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CACV 144/2014
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IN THE MATTER OF Appeal

No 31 to the Telecommunications
(Competition Provisions) Appeal
Board Pursuant to Section 32N of
the Telecommunications Ordinance
(Cap 106)

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HONG KONG TELECOMMUNICATIONS (HKT) LTD

and

Respondent
and

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Applicant

BETWEEN

THE COMMUNICATIONS AUTHORITY

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and

IN THE MATTER OF the

Telecommunications
Ordinance
(Cap 106)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 144 OF 2014
(ON APPEAL FROM NO 31 IN THE TELECOMMUNICATIONS
(COMPETITION PROVISIONS) APPEAL BOARD)
_______________

APPLE ASIA LIMITED

Intervener

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CACV 147/2014
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IN THE MATTER OF Appeal

No 31 to the Telecommunications
(Competition Provisions) Appeal
Board Pursuant to Section 32N of
the Telecommunications Ordinance
(Cap 106)

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HONG KONG TELECOMMUNICATIONS (HKT) LTD

and

Respondent
and

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Applicant

BETWEEN

THE COMMUNICATIONS AUTHORITY

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and

IN THE MATTER OF the

Telecommunications
Ordinance
(Cap 106)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 147 OF 2014
(ON APPEAL FROM NO 31 IN THE TELECOMMUNICATIONS
(COMPETITION PROVISIONS) APPEAL BOARD)
_______________

APPLE ASIA LIMITED

Intervener

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A
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Before : Hon Lam VP, Hon Barma JA and Hon Poon J in Court
Date of Hearing : 28 July 2015

Date of Judgment : 7 August 2015

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JUDGMENT

Hon Poon J (giving the Judgment of the Court) :

A.

INTRODUCTION
There are two appeals before this Court, CACV 144/2014

and CACV 147/2014. They both arose out of the Decision and Ruling of
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the Telecommunications (Competition Provisions) Appeal Board (the

Appeal Board) in Appeal No 31 dated 16 April 2014 (the Decision).

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CACV 144/2014 is an appeal by way of case stated dated

14 July 2014 under section 32R of the Telecommunications Ordinance

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The first three questions were raised at the request of Hong Kong
Telecommunications (HKT) Ltd (HKT).2 By consent, this part of the
appeal concerning those three questions was dismissed on 3 July 2015.

(TO)1 for the opinion of the Court of Appeal on four questions of law.
M

N
O

The 4th question was raised by the Telecommunications Authority (the

Authority). It reads :
Whether the Appeal Board has the jurisdiction under the TO to
order the Authority to reach a decision as regards a complaint
of alleged anti-competitive conduct by a specified deadline.
(Question 1)

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1 Cap 106.
2 They concerned the definition of customer equipment in section 2 of
the TO as applied in the context of the facts before the Appeal Board : see
Part C3 below.

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CACV 147/2014 is by way of a notice of motion for

statement of case dated 17 July 2014 brought by the Authority under

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an order that the Appeal Board be required to state a case to the Court of

The background facts leading to the appeals can be

summarized as follows.
B.

FACTS

B1.

The launch of iPhone 5 in Hong Kong

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On or about 21 September 2011, Apple Asia Limited

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Kong.
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(Apple Asia),5 a subsidiary of Apple Inc, launched iPhone 5 in Hong

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Whether the Appeal Board is entitled under section 32O(4) of

the TO to allow an appeal in part notwithstanding that it held
wholly in favour of the Authority on the appeal subject matter
before it. (Question 2)4

Order 61, rule 2, of the Rules of the High Court. The Authority sought

Appeal on the following question :

iPhone 5 supports fourth generation (4G) wireless

broadband technology (in particular Long Term Evolution (LTE) services

utilizing the 1800 MHz frequency band) on top of second generation (2G)
and third generation (3G) wireless technologies.

Insofar as the

3 Cap 4A.
4 The Authority had requested to include this question in the case stated
in CACV 144/2014. However, the Appeal Board refused to do so. The
Authority therefore sought to put this question before the Court of Appeal
for substantive determination by way of CACV 117/2014.
5 Apple Asia is licensed to import and export radio communications
transmitting apparatus, including iPhone 5, in the course of trade pursuant
to sections 7 and 9 of the TO.

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deployment of 4G technology in Hong Kong is concerned, SmarTone

Mobile Communications Ltd (SmarTone) is a mobile network operator

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Hong Kong mobile network operators at the time initially preferred to

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Like other smart phones, iPhone 5 used SIM6 cards for its

subscriber specific information which has to be inserted into certain

mobile devices to allow them to operate on a mobile network. Its main
provided the SIM card for tariff and billing purposes. In practice, the
SIM lock function in handsets enables them to be locked into a
SIM card issued by any other mobile network operator.

There are

legitimate uses for such a function, such as for protection from theft and
However, in Hong Kong, SIM locking for preventing customers from
switching to other mobile network operators is regarded as antiis prohibited without the Authoritys prior written approval.
8

On the date when iPhone 5 was launched, representatives of

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HKT inserted one of their SIM cards into an iPhone 5 and discovered that
4G connectivity was not obtained. In fact, the only Hong Kong mobile

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purpose is to identify the subscriber to the mobile network operator which

competitive. According to guidance issued by the Authority, SIM locking

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operation. A SIM card is a uniquely numbered smart card containing

fraud and the enforcement of the rental or instalment service contracts.

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particular mobile network by preventing them from being used with a

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network operators in Hong Kong now operate 1800 MHz LTE networks.

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operating 1800 MHz LTE network, whereas HKT and the other three
develop LTE networks that use the 2.6 GHz spectrum. All four mobile

6 SIM stands for Subscriber Identity Module.

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network operator whose SIM card was then able to achieve 4G

connectivity on an iPhone 5 was SmarTone.
9

In late September and early October 2012, SmarTone

commenced an advertising campaign describing itself as the only mobile

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iPhone 5.

HKT, through its solicitors, engaged in an exchange of

correspondence with SmarTone requesting information as to how it was

SmarTone refused to engage in any discussion on the subject and refused
to provide any further information to HKT.
10

In the meantime, HKT complained to the Authority.

HKTs complaints
By letters dated 28 September and 19 October 2012, HKT

complained to the Office of the Communications Authority (OFCA)

that Apple Asia had SIM-locked iPhone 5 so that it could be used only

TO to prevent SIM-locked iPhone 5 handsets from being distributed in

immediate direction under section 36B of the TO.

October 2012, HKT was requesting an interim direction pending

12

Shortly thereafter, two more mobile carriers, CSL Limited

(CSL) and Hutchison Telephone Company Limited (Hutchison),

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However, by 19

completion of a full investigation into its complaint.

taken against Apple Asia and SmarTone pursuant to section 36B of the
the Hong Kong market. Initially, HKT called for the Authority to issue an

with SmarTones 4G network. It demanded that immediate action be

11

that only SmarTone SIM cards recognised Apples functionality of 4G.

B2.

network operator in Hong Kong able to provide 4G connectivity for

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announced that their 1800 MHz LTE networks would be supported by

iPhone 5. On 9 November 2012, HKT extended its complaint to also

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13

While OFCA was looking into HKTs complaint, HKTs

solicitors wrote to OFCA on 16 January 2013 setting a deadline for the

Authority to confirm its intention to take immediate action on HKTs
minute of meetings at which OFCA, the Telecommunications Affairs
Committee or the Authority had discussed HKTs complaint as well as
regarding HKTs complaint.

The letter also stated that if it did not

receive a satisfactory response by 5pm on 28 January 2013, HKT would

14

On 28 January 2013, OFCA replied by asking HKT to

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complaint that Apple Asia, SmarTone, CSL and Hutchison, individually

or collectively, were engaged in conduct that was seriously harming

details of its correspondence with Apple Asia and other licensees

competition. In particular, OFCA stated that:

request for an interim direction and for OFCA to provide copies of the

provide a more detailed and well-reasoned submission to support its

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locking.

accuse CSL and Hutchison of being involved in anti-competitive SIM-

take legal action against the Authority.

We [OFCA] have reviewed HKTs submission in support of its

Competition Complaint and consider that the information
provided by HKT is inadequate to enable us to assess whether
the complaint raises a genuine competition issue within the
scope of the competition provisions of the TO such that
OFCA may consider it justified to conduct an initial
enquiry let alone to enable [the Authority] to consider any
reasonable ground for suspecting a breach and any justification
of enforcement action such as by way of issuing an immediate
direction under section 36B.

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would HKT please confirm whether it has any concern over

the disclosure of its identity in the event that we consider that
the complaint raises a genuine competition issue within the
scope of the competition provisions of the TO

We look forward to receiving a full complaint submission from

HKT

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15

HKT did not comply with OFCAs request for further

information. Instead, it filed a notice of appeal to the Appeal Board on 14

February 2013, complaining that there was no or no sufficient basis
deal with [HKTs] request for an interim direction.

16

Jurisdictional issue

whether it had jurisdiction to hear HKTs appeal.

By a decision dated 4 June 2013, the then Chairman of the
7

Appeal Board ruled that it did not have such jurisdiction. On appeal by
HKT, the Court of Appeal ruled on 17 December 2013 that the Appeal
Board did have jurisdiction to hear HKTs appeal.8 The Court of Appeal

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hearing on HKTs complaint, as regards the adequacy or otherwise of the

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an interim direction.

then ordered the case to be remitted to the Appeal Board for a substantive
material presented to the Authority to enable it to decide whether to make

17

A preliminary issue arose before the Appeal Board as to

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B3.

upon which the Authority could find that it had insufficient information to

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7 Mr Neil Kaplan, SBS, SC, CBE.

8 CACV 190/2013, unreported, 17 December 2013, Cheung CJHC,
Kwan and Barma JJA.

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B4.

Substantive hearing
The Appeal Board, now under different chairmanship, 9 heard

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substantive arguments from HKT, the Authority, and Apple Asia (as
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On 16 April 2014, the Appeal Board handed down the

C.

THE DECISION

C1.

Restriction on connectivity to HKTs 4G network

20

As identified by the Appeal Board, HKTs essential

by iPhone 5.10 Apple Asias case was that 4G functionality had not been

it was pointed out by HKT :12

Although Apple says that LTE [i.e. 4G] functionality .. has
not been enabled for HKTs network, it is apparent the
customers of approved networks can nevertheless use HKTs
4G networks in Hong Kong (and that HKTs customers are
being denied access to Apple approved 4G networks
overseas).

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compatibility nor optimized for operation with iPhone 5 handsets. 11 But

complaint concerned the restriction on connectivity to HKTs 4G network

enabled for HKTs network because that network had not been tested for

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Decision.

19

intervener) on 10 March 2014.

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21

For the reasons that it gave,13 the Appeal Board found that

the denial of connectivity to HKTs 4G network by HKTs customers

9 Mr John Scott, SC. Members were Professor Suen Wing-chuen and
Professor Mark Williams.
10 [43] to [47] of the Decision.
11 [49] of the Decision.
12 [48] of the Decision.
13 At [51] to [53] of the Decision.

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using a HKT SIM in an iPhone 5, iPhone 5C or iPhone 5S was not

justified by any genuine concern on the part of Apple Asia or Apple Incs

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to test and enable that network.14

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C2.

SIM lock and the 1997 SIM Lock Statement

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The Appeal Board then considered if Apple Asia/Apple Incs

SIM lock was a breach of the Authoritys 1997 SIM Lock Statement 15 and

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to update the Statement in light of the rapidly evolving technology at the

earliest possible opportunity.17

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C3.

Section 7K(3)
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The Appeal Board next considered HKTs complaint that

Apple Inc and/or Apple Asia had engaged in anti-competitive practices

contrary to section 7K of the TO.
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Section 7K relevantly provides :

(1)

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regarding the performance of HKTs network, nor by any professed need

found that it was not.16 However, the Appeal Board urged the Authority
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(2)

A licensee shall not engage in conduct which, in the

opinion of the Authority, has the purpose or effect of
preventing or substantially restricting competition in a
telecommunications market.
The Authority in considering whether conduct has the
purpose or effect prescribed under subsection (1) is to
have regard to relevant matters including, but not
limited to

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14 [54] of the Decision.

15 [55] to [60] of the Decision.
16 [61] of the Decision.
17 [62] of the Decision.

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(a)
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(c)

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agreements between licensees to share any

telecommunications market between them on
agreed geographic or customer lines;

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(3)

(b)

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enters into an agreement, arrangement or

understanding that has the purpose or effect
prescribed by that subsection;
without the prior written authorization of the
authority, makes the provision of or connection
to a telecommunications network, system,
installation, customer equipment or service
conditional upon the person acquiring it also
acquiring or not acquiring a specified
telecommunications
network,
system,
installation, customer equipment or service,
either from the licensee or from another person;

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the appeal.

The Appeal Board identified section 7K(3)(b) as the focus of

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The Appeal Board said :

26

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The essence of [the prohibition in section 7K(3)(b)] strikes at

any attempt to tie the provision of a service or equipment with
the licensees (or other persons) equipment, without the prior
written authorization of OFCA.

Without limiting the general nature of subsection (1), a

licensee engages in conduct prescribed under that
subsection if he
(a)

HKT contended that the operation of the SIM lock on HKTs

4G network implemented by Apple Asia operated in breach of

section 7K(3)(b).20

18 [66] of the Decision.

19 [67] of the Decision.
20 Ibid.

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27

Mr Mok SC (together with Mr Abraham Chan) for the

Authority relied on the definition of customer equipment in section 2 of

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Customer equipment means equipment acquired by a customer

of a carrier licensee intended to be connected to the network of
that licensee

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28

He argued that Apple Asia had no network and therefore the

provision of Apple Asias customer equipment, whatever restriction that

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Apple Asia. Section 7K(3)(b) did not apply.21

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29

Mr Yu SC for HKT urged the Appeal Board to adopt a

boarder reading of customer equipment and suggested that the purpose

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(whether at the wholesale or retail level) including unauthorized

bundling. He further urged on the Appeal Board an interpretation of the
TO in its social setting, having regard to its long title, history of the

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telephone and earlier consultation paper discussions.22

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conditional upon the purchaser acquiring a network connection from

of section 7K(3)(b) was to broadly prohibit anti-competitive conduct

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equipment might impose, was not intended or capable or being

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the TO :

30

The Appeal Board rejected Mr Yus submissions :23

Whatever may have been the original statutory and underlying
regulatory intention behind the broad restriction on bundling
equipment and services and the original purpose behind the
SIM-lock statement, we are not able extend the definition of
customer equipment to cover a situation where Apple Asia is
not the provider of a network. To do so, we believe, would

21 See [68] to [73] of the Decision. A similar argument was also

advanced by Mr Coleman SC, for Apple Asia.
22 [74] of the Decision.
23 [75] of the Decision.

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offend against the plain and obvious words of the subsection

and the definition employed and would not, in our view, be a
proper application of the interpretative process.

The Appeal Board went on to say :

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76.

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We reach this conclusion with some reluctance, having

regard to the unsatisfactory nature of the evidence
adduced by Apple Asia in this Appeal and having regard
to the criticism which we have already levelled at OFTA
and OFCA for failing to properly update its policy
statements in the light of the development of new
technology. Nevertheless, and for the reasons set out
above, we are of the view that a breach of Section 7K(3)
cannot be established by HKT in the circumstances of
this case and in the light of the guidance provided by
the Court of Appeal as to what is open to us to order by
way belief sought by HKT at this juncture.

C4.
32

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on section 7K(1) :
77.

We noted above that the Notice of Appeal referred to

Section 7K(1) as well as Section 7K(3) as entitling
HKT to an interim direction under [Section 36B of the
TO] that Apple Asia remove its SIM-lock. We have
rejected any automatic application of Section 7K(3) on
the grounds that the method of restricting
interconnectivity employed in the case of the iPhone 5
handsets here does not fall within either the 1997 SIMlock statement or the definition of Customer
Equipment for the purposes of Section 7K(3).

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78.

The Appeal Board had this to say on HKTs complaint based

Section 7K(1)

Nevertheless we uphold the Appeal to this extent: The

material lodged by HKT in its correspondence
submitted to OFCA and its predecessor was, in our view
plainly sufficient to truly engage [Section 7K of the
TO] in the sense contemplated by paragraphs 28 to 31
of the Judgment of the Hon. Cheung CJHC in the Court
of Appeal. Indeed, in their submission before us (as
HKT rightly point out), [the Authority] scarcely appears

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to defend the approach adopted by OFCA in this

correspondence.

79.
D

In the view of the Appeal Board [the Authority] has

totally failed to consider paragraph 33 of its Guidelines
which provides as follows:33.

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Where the conduct being complained about

is still on-going and is alleged to be
continually causing serious damage to the
consumers or other industry players, the CA
may consider taking urgent action within
such time frames as the circumstances
warrant to deal with the complaint. As such,
the CA retains the discretion not to adhere to
the time frames set out in this guide and will
determine a time frame which it deems
appropriate in the circumstances. Where
circumstances require and if it considers it
justifiable to do so, the CA may also depart
from all or any part of the procedures set out
in this guide.

Far from taking the urgent action that the public interest
and the telecommunications industry was entitled to
expect under this guideline [the Authoritys] approach
was to rely on Appendix B of the Guidelines without
any appreciation of the need to take urgent action.

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80.
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81.

The information sought by [the Authority] we believe

goes far beyond that which may be necessary for [the
Authority] to take a decision whether or not to issue
interim direction of the type sought by HKT.
We take the point made in [HKTs submissions] that
remission by us to [the Authority] with a direction to
make such a substantive decision will likely result in
further delay. However, we, as an Appeal Board, are
not in a position to investigate all the regulatory,
technical commercial and economic issues that would
be required for us to form a prima facie view of the
merits of the overall complaint. That is the task of [the
Authority].

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82.

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Mr. Mok SC on behalf of [the Authority] informs us that

an enquiry is underway to deal with HKTs complaint,
although the Appeal Board has seen little evidence that
it is proceeding with diligence and dispatch.

83.

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84.

Despite our dismissal of HKTs Application for an

interim direction under Section 7K(3) we are,
nevertheless, concerned that competitive conditions in
the rapidly evolving and important telecommunications
market for 4G services in Hong Kong might have been
adversely affected by the circumstances disclosed in the
evidence and documents that have been made available
to the Board in the course of these proceedings. The
investigation and determination of whether a breach of
Section 7K(1) has in fact occurred is of course a matter
for the Authority. We noted this issue has been live for
more than 18 months and that the Authoritys own
Complaints
Guidelines
state
that
complaint
investigation should usually be concluded within four
months from its commencement (see paragraph 32
thereof).
In these circumstances, the Appeal Board felt it
necessary to impose on [the Authority] a sense of
urgency that it has not hitherto shown itself able to
adopt on its own behalf.

C5.

Orders

33

Accordingly, the Appeal Board made the following orders :

(1)

The Appeal is allowed to the extent that we hold that the

Appeal Subject Matter (as defined in the Notice of
Appeal) truly engages [Section 7K of the TO].

(2)

The Appeal Board refuses to issue or to direct [the

Authority] to issue any form of interim relief under
[Section 36B of the TO].

(3)

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[The Authority] is directed to preceed diligently and

expeditiously with its enquiries into HKTs complaints
described more fully in the Summary of Facts annexed
as Appendix 1 to its Notice of Appeal and as further
supplemented by the evidence, submissions and
correspondence lodged in the course of this Appeal.

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(4)

[The Authority] is directed to arrive at a decision,

including a decision regarding whether or not to make
any interim or final direction under [Section 36B of the
TO] by 1st July 2014.

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D.
35

QUESTION 1

The Appeal Boards imposition of the deadline on

case is premised on the proposition that it has the jurisdiction to impose

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part of its jurisdiction to make such consequential orders as may be

Whether that proposition is correct requires a closer

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Appeal Boards jurisdiction in hearing appeals relating to section 7K.

They are to be found in Part 5C of the TO :
Interpretation

appeal means an appeal under section 32N(1),

appeal subject matter
(a) in relation to an appeal under section 32N(1),
means the opinion, determination, direction,
decision, sanction or remedy referred to in
section 32N(1)
(i) to the extent to which it relates to section
7K,

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In this Part

(ii) which is the subject of the appeal;

examination of those provisions in the TO which are relevant to the

32L.
N

such investigations by the Authority under section 32O(4) of the TO as

necessary.24

investigations to be carried out by the Authority upon remittance of the

time limits on investigations, and on the making of decisions following

We now turn to Question 1.

24 See [13] of the case stated in CACV 144/2014.

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32N. Appeal to Appeal Board

(1)

Any person aggrieved by

(a) an opinion, determination, direction or decision of the

Authority relating to--

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(i) section 7K,

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(b) any sanction or remedy imposed or to be

imposed under this Ordinance by the Authority
in consequence of a breach of any such section
or any such licence condition,

may appeal to the Appeal Board against the opinion,

determination, direction, decision, sanction or
remedy, as the case may be, to the extent to which it
relates to any such section or any such licence
condition, as the case may be.

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32O. Procedure and powers of Appeal Board, etc.

(4) After hearing an appeal, the Appeal Board shall

determine the appeal by upholding, varying or
quashing the appeal subject matter and may make
such consequential orders as may be necessary.

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Thus in the context of section 7K, the statutory scheme

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(1)

A person may bring an appeal to the Appeal Board if he is

aggrieved by an opinion, determination, direction or decision
remedy imposed or to be imposed under the TO by the
Authority in consequence of a breach of section 7K

operates in this way.

of the Authority relating to section 7K; or any sanction or

R

36

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section 32N.
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(2)

Such opinion, determination, direction and decision of the

Authority or such sanction or remedy by the Authority then

(3)
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appeal section 32L.

After hearing the appeal, the Appeal Board shall determine

subject matter.

In long form, the Appeal Board shall

determine the appeal by upholding, varying or quashing the

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opinion, determination, direction and decision of the

Authority relating to section 7K or the sanction or remedy

of a breach of section 7K, as the case may be

section 32O(4). The consequential orders that the Appeal

varying or quashing the appeal subject matter, that is, the

opinion, determination, direction and decision of the
Authority relating to section 7K or the sanction or remedy

imposed or to be imposed by the Authority in consequence

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In other words, upon a proper construction of the relevant

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provisions, absent any order upholding, varying or quashing the appeal

subject matter, the Appeal Board cannot make any consequential orders
as such under section 32O(4).

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of a breach of section 7K, as the case may be.

Board may make are consequential upon its upholding,

imposed or to be imposed by the Authority in consequence

the appeal by upholding, varying or quashing the appeal

forms the appeal subject matter of that aggrieved persons

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Here, the Appeal Board, in [78] of the Decision, upheld

HKTs appeal to the limited extent that section 7K was truly engaged in

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the sense contemplated by Cheung CJHC in CACV 190/2013 :

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28.
As I said, the fact that OFCAs letters effectively asked
the appellant to try again and come back with further material

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and details, is really neither here nor there and does not affect
the above analysis.

29.
In my view, the decision not to issue an immediate
direction was a decision relating to, in the sense that it truly
engaged, section 7L.

Although it refused to issue or to direct the Authority to

issue any form of interim relief under section 36B of the TO, the Appeal
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First, the Appeal Board directed the Authority to carry out

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appears to us that as an order consequential upon allowing HKTs appeal

to the limited extent as explained, this direction falls within the Appeal

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the contrary.

Second, the Appeal Board directed the Authority to arrive at

a decision following upon its investigations by a specified deadline, that

is, 1 July 2014.

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Mr Mok submitted that the Appeal Board has no jurisdiction

to do so. He argued that nowhere does the TO the sole source of the

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of the Authority to impose time limits or other such directions in respect

of the Authoritys conduct of investigations. Nor can any such power be
implied as a matter of law because the established purpose of the Appeal

Boards jurisdiction under section 32O(4). Mr Mok has not submitted to

Appeals Boards jurisdiction provide for any express power on the part
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the investigations into HKTs complaints diligently and expeditiously. It

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Board directed the Authority to do two things.

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Board is only to uphold, vary or quash decisions of the Authority which

truly engage, among other sections concerning competition in the TO,
section 7K as required at law under the test explained by Ma CJHC (as

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the Chief Justice then was) in PCCW-HKT Telephone Ltd v

Telecommunications Authority.25

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In short, Mr Mok contended, as a

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with the substantive merits of the appeal subject matter under appeal

reliance on Floe Telecom Ltd v Office of Communications and other.26

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However, bearing in mind the fact that only the Authority appears before
us in these appeals, HKT having been excused from appearance and
brief, we do not have the benefit of full arguments on what we consider to
be quite an important point about the Appeal Boards jurisdiction on
determine Question 1 on the basis of the general proposition as advanced
by Mr Mok. We think it is better for us to approach Question 1 as it is
that Mr Mok is also content with such an approach.

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As a matter of law, we do not think the Authority is entitled

to impose the deadline. There is no such express enabling provision in

the TO. Further, as a matter of general principle, once the Appeal Board
directs the Authority to carry out further investigations, it is then a matter

Apple Asia only having instructed Mr Lam of counsel to hold a watching

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We can see considerable force in Mr Moks argument.

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now formulated and based on the specific facts before us. We understand
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which is a matter for the court in judicial review. He place particular

appeal from the Authority. So as tempting as it may be, we decline to

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general proposition, that the Appeal Tribunal only has jurisdiction to deal
but it has no supervisory jurisdiction over the conduct of the Authority,

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to be dealt with by the Authority in accordance with its own statutory

duties and functions.27 In doing so, the Authority will have regard to a

25 CACV 274/2003, unreported, 8 July 2004, at [37].

26 [2009] Bus LR 1116.
27 Cf Floe Telecom Ltd v Office of Communications and other, at [34].

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host of factors, including the urgency and complexity of the subject

matter, the technical commercial and economic issues involved, 28 the

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hand, and the competing demands on its limited resources at the time. All

considerations fall within the exclusive purview of the Authority. So

complete the further investigations as directed by the Appeal Board.

its own or a consequential order under section 32O(4).

What we have said above is sufficient to dispose of

Question 1. For completeness, we note that according to Mr Mok the

Appeal Board had not alluded to the possibility of imposing a deadline
before it did so in the Decision. So the Authority had not been given an

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opportunity to address the Appeal Board on this matter. If that were the
case, the Appeal Board would have acted in breach of natural justice.
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For the above reasons, we answer Question 1 in the negative.

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E.

QUESTION 2

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Question 2 can be disposed of shortly.

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impose a specific deadline on the Authority investigations as an order on

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is the only body who can set a reasonable and realistic deadline to
Thus analyzed, it is plain that the Appeal Board cannot, as it did here,

required to conduct and finish the investigations. Most, if not all, of these
subject to the courts supervision by way of judicial review, the Authority

relative priority of that subject matter as compared with other cases at

these considerations would inevitably have an impact on the time

28 As recognized by the Appeal Board : see [81] of the Decision.

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As the matter now stands, the Appeal Board has yet to state a

case for Question 2 to be placed before the Court of Appeal for

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determination.

necessary. However, at the hearing before us, Mr Mok submitted that as

CACV 147/2014.

He would be content if we were to state in our

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Other than what we have said, we deal no further with

COSTS

The parties agree that there shall be no order as to costs. We

therefore make no order as to costs for both CACV 144/2014 and CACV
147/2014.

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in relation to them.

Question 2 or the notice of motion in CACV 147/2014 and make no order

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constituted) had already determined that section 7K was engaged.

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further, he would not press on with the notice of motion in

judgment, as we now do, that this Court in CACV 190/2014 (differently

For that to be done, a direction from this Court is

it would not be in the interest to all the parties concerned to drag on any
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(Johnson Lam)
(Jeremy Poon)
Vice-President

(Aarif Barma)
Justice of Appeal

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Judge of the Court of

First Instance

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Clifford Chance, for the applicant, attendance be excused

Mr Johnny Mok SC and Mr Abraham Chan, instructed by Bird & Bird,

for the respondent

Mu Julian Lam, instructed by Morrison & Foerster, for the intervener

(watching brief)

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