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Wharf Cable Ltd v Attorney General

Judgment Cited authorities 13 Cited in Precedent Map Related
Vincent
Judgment Date25 March 1996
Subject MatterMiscellaneous Proceedings
Judgement NumberHCMP1493/1995
CourtHigh Court (Hong Kong)
HCMP001493/1995 WHARF CABLE LIMITED Applicant and THE ATTORNEY GENERAL Respondent and HONG KONG TELEPHONE Intervener COMPANY LIMITED

1995 No. MP 1493

H E A D N O T E

Wharf was granted a licence under the Television Ordinance to provide Cable T.V. for an exclusive period of 3 years from June 1st 1993. In July 1995, H.K. Telephones (TELCO) begun trials for Video-on-Demand. Wharf claimed that TELCO required a similar licence under the Television Ordinance. The Government maintained that it did not. On an application for Judicial Review of the decision by the Government to allow TELCO to conduct VOD trials without a licence.

HELD

1. Although Wharf conceded that, as the trials were completed, the 1995 decision was no longer challenged, the continued maintained stance of the Government that VOD was not within the Television Ordinance, was justiciable and declaratory relief could be given. Rediffusion (Hong Kong) Ltd. v. A.G. of Hong Kong [1970] AC 1136, Ealing London Borough Council v. Race Relations Board [1972] AC 342, O'Reilly v. Mackman [1983] 2 AC 237 and R. v. Secretary of State for Employment, ex parte E.O.C. [1995] AC 1.

2. As such words were technical and outside the expertise of the Court, expert guidance as the meaning of these words was admissible Holt v. Collyer [1881] 16 Ch. D. 718 & Maunsell v. Olins [1975] AC 373.

3. A rule of construction was not what the words were meant to say but what is the meaning of what was said Schuler AG v. Wickham Machinery Ltd [1974] AC 235.

4. A construction should be given which was "contextually apposite and also was reasonable.". Walker v. Leeds City Council [1978] AC 403.

5. A statement by the Secretary introducing the Television Bill of 1993 did not fall within the ambit of Pepper v. Hart [1993] AC 593.

6. VOD was not "broadcasting" within the general words of S2.

7. Nor was it the transmission of a programme "on a point-to-point basis".

8. Application for declaration that the Provision of VOD was within the Television Ordinance refused.

1995 No. MP 1493

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

_____________

BETWEEN

WHARF CABLE LIMITED Applicant
AND
ATTORNEY GENERAL Respondent
and
HONG KONG TELEPHONE COMPANY LIMITED Intervener

_____________

Coram : The Hon. Mr. Justice Sears in Court

Dates of Hearing : 5th - 9th, 12th - 16th, 26th - 29th February, 1st, 4th and 6th March 1996

Date of Delivery of Judgment : 25th March 1996

_______________

J U D G M E N T

_______________

INTRODUCTION

1. This has been a most unusual application for Judicial Review. It has taken some 17 days to try, has involved the Court in examining several thousand pages of affidavits, numerous authorities and technical publications. Four expert witnesses gave oral evidence and were subjected to detailed cross-examination. A vast quantity of technical matters in the field of the television and telecommunications industry, past, present and future was analysed. The task facing the Court, when presented with this plethora of unfamiliar technology, was daunting. I have, however, had the benefit of experienced and skilful counsel who have sought to ease my task by presenting helpful written submissions and explanations on a variety of topics. I paid tribute at the conclusion of the argument to the solicitors involved. They have not only researched all issues which support their point of view, but have presented the results in a most admirable way. Any information which I sought was produced quickly and accurately. Great assistance has also been given by the shorthand "live-note" which has allowed references to be found and the record of anything said to be checked. Hopefully, this will be the standard form of reporting in the future.

THE PARTIES

2. Wharf Cable Limited (Wharf) is a subsidiary of the well known Wharf Group. By virtue of a licence, granted by Governor in Council in May 1993, Wharf was empowered to provide subscription television broadcasting (STV) in Hong Kong from 1st June 1993 for a period of 12 years. The Television Ordinance (Cap. 52), under which the licence was granted, and the licence itself, gave Wharf a period of 3 years during which no other STV licence would be granted. Section 8B calls it a "restricted period" and referred to in argument as the "exclusivity period". Until 1st June 1996 no other person can provide STV broadcasting.

3. The Attorney-General is the respondent and is responsible through the various government bodies for the licensing of television and telecommunication services by virtue of the Telecommunications (Cap. 106) and Television Ordinances.

4. Hong Kong Telephone Company Limited (Telco), as their name implies, provide the Hong Kong telephone services. These now cover other aspects such as fax, transmission of data, video-net and video-link.

5. Telco had a monopoly on the provision of such services - telephone services by virtue of the Telephone Ordinance (Cap. 269) and other services by virtue of an extension order under the Telecommunications Ordinance. On 1st July 1995, new licences were granted to Telco, Hutchison Communication, New World Telephone and New World T & T (a Wharf Group Subsidiary). These are called Fixed Telecommunication Network Services (FTNS) Licences, granted under the Telecommunications Ordinance and it is by virtue of this licence that Telco now provides its services.

EVENTS IN 1995

6. On March 3rd the Telecommunications Authority announced its decision to approve Telco to conduct commercial trials for the provision of Video-On-Demand (VOD) services. It issued a statement saying that approval had been given for the trial subject to certain conditions. The trial period was for 6 months and it was approved without prejudice to the authority's consideration on future proposals on further trials, or the actual introduction of a commercial VOD service. Wharf protested about these trials which were being conducted during their exclusivity period, as they took the view that these were in direct competition to the service which they were providing.

7. The Chief Secretary, in answer to a letter from Mr. Ng, the Chairman of Wharf, said that VOD did not infringe Wharf's exclusive licence and Telco was permitted under the Exemption Order granted to it under the Telecommunications Ordinance to provide non-telephonic services.

8. On June 1st, Wharf made an application for Judicial Review of the decision to permit the trials and on June 16th Jerome Chan J. granted leave. On September 15th Telco's commercial trial ended.

THE DECISION AND CHALLENGE

9. In the Notice of Application and affidavit supporting the application for leave, the decision in respect of which relief was sought was said to be

"The decision of the Telecommunications Authority made on 3 March 1995 as described in paragraph 22 of the attached statement."

10. This statement set out the history of the grant of Wharf's licence and the announcement of the VOD trials.

11. The basic complaint and the underlying fear was that this new VOD service was within the exclusivity period granted to Wharf and that their subscription television network would no longer be commercially viable. It is clear from the submissions made when a stay was granted and from the opening of Mr. Griffiths Q.C. for Wharf that that decision is as he described, "water under the bridge".

12. What is now sought is a declaration that the provision of VOD requires a licence under the Television Ordinance as it is subscription television broadcasting. On February 13th, the seventh day of this hearing, the Executive Council announced that the Government proposed to amend the Television Ordinance and said

"We propose to introduce a new category of programme service licence under the Television Ordinance applicable to VOD programme services, and to invite the Broadcasting Authority to draw up Codes of Practice similar to those which apply to pay TV. Many of the conditions applying to programme service licensees would be similar to those applying to licensees under the Television Ordinance. The Television and Entertainment Licensing Authority would be responsible for monitoring the performance of programme service licensees to ensure compliance with the Television Ordinance and the terms of their licences."

13. On February 26th, leave was sought by the Applicants to amend their Notice and grounds and rely on "the Government's exhibited intention to act unlawfully", as the decision. I refused leave in a ruling I gave. I did not consider it right that the Government's statement on February 13th and statements from Secretaries were the subject of the instant challenge.

14. On February 28th, I heard submissions from Mr. Huggins Q.C. for the Government and Mr. Warren Chan Q.C. for Telco that I should dismiss the application as there was no decision which was justiciable and that the issue to be decided was hypothetical, or academic.

15. They both submitted that the Government had only made a proposal to alter the law, that no decision had been made to permit Telco to participate in subscription television broadcasting, that the declaration sought was "in vacuo" - unrelated to any specific and identified decision. If, as the Applicants conceded, the commercial trials had finished and no challenge was now made to the legality of them, the Court should not embark on a hypothetical exercise as to meaning of s.2 and Schedule I of the Television Ordinance. There was considerable force in those submissions and they were attractive, as the Court would be relieved from examining the mass of technical evidence presented.

16. Mr. Griffiths Q.C. submitted that the Government's original statement in 1995 that VOD did not require a licence under the Television Ordinance, and the continued...

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