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)

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BETWEEN

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DECISION

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1.  This is an appeal by the Communications Authority [“the Authority”] against the judgment of Au J in HCAL 77 of 2012. By that judgment, Au J quashed the decisions of the Authority in withholding certain information from Asia Television Limited [“ATV”] and imposing a deadline to ATV in response of a Revised Draft Report of the Authority concerning certain affairs of ATV. In view of the contention of ATV, it is not appropriate for me to go into the details at this stage.

2.  ATV seeks an order that this appeal be heard in camera. Though Au J heard the matter in camera and delivered a judgment the publication of which is restricted, it does not follow that the appeal would be heard in camera.  There are many cases where proceedings below are heard privately and yet the appeals are heard in open court.

3.  Generally, hearings in the Court of Appeal are open to the public.  Practice Direction 25.1 primarily deals with proceedings at first instance.  The only reference to proceedings in the Court of Appeal is in respect of matters relating to arbitration in Schedule 2, item (6).

4.  If a party wishes to seek an order for hearing in camera, he needs to make an application for a special order under para 5 of PD 25.1. Given the constitutional significance of open justice as underscored by Article 10 of the Hong Kong Bill of Rights, an application for the hearing not to be open to public will have to be specifically justified.  The Court of Appeal needs to assess independently by balancing the competing considerations in deciding whether the appeal should be heard in open court or in camera.

5.  Since a direction in this regard will affect important rights (and not only the rights of the immediate parties, but also the rights of the general public and the media) I think the proper way to proceed (especially, as in this case, when the parties hold different views) is to make such application by summons although in the past such applications have been dealt with by correspondence, see Hong Kong Civil Procedure 2012 para 59/10/2.       

6.  ATV has not issued a summons.  However, since both parties have appeared with counsel with this issue in mind and in light of the comment in para 59/10/2, I am prepared to grant an indulgence to ATV on this occasion on its undertaking to issue a summons by close of business on Monday.

7.  Though counsel have referred to some authorities on the topic, there are some relevant cases which have not been canvassed in the skeleton submissions: R v Legal Aid Board, Ex p Kaim Todner [1999] QB 966; In re Guardian News and Media Ltd [2010] 2 AC 697; R (Kambadzi) v Secretary of State [2011] 4 All ER 975; Re BU [2012] 4 HKLRD 417.   

8.  Further, it is desirable that the issue be decided by the full court instead of a single justice of appeal.  First, it would obviate an unnecessary appeal under Order 59 Rule 14(12).  Second, a full court is in a better position to give general guidance for future reference regarding applications of this nature in the Court of Appeal.  

9.  Pursuant to Order 59 Rule 14(10), I refer the question of whether this appeal should be heard in open court or in camera to the full court. The matter will be heard by the Chief Judge of the High Court and me on 5 February 2013 at 10:00 am.  It shall be heard, at least initially, in open court until the court directs otherwise at the hearing.  The public has a right to know, at least in broad terms, why the appeal is heard in private.

10.  Paragraphs 21 to 33 of Practice Directions 4.1 in respect of the preparation and lodging of bundle and skeleton submissions shall apply to the forthcoming hearing in February.