BACKGROUND TO THE APPEAL: 1. This appeal concerns Standing Order 41-05 (“SO 41-05”), issued by the Commissioner of Correctional Services (“Commissioner”) to regulate the hair length of prisoners. SO 41-05 requires the hair of male prisoners to be cut “sufficiently close”. As for the hair of female prisoners, it shall not be cut shorter than her style on admission to prison without her consent, unless otherwise recommended by a Medical Officer. Accordingly, female prisoners were given a choice that male prisoners did not have. 2. The appellant was imprisoned for four weeks in June 2014 after being convicted of several charges. Whilst in custody, he was required to have his hair cut pursuant to SO 41-05 (“Decision”). 3. The appellant challenged the lawfulness of both the Decision and SO 41-05 on the grounds that they (a) constituted direct discrimination under s.5 of the Sex Discrimination Ordinance (Cap.480) (“SDO”) and (b) were contrary to art.25 of the Basic Law. Essentially, the issue was whether male prisoners like the appellant were treated less favourably than female prisoners. 4. The Court of First Instance held in favour of the appellant on both grounds (a) and (b) above, allowing his application. On the respondent’s appeal, the Court of Appeal allowed the respondent’s appeal. In essence, it held that the Commissioner applied conventional standards of appearance to both male and female prisoners, hence male prisoners were not treated less favourably. The appellant appealed to the Court of Final Appeal. 5. The issue before the Court is whether SO 41-05 by requiring male but not female prisoners to have their hair cut “sufficiently close”: (a) constitutes direct discrimination under s.5(1)(a) of the SDO, thus unlawful under s.38 SDO; (Question 1) and/or (b)is inconsistent with the right to equality before the law under art.25 of the Basic Law, thus unconstitutional (Question 2)? JUDGMENT: 6. The Court unanimously allowed the appellant’s appeal. REASONS FOR THE JUDGMENT: Question 1 7. The Court held that SO 41-05 constitutes direct discrimination under s.5(1)(a) SDO, and is hence unlawful under s.38 SDO. 8. Establishing direct discrimination under s.5(1)(a) SDO involves four elements: (a) there is a difference in treatment between one person and another (of a different sex); (b) the relevant circumstances between the two persons are not materially different; (c) the complainant is treated less favourably than the compared person; and (d) such difference in treatment is on the basis of sex. 9. It is not disputed that elements (a), (b) and (d) are established under SO 41-05. The central issue is element (c), which is whether there has been “less favourable treatment” of male prisoners on account of the denial of choice to them. On its face, the fact that male prisoners are denied a choice as to their hair length, suggests that they are treated less favourably than female prisoners. The burden shifts to the Commissioner to explain why that is not so. 10. The Commissioner explained that SO 41-05 ensures custodial discipline which requires reasonable uniformity in appearance amongst prisoners. Such uniformity is achieved through applying conventional standards of appearance in Hong Kong society to both genders in prison. 11. The Court rejected the Commissioner’s submission. 12. First, there is no reasonable connection between ensuring custodial discipline and asserting conventional standards of hair length. No proper explanation had been given by the Commissioner. Without such connection shown, the Commissioner cannot proceed to explain why there is such differential treatment and why that is not less favourable treatment. 13. Second, as a matter of evidence, the Commissioner failed to show that SO 41-05 reflects the conventional standards of appearance. The Commissioner failed to provide any bases for suggesting that in Hong Kong society, the conventional hairstyle for men is short, whilst it may be long or short for women. Question 2 14. Given that the Court has allowed the appeal on Question 1, it is unnecessary to deal with Question 2, although on the facts of the present case, the outcome would be the same under art.25 of the Basic Law as under s.5(1) of the SDO.