SECRETARY FOR JUSTICE AND ANOTHER v. CHAN WAH AND OTHERS

FACV Nos 11 and 13 of 2000

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 11 OF 2000 (CIVIL)

(ON APPEAL FROM CACV NOS 137 & 139 OF 1999)

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Between:

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FINAL APPEAL NO. 13 OF 2000 (CIVIL)

(ON APPEAL FROM CACV NOS 278 & 279 OF 1999 )

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Between:

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R U L I N G

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Mr Justice Bokhary PJ:

1. Several matters were canvassed at the directions hearing which I held on 30 May 2000. The directions which I gave that morning dealt with all of those matters save for one. That one matter was an application by the Equal Opportunities Commission ("the EOC") for leave to appear as an amicus curiae at the hearing of these appeals. No party raised any objection to the EOC providing the Court with submissions. But it seemed to me that the question of how the EOC should provide submissions required further research. So I asked Mr Michael Lunn SC, who appeared on behalf of the EOC, to undertake such research, and then provide me with a written submission in support of the EOC's application. Mr Lunn has kindly done so. His written submission reached me on Friday, 4 August 2000. I have considered the fruits of his research, and have also done some research of my own.

2. The EOC is a statutory body created by s.63 of the Sex Discrimination Ordinance, Cap. 480. Its functions and powers are set out in s.64 of that Ordinance. Subsection (1)(a) of that section provides that the EOC "shall ... work towards the elimination of discrimination". And these appeals do involve allegations of discrimination.

3. Looking at the transcript of the judgment handed down by the Court of Appeal on 26 January 2000, one sees this where the representation is set out: "Mr Michael Lunn SC for Equal Opportunities Committee (sic.) as Amicus Curiae".

4. At p.3 J-P the Chief Judge of the High Court explained:

" On 28 June 1999, the Equal Opportunities Commission filed a memorandum with the court seeking permission to be heard in these appeals as amicus curiae on the ground that these appeals involve an issue relating to the provisions of the Sex Discrimination Ordinance, Cap. 480 with which the Commission is concerned. That was a time when it was doubtful whether Mr Chan or Mr Tse would be legally represented. Leave was therefore granted for the Commission to participate as an amicus in relation to the issues which touch on the provisions of that Ordinance."

I notice that (at p.62R) Mayo JA described Mr Lunn himself as the amicus.

5. Certainly it accords with my own experience at the Bar (Attorney General v. Chan Kei-lung [1977] HKLR 312) and on the Bench (Rainfield Design & Associates Ltd v. Siu Chi Moon [2000] 2 HKLRD 226) that it is counsel himself who is the amicus.

6. Sometimes (as in the two cases which I have just mentioned) it is the court itself which seeks the assistance of an amicus. But it can also happen (as in Allen v. Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229) that some organization takes the initiative of offering the court the services of counsel who will make submissions as an amicus.

7. In the written submission provided by Mr Lunn it is said:

"The distinction between the intervening parties in the Pinochet proceedings and the EOC in the present proceedings is that the EOC is not seeking to become a party to the proceedings and has no interest in which party may succeed. Although there may be cases in future where the EOC would wish to appear as intervenor, in the present case the EOC's interest is to ensure that all relevant arguments arising from its statutory mandate are before the court."

8. Mr Lunn has drawn attention to two cases in which the courts in England have received submissions from the Equal Opportunities Commission there. In both those instances, the Commission's role appears to have been that of an intervener. In Shields v E. Coomes (Holdings) Ltd [1979] 1 All ER 456 the representation is reported thus:

"Mark Potter for the company.

Eldred Tabachnik for the applicant.

Anthony Lester QC for the Equal Opportunities Commission."

It appears that the same effect was achieved by a different method in Science Research Council v. Nasse [1980] AC 1028 where the following is reported at pp 1032 H-1033 B:

"Anthony Lester QC and Frederic Reynold for the second appellant. Before the Court of Appeal leading counsel for the second appellant, Nat Vinu Vyas, represented the Equal Opportunities Commission and the Commission for Racial Equality, though not truly as amicus curiae since the two statutory bodies have special interests. It is not clear from the decision of the Court of Appeal whether their powers are affected or not. Application is now made to be allowed to make submissions 'under two hats' for the appellant Vyas and for the two commissions. This case raises questions of public policy on which they may have a view and they are entitled to be heard: see Adams v. Adams (Attorney-General intervening) [1971] P. 188, 198.

LORD WILBERFORCE: After your submissions for the appellant Vyas you may make submissions as to the effect on the statutory bodies.

LORD EDMUND-DAVIES: But that is an indulgence which can only be allowed with the consent of the other side."

9. In R v. Bow Street Magistrate ex p. Pinochet (No. 3) [1999] 2 WLR 827 the representation is reported thus at p.832 B-C:

"Alun Jones QC, Christopher Greenwood, James Lewis and Campaspe Lloyd-Jacob for the appellants.

Ian Brownlie QC, Peter Duffy QC, Michael Fordham, Owen Davies, Frances Webber and David Scorey for Amnesty International and others.

Clive Nicholls QC, Clare Montgomery QC, Helen Malcolm, James Cameron and Julian B. Knowles for the applicant.

Lawrence Collins QC for the Government of Chile.

David Lloyd Jones as amicus curiae.

Human Rights Watch made written submission."

As can be seen, certain concerned organizations such as Amnesty International instructed counsel to present submissions on their behalf. Another such organization, Human Rights Watch, made written submissions in its own name. Separately there was also counsel appearing as an amicus.

10. The present circumstances may be summarised as follows. While there may be future cases in which it will seek to intervene to advocate a particular result, the EOC does not wish to do anything of the kind in this case. What it wishes to do in this case is to provide amicus assistance to the Court. None of the parties have raised any objection to it doing so. And it had done so in the court from whose decision these appeals are brought. In all the circumstances - and without attempting to lay down any definitive or even general proposition in regard to the participation of interveners and amici - I would direct as follows. The EOC is given leave to provide the Court with the services of counsel who will make submissions as an amicus. Thus counsel will be the amicus, his services being provided to the Court by the EOC. For the avoidance of doubt, I further direct that the EOC will be neither entitled to costs against any party nor liable in costs to any party.

11. The role of an amicus differs from that of an intervener. Whether his services are sought by the court on its own initiative or provided by a concerned party and whether or not all the parties are legally represented, the role of an amicus is as stated by Salmon LJ (as Lord Salmon then was) in Allen v. Sir Alfred McAlpine & Sons Ltd at p.266 F-G where he said:

"I had always understood that the role of an amicus curiae was to help the court by expounding the law impartially, or if one of the parties were unrepresented, by advancing the legal arguments on his behalf."

Doubtless, therefore, the amicus's submissions to the Court will impartially deploy all relevant points irrespective of whether such points assist one side or the other.