L v. EQUAL OPPORTUNITIES COMMISSION AND OTHERS

CACV 265/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 265 OF 2002

(ON APPEAL FROM DCEO 1 & 6 OF 1999)

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(Actions consolidated by Order dated 27 August 1999)

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J U D G M E N T

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Cheung JA: (giving the judgment of the court)

Background

1. The plaintiff is a former employee of the Equal Opportunities Commission ("the Commission"). He claimed that he had an accident at work which caused him to suffer injuries to his head and limbs. As a result of the injury he had the following disabilities, namely, post-concussional syndrome, depression, muscular pains, multiple sprains, severe headaches and severe neuralgia. He claimed these conditions had caused a partial loss of his bodily or mental functions and affected his thoughts process, emotions or judgment. He claimed that by reason of his disabilities he was being discriminated against by the Commission and its officers contrary to the Disability Discrimination Ordinance (Cap. 487). He brought two actions against the Commission and its officers. The cases will be tried in the District Court on 26 August 2002.

The appeal

2. The plaintiff applied by summons to the District Court for an order that his name should only appear as a letter of the alphabet in any publication by the media and in the titular page of the judgment released to the public. His Honour Judge Line dismissed the application. The plaintiff now appeals against the decision pursuant to leave granted by another division of this Court.

Jurisdiction

3. The jurisdiction to make an anonymity order is well recognized as part of the inherent jurisdiction of the Court. The starting point is, of course, that a trial should be open to the public : see Scott v. Scott [1913] A.C. 417. But it is also recognized in the same case that there are exceptions to this rule where the administration of justice requires the public to be excluded.

4. An extension of this principle is found in R. v. Socialist Worker Printers and Publishers Ltd. v. Attorney General [1975] 1 Q.B. 637. A judge directed that the two victims of a blackmail should be referred to as Mr. Y and Mr. Z in a criminal trial. The victims were prosecution witnesses. Before the end of the trial, a newspaper article gave the names, addresses and the particulars of the two victims. The Attorney General applied to commit the author and publishers of the article for contempt of court.

5. Lord Widgery C.J. held that there is "a total and fundamental difference between the evils which flow from a court sitting in private and the evils which flow from pieces of evidence being received in the way which was followed in this case". He said that the great virtue of having the public in the courts is the discipline which the presence of the public imposes upon the court itself. Where a trial is held in camera, the entire supervision by the public is gone. Where, however, there is an open hearing with the only restriction of keeping the names of the witnesses from being known to the public, all the desirable features of having the public present are to be seen. Very often the public has no concern with the name of the witness except "a somewhat morbid curiosity". He found that the charge for contempt had been made out. The trial judge did not merely give an invitation to the press not to publish the name of the witnesses but a direction which had legal effect.

6. In Attorney General v. Leveller Magazine Ltd. and Others [1979] A.C. 440, three defendants were charged with offences under the Official Secrets Act. In the committal proceedings, the magistrates ordered the name of a witness be referred to as "Colonel B". Three magazines published the name of this witness. The publishers were found guilty of contempt. The House of Lords allowed their appeal on the ground that the witness had in his evidence referred to materials from which his name could readily be deduced. This was not objected to by the prosecution or the magistrates. As a result the intended effect of the magistrates' ruling had been abandoned by the evidence of the witness.

7. Three of the Law Lords, namely, Lord Diplock, Lord Russell of Killowen and Lord Scarman were of the view that the course that the magistrates took of allowing "Colonel B" to conceal his identity was an acceptable extension of the power to control its own proceedings in the interests of the due administration of justice by sitting in private. Lord Scarman expressly approved of the decision of the Socialist Worker Printers and Publishers Ltd. case.

Application of the principle

8. A number of cases illustrate how the principle is applied. H v. Ministry of Defence [1991] 2 Q.B. 103 is a medical negligence claim. The judge ordered a jury trial on the plaintiff's application. The Court of Appeal reversed the order. Lord Donaldson of Lymington M R stated that :

“ In order that citizens be not deterred from seeking access to justice through the courts, it is occasionally necessary to protect them from the consequences of public scrutiny of evidence, and in particular medical evidence, of a nature that such scrutiny would prove not only embarrassing, but positively damaging to them. This protection can be achieved in a number of ways. Which method is chosen depends upon the facts of each individual case. Since, in the instant case, the nature of the plaintiff's injury is the foundation of his claim to trial by jury, whilst his personal identity is irrelevant, and the issue is of general public importance, the appropriate course is to refer to those injuries to such extent as is necessary, but to prohibit the naming or other identification of the plaintiff in the context of any report of this case. Accordingly we so ordered at the hearing of this appeal."

9. In R. v. Westminister City Council Ex parte Castelli and Another (The Times Law Reports August 14, 1995) two applicants applied for judicial review to challenge the decision of the City Council on their housing application. They also applied for an anonymity order. The applicants were tested HIV positive and they claimed there was a social stigma attached to the condition. Latham J. of the English High Court refused the application. While recognizing that he had the power to make the order, he held that the power could not be used simply to protect privacy or avoid embarrassment. The judge held that the particular reason for the publicity in the present case was not so much the medical condition, but the fact that the applicants came from other European countries and were seeking to obtain benefits in England. Furthermore, substantial publicity had already taken place, the applicants' names were already in the public domain and they had already lost their anonymity.

10. In R. v. Legal Aid Board, ex parte Kaim Todner [1999] Q.B. 967, a firm of solicitors applied for judicial review to challenge the decision of the Legal Aid Board to terminate its legal aid franchise following allegation of dishonesty by former employees. It also applied for an order under s. 11 of the Contempt of Court Act 1981 forbidding the disclosure of its identity in the proceedings on the ground that it would be caused incalculable damage if the reasons on which the Board relied for cancelling its franchise were made public. The application was refused.

11. The Court of Appeal dismissed the firm's appeal. Lord Woolf M R summarised the legal position in this area. He held, among other things, that a distinction can be drawn depending on whether what is being sought is anonymity for a plaintiff, a defendant and a third party. It is not unreasonable to regard the person who initiates the proceedings as having accepted the normal incidence of the public nature of court proceedings.

12. In K & Others v. Secretary for Justice [2000] 3 HKLRD 777, an anonymity order was made in a District Court case brought under the Disability Discrimination Ordinance. Mr. Grossman S.C., Counsel for the Commission, informed the Court that the order was made with the consent of the parties.

Discretion

13. Whether the court should make an anonymity order is a matter of discretion : see Kaim Todner. Usually The Court of Appeal will not interfere with an exercise of discretion if it was made pursuant to a well recognized principle. It is, however, clear in this case that the judge had taken irrelevant matters into account when he refused the application. He referred to the plaintiff attaching too much importance to himself, he compared the plaintiff's appearance with others in court and he took a sceptical view on the basis in which the plaintiff said he had been discriminated against. It has to be pointed out that the judge did not give a full reason for his decision and many of the remarks were said during the exchange with counsel and they have to be considered in the context in which they were said. Nonetheless this is a case in which we can exercise the discretion afresh.

An anonymity order should be made

14. We are of the view that an anonymity order should be made. We recognize that the actions were brought by the plaintiff himself and generally speaking, a plaintiff has to accept the publicity and embarrassment that he may encounter in court proceedings. However, we are satisfied that in the context of the nature of the proceedings brought by the plaintiff, administration of justice is best served by making such an order.

15. The government had legislated against discrimination based on disability. This is some indication that there is in existence a problem on discrimination by employers and the public based on a person's disability. The plaintiff had brought the actions under the legislation to seek redress for being discriminated against due to his disability. At this stage of the proceedings, one can only proceed on the basis of his claim. He claimed that he suffered from mental disability. No doubt there is a stigma attached to such a disability. It would be highly undesirable that the plaintiff's application for redress in the court would become the material for discrimination in the future in respect of his employment and social contact for himself and his family because of the publicity concerning his identity and medical conditions. The plaintiff's identity is of no relevance to members of the public who may have a legitimate interest in the proceedings which is open to them.

16. Although in the leave application, the order sought by the plaintiff was simply that his name should appear as a single letter of the alphabet in any publication of any court document and the reference to the words "by the media" was no longer required, Mr. Coleman, counsel for the plaintiff, asked in the appeal for the same order that was sought in the court below.

17. In England, Section 11 the Contempt of Court Act 1981 expressly empowers the Court to give direction to prohibit the publication of a name which was to be withheld from the public in court proceedings. Hong Kong does not have a similar statutory provision.

18. We are, of course, not concerned with the issue of contempt of court in this application. We agree, however, that the restriction on the publication of the plaintiff's name is the only effective way of ensuring his anonymity. Based on the Socialist Worker Printers and Publishers Ltd. case, the Court does have the power to restrict the publication of his name.

The Order

19. Accordingly we shall allow the appeal and set aside paragraph 11 of the order below. The order we shall make is that :

The name of the plaintiff should appear as the letter "L" in any report of his cases and in the titular page of the judgment released to the public. The naming or other identification of the plaintiff in the context of any report of his cases is prohibited.

Witness statements

20. Initially the plaintiff also appealed against the order relating to witness statements. However, counsel informed the Court that the parties had reached an agreement on the exchange. Hence we will not make any order in this respect. Whether the statements will stand as evidence in chief will be decided by the trial judge.

Costs

21. The parties agreed that the question of costs should be reserved. Accordingly we shall reserve the question of costs.