One of the interesting consequences of the way the law has worked since 2020 is the arrival in Hong Kong prisons of many inmates rather different from the usual inhabitants. A large influx of young, articulate and educated criminals whose offences are, if not explicitly political, well off the usual sex, violence and greed track has shone light into some neglected corners.
Practices hallowed by decades of history have been challenged, with interesting results.
The latest episode in this series stars Ms Chow Hang-tung, who has been enjoying correctional hospitality since 2021 and is currently awaiting trial on national security charges.
We may note in passing at this point an unintended consequence of the way national security cases work. Those convicted are not eligible for the usual discounts for good behaviour. So they can enjoy attempts to stick it to The Man without the apprehension which keeps conventional prisoners quiet – that The Man will, if provoked, perhaps find ways of sticking it to them.
Ms Chow’s complaint, which was aired in the High Court last week, is that prison clothing policy is discriminatory between the sexes (or if you prefer genders) because male prisoners are allowed to wear shorts in the summer, and female prisoners are not.
The resulting hearing was a good illustration of the way in which legal reasoning and conventions can take us a long way from the messy reality of the real world.
Of course nobody can stand up in court and say that Ms Chow is not really motivated by the minor unpleasantness of being trapped in long trousers through another of Hong Kong’s sweaty summers. She has noticed that the Hong Kong authorities are exploring every legal avenue in their determination to give her a hard time and is retaliating as best she can.
Nor would it be polite for counsel for the government to admit that the ban on shorts defies common sense, and is the legacy of decisions made decades ago when ideas about dress were rather different and sexual discrimination had not been invented. In those days respectable women did not wear shorts in the street while uniformed men had a summer get-up involving shorts.
The uniformed types have pretty much dropped shorts, but in civilian contexts women now wear them all the time. Ms Chow’s suggestion is nevertheless unwelcome, because it comes from her. Good order and discipline in local prisons is endangered if the Correctional Services Department is coerced into changing a rule by an uppity inmate.
So we can expect to see the government fight this all the way to the Court of Final Appeal, just as it did Leung Kwok-hung’s challenge to prison haircut rules.
One can only sympathise with the legal eagle, senior counsel Mike Lee, in charge of defending the prison uniform rules. Mr Lee argued that the ban on shorts resulted from consideration of a “basket of considerations” arrived at in decades of departmental consideration and experience. This had revealed, according to a CSD psychologist, that there were “inherent differences” between men and women. The women, consequently, did not in the department’s view wish to be allowed to wear shorts.
The saga will no doubt continue. I would respectfully suggest that Mr Lee drop the argument that uniform wearing is an essential part of maintaining “custodial discipline”, because this leaves him open to the question why custodial discipline in male prisons appears to be compatible with allowing shorts as an option.
I was also not impressed by the analogy to school uniform which, in Mr Lee’s view, “fosters a sense of learning” as “education is the prime objective”. Few educators subscribe to this view of uniforms, which are generally defended as concealing differences of wealth among students and fostering esprit de corps.
In any case some of the most successful education systems, like those of Finland and Denmark, do not require school uniforms at all. I note in passing that some of the most successful prison systems do not require uniforms very much either.
Another point I have some difficulty with is the suggestion that the department is defending the rule on long trousers because the prisoners like it. I know and admire quite a lot of correctional people – the department was at one time a hotbed of enthusiasm for the Great Highland Bagpipe – and I acknowledge the idealism and humane sentiments which animate much of the department’s work. But a prison is not a democratic institution and the whole concept of punishment involves NOT giving the prisoners what they want, which in most cases is to go home.
tim's experiment 