Commissioner of Police v. Television Broadcasts Ltd

HCMP 114, 115, 118,
119 & 120/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS

NOS 114, 115, 118, 119 &120 OF 2016

(formerly known as CONFIDENTIAL MISCELLANEOUS
PROCEEDINGS NOS 392-396 OF 2015)

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HCMP 114/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 114 OF 2016

(formerly known as CONFIDENTIAL MISCELLANEOUS
PROCEEDINGS NO 392 OF 2015)

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HCMP 115/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 115 OF 2016

(formerly known as CONFIDENTIAL MISCELLANEOUS

PROCEEDINGS NO 393 OF 2015)

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HCMP 118/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 118 OF 2016

(formerly known as CONFIDENTIAL MISCELLANEOUS
PROCEEDINGS NO 394 OF 2015)

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HCMP 119/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 119 OF 2016

(formerly known as CONFIDENTIAL MISCELLANEOUS
PROCEEDINGS NO 395 OF 2015)

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HCMP 120/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 120 OF 2016

(formerly known as CONFIDENTIAL MISCELLANEOUS
PROCEEDINGS NO 396 OF 2015)

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(Heard Together)

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D E C I S I O N

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BACKGROUND

1.I dismissed the applicant’s applications against all respondents on 8 March 2016.  Television Broadcasts Limited (“TVB”), Apple Daily Limited (“Apple Daily”), i-CABLE Communications Limited (“i-CABLE”) and PCCW Media Limited (“PCCW”) all asked for costs.  Asia Television Limited (“ATV”) was again not represented and I made no order as to costs in its case.

COSTS APPLICATION

TVB

2.Mr Jonathan Mok asked for costs of the application, with certificate for two solicitors as he appeared as a solicitor advocate before me. 

Apple Daily

3.Mr Raymond Ho applied for costs of the application.

i-CABLE

4.Ms Annie Leung asked for costs of the application on an indemnity basis, with certificate for two counsel.  

PCCW

5.Mr John Reading SC asked for costs of the application, with certificate for two counsel.  

STANCE OF THE APPLICANT

6.Mr David Leung SC has no quarrel re the applications for costs by TVB, Apple Daily and PCCW.  In relation to i-CABLE, however, Mr Leung opposed its application, submitting that i-CABLE should have costs to be taxed on party and party basis, with certificate for two counsel. 

ORDERS RE TVB, APPLE DAILY AND PCCW

7.In view of the stance taken by the applicant, couple with the fact that I think, in respect of each respondent, costs should follow the event, I made costs orders for TVB, Apple Daily and PCCW:

(a) TVB – costs to be taxed on party to party basis, with certificate for two solicitors.

(b) Apple Daily – costs to be taxed on party to party basis.

(c) PCCW – costs to be taxed on party to party basis, with certificate for two counsel.

APPLICATION BY I-CABLE

8.I will now deal with the application by i-CABLE.

9.Ms Leung submitted, in a nutshell, that the respondent had alerted the applicant as to the jurisdiction point, pointing out to the applicant on more than one occasion that it had sued the “wrong party” and there was no journalistic material on the premises specified in the application, and yet the applicant refused to issue a fresh application against the “correct party” and continued the application against them, even to the extent of having to applied to the Court to allow it to amend the Originating Summon (“OS”) if necessary. 

10.Further, the respondent referred to the correspondence between its solicitor and the Department of Justice, in which the respondent sought, in relation to (a) the District Court case: copy of the list of exhibits, copies of police videos, copies of news footage downloaded from the internet, including those captured by TVB and Apple Daily (with dates, starting and ending times), copies of all witness statements of the prosecution witnesses and copies of the charge sheets; and (b) the Tsang’s case: copies of the police video recordings (with dates, starting and ending times); (c) the particulars of the makers of those police videos, copy of the ATV footage (with date, starting and ending time), all witness statements of the prosecution witnesses and copy of the charge sheet.  The applicant refused to provide any copies requested save the footages already in the public domain. 

11.Ms Leung submitted that the conduct of the applicant was such that, in all the circumstances of this case, the Court should consider ordering costs to the respondent to be taxed on an indemnity basis.  Ms Leung relied on the CFA case of Town Planning Board v Society for Protection of the Harbour Ltd (No 2) (2004) 7 HKCFAR 114, in which the CFA held that an award of indemnity costs was not confined to cases brought with an ulterior motive, or for an improper purpose, or where there was some deception or underhand conduct on the part of the losing party.  The court’s discretion was not to be fettered beyond the requirement that indemnity costs must be “appropriate”.   

12.Ms Leung also relied on the case of Pacific Harbor Advisors PTE Ltd and another v Wilson Federal Limited and others (unreported, HCMP 1149/2015) in which B Chu J referred to the principles set out in the Town Planning Board case and, in the particular case before her, ordered costs on an indemnity basis.

OPPOSITION BY THE APPLICANT

13.Mr Leung advanced two grounds to oppose the application.  The first ground related to the fact that the address on which the journalistic material was held was not specified in the application itself.  Mr Leung submitted that the applicant initially thought that it was not necessary to do so.  The applicant only learnt subsequently that the Tsuen Wan address should have been included in the OS.  The second ground was that the applicant did not bring the case with an ulterior motive, or for an improper purpose (referring to the principles stated in the Town Planning Board case). 

14.Further, Mr Leung submitted that the respondent was not entitled to all the copies it had requested, relying on para 40 of R (British Sky Broadcasting Ltd And Others) v Chelmsford Crown Court [2012] 2 Cr App R 33:

“40. … Whilst it might not have been necessary for the police to produce everything they had obtained, at the least there should have been a clear account of the extent of the film they had obtained, the period over which it had been obtained and what it showed. …”

MY CONSIDERATION OF THE SUBMISSION

15.As to the grounds for making an order for indemnity costs, the CFA said in the Town Planning Board case (in para 16 and 17): 

“16. The courts have rejected the proposition that an award of indemnity costs will only be made where a case has been brought with an ulterior motive or for an improper purpose or where there is some deception or underhand conduct on the part of the losing party.  (Macmillan Inc v Bishopsgate Investment Trust Plc (unrep., 10 December 1993) (Millett J); Disney v Plummer (unrep., English Court of Appeal, 16 November 1987)). These decisions and the reasoning on which they were based have been endorsed by the Hong Kong Court of Appeal (Sung Foo Kee Ltd v Pak Lik Co (a firm) [1996] 3 HKC 570 at pp.575E-576F, per Godfrey JA; see also Choy Yee Chun v Bond Star DevelopmentLtd [1997] HKLRD 1327 at pp.1334G-1335I, per Stock J.)

17. In these and other cases, courts have emphasised the undesirability of attempting to define the circumstances in which orders for indemnity costs are to be made.  It has been said that:

‘… the discretion is not to be fettered or circumscribed beyond the requirement that taxation on an indemnity basis must be “appropriate”.’”

16.I accept that the applicant did not bring the application against the respondent i-CABLE (or any other respondent for that matter) with any ulterior motive or for any improper purposes.  However, it is clear that an award of indemnity costs is not confined to such cases.  Nor is it confined to cases involving deception or underhand conduct.  I have to examine the particular circumstances of this case to decide whether I should exercise my discretion to award costs on an indemnity basis. 

17.I have already mentioned in my judgment on 8 March 2016 that it was on 15 October 2015 (exactly one year after the incident) that all the defendants were charged with the offences they each face. Whilst the applicant had made requests to one Wong Yue-fat (黃餘發) described as the Chief News Editor of the News Department of Cable Television, there was nothing to show that any request had been made to the respondent i-CABLE or its subsidiary believed to be in possession of the journalistic material sought.  Yet on 31 December 2015 (New Year’s Eve) the applicant issued the OS against the respondent.  With the New Year holidays in between and the application having been set down to be heard on 8 January 2016, the respondent had to act fast and Mr McCoy leading Ms Annie Leung only managed to file their submission in opposition on the same day of the hearing.   

18.As I had also mentioned in my judgment earlier, the hearing on 8 January was adjourned as I was of the view that the hearing should be heard in Open Court. Mr McCoy drew to my attention during that hearing the respondent’s view that the applicant had sued the “wrong party”.  Mr McCoy and Ms Leung also alerted the applicant to section 84(3)(a)(iii) which confines “journalistic material” to those “on premises specified in the application”.   

19.Despite being alerted to this jurisdictional point, the applicant did not issue a fresh OS or seek to amend the OS so as to at least cover the premises on which the journalistic material was to be found.  This is despite the fact that the person serving the OS saw fit to amend both the name and address of the respondent to that of its subsidiary, as a result of which the Acknowledgment did not correspond with the OS.  

20.Instead, the applicant sought, via the second affirmation of the Woman Senior Inspector of the Police, Wong Sau-ling (“Wong”), to justify how and why the respondent was the correct party to the proceedings, filing pages and pages of company documents in support. 

21.At the hearing on 19 February 2016, Mr Leung sought, as a last resort, to be allowed to amend the OS should I ruled against him.  I have already given my reasons why I did not accede to that request.

22.As to the requests by the respondent for various copies of footages, witness statements and so on, whilst I have reservations whether the respondent is entitled to all such information, I am satisfied that the respondent is entitled (to adopt the words used in the British Sky Broadcasting case) to have a clear account of the extent of the videos the police had obtained, the period covered and what the videos show.

23.Since the applicant also relied on the British Sky Broadcasting case in its application, the applicant must have been fully aware of what the court had ruled in that case.  No good reason has been shown to explain the lack of details regarding the police videos. 

24.Having considered the particular circumstances of this case, I am of the view that this is a proper case for me to exercise my discretion to award costs to the respondent i-CABLE on an indemnity basis.

25.For this reason, I order that costs be to the respondent i-CABLE, to be taxed on an indemnity basis, with certificate for two counsel.

Mr Leung Cheuk Yin David SC, DDPP leading Mr Lai Ka Yee Ned, ADPP and Ms Li Nga Yee Annie, Acting SPP of the Department of Justice, for the Applicant

Mr Jonathan Mok, instructed by Mayer Brown JSM, for Television Broadcasts Limited (HCMP 114/2016)

Mr Raymond Ho, instructed by Hampton, Winter & Glynn, for Apple Daily Limited (HCMP 115/2016)

Asia Television Limited was not represented and did not appear (HCMP 118/2016)

Ms Annie Leung, instructed by Howse Williams Bowers, for i-CABLE Communications Limited (HCMP 119/2016)

Mr John R Reading SC leading Ms Adgie N K Chan, instructed by Li, Wong, Lam & W.I. Cheung, for PCCW Media Limited (HCMP 120/2016)