Abn Amro Bank N.V. and Others v. Qt

FACV No. 1 of 2018

[2018] HKCFA 17

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 1 OF 2018 (CIVIL)

(ON APPEAL FROM CACV NO. 117 OF 2016)

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BETWEEN

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D E T E R M I N A T I O N

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The Appeal Committee:

The forthcoming appeal

1.The Court is due to hear this appeal on 5 June 2018.  It raises for determination the following questions of law:

“(1) Given that same-sex marriage or civil partnership is not legally recognised in Hong Kong on all levels (constitutional, statutory and common law), and accordingly the denial of the right to marry to same-sex couples does not constitute discrimination on account of sexual orientation, whether this is an absolute bar to a claim of discrimination on account of sexual orientation when the differential treatment is based on marital status (as recognised under Hong Kong law) in all contexts.

(2) Given that the status of marriage (as recognised under Hong Kong law) carries with it certain special and privileged rights and obligations unique to and inherent in marriage (“core rights and obligations”), which are not open to all other persons including unmarried same-sex couples who cannot get married under Hong Kong law, and any differential treatment based on marital status in the context of such core rights and obligations requires no justification, whether immigration (in particular, the eligibility of a person in a same-sex marriage or civil partnership recognised under a system of foreign law for a dependant visa based necessarily on a spousal relationship with the sponsor) falls within these core rights and obligations.

(3) If justification for a differential treatment in the context of immigration (in particular, the eligibility of a person in a same-sex marriage or civil partnership recognised under a system of foreign law for a dependant visa based necessarily on a spousal relationship with the sponsor) based on marital status is required: (a) what is the appropriate standard of scrutiny to be applied in the present context given that under the Basic Law and the Hong Kong Bill of Rights, and as recognised consistently by the Courts, the Director of Immigration is entitled to exercise stringent control over immigration matters and enjoys a wide margin of appreciation or discretion as to how to formulate and administer his immigration policies; and (b) whether the Director of Immigration has justified the difference in treatment for eligibility for dependant visa based on marital status.”

2.Those questions are self-evidently questions of great general or public importance.  On 4 December 2017, the Court of Appeal granted the Director of Immigration (the “Director”) leave to appeal against its judgment dated 25 September 2017 allowing the appeal of the individual known by the anonymous initials QT and granting judicial review relief to her.

The present applications

3.Three separate summonses have now been issued by various parties seeking leave to intervene in the appeal.  These are (in date order):

(1) a summons dated 23 March 2018, issued by a group of 15 financial institutions (the 1^st to 15^th IntendedInterveners) (“the Banks”);

(2) a summons dated 23 March 2018, issued by a group of 16 law firms (the 16^th to 31^st IntendedInterveners) (“the Law Firms”); and

(3) a summons dated 29 March 2018, issued by Amnesty International Limited (the 32^nd IntendedIntervener) (“Amnesty International”).

4.Following the issue of the first two summonses, the Registrar gave directions for the filing of submissions by the Banks, the Law Firms, QT and the Director respectively.  The Registrar subsequently gave further directions for the filing of submissions by Amnesty International, QT and the Director respectively.  The deadline for the receipt of the Director’s submissions fell on 20 April 2018.  The Registrar also directed that the summonses would be referred to a single Permanent Judge of the Court or the Appeal Committee for disposal on the papers unless otherwise directed.

5.The basis of the Banks’ and Law Firms’ applications to intervene are similar and are, in summary, that (i) they have a material interest in the important questions of law raised in the appeal, (ii) intervention will give the Court the perspective of the Banks and Law Firms and therefore “a more rounded picture”, (iii) intervention will not prejudice the other parties or delay the hearing of the appeal.

6.Amnesty International’s application is similarly based.  It is contended that (i) the importance of the questions of law makes it appropriate for a non-governmental organisation like Amnesty International to be heard; (ii) Amnesty International’s knowledge and expertise enables it to give the Court an independent analysis of the legal issues and hence a more rounded picture than the Court would otherwise obtain; (iii) Amnesty International intends to make submissions different to those which the parties will make; (iv) Amnesty International’s intervention is helpful and justified; and (v) its intervention will not cause prejudice to any other party or the Court.

7.Common to all three applications is that each of the Banks, the Law Firms and Amnesty International seek only to file written submissions in the appeal and to make oral submissions only if invited to do so by the Court.  Also, none of the Banks, Law Firms or Amnesty International, who are respectively represented by solicitors and counsel acting on a pro bono basis, would seek any costs order against any other party.

8.The intervention applications are supported by QT.  It is submitted on her behalf that the Banks, the Law Firms and Amnesty International are proper parties to be heard and that the proposed interventions will contribute to the Court having a more rounded picture.

9.The Director opposes each of the applications.  It is contended that neither the Banks, the Law Firms nor Amnesty International qualify as a proper person to be heard on the application for judicial review and that, overall, the proposed interventions are neither likely to be helpful nor justified.  The Director also points out that 12 of the 15 financial institutions constituting the Banks previously applied to the Court of Appeal to intervene in the case when it was before that court but that the application was refused on 8 June 2017.[1] This Court is invited to take a similar view.

The Court’s power to grant leave to a party to intervene

10.The Court clearly has power to grant leave to a party to intervene in an appeal before it. Section 17(2) of the Hong Kong Court of Final Appeal Ordinance (Cap.484) provides that:

“For the purpose of disposing of an appeal, the Court may exercise any powers of the court from which the appeal lies (including the power to order a retrial), or may remit the case to that court.”

11.In an appeal in a matter concerning an application for judicial review, this would include the powers under RHC Order 53 rules 5B and 9(1) to permit the making of representations by “a proper person to be heard” on such an application.

12.Such intervention can be helpful to the Court.  The case of W v Registrar of Marriages (2013) 16 HKCFAR 112 provides an example.  In that case, submissions were made by International Commission of Jurists (“ICJ”) and referred to in the joint judgment of Ma CJ and Ribeiro PJ.[2]  The ICJ had been given leave to make submissions in the courts below as well and, at first instance, Andrew Cheung J (as Cheung CJHC then was) referred to them and described them as “both helpful and justified”.[3]

13.In the latest edition of Michael Fordham QC’s Judicial Review Handbook,[4] it is noted that third party interventions in the Supreme Court are “extremely common” and the case of E v Chief Constable of the Royal Ulster Constabulary [2009] 1 AC 536 is amongst the cases cited by way of example.

14.In that case, Lord Hoffmann provided valuable guidance (at [2]-[3]) as to the basis for and scope of leave to intervene that might be granted to statutory bodies and non-governmental organisations on questions of general public importance:

“2. … Leave is given to such bodies to intervene and make submissions, usually in writing but sometimes orally from the bar, in the expectation that their fund of knowledge or particular point of view will enable them to provide the House with a more rounded picture than it would otherwise obtain. The House is grateful to such bodies for their help.

3. An intervention is however of no assistance if it merely repeats points which the appellant or respondent has already made. An intervener will have had sight of their printed cases and, if it has nothing to add, should not add anything. It is not the role of an intervener to be an additional counsel for one of the parties. This is particularly important in the case of an oral intervention. I am bound to say that in this appeal the oral submissions on behalf of the NIHRC only repeated in rather more emphatic terms the points which had already been quite adequately argued by counsel for the appellant. In future, I hope that interveners will avoid unnecessarily taking up the time of the House in this way.”

15.And as Sedley LJ stated in Roe v Sheffield City Council [2004] QB 653 at [84]:

“The most apparent value of interventions is in public law cases, where aspects of the public interest in a legal issue of general importance may be represented by neither of the two parties before the court. Both NGOs and ministers may play a valuable role here.”

16.This is also reflected in De Smith’s Judicial Review (7^th Edition) at [2-068], where the suggested test for intervention is put in these terms:

“The main criterion ought to be whether would-be interveners, th[r]ough their expertise, are likely to be able to assist the court in understanding either the legal issues in question or the factual basis of the claim and the consequences that may flow from the court’s judgment.”

17.Similar considerations apply in this jurisdiction and in respect of appeals to this Court.  Leave to intervene will not be granted to allow a party merely to act as an additional supporting party for one or other side in the appeal.  Nor if leave to intervene has been granted, should the intervention take the form of simply repeating what one or other of the parties to the appeal has already said.  Further, it is important to distinguish between leave to file evidence and leave to file submissions.  If leave is granted for the latter but not the former, it is important that the distinction is observed.  Moreover, the timing of the application may be a relevant factor and if, for example, an intervention involves the filing of evidence, it may in some cases be appropriate for the application to have been made at an earlier stage of the proceedings.

18.There is clearly a need, too, in this context for some degree of restraint.  As Sedley LJ observed in Quila v Secretary of State for the Home Department [2010] EWCA Civ 1482 at [24]:

“… it needs to be remembered that litigation, even on issues of general importance, is not an open battleground. The court may well welcome help, such as it has had in this case, on law or, more occasionally, on fact from knowledgeable third parties. But there is no legal right to intervene and a limit to the amount of material the court can cope with from other quarters. We note with approval that in public interest litigation Treasury counsel today do not stand in the way of interventions unless they consider that there is good reason to do so. But potential interveners do need to be able to contribute something relevant that is not already before the court.”

A consideration of the applications in the present case

19.In our view, the Court of Appeal correctly identified the crux of the submissions for the 12 financial institutions as being that the Director’s policy under challenge “has the undesirable effect of down-sizing the pool of quality foreign employees that the employers may otherwise wish to tap, thus adversely affecting their interests and the interests of other industries and Hong Kong as an international financial center”.[5] The same can be said of the proposed submissions for the Law Firms.

20.That the Director’s policy, insofar as it excludes the spouses of persons in same-sex marriages, must have some limiting effect on the pool of persons who can, or may wish to, come to work in Hong Kong is a matter that is apparent from the policy itself.  We are therefore prepared to accept that the effect of the policy has practical consequences and is not purely speculative or theoretical. 

21.However, as the Court of Appeal noted, the perspective of the 12 financial institutions “can be readily gathered from the effect of the dependant visa policy as now applied by the Director”.[6] We agree that this is a perspective that the Court can see without the need for the Banks and Law Firms to intervene.  We also note that the effect of the policy on the Director’s aim of encouraging talented people to live and work in Hong Kong is a matter addressed in QT’s written case on this appeal.[7]  In the circumstances, we are not satisfied that the submissions proposed to be made by the Banks and Law Firms will materially assist the Court in respect of that argument.

22.The proposed submissions of Amnesty International are sought to be put before the Court on the basis of Amnesty International’s “knowledge and expertise on international human rights” in order “to provide the Court with an independent analysis of the legal issues and hence a more rounded picture than the Court would otherwise obtain”.[8] However, the draft submissions proposed to be filed address matters not in issue in the appeal and, to the extent that they address matters in issue, the submissions do not, in our view, advance any materially different arguments to those already contained in QT’s written case.  Accordingly, we are not satisfied that good grounds are made out for the grant of leave to intervene in respect of Amnesty International.

Conclusion

23.For the above reasons, we dismiss the applications.  In the submissions of the Director, no order for costs is sought and so we make no order as to the costs of the applications.

Written Submissions by Mr Wilson Leung, instructed by Davis Polk & Wardwell,

and Mr Martin Rogers, of that firm, for the 1^st -15^th Intended Interveners (“the Banks”) and the 16^th -31^st Intended Interveners (“the Law Firms”)

Written Submissions by Mr Gerard McCoy SC and Ms Denise Souza, instructed by Skadden, Arps, Slate, Meagher & Flom, for the 32^nd Intended Intervener

Written Submissions by Mr Timothy Parker, instructed by Vidler & Co., assigned by the Director of Legal Aid, for the Applicant (Respondent)

Written Submissions by Mr Stewart Wong SC and Ms Grace Chow, instructed by the Department of Justice, for the Respondent (Appellant)