FAMV No. 23 of 2013
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO. 23 OF 2013 (CIVIL)
(ON APPLICATION FOR LEAVE TO APPEAL FROM CACV NO. 258 OF 2012)
|ASIA TELEVISION LIMITED
|COMMUNICATIONS AUTHORITY (SUCCESSOR OF THE BROADCASTING AUTHORITY)
|Appeal Committee: Chief Justice Ma, Mr Justice Chan PJ and Mr Justice Tang PJ
|Hearing and Determination: 15 August 2013
|Date of Reasons for Determination: 21 August 2013
D E T E R M I N A T I O N
Chief Justice Ma (giving the Determination of the Committee):
1. The Applicant (Asia Television Limited, hereafter referred to as “ATV”) sought leave to appeal to the Court of Final Appeal under s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance both on the basis of there being questions of great, general or public importance and on the “or otherwise” ground. After hearing submissions from counsel for ATV, we dismissed the application with costs, with our reasons to be handed down.
2. The factual background to ATV’s application for judicial review is amply set out in the judgments below. I need only set out the essential facts:
(1) The present case involved an investigation made by the Respondent (The Communications Authority) into the activities of ATV pursuant to its powers under the Broadcasting Ordinance (“the BO”). ATV is the holder of a domestic free television programme service licence granted under the BO.
(2) Following the receipt of a letter from an anonymous complainant in June 2011, the Respondent began investigating ATV, specifically as to whether one of its major investors, one Mr Wong Ching, had been exercising de facto control and management of ATV, even though some other person held the majority shareholding in the company and notwithstanding there was at all material times another person being the executive director of ATV. The allegation was that Mr Wong Ching continued to be in charge of ATV and that the majority shareholder of the company was merely his nominee.
(3) It was this investigation by the Respondent that provided the background to the present judicial review proceedings. In the course of its investigations, the Respondent looked at relevant documents and interviewed a number of people. Among those interviewed were a number of persons who were holding or had held various positions at ATV. These persons assumed a central role in the present proceedings and have been referred to in the courts below and in documents as “the Interviewees” – we shall continue to use this term.
(4) In March 2012, the Respondent sent a draft report to ATV’s solicitors, Baker & McKenzie (“B&M”), setting out certain provisional findings and proposed sanctions, inviting representations to be made. Mention was made in this draft report of the fact that statements and submissions had been made by the Interviewees. The provisional conclusion reached was that Mr Wong Ching had been in de facto control at ATV.
(5) ATV’s response (in a letter dated 27 March 2012 from B&M) objected to the fact that material information had not been provided to it, namely, the statements and submissions provided by the Interviewees. ATV asked for sight of these materials.
(6) The Respondent’s response to this (by a letter dated 3 April 2012) was that the Interviewees had provided information on a confidential basis and had requested that their identities not be revealed. The Respondent was prepared only to provide a redacted summary of the evidence provided by the Interviewees and this summary (a nine-page document) was provided to ATV’s solicitors. The redacted summary did not reveal the identity of the Interviewees, but much detail was provided.
(7) On 11 April 2012, B&M repeated its objection based on the non-disclosure of the full extent of the materials from the Interviewees. The Respondent replied by a letter dated 16 April 2012 stating that it had struck an appropriate balance between the need for confidentiality and ATV’s entitlement to be informed of the main points of the Interviewees’ evidence. It is this refusal to disclose all materials (rather than just the detailed summary that the Respondent was prepared to provide) that formed the subject matter of the 1st decision which was impugned in the judicial review proceedings.
(8) On 3 May 2012, B&M made a detailed response to the redacted summary provided by the Respondent, although their objections based on non-disclosure remained.
(9) Following this response, on 21 June 2012, the Respondent wrote to B&M enclosing a revised draft report inviting further submissions to be made by 28 June 2012, failing which the Respondent would publish its findings. This was the 2nd decision challenged in the judicial review proceedings.
3. On 26 June 2012, before the deadline that had been imposed by the Respondent, ATV issued its application for leave to apply for judicial review challenging the said two decisions. The focus of the hearing before Au J and the Court of Appeal was procedural fairness. As Kwan JA observed in her judgment, this aspect was related to the 1st decision; she was of the view that the 2nd decision, essentially a complaint that insufficient time was given to make an effective submission, could not succeed on its own. The 2nd decision was not a relevant matter before us.
4. Au J quashed both decisions...