LEUNG TC WILLIAM ROY v. SECRETARY FOR JUSTICE

Before:  Hon Tang JA in Chambers

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REASONS   FOR   DECISION

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1.  This is the Equal Opportunities Commission’s (“the EOC”) application for leave to provide the court with the services of counsel as amicus curiae at the hearing of the appeal.

2.  The application was not opposed but both Mr Pun, appearing for the applicant and Mr Stephen Wong for the Secretary for Justice have brought my attention to various matters which they thought might assist me in the determination of this application.

3.  A precedent for the order sought is provided by Secretary for Justice and Others v Chan Wah and Others [2000] 2 HKLRD 880, where Bokhary PJ made a similar order.  This is what Bokhary PJ said at page 884 about the role of an amicus:

“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 [1968] 2 QB 229 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.”

4.  Mr Pun submitted, however, that the EOC might consider joining as an intervener instead.  So far as costs are concerned, both the applicant and the Secretary for Justice have informed me that they would not seek costs against the EOC.

5.  Even so, Mr Leung for the EOC told me that the EOC did not consider it appropriate to apply to intervene.  Apparently, the EOC took the view that sex orientation is not within the ambit of the Sex Discrimination Ordinance, Cap. 480.  There is support for this view in the decision of the House of Lords in MacDonald v Ministry of Defence [2003] ICR 937.  Thus, the ambit of the Sex Discrimination Ordinance might be narrower than the protection available under the Bill of Rights.

6.  Even so, as the Commissioner has explained in his affirmation, the outcome of the appeal herein may have “far-reaching implications on the work of the EOC and the community at large …”.

7.  Mr Pun submitted that since the applicant and the Secretary for Justice will be represented, the court may feel that it does not require the service of an amicus.  I am sure that both the applicant and the Secretary for Justice will be most ably represented on appeal but the court might nevertheless benefit from the help which a non partisan amicus can provide.  Certainly, there is no suggestion that the appointment of an amicus might detract from the efficient conduct of the appeal.

8. Mr Wong submitted that there is no impediment to joining the EOC as an intervener.  I agree.

9.  I was told that the EOC would not wish to intervene.  I see no reason why I should not respect that view.

10.  For the above reasons, I granted leave to the EOC to provide the court with the services of counsel as amicus and made an order in terms of EOC’s summons.  I also ordered that between the applicant and the Secretary for Justice the costs of the application be in the cause of the appeal.