HONG KONG TELECOMMUNICATIONS (HKT) LTD v. SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT AND ANOTHER

HCAL 448/2018

[2018] HKCFI 929

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 448 OF 2018

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D E C I S I O N

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1.  The present application for judicial review concerns a decision made by the Respondents on 19 December 2017 to offer to renew the assignment of 40% of the existing 200 MHz radio spectrum to the incumbent assignees, of which the Applicant is one, and to put the rest up for auction with a view to it being withdrawn from the market and re-allocated according to the auction results (“the Decision”). As I understand it, under the Respondents’ current timetable, the auction shall be completed in the second half of 2018, and there are many steps to be taken before and after the auction in the run up to the expiry of the current assignments in 2020 and 2021.

2.  The present application for judicial review was made on 19 March 2018.  The Form 86 raises a total of 13 grounds of challenge to the Decision, and the evidence filed in support of the application consists of 13 lever-arch files of exhibits.  Leave to apply for judicial review was granted on 23 March 2018, and the court appointed a directions hearing on 27 April 2018 (ie today) to deal with how the application for judicial review should be taken forward in the event that agreement of the parties could not be reached.

3.  On 24 April 2018, the Applicant took out a summons seeking, inter alia, an interim stay of the Decision and also disclosure of an un-redacted version of what has been referred to as the Plum Report subject to a proposed Confidentiality Ring.

4.  I shall first deal with the application for interim stay.  The application is not supported by any affidavit.  The Respondents submit that they ought to be given time to file evidence in response to the application.  The Applicant insists, however, that the court should deal with the application today, without the Respondents being given any opportunity to file evidence in response, arguing effectively that no evidence, or meaningful evidence, can properly be adduced by the Respondents to oppose the application.

5.  When it was pointed out by Mr Chan on behalf of the Respondents that the application is not supported by any evidence, Mr Beresford on behalf of the Applicant responded by saying that the Applicant has already filed voluminous evidence (in the form of the affidavit in support of the application for judicial review and the 13 bundles of exhibits).  I consider this approach to be unacceptable.  A proper application for an interim stay ought to be supported by evidence directed at or focused on the need for the interim stay.  Also, despite Mr Beresford’s able submissions, I am unable to see any urgency in having the interim stay application being dealt today without the Respondents being giving a proper opportunity to consider the application and to file evidence in opposition to the application.  I am also not satisfied that no meaningful evidence can be filed by the Respondents to oppose the application.  There could obviously be substantial practical and technical implications arising from a stay of the Decision which could be relevant to the court’s exercise of its discretion whether to grant an interim stay.  On the other hand, the Applicant has failed to explain why it is essential to have an interim stay of the Decision today.  In my view, the position taken by the Applicant is unreasonable, and I am not prepared to deprive the Respondents a proper opportunity to deal with the interim stay application in the manner suggested by the Applicant.

6.  For essentially the same reasons, I do not consider that the Respondents should be deprived of a proper opportunity to put in evidence to respond to the disclosure application.  In any event, it is for the Applicant to make out a proper case for disclosure of the un-redacted version of the Plum Report.  No evidence has been filed in support of the application, and I am far from satisfied, on the materials presently available before me, that it would be right to order the Respondents to disclose the un-redacted version of the Plum Report now.

7.  In all, I decline to deal with the two applications today.  Since Mr Beresford has confirmed that the Applicant does not intend to file any further evidence in support of the applications but would ask for leave to file evidence in reply (if so advised) within 7 days, I give the following directions:

(1)  leave to the Respondents to file evidence in opposition to the summons dated 24 April 2018 within 21 days from the date hereof;

(2)  leave to the Applicant to file evidence in reply (if so advised) within 7 days thereafter;

(3)  no further evidence be filed without leave of the court; and

(4)  the summons be adjourned to a date to be fixed for substantive argument, with 1 day reserved.

8.  Lastly, in relation to the time-table for the substantive application for judicial review, I direct that:-

(1)  leave to the Respondents to file evidence on or before 3 July 2018;

(2)  leave to the Applicant to file evidence in reply on or before 3 August 2018; and

(3)  the parties shall on or before 2 May 2018 inform the court of the available dates of their counsel or leading counsel for a 5-day hearing during the period from August 2018 to March 2019.

9.  The court shall take into account counsel’s diaries but will not be bound by the same when fixing the dates for the substantive hearing of the judicial review.

[Further submissions were made by the parties on the issue of costs.]

10.  I order that 60% of today’s costs be to the Respondents, with the balance 40% being in the cause of the application for judicial review.