PCCW HKT TELEPHONE LTD AND ANOTHER v. THE SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT AND OTHERS

PCCW HKT TELEPHONE LTD AND ANOTHER v. THE SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT AND OTHERS

The court held the Decision to set the licence fee reduction to HK$700 per 100-customer connections was within the statutory powers of the Respondents under the TO and within the policy and purpose of the TFO; TFO expressly contemplates distributable surpluses and transfer to general revenue under Financial Secretary direction, and the fee decision involved permissible economic/policy judgment not Wednesbury unreasonable; accordingly the judicial review failed.

Citation
PCCW HKT TELEPHONE LTD AND ANOTHER v. THE SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT AND OTHERS
Parties
1st Applicant: PCCW-HKT Telephone Limited; 2nd Applicant: Hong Kong Telecommunications (HKT) Limited; 1st Respondent: The Secretary for Commerce and Economic Development; 2nd Respondent: The Communications Authority; 1st Interested Party: Wharf T&T Limited; 2nd Interested Party: Hutchison Global Communications Limited; 3rd Interested Party: Hutchison Telephone Company Limited; 4th Interested Party: SmarTone Communications Limited; 5th Interested Party: SmarTone Mobile Communications Limited; 6th Interested Party: CSL Limited; 7th Interested Party: New World Telecommunications Limited; 8th Interested Party: Hong Kong Broadband Network Limited; 9th Interested Party: China Mobile Hong Kong Company Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
11 August 2015
Case Number
HCAL51/2013
Procedural Posture
Judicial Review Constitutional and Administrative Law / Judgment (court of First Instance)
Outcome
Application for judicial review dismissed
Legal Topics
Trading Funds, Licence Fees, Ultra Vires, Wednesbury Unreasonableness, Judicial Review, Delegated Legislation
Source Language
EN
Constitutional Law Administrative Law Telecommunications Law Public Finance Statutory Interpretation Trading Funds Licence Fees Ultra Vires +3 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 12 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

PCCW-HKT Telephone Limited

1st Applicant

Hong Kong Telecommunications (HKT) Limited

2nd Applicant

The Secretary for Commerce and Economic Development

1st Respondent

The Communications Authority

2nd Respondent

Wharf T&T Limited

1st Interested Party

Hutchison Global Communications Limited

2nd Interested Party

Hutchison Telephone Company Limited

3rd Interested Party

SmarTone Communications Limited

4th Interested Party

SmarTone Mobile Communications Limited

5th Interested Party

CSL Limited

6th Interested Party

New World Telecommunications Limited

7th Interested Party

Hong Kong Broadband Network Limited

8th Interested Party

China Mobile Hong Kong Company Limited

9th Interested Party

Procedural Posture

Judicial Review Constitutional and Administrative Law / Judgment (court of First Instance)

Legal Issues

  1. 1 Whether licence fees set and justified to generate surpluses destined for general revenue are constitutional
  2. 2 Whether the power to set licence fees under the Telecommunications Ordinance is limited by the purpose of that statute (Padfield point)
  3. 3 Whether management of the OFCA trading fund must adhere strictly to a cost recovery principle and cannot budget surpluses

Ratio Decidendi

The court held the Decision to set the licence fee reduction to HK$700 per 100-customer connections was within the statutory powers of the Respondents under the TO and within the policy and purpose of the TFO; TFO expressly contemplates distributable surpluses and transfer to general revenue under Financial Secretary direction, and the fee decision involved permissible economic/policy judgment not Wednesbury unreasonable; accordingly the judicial review failed.

Court Disposition

Application for judicial review dismissed

Orders

  • Application dismissed
  • Order nisi that costs of and occasioned by the application be to the Respondents, to be taxed if not agreed, with certificate for two counsel