Pccw Hkt Telephone Ltd and Another v. Link Properties Ltd

CACV 275/2017

[2019] HKCA 503

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 275 OF 2017

(ON APPEAL FROM HCMP NO 3458 OF 2016)

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Before: Hon Lam VP, Kwan VP and Yuen JA

Dates of Written Submissions: 5, 19 and 26 March 2019

Date of Judgment: 10 May 2019

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J U D G M E N T

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Hon Kwan VP (giving the judgment of the court):

1.On 22 January 2019, we handed down our judgment allowing the plaintiffs’ appeal from the judgment of Lok J on 6 November 2017. We held that on the proper construction of sections 14(1) and (10) of the Telecommunications Ordinance, Cap 106 (“the Ordinance”), the plaintiffs, as licensees authorised by the Communications Authority, have a right of access under section 14(1) to parts not leased out to tenants (“the Common Use Parts”) of a commercial complex owned by the defendant.

2.The defendant issued a notice of motion on 19 February 2019 seeking leave to appeal to the Court of Final Appeal on the ground that questions of great general or public importance are raised in the intended appeal as well as under the “or otherwise” limb.

3.These two questions are set out in the notice of motion:

Question 1

“What is the proper construction of s. 14(1) and s. 14(10) of the Ordinance, in particular what is the meaning of “exclusive occupation” in the context of the Ordinance?”

Question 2

“Whether the Common Use Parts are not in the exclusive occupation of the Defendant[1] because its tenants have a contractual right to use the Common Use Parts for access to and from their shops (i.e. the leased out parts), such that the statutory right of access extends to the Common Use Parts?”

4.The plaintiffs opposed the leave application on the grounds that the intended appeal has no reasonable prospect of success and, insofar as may be necessary, also on the ground that the defendant purports to raise a new argument which was not the subject of argument in the Court of Appeal, or in the Court of First Instance.  The plaintiffs do not seek to contend that the questions are not of great general or public importance.

5.The defendant seeks to argue in the proposed appeal that the Court of Appeal failed to distinguish between “use” and “occupation”, and that there is no authority to support the proposition that a mere contractual right of access over or to use the Common Use Parts, subject always to the defendant’s exclusive control, could amount to “occupation”.

6.We have pointed out in our judgment that either “exclusive occupation” or “exclusive use” would be sufficient to bring the land within the exception in section 14(10)[2]. Lok J did not appear to have drawn any distinction between “use” and “occupation” in his analysis.  The defendant did not pursue this argument by a respondent’s notice.  In any event, the focus of the submissions on appeal is “exclusive occupation”[3].

7.The argument that a distinction should be drawn between “use” and “occupation” cannot stand with our analysis that exclusive occupation has not been established, as a matter of fact and degree, both in respect of the condition of purpose and the temporal condition for the exception in section 14(10) to apply.  We do not propose to repeat the reasoning in our judgment.

8.Nor do we think Articles 6 and 105 of the Basic Law would assist the defendant.  As pointed out by the plaintiffs, there is no challenge on the constitutionality of section 14 or its application to the defendant’s property in the present case.

9.We do not think the intended appeal has reasonable prospects of success.

10.The reliance on the “or otherwise” limb is premised on the contention that the conclusion in our judgment is unsupported by authorities and is plainly wrong.  The defendant has given no reason why the “or otherwise” limb would provide a proper basis for the granting of leave if it fails to obtain leave under the “question of great and general importance” limb, when the defendant has no reasonable prospect of success (Dr Leung Shu Piu v Medical Council of Hong Kong [2014] 3 HKLRD 328 at §14).  In any event, it is the usual practice of the Court of Appeal to leave it to the Appeal Committee whether leave should be granted under the “or otherwise” limb.

11.For all the above reasons, we decline to exercise our discretion to grant leave to appeal.

12.We order the defendant to pay the plaintiff’s costs of this application.  We have considered the plaintiff’s statement of costs for summary assessment.  We will allow the sum claimed in full being $140,138.68.

Mr Benjamin Yu SC and Mr Roger Beresford, instructed by Gibson, Dunn & Crutcher, for the Plaintiff (Respondents)

Mr Jat Sew Tong SC and Mr Jonathan T Y Chang, instructed by Deacons, for the Defendant (Applicant)