RADIO TELEVISION HONG KONG PROGRAMME STAFF UNION AND ANOTHER v. COMMUNICATIONS AUTHORITY

CACV 579/2021 and CACV 584/2021 (Heard Together)

[2025] HKCA 344

On appeal from [2021] HKCFI 3497

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS 579 AND 584 OF 2021

(ON APPEAL FROM HCAL NO 1685 OF 2020)

________________________

________________

(Heard Together)

________________________________

DECISION ON COSTS

________________________________

The Court:

1.  By a judgment handed down on 4 September 2024 ([2024] HKCA 845) (“the Main Judgment”), we disposed of CACV 579/2021 and CACV 584/2021 as per [151] and [152]. We reserved our determination on costs pending the parties’ written submissions to be filed pursuant to the directions at [153], which they subsequently did. Having considered the submissions, we now hand down our decision on costs. In this decision, we will adopt the same abbreviations used in the Main Judgment.

2.  It is common ground that the Authority should bear the costs of both the proceedings below and the appeals. The only difference between the parties lies in the extent to which the Authority should be held liable. On the one hand, the Applicants contend that they should be entitled to the full costs of CACV 579/2021, 90% of the costs of CACV 584/2021 and 90% of the costs below. Essentially, they rely on the usual rule that costs should follow the event, how the appeals were conducted and the outcome of the appeals, which also had an impact on the costs below. On the other hand, the Authority argues that it should only pay 50% of the costs of both appeals and 50% of the costs below, which means that the costs order by Chow JA (as he then was) should not be disturbed. It is because it was duty bound to contest the proceedings and then appeal so that the various novel law points raised as to how it should discharge its statutory duty as the regulator of the television industry could be resolved by the court. In doing so, it had succeeded on some of the issues raised.

3.  We accept that it is in the public interest for the Authority to contest the proceedings. The main issues are set out at [39] of the Main Judgment. Some are indeed novel and have a significant and long-term impact on how the Authority should discharge its statutory duty as the regulator of the television industry and how television broadcasters, including the RTHK, should conduct their affairs in compliance with the Code.

4.  Relevantly, we, like the Judge, ruled in favour of the Authority on Issue 1. On Issue 2, we set out the correct approach that the Authority should adopt to complaints of breach of §1A of Chapter 9 of the Code. In so doing, we differed from the submissions of both the Applicants and the Authority and the Judge’s view. On Issue 3, we agreed with the Judge’s reasons and upheld his finding. On Issue 4, we agreed with the Judge that §2(b) of Chapter 3 of the Code does not involve any anti-discrimination analysis as contended by the Applicants before us and below. On Issue 5, we rejected the Applicants’ contention that they were entitled to mount the constitutional challenge. In short, although we disposed of the appeals as we did, we are prepared to give recognition of the above in exercising our discretion on costs and to reduce the costs to which the Applicants are otherwise fully entitled in such exceptional circumstances. As to the extent of reduction, looking at the matter in the round, we take the view that the Authority should be responsible for 75% of the Applicants’ costs of the appeal and below.

5.  In conclusion, we order the Authority to pay 75% of the Applicants’ costs of the appeals and below, to be taxed if not agreed, with a certificate for two counsel.