the facts of the Roma Case were set out. They involved immigration control at the Prague airport for those seeking entry into the UK. The Gillan Case concerned police powers of stop and search in the UK. How these cases elucidated the meaning of the Hong Kong statute on sex discrimination was not explained.
     After the conclusion on those two cases reached in para 56, one sees many more paragraphs in the judgment where other overseas cases were discussed, ending with para 98:
For all the above reasons, I reject the Commissioner’s arguments and conclude that SO 41-05 and the Decision amount to direct sex discrimination and are thus unlawful”.
The “above reasons” were set out in about 20 pages of fine print. Few can understand them, however elevated their level of English.

The Common Man’s Perspective 
Overseas case law would be a complete mystery to the ordinary citizen.  But if one simply focussed attention on the words “circumstances relevant for the purposes ….of this Ordinance”, that would have coincided with the way an ordinary person would have approached the matter. The question of discrimination would have been put in the right context: That is to say, custodial discipline in a male prison.
     The common man would have said: 'what is the fuss all about? Are you saying that the female rules should apply in a male prison ?' And he might even have added: 'Are the judges now going to run prisons as well?'
     Furthermore, the ordinary person would not have agonized over whether, under the rules, a male inmate was being treated “less favourably” than a female inmate. He would have realized that the matter was one of custodial discipline, within the Commissioner’s responsibilities; uniformity and conformity among inmates was important as part of the correctional process. But females were not the inmates under consideration.
     Adopting such an approach the judgment would not have been more than a couple of pages long and would have been easily understood by the ordinary citizen. 

Article 25 Basic Law
As regards whether the rule concerning prison hair-style offended Article 25 of the Basic Law, the ordinary man would have shaken his head in total disbelief at the judge’s conclusion.
     Article 25 simply says: “All Hong Kong residents shall be equal before the law”. Full stop.  The notion that, under the principle of One Country Two Systems, Article 25 of the Basic Law could be engaged in a case like this is alarming.
     The Basic Law is a constitutional document, setting out the general framework for the Region. It is not a civil code for regulating Hong Kong’s daily affairs: And certainly not for regulating the way prisons should be run.

The Court of Appeal 
The Commissioner appealed. The Court of Appeal gave judgment in April 2018.
      The Chief Judge did not write the leading judgment. This was left to Lam VP. But the Chief Judge did set the tone. He began his judgment by saying:
Discrimination is a huge subject that has generated a tremendous amount of literature and debate. It straddles many disciplines and law is just one of them.” 
With such an approach it was inevitable that the judgments amounted to pages and pages of fine print, totally unintelligible to the ordinary person.
     As it was, the Court of Appeal, after tripping through many of the same cases as the judge, came to the opposite conclusion: that Au J had erred on both counts: that is to say, the application of s.5(1)(a) to the facts of the case, and his reliance on Article 25 of the Basic Law.  Au J’s judgment was quashed.

Court of Final Appeal
Leung Kwok Hung in turn lodged an appeal. This was heard by the Court of Final Appeal ( CFA ) in October 2020. Its judgment handed down on 27 November 2020 must have shocked the community. It overturned the Court of Appeal’s judgment. Au J’s judgment was restored.
     The Chief Justice delivered the only judgment, with which the other four judges agreed.  He began his judgment by saying that a “4-step approach contained in the speech of Baroness Hale of Richmond in R (European Roma Rights v The Prague Immigration Office [2005 ] 2 AC 1 at para 73 is helpful”. 
     That immediately raises the question: “Helpful” as to what? Is the wording in s.5(1)(a) not clear enough? At any rate, these are the 4-steps.

“4-Step Approach” 
“15 (1) There must be a difference in treatment between one person ……and another person, real or hypothetical, from a different sex group, the compared person ( in our case, female prisoners ).

(2) The relevant circumstances between the complainant and the compared person are the same or at least not materially different.

(3) It must then be shown that the treatment given to the complainant is less favourable than that given to the compared person.

(4) The difference in treatment is on the basis of sex.”
      As to 15(1), the Chief Justice said that male prisoners did not “have the choice as regards hair-style that female prisoners had”, which of course is right.

The Relevant Circumstances” 
As to 15(2), the Chief Justice said: “…it is important to compare like with like and to view the matter in proper context”. That again is correct, and one would have expected the judgment then to examine the question: What is the proper context ? Is the court being asked to compare like with like ?
     But not at all. The judgment immediately moved on to 15(3): What constitutes “less favourable treatment”.

Less Favourable Treatment
There then followed 11 pages of text examining a whole range of overseas cases dealing with a variety of situations: Selection requirements for secondary schools Birmingham City Council v Equal Opportunities Commission; length of hair in schools Re McMillan; rub down searches in prisons R ( on the Application of James Dowell v Secretary of State for Justice and Conway v Canada; dress and appearance code in a supermarket Smith v Safeway; what constitutes presenting a clean and tidy appearance and to dress in a business-like way in a book shop Department for Works and Pensions v Thompson.
      Those eleven pages were under the heading “Less favourable treatment”. Whether someone has been treated “equally” or “less favourably” can only be examined in the actual context of the case. It is not an abstract exercise. A hundred citations of cases dealing with different situations will yield no answer.  What is more, “equality”, “less favourable treatment” are elusive concepts.
     One argument put up on the Commissioner’s behalf was this: the requirement imposed on Leung Kwok Hung was no more than the conventional hair-style of the majority of males in Hong Kong. That requirement was uniformly applied in a male prison: to de-emphasise individuality In the interests of custodial discipline. That is plain common sense.
     But, whilst accepting the need for custodial discipline, the Chief Justice, astonishingly, said this in para 52:
….no details are provided and no basis is given for saying that in our society, the conventional hairstyle for men is a short one whereas for women hair can be long or short. There must be sufficient evidence going to these matters; they cannot simply be asserted ….
Sadly, the court appears to dwell in a world of words, detached from reality on the ground.
     In the Chief Justice’s view, the “less favourable treatment” rested on the fact that a female prisoner, on admission, was allowed to keep her hairstyle even if it was long, whereas a male could not. But factually, the Chief Justice was not entirely correct. The female was also under some limitation. Her choice was not unrestrained. If the Medical Office required her hair to be cut, then under the Prison Rules she had to comply.
     In the two courts below, the judges looked at the concept of “less favourable treatment” through the lens of cases dealing with a diversity of situations and came to opposite conclusions. The reason why it is so difficult to nail down that concept is because the context in which it was being considered was missing. 
     The Commissioner was the respondent to these judicial review proceedings. Were he to be asked: 'what is this case all about', his reply would surely have been 'about custodial discipline in a male prison'.
     In this context, the problem of “less favourable treatment” disappears. The comparison with the female regime was simply not relevant.

Article 25 of the Basic Law 
In para 56 the judgment said this:
In view of the conclusion reached on the previous issue, it is unnecessary to deal with this issue. However, on the facts of the present case, the outcome would not be different under Article 25 of the Basic Law.
This seemingly throwaway line contains a most sinister seed.
     What the Chief Justice was saying, in effect, was this: Were the challenge to the prison rule to be judged, not by applying the Sex Discrimination Ordinance, but by applying Article 25 of the Basic Law, the result would have been the same.
     In other words, he would have interpreted Article 25 of the Basic Law as applicable to strike down the prison rule: raising, in effect, a purely local matter to the State level. This was an open invitation to lawyers to play games with the Basic Law, regardless of the consequences.

The Chief Justice, in answer to general criticisms of the Judiciary, issued a statement on 23 September in which he said (para 29):
The community is able to see for itself and verify whether fundamental principles are followed by the courts by observing court proceedings ………and reading the judgments of the courts at all levels to see precisely the reasons why a court has arrived at a determination …..Open justice and transparency enable the community to observe the judicial process in full, and to provide meaningful and informed comments and criticisms”. 
Unhappily, this judgment is anything but transparent.
     It deals essentially with an ethical issue, made into an offence by a local statute. Any judgment on such an issue should be understood by every educated person. Yet this judgment, and those in the courts below, are so dense with “law” that no-one can possibly understand them, however elevated their standard of English.

Limits of Courts’ Powers 
In a case such as this, which essentially concerns management of male prisons, a court should approach the matter with hesitancy and diffidence. The Commissioner has expertise which judges do not share. The standards of behaviour are set by the Commissioner. Such standards fall naturally within a broad spectrum. If judges expect the community to respect the norms and values set by them, they in turn must show respect for those set by other institutions of government. Judges have no monopoly on ethical standards set in society.

What has this judgment achieved? 
The undoubted effect of the CFA’s judgment is that discipline in male prisons must now be relaxed as regards hairstyle. There will be repercussions. What follow-on impact this might have on custodial discipline as a whole seems of no concern to the CFA.
      What Au J had before him was a mere application for leave to start proceedings for judicial review. Au J was in the position of a gate-keeper. Judicial review is brought in the interests of lawful administration, good governance. It is, at the end of the day, a discretionary remedy. 
      The application was made some time after Leung had served his sentence. It might even be the case that his hair had grown back to its full length by that time. Was it made in good faith ? What interests of his did it serve?  Did it help good administration in male prisons to have the hairstyle rule struck down by the court?

A Leadership Role?
Had the CFA been conscious of its leadership role in the community, these would have been matters of concern to the court. But the court gave the procedural aspects of the case not an ounce of thought. It simply played to the agenda laid down by counsel.

Eurocentric View 
And what is perhaps even more troubling is the Eurocentric leaning of the judgments. Instead of giving the words in a local statute their plain ordinary meaning and applying those words to the facts of the case in a robust straightforward way, the courts favoured the formulation of vague principles.
     The judges, at all three levels of the courts, seem drawn to overseas case law as moths to naked light: apparently brushing aside the inconvenient truth that the common law system operates under the principle of One Country Two Systems. Such mindset spells disaster in the long run. This is not a formula for the long continuation of the common law. 

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