All men are equal, but some men are more equal than others – others as in women, regrettably. It may not be surprising to find this in a dystopian animal farm, but it is striking to find the slightest suggestion of gender bias in a society like Hong Kong which prides itself on diversity and liberalism, especially within the judicial process.
The case in point is the conviction of Ng Lai-ying for indecently ‘assaulting’ a police officer with her breasts during a protest over parallel trading. In so holding, Deputy Magistrate Michael Chan rejected Ng’s allegation of assault and instead sentenced her to three and a half months in custody.
This naturally sparked public outcry, especially in light of video footage of the incident, and activists took to the streets in a ‘Breast Walk’ to protest against the conviction. Three salient criticisms could be levelled against the conviction.
First, it is questionable whether Ng intentionally bumped her breast against the police officer’s arm as a counter-attack, for it would have been far more natural for her to use her arms or even legs. It is dubious how the Deputy Magistrate could be satisfied so that he was sure Ng had such a concrete intention.
There is at least reasonable doubt that the contact with the police officer was part of the accidental ‘exigencies of everyday life’ (Collins v Wilcock  1 WLR 1172 at 1177, as cited in Wilson v Pringle  EWCA Civ 6). Moreover, there was no adequate assessment of the presence or absence of ‘hostility’, which is ‘relevant when the court has to decide as a matter of policy how to react to a new situation’ (R v Brown  1 AC 212 at 261).
Secondly, the sentence was notably harsh for battery without causing injury, committed by a first time offender. As the Progressive Lawyers Group pointed out, those are strong mitigating factors. No sentencing policy should ignore the need for ‘individual justice’, and as emphasised in HKSAR v Leung Pui Shan  HKCA 48 at , ‘sentencing is an art which must carefully be moulded not only to the category of offence but to the offender.’
Although the Deputy Magistrate averted to the need for a deterrent sentence as a warning to the public, it contradicts the cardinal principle that a sentence should be proportionate to the seriousness of the offence in question (see section 143(1) of the Criminal Justice Act 2003). In the UK, without official statistics demonstrating particular prevalence, a judge is ‘not entitled to impose, for reasons of local deterrence, a sentence higher than would otherwise be appropriate for that particular kind of offence’ (R v Oosthuizen  EWCA Crim 1978 at ).
Thirdly and most crucially, the reference to Ng’s ‘inappropriate use of her female identity’ is alarming. It suggests that the conviction was based on a Victorian stereotype that females take advantage of their bodies as a tool for false accusations. Lord Neuberger warned earlier that ‘we all suffer from a degree of unconscious bias, and it can occur in all sorts of manifestations’, and DPP Alison Saunders specifically highlighted the need to overcome bias about victims of sexual offences. Is this decision symptomatic of systemic gender bias within the legal system?
The above flaws precipitate wider human rights issues recognised in Izci v Turkey  ECHR 789 (at  and ) – the inadequate investigation into Ng’s allegations of sexual assault may fall foul of the positive obligation to investigate flowing from the right not to be subjected to inhuman and degrading treatment, and the violence coupled with the conviction has ‘an inevitable dissuasive effect on people’s willingness to demonstrate’, contrary to the freedom of assembly.
In an international city built upon the rule of law and individual liberty, we simply cannot ignore the insidious prejudice suffered by an entire gender. In Martha Nussbaum’s words, ‘whether this omission is explained by convention or cowardice or disdain or inadvertence, it is culpable, and it has done great harm. But we see here the failure of people, not the failure of liberalism.’ (The Feminist Critique of Liberalism (1997), p18)