Pccw Media Ltd v. The Broadcasting Authority and Another

HCAL 97/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 97 OF 2005

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BETWEEN

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Before : Hon Reyes J in Chambers

Date of Hearing : 1 December 2005

Date of Decision : 1 December 2005

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D E C I S I O N

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I. Introduction

1.On 9 August 2005 PCCW obtained leave to apply for judicial review against the Authority's refusal to disclose certain material.  The material relates to Galaxy's application to transmit pay TV programmes domestically through the broadband network of Hutchison Global Communications (HGC).  Galaxy provided the material to the Authority in confidence.

2.The substantive review has been set down for argument in January 2006.

3.On 17 November 2005 the Authority applied to set aside the grant of leave.  The Authority's application is premised on the availability of an alternative remedy.  That remedy is an appeal to the Chief Executive under Broadcasting Ordinance (Cap. 562) (BO) s. 34(1). 

4.The Authority points out that, as required by s. 34(1), PCCW in fact appealed to the Chief Executive within 30 days of the Authority's decision not to disclose the Galaxy material.  The appeal has not progressed far.  It is now in a state of limbo, with PCCW and the Authority disagreeing whether it should be put on "hold" pending the outcome of judicial review. 

5.The Authority says that, the appeal to the Chief Executive having been commenced, these judicial review proceedings are an abuse of court.  PCCW (the Authority contends) should wait.  It may obtain the disclosure which it seeks from the Chief Executive and (if so) there would be no point to a review.  Alternatively, if PCCW fails before the Chief Executive, it would not be precluded from then applying for judicial review.

II. Background

6.BO s. 27 provides:-

“	(1)	Subject to subsection (2):-
		(a)	any information which is furnished ... by a person in confidence to the Broadcasting Authority ... shall be treated as confidential; and
		(b)	unless the person otherwise permits in writing and except in accordance with such permission, no such information ... shall be divulged or shown to any person other than in confidence to members of the Broadcasting Authority...
	(2)	Sub-section (1) shall not be construed as prohibiting the disclosure of information:-
		...
		(d)	subject to subsection (3), which the Broadcasting Authority considers it is in the public interest to disclose.
	(3)	The Broadcasting Authority shall give the person supplying the information in confidence a reasonable opportunity to make representations on a proposed disclosure of the information under subsection (2)(c) or (d) and shall consider all representations made before the Broadcasting Authority makes a final decision to disclose the information.”

7.On 29 April 2005 the Authority wrote to PCCW, justifying the refusal to disclose the Galaxy material as follows:-

“	[I]nformation furnished to the BA by Galaxy Satellite Broadcasting Limited (Galaxy) and labeled confidential should be treated as such and should not be divulged except in accordance with section 27 [of the BO].
	....
	In the present case, the BA considers that the question of 'public interest' to disclose confidential information furnished by licensees [such as Galaxy] only comes into play where there is a new application for licence or where there is an application for a variation of an existing licence, as prescribed in the BO.
	Having considered the status of Galaxy's application [to transmit pay TV programmes through HGC's broadband network] in the context of the entirety of Galaxy's licence, the BA considers that the present application only concerns change of transmission means.  The BA is of the view that it is a licence administration matter and the BA's determination will only affect the licensee and not the public.  As such the BA takes the view that it is not necessary to consult other licensees or competitors.
	....
	The BA therefore considers that the confidential information submitted by Galaxy should be treated as such under section 27 of the BO.”

8.PCCW contends that the Authority has too restrictively construed the disclosure exception in BO s. 27(2)(d).  As a matter of construction, the sub-section does not only apply to new licence applications or variations of existing licences.  The provision applies instead to all information supplied to the Authority in confidence.  The Authority (PCCW argues) refused disclosure under a misapprehension of law.

9.PCCW submits that in any event Galaxy's application was tantamount to one for a new licence or a variation of an existing licence.  In those circumstances, the public (PCCW says) was entitled to know the substance of Galaxy's application in order to make submissions for or against its approval. 

10.Further, PCCW points out that it is itself a licensed provider of domestic pay TV programmes.  As such (PCCW suggests) it was entitled to have sufficient details of Galaxy's proposals to enable it to make representations on their fairness or otherwise in competition terms.

III. Discussion

11.Mr. Coleman (for the Authority) submits that the appeal to the Chief Executive covers "essentially the resolution of the same issues, deriving from the same factual matrix, and focusing on the same statutory provision to be interpreted and applied" as the coming judicial review. 

12.Mr. Coleman argues that disposal of the judicial review would not deal with all issues in the appeal to the Chief Executive. 

13.Accordingly, Mr. Coleman reasons that the review would only increase time and costs without assisting in the effective, efficient and expeditious resolution of the parties' dispute.

14.I am not persuaded by Mr. Coleman.

15.First, administrative appeals to the Chief Executive are governed by Interpretation and General Clauses Ordinance (Cap. 1) (IGCO) s. 64.  That provides:-

“	(3)	The conferring by any Ordinance of a right of appeal ... to the Chief Executive in Council shall not prevent any person from applying to the High Court for an order of ... mandamus, certiorari ... or any other order, instead of appealing or making an objection to the Chief Executive in Council, where an application for such an order would lie, but no proceedings by way of mandamus, certiorari, ... or other order shall be taken against the Chief Executive in Council in respect of any such appeal or objection to the Chief Executive in Council or any proceedings connected therewith.
	(4)	The Chief Executive in Council, when considering any appeal or objection to him ... shall act in an administrative or executive capacity and not in a judicial or quasi-judicial capacity and shall be entitled to consider and take into account any evidence, material, information or advice in his absolute discretion.”

16.IGCO s. 64(3) gives PCCW the option of appealing to the Chief Executive or seeking judicial review.  The options are not mutually exclusive.  A person has the choice of both procedures. See Gurung Bhakta Bahadur v. Director of Immigration [2001] 3 HKLRD 225 (Hartmann J), at 233F-H.

17.Given the express permission in IGCO s. 64(3), where an applicant has show an arguable case, the Court must be slow to refuse judicial review on the mere ground that there is the possibility of an administrative appeal to the Chief Executive.  I note that I do not find the Privy Council decision ofHarley Development v. CIR [1996] 1 HKC 703 (cited by Mr. Coleman) of much help as that deals with appeals under the Inland Revenue Ordinance (Cap. 112).  IGCO s. 64(3) does not apply to those appeals.

18.Second, IGCO s.64(4) drastically restricts the Chief Executive's purview.  He is only entitled to consider an appeal in "an administrative capacity".

19.Wade and Forsyth, Administrative Law (9th ed.) (p. 41) defines an administrative function as follows:-

“An administrative decision is made according to administrative policy.  A judge attempts to find what is the correct solution according to legal rules and principles.  An administrator attempts to find what is the most expedient and desirable solution in the public interest....  The judge's approach is objective, guided by his idea of the law.  The administrator's approach is empirical, guided by expediency.’

20.Given his limited function, it is unclear to what extent (if at all) the Chief Executive can usefully determine the significant questions of law which arise in this case.  Examples of such questions of law are:-

(1)	Was the Authority right to construe BO s. 27(2)(d) narrowly as only relevant to a new licence application or an application to vary an existing licence?
(2)	Did Galaxy's application amount in law to an application for a new licence?

21.There is undoubtedly overlap between PCCW's appeal to the Chief Executive and the present judicial review proceedings.  But it seems to me that the legal issues before the Court here are such that the 2 procedures cannot be said to be identical.  As far as this case is concerned, the 2 modes of recourse are not substantially equivalent.

22.Third, it may be that judicial review proceedings will not be the final word on the disclosure issue.  Even if (say) PCCW was right on a wide construction of BO s. 27(2)(d), the appropriate response may simply be to remit the matter back to the Authority for reconsideration.  But this consequence by itself would not diminish the value of the judicial review.

23.If anything, it might be more advantageous for the judicial review to go first, so as to provide some guidance to the Authority and the Chief Executive on the legal principles governing the exercise of their discretion.  The other way around, in contrast, may be more of a waste of time and cost, especially if erroneous principles of law are applied.

IV. Conclusion

24.For the reasons given, the Authority's application is dismissed.

Mr Roger Beresford, instructed by Messrs Richards Butler, for the Applicant

Mr Russell Coleman, instructed by Messrs Wilkinson & Grist, for the 1^st Respondent

Mr Anthony Hill, of Messrs Minter Ellison, for the 2^nd Respondent