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 77/2012)

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BETWEEN

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JUDGMENT

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Hon Cheung CJHC:

1. This is an application by the applicant that the appeal proper fixed for 17 and 18 April 2013 be heard in camera; or alternatively, that such part of the appeal proper regarding various factual, evidential or substantive matters of litigation be heard in camera.

The facts

2. As is well known, the applicant holds one of the two free television licences and makes free television broadcasts to all persons in Hong Kong. The respondent is an independent statutory body, established under the Communications Authority Ordinance (Cap 616), to regulate broadcasting and telecommunications industries in Hong Kong in accordance with the Broadcasting Ordinance (Cap 562) and the Communications Authority Ordinance.

3. In July 2011, the Broadcasting Authority, the predecessor of the respondent, began an investigation into the affairs of the applicant. The main purpose of the investigation is to ascertain whether Mr Wong Ching, a major investor in the applicant, had been in de facto control of the applicant. As a result of the investigation, the respondent sent to the applicant a draft report in March 2012 and later a revised draft report in June 2012 of the investigation. In both draft reports, the respondent effectively concluded that Mr Wong had been in de facto control of the applicant. The respondent also reached various provisional adverse findings against the executive director of the applicant (Mr James Shing) and the applicant itself. Based on these provisional findings, the draft reports set out various proposed sanctions and penalties to be made against the applicant.

4. Before the revised draft report was prepared, the applicant had asked for but the respondent had refused the disclosure to the applicant of certain information it had obtained in the course of the investigation. Moreover, after the revised draft report was made, the respondent required the applicant to make written submissions by 28 June 2012 in response to the revised draft report and to make oral representations (if any) on 30 June 2012. It also indicated that it would make and publish its final decision after the expiry of these deadlines.

The proceedings below

5. The applicant disagreed and commenced the judicial review proceedings below on 26 June 2012 to challenge the respondent’s refusal to disclose the information sought and its subsequent decision relating to making representations in response to the revised draft report. It asked that these decisions be quashed. It also asked that there be an interim stay of the decisions and the investigation itself. It further asked for an interim injunction to restrain the respondent from making or publishing any final decision or report on the investigation (including the revised draft report) pending the determination of the judicial review proceedings. The application for this last item of (interim) relief was resolved by the respondent giving an undertaking to the same effect on 4 July 2012.

6. On the same day, Au J ordered that the hearing of the substantive application for judicial review be held in chambers (not open to the public) and that the court file be prohibited from inspection by the public. The order came only after the contents of the Form 86, including the provisional findings and proposed sanctions contained in the revised draft report, had already been reported in the media.

7. The substantive application for judicial review came before Au J for hearing on 30 and 31 August 2012. The hearing was conducted in chambers, not open to the public. On 19 October 2012, the judge handed down his judgment, also in chambers, not open to the public. He found that there was a breach of procedural fairness in the investigation. He therefore quashed both decisions of the respondent under challenge. He emphasised that his determination had nothing to do with the merits of the provisional findings and proposed sanctions contained in the revised draft report.

The present application

8. Dissatisfied with the judge’s decision, the respondent appeals. As mentioned, the appeal proper will be heard in April 2013. The applicant applies for the substantive appeal to be heard in camera. The application is opposed by the respondent.

9. Mr Benjamin Yu SC (Ms Sara Tong with him) submitted on behalf of the applicant that the hearing of the appeal in open court would jeopardize the fairness of the ongoing investigating process. He submitted that if the preliminary and prejudicial findings and the selectively quoted evidence in the revised draft report were to be repeated at the hearing of the appeal proper in open court, they would almost certainly be widely published to the detriment of the applicant. Initially, Mr Yu focused his arguments on the possible effect of any intense public discussion or even public outcry that the appeal (if heard in public) might generate on the members of the respondent involved in the investigation in terms of their impartiality and fairness, and the appearance thereof, in conducting the same. Mr Yu argued that these members are not professional judges and like a jury, they may or may be perceived to be liable to be influenced by public opinion.

10. As the arguments progressed, Mr Yu further contended that such public discussion or outcry would have an effect on the interviewees or potential interviewees who were already involved or might later become involved in the ongoing investigation in terms of their willingness to provide (further) information or assistance to either side or in terms of the contents of their statements or evidence. Mr Yu referred the court to a letter dated 16 November 2012 written by the respondent’s solicitors to the Registrar of Civil Appeals that the respondent had since pursuing the investigation in 2011 been deliberately keeping confidential the details of the investigation because of the statutory obligations of confidentiality to which the respondent is subject and “the need for procedural fairness”. Counsel read that as an admission, coming from the respondent, that the applicant’s fear of a compromise of procedural fairness if the appeal were to be heard in open court was not mere speculation, but a matter accepted by the respondent itself.

11. Mr Yu contended that any such compromise would affect his client’s right to a fair hearing (before the respondent) guaranteed under article 10 of the Hong Kong Bill of Rights. By the same reasoning, counsel argued that his client’s right of access to court, guaranteed under article 35 of the Basic Law, would be compromised because the applicant’s seeking redress from the court would be unduly burdened with a risk to its obtaining a fair hearing before the respondent.

12. Mr Yu also argued that the ends of justice would be liable to be defeated if the appeal proper were to be heard in open court. Counsel submitted that the main purpose of the proceedings below was to prevent the respondent from publishing the very serious and prejudicial findings as regards the internal management of the applicant in the revised draft report. Indeed, the applicant sought an interim injunction to restrain publication pending the determination of the judicial review application, and obtained an undertaking from the respondent in lieu of the injunction sought. For the same reasons, the judge directed that the proceedings be heard in chambers, not open to the public. There was no appeal from such direction. If the appeal were to be heard in public, one of the purposes of initiating the judicial review proceedings and of the undertaking – the preservation of procedural fairness of the investigation – would be entirely defeated. That would constitute a denial of justice.

13. In his written submissions, Mr Yu also contended that the effect of publication of the contents of the revised draft report and the preliminary findings would be potentially very serious for the applicant. It would result in a loss of public confidence in the applicant’s management and irreparable damage to its reputation such as to significantly affect its business, regardless of the outcome of the appeal. Such damage, it was contended, could potentially result in the applicant no longer being able to continue its business. In particular, it was said that publicity would likely seriously affect the reputation of the applicant and cause unnecessary public concern over its management. It was also said that any reputation damage and loss of confidence in Mr James Shing would likely affect his management role in the applicant and lead to serious operational difficulties. Publicity would likely lead to a loss of morale within the internal personnel of the applicant. Further, publicity might have a significant adverse impact on the financial circumstances of the applicant. Finally, the potential losses to the applicant that might result from the respondent’s serious findings being made public would be difficult to quantify, and on a worse case scenario, prevent the applicant from continuing its business and jeopardize its survival.

14. It was contended that given the highly controversial matters contained in the revised draft report, any public hearing would be tantamount to “a public censure” of the applicant (and its senior...