Asia Television Ltd v. Communications Authority (Successor of the Broadcasting Authority)

FAMV No. 23 of 2013

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 23 OF 2013 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CACV NO. 258 OF 2012)

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BETWEEN

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D E T E R M I N A T I O N

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Chief Justice Ma (giving the Determination of the Committee):

1.The Applicant (Asia Television Limited, hereafter referred to as “ATV”) sought leave to appeal to the Court of Final Appeal under s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance[1] both on the basis of there being questions of great, general or public importance and on the “or otherwise” ground.  After hearing submissions from counsel for ATV, we dismissed the application with costs, with our reasons to be handed down.

2.The factual background to ATV’s application for judicial review is amply set out in the judgments below.[2]  I need only set out the essential facts:

(1)  The present case involved an investigation made by the Respondent (The Communications Authority) into the activities of ATV pursuant to its powers under the Broadcasting Ordinance (“the BO”).[3] ATV is the holder of a domestic free television programme service licence granted under the BO.

(2)  Following the receipt of a letter from an anonymous complainant in June 2011, the Respondent began investigating ATV, specifically as to whether one of its major investors, one Mr Wong Ching, had been exercising de facto control and management of ATV[4], even though some other person held the majority shareholding in the company[5] and notwithstanding there was at all material times another person being the executive director of ATV.  The allegation was that Mr Wong Ching continued to be in charge of ATV and that the majority shareholder of the company was merely his nominee.

(3)  It was this investigation by the Respondent that provided the background to the present judicial review proceedings.  In the course of its investigations, the Respondent looked at relevant documents and interviewed a number of people.  Among those interviewed were a number of persons who were holding or had held various positions at ATV.  These persons assumed a central role in the present proceedings and have been referred to in the courts below and in documents as “the Interviewees” – we shall continue to use this term.

(4)  In March 2012, the Respondent sent a draft report to ATV’s solicitors, Baker & McKenzie (“B&M”), setting out certain provisional findings and proposed sanctions, inviting representations to be made.  Mention was made in this draft report of the fact that statements and submissions had been made by the Interviewees.  The provisional conclusion reached was that Mr Wong Ching had been in de facto control at ATV.

(5)  ATV’s response (in a letter dated 27 March 2012 from B&M) objected to the fact that material information had not been provided to it, namely, the statements and submissions provided by the Interviewees.  ATV asked for sight of these materials.

(6)  The Respondent’s response to this (by a letter dated 3 April 2012) was that the Interviewees had provided information on a confidential basis and had requested that their identities not be revealed.[6] The Respondent was prepared only to provide a redacted summary of the evidence provided by the Interviewees and this summary (a nine-page document) was provided to ATV’s solicitors.  The redacted summary did not reveal the identity of the Interviewees, but much detail was provided.

(7)  On 11 April 2012, B&M repeated its objection based on the non-disclosure of the full extent of the materials from the Interviewees.  The Respondent replied by a letter dated 16 April 2012 stating that it had struck an appropriate balance between the need for confidentiality and ATV’s entitlement to be informed of the main points of the Interviewees’ evidence.  It is this refusal to disclose all materials (rather than just the detailed summary that the Respondent was prepared to provide) that formed the subject matter of the 1^st decision which was impugned in the judicial review proceedings.

(8)  On 3 May 2012, B&M made a detailed response to the redacted summary provided by the Respondent, although their objections based on non-disclosure remained.

(9)  Following this response, on 21 June 2012, the Respondent wrote to B&M enclosing a revised draft report inviting further submissions to be made by 28 June 2012, failing which the Respondent would publish its findings.  This was the 2^nd decision challenged in the judicial review proceedings.

3.On 26 June 2012, before the deadline that had been imposed by the Respondent, ATV issued its application for leave to apply for judicial review challenging the said two decisions.  The focus of the hearing before Au J and the Court of Appeal was procedural fairness.  As Kwan JA observed in her judgment,[7] this aspect was related to the 1^st decision; she was of the view that the 2^nd decision, essentially a complaint that insufficient time was given to make an effective submission, could not succeed on its own.  The 2^nd decision was not a relevant matter before us.

4.Au J quashed both decisions, being of the view that there had been a breach by the Respondent of its duty to ensure procedural fairness in its investigation.  The Court of Appeal unanimously allowed the appeal, coming to the opposite conclusion on procedural fairness.

5.In seeking leave to appeal, ATV identified[8] four questions said to be of great, general or public importance:-

“(i)  whether in relation to a process whereby an administrative body is both the prosecutor and the judge, with the power to impose serious sanctions such as a heavy fine, the rule of fairness would require that all materials adverse to the affected person and in particular all evidence on which the decision maker intends to reply must be disclosed in the absence of cogent public interest for withholding such materials (the “1^st Question”);

(ii)  whether confidentiality per se is sufficient to amount to a public interest reason for non-disclosure (the “2^nd Question”);

(iii)  whether on the true construction of section 27 BO, confidentiality per se is sufficient to justify non-disclosure or the withholding of materials which are adverse to the affected person without the Authority having undergone the procedure envisaged in section 27(3) of the BO (the “3^rd Question”); and

(iv)   whether, in the context of deciding the extent of disclosure required to ensure procedural fairness, considerations as to confidentiality of the identity of a witness is distinguishable from considerations as to confidentiality of the source of a complaint or an informant who is not a witness (the “4^th Question”).”

6.The 1^st Question was the principal focus of the parties’ submissions before us.[9] It is apparent from the way the question was framed, and this was confirmed by the detailed submissions contained in the respective written submissions and in the course of oral argument, that no real question of law arose for determination by this Court.  Both parties accepted that procedural fairness in any given situation depended on the circumstances and that the ultimate question was whether – in the circumstances – the relevant investigation or proceedings had been fair.[10]  This is in most, if not all, cases a question of fact.

7.Mr Yu SC rightly emphasized the importance of materials which are adverse to a party being made available to that party. This was the thrust of the 1^st Question but within that question is an acceptance that disclosure may sometimes be qualified by other factors which militate either towards non-disclosure or partial disclosure.  The question refers to “cogent public interest”[11] in withholding materials but this means the same thing.

8.There was no real dispute between the parties as to this.  We detected little or no difference in substance in the legal approach adopted by the parties nor are we of the view that the Court of Appeal held otherwise.  Mr Yu SC criticised that part of Kwan JA’s judgment[12] which, in his submission, failed to make a distinction between the necessity of providing particulars of an allegation and the necessity to disclose adverse materials. In our view, this criticism is on analysis not justified: first, Kwan JA fully had in mind the overall necessity of ensuring that there was procedural fairness which, in context, could only mean that ATV had to know the substance of what was alleged against it (not only the particulars of the allegations made against it but also the materials in support of such allegations which in the present case meant the details of what the Interviewees said) so that focused and meaningful representations could be made on behalf of ATV[13]; secondly, Kwan JA accepted the formulation of the applicable legal principles by the Judge.[14]  While para 61 of the judgment of the Court of Appeal, if looked at in isolation, is perhaps a little obscure, overall the view taken of the applicable law is clear.

9.The complaint raised by ATV was ultimately one of fact rather than legal principle: the essential complaint was that while Au J held on the facts there was procedural unfairness, the Court of Appeal came to the opposite view.  No question of great, general or public importance therefore arose.  Au J was of the view that the redacted summary of what the Interviewees said did not adequately meet the requirement of procedural fairness.  Mr Yu SC referred us to that part of the speech of Lord Bingham of Cornhill in Tweed v Parades Commission for Northern Ireland[15] where it was said that where a document is relied on by a decision maker, it is ordinarily good practice to exhibit the document rather than give a summary of it as any “summary, however conscientiously and skilfully made, may distort”.

10.Given the acceptance by Kwan JA of the legal principles set out in the judgment of Au J, the Court of Appeal must be taken to have implicitly accepted this general principle but reliance was placed on the confidentiality factor[16] to justify the disclosure only of the redacted summary.

11.It is clear as a matter of law that confidentiality (the need to protect the identity of persons who have provided evidence) may be a factor which would qualify what otherwise might be an obligation of full disclosure of materials.  This is apparent from the complete passage in the speech of Lord Bingham of Cornhill in Tweed referred to earlier.  That passage reads:-

“Where a public authority relies on a document as significant to its decision, it is ordinarily good practice to exhibit it as the primary evidence. Any summary, however conscientiously and skilfully made, may distort. But where the authority’s deponent chooses to summarise the effect of a document it should not be necessary for the applicant, seeking sight of the document, to suggest some inaccuracy or incompleteness in the summary, usually an impossible task without sight of the document. It is enough that the document itself is the best evidence of what it says. There may, however, be reasons (arising, for example, from confidentiality, or the volume of the material in question) why the document should or need not be exhibited. The judge to whom application for disclosure is made must then rule on whether, and to what extent, disclosure should be made.”

This is also in line with many other authorities.[17]

12.It is not only case law that emphasis the relevance of confidentiality, but also statute.  Here, ss 26 and 27 of the BO are relevant.

13.The 2^nd and 3^rd Questions deal with the aspect of confidentiality and s 27 of the BO.[18] In our view, neither constitutes a question which ought to be submitted to the Court of Final Appeal for determination:-

(1)  As to the 2^nd Question, it was never the Respondent’s position that confidentiality per se was a reason for non-disclosure.  At one point ATV appeared to argue that the Respondent had merely given blanket assurances to the Interviewees that their testimonies would remain confidential come what may and that this was some kind of policy adopted by the Respondent.  This was not the position of the Respondent at all nor was this the basis for the decision of the Court of Appeal.  The Respondent’s position, as reflected in the affidavit evidence, was that a balancing exercise was eventually carried out by the Respondent, balancing on the one hand the need for confidentiality and on the other, the provision of relevant information to ATV.

(2)  It became apparent that ATV’s main point here was really the 3^rd Question.  It was argued that s 27 required the Respondent in considering the question of confidentiality to adopt a two stage approach: first, asking the question whether the disclosure of relevant materials would facilitate an investigation or determination; the second stage was where the Respondent would give the person supplying the information an opportunity to make representations on disclosure.  It was said that only after the second stage would the Respondent then be in a position to make a decision as to whether the relevant information should be disclosed.  ATV submitted that this two stage process was not undertaken by the Respondent.

(3)  In our view, the 3^rd Question was not reasonably arguable.  Section 27 does not mandate some rigid, inflexible procedure.  It simply means what it says: information which is provided in confidence to the Respondent will be treated as confidential (s 27(1)) but this would not prevent the disclosure of such information if it facilitated an investigation or determination by the Respondent of a complaint that a licensee was engaging in conduct that contravened relevant statutory provisions (s 27(2)(c)); and if the Respondent was contemplating disclosing such evidence (“a proposed disclosure”), it had to give the provider of information a reasonable opportunity to make representations (s 27(3)).  Where, as in the present case, the Respondent had conducted a balancing exercise in which confidentiality was a relevant consideration and then having reached the decision that only limited disclosure (in the form of the redacted summary) should be given, the s 27(3) step was unnecessary.  This step would also have been unnecessary in view of the fact that the Interviewees had made it clear from the start that they did not want their identities to be revealed for fear of reprisals.

14.The 4^th Question makes a distinction that is not borne out by any authority.  The Court of Appeal was of the view that there was no hard and fast rule,[19] and that each case had to be considered on its own facts and circumstances to see what fairness required.  We agree.  Further, nothing in ss 26 and 27 of the BO makes such a distinction either.

15.The “or otherwise” ground added nothing to the 4 Questions.  The present case is plainly not a suitable case to grant leave on this ground.

16.For these reasons, the application for leave was dismissed with costs.

Mr Benjamin Yu SC & Miss Sara Tong, instructed by Baker & McKenzie, for the Applicant

Mr Johannes Chan SC & Mr John Hui, instructed by Eversheds, for the Respondent