Hong Kong Cable Television Ltd v. Secretary for Justice

FAMV No. 44 of 2016

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 44 OF 2016 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 130 OF 2015)

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BETWEEN

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REASONS FOR DETERMINATION

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Mr Justice Fok PJ :

1.We dismissed this application for leave to appeal at the conclusion of the hearing, indicating that we would hand down our reasons in due course, which we now do.

2.The applicant, Hong Kong Cable Television Limited, sought leave to appeal to this Court against the judgment of the Court of Appeal[1] which had allowed the Government’s appeal in respect of the quantum of licence fees payable in respect of the applicant’s provision of its television programme service in 2007, 2008 and 2009.  That service was called its IPTV Service and was variously referred to as “Cable Channel No.1”, “Channel A” and “Bulk E”.

3.The main issue between the parties was whether the service in question fell within one of the services listed in Schedule 3 of the Broadcasting Ordinance (Cap.562) which were not to be regarded as television programme services and thus do not require licensing and its attendant obligations including the payment of licence fees.  In particular, the issue was whether the applicant’s service fell within paragraph 5 of that Schedule, which exempts: “Any service provided on the service commonly known as the INTERNET”. A subsidiary issue related to the manner of calculation of the annual variable fee payable for the provision of the applicant’s television programme service, if not exempt.

4.The applicant sought leave to appeal on the basis that the decision of the Court of Appeal involved the following two questions said to be of great general or public importance, namely:

“(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 can 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 (Licence 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.”

5.Even assuming that the applicant’s case on each of these questions is reasonably arguable, we were not persuaded that either of these questions is one of great general or public importance.  In his submissions to us on behalf of the applicant, Mr Paul Shieh SC,[2] indicated that the issues related to the limited period of 2008 and 2009 and the value of the claim was approximately HK$1 million.[3]  The applicant ceased to provide the IPTV Service which was the subject of this litigation in June 2009, after which time it transferred its business to a related company, i-Cable Entertainment Limited.  There was no evidence to show whether that latter company was continuing to provide the IPTV Service or any other television service and, if so, how that service was provided and whether it might or might not be configured in such a way to give rise to the same issues affecting the applicant’s IPTV Service.

6.Notwithstanding that the issues turn on the interpretation of statutory language, those issues are highly fact-sensitive in the present case and we were therefore not persuaded that the questions identified were of sufficient importance to warrant the grant of leave to appeal.

7.Mr Shieh sought leave to adjourn the application for leave to appeal in order to file evidence of the continued provision of the IPTV Service by i‑Cable Entertainment Limited but we declined to accede to this application.  It is incumbent on an applicant for leave to appeal to satisfy the Appeal Committee that its application is properly founded and that any question sought to be raised is of sufficiently great general or public importance to justify referral to the full Court.  That should be done at the time of making the application and a party should not expect to be afforded an opportunity to fill gaps in its application. 

8.In any event, whether i-Cable Entertainment Limited may or may not have its own basis for challenging the basis on which fees are charged or computed in relation to any IPTV Service provided by it are matters separate to this applicant’s position and may be affected by the particular factual circumstances relating to how its service is configured and provided to subscribers.

9.Accordingly, for these reasons, we dismissed the application for leave to appeal.

10.Although Mr Roger Beresford, on behalf of the Government, did not seek costs, we see no reason why costs of the application should not follow the event and so we make an order nisi to that effect.

Mr Paul Shieh SC and Ms Janet Ho, instructed by Deacons, for the Defendant (Applicant)

Mr Roger Beresford, instructed by the Department of Justice, for the Plaintiff (Respondent)