Secretary for Justice v. Hong Kong Cable Television Ltd

CACV 130/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 130 OF 2015

(ON APPEAL FROM HCA NO. 2561 OF 2009)

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BETWEEN

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

1.The defendant applies for leave to appeal to the Court of Final Appeal against our judgment of 25 May 2016. It relies on the following two questions which are said to be of great, general or public importance for decision by the Court of Final Appeal.

‘ (1) Whether, on a proper interpretation of the phrase “[a]ny service provided on the service commonly known as the INTERNET” in paragraph 5 of Schedule 3 to the Broadcasting Ordinance (Cap 562), a service will only fall within the meaning of such phrase if its transmission pathway is on the Internet from the source up to the premises within individual household units; and

(2) Whether, on a proper interpretation of the word “subscribers” in paragraph 2(1)(b) of Schedule 2 to the Broadcasting (Licensed Fees) Regulation (Cap 562A), the annual variable fee payable by a licensee should be calculated with reference to (i) the number of “householders” to whom a licensed service is provided, or (ii) the number of contractual subscribers to the licensed service.’

Question 1

2.In respect of the first question, the defendant argues that it is of great general and public importance for the scope of the Internet Exception, which has not hitherto been the subject of consideration by the Court of Final Appeal, to be clearly and properly delineated for the benefit of all broadcasting service providers in Hong Kong. The defendant further argues that its case is reasonably arguable in that this Court’s view on the matter is inherently arbitrary.

3.We disagree that the first question involves issues of great, general or public importance.  The case is unique in respect of the way the defendant chose to carry out its transmission.  There is no indication that other players in the broadcasting industry have adopted the same mode of transmission.  The issue that this Court had resolved was simply a matter of construction of the relevant part of the legislation.  The point is not reasonably arguable.

Question 2

4.In respect of the second question, the defendant argues that it is very important for the statutorily prescribed method for the calculation of licence fees to be clearly and properly defined so that all present and future licencees under the Broadcasting Ordinance can be under no mistake as to their precise obligation.  The defendant further argues that it has a reasonably arguable case in respect of this question.

5.We disagree that the great, general or public importance point is engaged in the second question.  Again this is a fact specific determination.  There is no indication that other players in this field are concerned with this question.  Further as pointed out by the plaintiff, the issue of bulk subscription does not even concern the defendant’s own main Pay TV service.  It only concerns one of its many channels.  We are further of the view that the matter is not reasonably arguable for the reasons identified in our judgment.

Conclusion

6.Accordingly the application is refused with costs to the plaintiff.

Written Submissions by Mr Roger Beresford, instructed by Department of Justice, for the plaintiff

Written Submissions by Mr Paul Shieh SC and Ms Janet Ho, instructed by Deacons, for the defendant