C v. Director of Immigration and Another

CACV 132/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 132 OF 2008

(ON APPEAL FROM HCAL NO. 132 OF 2006)

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BETWEEN

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Before: Hon Rogers VP in Chambers

Date of Hearing: 17 August 2009

Date of Decision: 17 August 2009

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D E C I S I O N

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1.This is an application by the Centre for Comparative and Public Law to be joined as an amicus in an appeal which is scheduled to come on on 12 October.

2.Before, going any further, I express considerable reservations about the party which is supposed to be represented. Under the University of Hong Kong Ordinance, section 8(3) provides that the Council may, on the recommendation of the Senate, form, dissolve or reform such institutes, schools, centres, units and other subdivisions of studies and learning as it may from time to time consider desirable.

3.The first thing that I tried to explore with Mr Young, who is instructed to appear in this case on this application, is what sort of legal body, whether it is in fact a legal body, the Centre forms. It is a matter which causes me considerable concern because the affidavit upon which this application is made is made not by Mr Young but by Miss Kelley Ann Loper. The affidavit states that the Centre consists of core staff, researchers, research fellows and student interns. It is, thus, not seemingly of any permanent composition. I say no more about it at this stage other than that I have grave reservations as to whether it is a legal body that can actually appear in court. I will leave that for another occasion should it ever arise.

4.Miss Loper goes on to explain how the decision in the court below has been a matter of considerable research on her part and she has, together with another professor, made a study of the judgment and has written an article which it is hoped will be published. She says in her affidavit that -

“If the Court grants leave in this application, CCPL through solicitors intends to instruct Mr Young who will serve as amicus counsel on a pro bono basis. While Mr Jones and I (and other members of the CCPL) may assist in the research and discussion of legal points, it will ultimately be amicus counsel who will settle the written submission to be filed with the Court. The written submission will be amicus counsel’s work informed by legal expertise from academic members of the CCPL. It will not necessarily correspond to the views about the judgment contained in the scholarly writing independently done by myself and Mr Jones.”

5.So on this application, apart from the fact that, in the correspondence, it would appear that it has been suggested on the Applicant’s behalf that there are certain errors in the judgment below, a phenomenon to which all judges from time to time are subject, nevertheless, there is very little indication of exactly what the Applicant wishes to submit.

6.On this appeal, which is undoubtedly a matter of some importance, the parties are very adequately represented. The Appellant will be represented by two leading counsel - and I have been told who they will be - as well as junior counsel and these people have appeared many times in cases of importance in respect of human rights and so forth, and the Department of Justice likewise will be very adequately represented on this occasion.

7.If there are points which have emerged through academic research, there are well-established channels by which those who have made the academic research can convey that to the parties responsible. The first and most obvious way is to write a learned legal article and have that published and then everybody can see it and counsel on either side can raise, or not raise, whatever points emerge from that which they see fit. The second way - and I suspect this often happens - is that the specific academics can go to the various counsel involved and the solicitors involved and inform them of their research and points which they think can be usefully raised and so forth.

8.The difficulty I have in this case is that, unlike the cases which have been cited to me in relation to the Equal Opportunities Commission who have appeared as amicus in other cases, the Applicant in this case has no specific interest to protect or to look after, it is not a statutory body with duties to enforce particular statutes. I cite from a decision of Tang JA, as he then was, in the case of Leung T C William Roy v The Secretary for Justice in a decision handed down on 24 March, where he said, in a case where he allowed the application by the Equal Opportunities Commission to appear as an amicus:

“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 The Ministry of Defence [2003] ICR 937. Thus the ambit of 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...’.”

9.That is an interest which, in my view, is more akin to the interests of an intervener rather than an amicus but, leaving that aside, it is a specific interest and not a purely academic interest and, much though one appreciates the importance and a need to have academic research at the universities, I regret I do not see that that gives the universities, whether under the guise of the Centre or otherwise, the right to ask this Court to appoint them as an amicus.

10.If the court feels, in a specific instance, that it requires the assistance of an amicus, that is one thing and there are channels by which the court can ask for that assistance. But on this occasion, I do not see that it is necessary, or even appropriate, for this Court to begin to ask for an amicus with the parties being so well-represented and, no doubt, in a position to put forward any arguments that they consider should be put forward and, no doubt, the Centre can give the parties whatever assistance they feel they can.

11.But I have to say this, that now, with three universities in Hong Kong, all with Law Faculties, it would become unmanageable if academics can simply come to the court and say “We’ve done some work on this and we think that we should be able to come along and offer a few kind words because other people might have overlooked some relevant points”. The business of the courts would be vastly complicated if that were to happen.

12.I have no doubt on this occasion that I should refuse this application. I will refuse the application.

Mr Simon N M Young, instructed by Messrs ONC Lawyers, for the Centre for Comparative and Public Law

Mr Philip Dykes SC and Mr Hectar Pun, instructed by Messrs Barnes & Daly, for the Applicant/Appellant

Mr Anderson Chow SC and Ms Grace Chow, instructed by Department of Justice, for the Respondent/Respondent