ASIA TELEVISION LTD v. COMMUNICATIONS AUTHORITY (SUCCESSOR OF THE BROADCASTING AUTHORITY)

CACV 258/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 258 OF 2012

(ON APPEAL FROM HCAL NO. 77 OF 2012)

________________________

________________________

________________________

REASONS FOR JUDGMENT

________________________

Hon Kwan JA (giving the Reasons for Judgment of the Court):

1. On 15 May 2013, we handed down judgment allowing the appeal of the Communications Authority (“the Authority”) against the judgment of Au J in which he granted an application for judicial review brought by Asia Television Limited (“ATV”) to challenge the procedural fairness of an investigation (“the Investigation”) conducted by the Authority whether Mr Wong Ching had been exercising de facto control of ATV, in breach of a condition of ATV’s licence. What is at issue is whether the duty to act fairly would require the Authority to disclose to ATV the identities of the persons the Authority had interviewed in the Investigation and the transcripts of the interviews.

2. By a notice of motion filed on 23 May 2013, ATV seeks leave to appeal against our judgment to the Court of Final Appeal and a stay of the Investigation pending its application for leave to appeal, and if leave be granted, until the determination of the appeal.

3. ATV seeks leave to appeal pursuant to section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, on the basis that the questions involved in the intended appeal are of great general or public importance.  It also relies on the “or otherwise” limb.

4. Four questions are put forward in the notice of motion for this purpose and they are as follows:

(1) whether in relation to a process whereby an administrative body is both the prosecutor and the judge, with the power to impose serious sanctions such as a heavy fine, the rule of fairness would require that all materials adverse to the affected person and in particular all evidence on which the decision maker intends to rely must be disclosed in the absence of cogent public interest for withholding such materials;

(2) whether confidentiality per se is sufficient to amount to a public interest reason for non-disclosure;

(3) whether on the true construction of section 27 of the Broadcasting Ordinance, Cap 562 (“the BO”), confidentiality per se is sufficient to justify non-disclosure or the withholding of materials which are adverse to the affected person without the Authority having undergone the procedure envisaged in section 27(3) of the BO; and

(4) whether, in the context of deciding the extent of disclosure required to ensure procedural fairness, considerations as to confidentiality of the identity of a witness is distinguishable from considerations as to confidentiality of the source of a complaint or an informant who is not a witness.

5. Although the questions are framed at an abstract level, how they should be determined in a particular case must depend on the factual circumstances of that case.  The content and extent of the duty to act fairly is highly fact-sensitive and can only be determined with respect to the particular circumstances of the individual case.  It is a balancing exercise which requires the entire process to be looked at in context to determine what procedural fairness would require in a specific situation.

6. As stated in para 53 of our judgment, there is no substantial dispute about the law, the differences between the parties are more a matter of differences in emphasis.  The Authority has accepted throughout it has a duty to act fairly.  The issue is whether that duty would require the Authority to disclose the identities of the interviewees to ATV in the particular circumstances of the Investigation.

7. In reaching the decision that procedural fairness does not require the disclosure sought by ATV, we took into account a number of highly specific factual matters, such as the nature and substance of the Investigation, the inquiries conducted during the Investigation, the nature of the matters disputed by ATV in the Investigation, the Redacted Summaries disclosed by the Authority to ATV, ATV’s response and its submissions during the Investigation.  Matters covered in the questions raised in the notice of motion are among the matters we had taken into consideration.  We eschewed a formulaic approach and the decision we arrived at was a balancing exercise in applying the established principles of law to the specific facts of this case.

8. We are not persuaded by Mr Yu, SC that issues of great general or public importance would arise in the context of the intended appeal.  As submitted by Mr Chan, SC, all four questions in the notice of motion are fact-sensitive to the present case.  Questions (1) and (4) are self evidently so.  Questions (2) and (3), which are closely related, boil down to a question of fact whether section 27(2)(c) was engaged in the particular circumstances.  All Mr Yu’s arguments, which had been canvassed in the appeal, inevitably go back to the question whether on the facts of this case, the procedures adopted by the Authority were fair in all the circumstances.

9. It would not be appropriate to give leave to appeal on the ground of questions of great general or public importance.

10. As for the “or otherwise” ground, the matters put forward by Mr Yu are essentially the same matters he relied on in contending that there was procedural unfairness in the Investigation, which were rejected by us.  We do not think they are grounds to justify an exceptional course to be taken for the “or otherwise” limb.

11. For the above reasons, we have refused to give leave to appeal to the Court of Final Appeal.

12. Having refused to grant leave to appeal, the only question regarding a stay of the Investigation is whether there should be an interim stay for ATV to renew its leave application to the Appeal Committee.  Mr Yu has clarified that he is not pressing for a stay of all aspects of the Investigation.  The Authority could proceed with the Investigation, short of making a final decision.  His primary concern is that the Authority should not reach a final decision on the Revised Draft Report in the interim, as this would render the intended appeal nugatory, in the sense that ATV would have to bring new proceedings to challenge the Investigation if a final decision is made.

13. On behalf of the Authority, Mr Chan has offered an undertaking to this court not to finalise its decision in the Revised Draft Report up to 15 July 2013, which would be the time taken for the Authority to convene a meeting to reach a final decision before the summer vacation.  The undertaking is not to prohibit the Authority from proceeding with the Investigation and doing whatever is necessary to come to a final decision, short of reaching a final decision.

14. In view of the Authority’s undertaking, we do not find it necessary to make any order for an interim stay and we made no order on the stay application.

15. We have awarded the costs of the notice of motion to the Authority with a certificate for two counsel as the overall successful party in this hearing