HONG KONG TELECOMMUNICATIONS (HKT) LTD v. THE COMMUNICATIONS AUTHORITY

CACV 190/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 190 OF 2013

(ON APPEAL FROM TELECOMMUNICATIONS (COMPETITION PROVISIONS) APPEAL BOARD APPEAL NO 31)

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JUDGMENT
(ON LEAVE TO APPEAL)

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Hon Cheung CJHC (giving the judgment of the court):

1.  By our judgment dated 17 December 2013, we answered the question of law posed by the chairman of the Telecommunications (Competition Provisions) Appeal Board (“the Appeal Board”) in the affirmative, allowed the appeal from the chairman’s decision dated 4 June 2013, and remitted the case to the Appeal Board for reconsideration in the light of the court’s determination of the question of law. We also dealt with the question of costs.

2.  The respondent now applies for leave to appeal to the Court of Final Appeal on the following questions, questions which are said to be of great general or public importance:

“(1) Whether the action (or inaction) on the part of [the] Office of the Communications Authority (‘OFCA’), as the executive arm of the Communications Authority (‘the Authority’) assisting the Authority and acting on its behalf to handle complaints (in inter alia the exchange of correspondence with the complainant), can as a matter of law be construed or regarded as a ‘decision’ under the Telecommunications Ordinance, Cap 106 (‘TO’) by the Authority in the absence of:-

(a) any delegation of decision-making power by the Authority to the officers of OFCA pursuant to section 18(1) of the Communications Authority Ordinance, Cap 616 (‘CAO’); or

(b) any evidence or suggestion that a relevant resolution has been passed by a majority of the members of the Authority present at a meeting which was quorate, or a resolution in writing, in accordance with section 10 or 11 of the CAO (‘Question 1’)?

(2) Whether and under what circumstances an appeal may be brought under section 32N against the refusal of an interim direction in a case brought under the Competition Provisions but at an interim stage, whilst the investigation by OFCA had not formally begun or was still ongoing (‘Question 2’).”

(para 2 of the respondent’s written submissions dated 14 February 2014)

The “or otherwise” ground is also relied on.

3.  It is not necessary to repeat what has been said in our judgment.

4.  As regards question 1, the question of whether the relevant decision was that of the respondent or that of the OFCA only was only raised “obliquely” at the hearing before us on 29 November 2013 by the respondent’s counsel.  It was not even supported by a respondent’s notice as we pointed out in paragraph 34 of our judgment.  The point, in any event, was argued in a very limited way as described in our judgment.  For the reasons we gave, including the fact that it was not even raised in a respondent’s notice, we rejected the point.  The appellant has now in its written submissions set out in some detail how this point was never raised before the Appeal Board, and how it surfaced for the first time at the hearing before us.  We do not find it necessary to repeat what the appellant has said.  But it demonstrates sufficiently that there were potentially relevant matters, both legal and factual, that were not gone into at the hearing or dealt with by us in our judgment because of the rather unsatisfactory and last minute way that this point was raised before us.  In those circumstances, we find it quite wrong to allow the respondent to saddle the Court of Final Appeal with this question.

5.  In any event, we do not believe that this is a question of great general or public importance.  It is a point turning on the facts and well‑established principles of law.

6.  Question 2, as elaborated in the respondent’s written submissions, revolves around the correct test to apply in determining the jurisdiction of the Appeal Board when a “negative” decision is involved.  As to that, we thought and still think that the parties are agreed, quite correctly, that the “truly engaged” test is the test to apply.  How it is to be applied when one is involved with a negative decision must depend on the facts.  No question of great general or public importance is involved.  Rather, the answer to the jurisdictional issue raised in the present case turns on the proper reading of the correspondence in light of all relevant background.  It is a fact‑sensitive issue.

7.  For these reasons, we are not prepared to grant leave to appeal on the “great general or public importance” ground.

8.  As for the “or otherwise” ground, it is limited to very exceptional cases.  We see no exceptional circumstances that may justify our giving leave on that ground.

9.  For these reasons, the application for leave to appeal to the Court of Final Appeal is refused with costs to the appellant, to be taxed if not agreed, with a certificate for two counsel.