Television Broadcasts Ltd v. Attorney General

HCMP000537/1976

IN THE SUPREME COURT OF HONG KONG

MISCELLANEOUS PROCEEDINGS

ACTION NO. 537 OF 1976

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Coram: Cons, J.

Date of Judgment: 18th November, 1976.

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JUDGMENT

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1. This is a summons brought by Television Broadcasts Limited, usually known as "TVB". TVB is listed as a public body in the Schedule to the Prevention of Bribery Ordinance, Cap. 201. Section 33 of that Ordinance reads as follows:

"33. Any person convicted of an offence under Part II shall, by reason of such conviction, be disqualified for a period of 7 years from the date of such conviction from -

2. Some time ago one of the senior staff of TVB was convicted of an offence under Part II of the Ordinance. He will shortly be released from prison and TVB have in mind to re-employ him. But they have doubts that by doing so they may contravene section 33. The object of this summons is to clear those doubts by, in effect, obtaining a declaration that the word "member" in the section does not include "employee". The summons is brought against the Attorney General as representative of the general public.

3. At the out-set counsel for the Attorney General took the point that the court should not deal with what at the moment is a purely hypothetical question. He concedes that the court does have jurisdiction to make a declaration upon hypothetical questions but he points out that the jurisdiction is discretionary and any such application is invariably rejected unless there is in existence a real and active issue between the parties. That is so. In only one case so far as I am aware have the courts shown even the slightest tendency to depart from that principle. That was in Thorne v. Motor Trade Association⁽¹⁾. There the members of the association had certain rules against price cutting. If a member broke the rules he was liable to be put on a Stop List, which effectively excluded him form further trade. Alternatively the order could be made but he was advised that it would not be carried out if within a certain period he paid a fixed fine to the association. Doubt arose as to whether that alternative action by the association amounted to the crime of demanding with menaces. To clear that doubt one member of the association instituted a "friendly" action for a declaration. Jurisdiction was accepted by the House of Lords but it was, as I think the comments indicate, an exceptional case (per Atkin, L.J., at 804 and Wright, L.J., at 813). An official of the association acting under the rules had already been convicted of an offence and his conviction upheld by the Court of Criminal Appeal, as it then was, whereas the Court of Appeal in a civil action upon similar facts had come to completely the opposite conclusion.

4. The most recent case in this field appears to be that of London Borough of Ealing v. Race Relations Board⁽²⁾. This was not a "friendly" action. The borough had a waiting list for housing accommodation. It also had rules as to how the name of any particular applicant came to be placed on that list. One of the rules provided that the applicant must be of British nationality. A particular applicant was rejected under this rule. Complaint was made on his behalf to the Race Relations Board. The Board formed the opinion that there had been unlawful discrimination against that applicant. They therefore sought to secure from the borough a settlement of that particular case and an assurance that there would be no repetition in similar circumstances in the future. The borough refused to comply and sought instead a declaration from the High Court confirming the propriety of its action. Eventually the matter came also before the House of Lords. It was submitted by the Race Relations Board, amongst other matters, that the court should exercise its discretion to refuse the declaration. The actual arguments put forward are not reported but forward are not reported but in rejecting the submission the House appears to have been influenced by the fact that a public authority accused of acting unlawfully in the administration of its public duties would have to wait until the Board started proceedings before it would have the opportunity to clear its name of the imputation cast upon its conduct. Also that during the interim period the authority would not know how to deal with other similar applicants. Neither of those considerations apply in the present instance. To my mind if any public opprobrium should follow from the re-employment by TVB of the particular gentleman they have in mind it will not be because TVB may be in breach of section 33. It will be from the simple fact of the re-employment itself. Nor is there any immediate question of policy on the employment of other convicted persons.

5. The present circumstances are akin to those in Draper v. British Optical Association⁽³⁾. There the association intended to hold a meeting to consider whether Mr. Draper should be removed from the list of members for an alleged violation of their code of ethics. But before the meeting could be held Mr. Draper sought a declaration that they were not entitled so to do. It was rejected as premature. The court refused to consider the question unless and until the association should in fact remove his name. In the present instance if the gentleman in question should accept the re-employment TVB have in mind to offer the Attorney General may step in. If he does, then the court will have to decide the question raised today by TVB. But unless and until there is something more concrete on which to base my decision I think I should follow the established practice of refusing to determine the question in the abstract.

6. I have not overlooked the argument that I should act immediately because it is a question of status. I agree with the basic premise of that argument. This is a question of status in its wider sense. But that decision does not detract from the general principle. I am aware of no case, statutory authority apart, where a declaration as to status has been given without its being grounded upon some concrete dispute. A possible exception is the Attorney General v. Prince Ernest Augustus of Hanover⁽⁴⁾ but that was a very particular case and the question of jurisdiction was not raised.

7. For these reasons I am not prepared to give a decision upon the meaning of the word "member" in section 33. I do so with some reluctance but the principle is too important to warrant exceptions other than in the most unusual circumstances. This summons must be dismissed.

Representation:

Charles Ching, Q.C., and A.H. Sakhrani (Deacons) for the plaintiff.

Mr. Fuller, Crown Counsel, for the defendant.

(1) [1937] A.C. 797

(2) [1972] 1 All E.R. 105

(3) [1938] 1 All E.R. 115

(4) [1957] A.C. 436