L v. EQUAL OPPORTUNITIES COMMISSION AND OTHERS

HCMP 2002/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2002 OF 2002

(On an intended appeal from DCEO 1/99 and DCEO 6/99 (consolidated))

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REASONS FOR DECISION

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1. This is a renewed application under Order 59 rule 14A of the Rules of the High Court for leave to appeal to the Court of Appeal (leave having been refused on paper by Mayo, V-P) against two orders made by H.H. Line, D.J. At the conclusion of the hearing, we gave leave to appeal, with the costs of the application to be in the appeal, and indicated that we would give brief reasons later.

2. The two orders were paragraphs 11 and 16 of the judge's order of 7 March 2002.

Application for anonymity

3. The first order appealed against was the judge's dismissal of the Plaintiff's summons of 4 March 2002 which sought an order that "the Plaintiff not be identified by name but be referred to by a single alphabet in any publication by the media and that the titular page of any copy of judgment released to the public to be adapted accordingly".

4. At the hearing before us, counsel for the Plaintiff sought to amend that formulation by substituting the words "of any Court document" for the words "by the media".

5. The application before the judge was made by the Plaintiff on the grounds that he has been diagnosed to have suffered a form of psychiatric illness, and his case is that he has been discriminated against by the Defendants on account of that disability. He was concerned that should his name be revealed in proceedings where his mental condition would be referred to, he and his family, including his children, would be subjected to discrimination from colleagues, classmates, friends and even family who had no previous knowledge of his condition. His concern about the general public's discriminatory attitudes towards persons with psychiatric illnesses was supported by materials, including surveys, published by the first-named Defendant itself. Those materials were not controverted by the Defendants at the hearing before the judge.

6. The judge dismissed the summons on 7 March 2002, finding that the Plaintiff had not made out the grounds for the application. It would appear from certain parts of the transcript of that day's proceedings that the judge considered, amongst other things, that the materials applied only to persons whose appearance was different from other persons and his perception was that the Plaintiff looked no different from the lawyers in court.

7. At the Plaintiff's application before the judge on 10 May 2002 for leave to appeal, the judge refused leave on the ground that he found that he had not made out sufficient grounds for it. The judge thought that the Plaintiff over-estimated his own importance and that he also misjudged that section of the public who might be minded to take an interest in a case such as this.

8. Counsel for the Plaintiff submitted before us that the judge had applied the wrong principles when he exercised his discretion in refusing the application for anonymity, in that the Plaintiff had never sought to assert that he was important enough for the public to be interested in his case. Rather, the Plaintiff's case was that the disclosure of his name would cause him and his family such disquiet from the anticipated discrimination that he might be deterred from pursuing his case through the courts (H v Ministry of Defence [1991] 2 QB 103).

9. Counsel also drew our attention to the fact that in K and Others v Secretary for Justice [2000] 3 HKLRD 777, Christie D.J. made a similar order in a case where the plaintiffs themselves had no psychiatric disorders but their parents did, and where the plaintiffs were suing the Secretary for Justice acting for the Fire Services Department and the Customs and Excise Department for discrimination on account of their parents' disabilities. In that case, the plaintiffs were in fact represented by the 1st-named Defendant in the present case.

10. In an application for leave to appeal, the court should only consider whether the proposed appellant has a realistic prospect of success on the appeal. In some cases, it has been said that the appeal need only be arguable.

11. In our view, in light of the matters set out above, it cannot be said that the Plaintiff does not even have an arguable case on appeal. It would not be appropriate for us to go any further at this stage into the details of our consideration. Accordingly, we gave leave to appeal.

Order dispensing with witness statements

12. As for the second order, the background to it was that on 13 June 2000, H.H. Poon D.J. had directed that the parties exchange witness statements. As at March 2002, witness statements had been prepared but had not been exchanged.

13. The judge, obviously from a desire to shorten the proceedings at trial, considered that it would be more appropriate not to have witness statements, but to have oral evidence-in-chief followed by cross-examination.

14. However, the point remains that Judge Poon had made an order that has been sealed and there was no evidence of any change of circumstances that would enable the judge to vary the order, which has not been challenged by either party. Indeed, we were informed by counsel for the Plaintiff that the parties have, after the judge's order, actually agreed between themselves to voluntarily exchange witness statements and that there was nothing which would cause any delay in the hearing of the consolidated actions, which has been set down for 10 days commencing in August.

15. In the circumstances, we considered that the Plaintiff has a sufficiently arguable case for leave to be granted to appeal against the judge's order dispensing with witness statements.