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Rediffusion (Hong Kong) Ltd v Attorney General of Hong Kong

Weekly Law Reports The Law Reports Cited authorities 61 Cited in 103 Precedent Map Related
Vincent
JurisdictionUK Non-devolved
Judgment Date1970
Date1970
Year1970
CourtPrivy Council
[PRIVY COUNCIL] REDIFFUSION (HONG KONG) LTD. APPELLANTS AND ATTORNEY-GENERAL OF HONG KONG AND ANOTHER RESPONDENTS AND ATTORNEY-GENERAL OF HONG KONG AND ANOTHER APPELLANTS AND REDIFFUSION (HONG KONG) LTD. RESPONDENTS [CONSOLIDATED APPEALS] ON APPEAL FROM THE FULL COURT OF THE SUPREME COURT OF HONG KONG 1970 Jan. 27, 28, 29; Feb. 2, 3, 4, 5, 9; April 15 Lord Morris of Borth-y-Gest, Lord Donovan, Lord Pearson and Lord Diplock

Hong King - Supreme Court - Jurisdiction - Legislature proposing to debate bill - Bill repugnant to Act of United Kingdom Parliament - Plaintiffs adversely affected if bill enacted as Ordinance - Action for declaration and injunction restraining legislatures deliberative process - Whether jurisdiction in court to inquire into legislature's deliberative process - Whether writ disclosed cause of action - Colonial Laws Validity Act, 1865 (28 & 29 Vict. c. 63), s. 2 - Copyright Act, 1956 (4 & 5 Eliz. 2, c. 74), s. 31 (3).

The plaintiffs held an exclusive licence granted by the Government of Hong Kong to carry on the business of rediffusion of television programmes in the colony, subject to the condition that they should not infringe any copyright in the works which they transmitted. Although the Copyright Act, 1911, had been substantially repealed in its application to the United Kingdom and had been replaced by the Copyright Act, 1956, the Act of 1911 remained in force in Hong Kong under transitional provisions. Section 31 of the Act of 1956 enabled an Order in Council to be made extending any of the provisions of the Act to Hong Kong and granted the legislature limited powers to modify or add to those provisions in their operation as part of the law of Hong Kong.

No such direction to extend the Act of 1956 had been given. In 1967 the Colonial Secretariat informed the plaintiffs that it was proposed to extend certain provisions of the Act of 1956 to Hong Kong and to enact an Ordinance which made certain modifications, in particular a modification that the relaying by rediffusion of television broadcasts was a breach of the separate copyright in a television broadcast. The plaintiffs took the view that as a matter of law the proposed modifications were of such a nature as brought them within the express prohibitive words of section 31 (3), and that they would seriously imperil the plaintiffs' commercial future and affect adversely their legal rights.

They issued a writ against both the Attorney-General, as a representative defendant on behalf of the Legislative Council, and the deputy colonial secretary for a declaration that it would be unlawful for the Legislative Council to pass the proposed bill and for an injunction to restrain the council from presenting the bill to the Governor for his assent. The defendants issued a summons (the jurisdiction summons) to set aside the writ upon the ground that the court had no jurisdiction to grant the reliefs sought; and a summons (the cause of action summons) to strike out the writ upon the ground that it disclosed no reasonable cause of action. The Attorney-General conceded that, for the purposes of the cause of action summons only, the proposed bill would be repugnant to the statutes of the United Kingdom and the proposed Order in Council.

The Supreme Court of Hong Kong dismissed the jurisdiction summons on the ground that the court had jurisdiction to interfere either by persuasion (declaration) or compulsion (injunction) with the conduct of the members of the Legislative Council in carrying out the deliberative part of the legislative process, if that conduct was unlawful; but in the cause of action summons they struck out the writ on the ground that the plaintiffs had failed to disclose any reasonable cause of action.

On the defendants' appeal against the order dismissing the jurisdiction summons and on the plaintiffs' appeal against the order striking out the writ:—

Held, dismissing the appeals, (1) that the limited immunity enjoyed by members of a colonial legislative assembly from control by the courts was founded on necessity, and the extent of that immunity was limited by a conflict of public policy between the desirability of freedom of deliberation in the legislative assembly and the observance by its members of the rule of law of which the courts were the guardians and, unless the court had jurisdiction to inquire into the validity of the proceedings and before the result was achieved which was intended to be prevented by the law from which such a legislative assembly derived its power, the subject whom the law intended to protect would be deprived of any remedy. Accordingly, the Supreme Court of Hong Kong had rightly held that it had jurisdiction to enter upon the inquiry whether or not it was lawful for the Legislative Council to pass the proposed bill (post, pp. 1277E–1278A).

Barton v. Taylor (1886) 11 App.Cas. 197, P.C. and Trethowan v. Peden (1930) 31 S.R.(N.S.W.) 183 considered.

(2) That although the plaintiffs sought a declaration on hypothetical and future questions, the court's jurisdiction to enter upon the inquiry, whether or not it would be lawful for the Legislative Council to pass the proposed bill, was not excluded on the ground that the questions were purely abstract because the plaintiffs' legal rights were seriously affected by the proposed bill (post, p. 1278A–C).

But (3) (Lord Morris of Borth-y-Gest dissenting) that the proposed bill in itself could not affect the legal rights of any individual, including the plaintiffs, and, even if it was passed by the Legislative Council and received the Governor's assent, the resulting Ordinance would to the extent that it was repugnant to any Act of Parliament be null and void under section 2 of the Colonial Laws Validity Act, 1865, but the fact that the resulting Ordinance would be null and void did not make unlawful the act of the Legislative Council in debating, passing and presenting a bill for assent containing any matter repugnant to an Act of Parliament. Accordingly, the plaintiffs had no cause of action against the defendants (post, p. 1282F–H).

Judgment of the Full Court of the Supreme Court of Hong Kong affirmed.

The following cases are referred to in the judgment of their Lordships:

Attorney-General v. Manchester Corporation [1893] 2 Ch. 87.

Attorney-General for New South Wales v. Trethowan (1931) 44 C.L.R. 394; [1932] A.C. 526, P.C.

Barton v. Taylor (1886) 11 App.Cas. 197, P.C.

Clayton v. Heffron (1960) 105 C.L.R. 214.

Doyle v. Falconer (1866) L.R. 1 P.C. 328, P.C.

Dyson v. Attorney-General [1911] 1 K.B. 410, C.A.

Guaranty Trust Co. of New York v. Hannay & Co. [1915] 2 K.B. 536, C.A.

Hughes & Vale Pty. Ltd. v. Gair (1954) 90 C.L.R. 203.

Kielley v. Carson (1842) 4 Moo.P.C.C. 63, P.C.

McDonald v. Cain [1953] V.L.R. 411.

Rondel v. Worsley [1969] 1 A.C. 191; [1967] 3 W.L.R. 1666; [1967] 3 All E.R. 993, H.L.(E.).

Roy v. Prior [1970] 1 Q.B. 283; [1969] 3 W.L.R. 635; [1969] 3 All E.R. 1153, C.A.

Schmidt v. Secretary of State for Home Affairs [1969] 2 Ch. 149; [1969] 2 W.L.R. 337; [1969] 1 All E.R. 904, Ungoed-Thomas J. and C.A.

Trethowan v. Peden (1930) 31 S.R.(N.S.W.) 183.

Wiseman v. Borneman [1969] 3 W.L.R. 706; [1969] 3 All E.R. 275, H.L.(E.).

The following additional cases were cited in argument:

Amalgamated Society of Carpenters, Cabinet Makers & Joiners v. Braithwaite [1922] 2 A.C. 440, H.L.(E.).

Attorney-General for Alberta v. Attorney-General for Canada [1939] A.C. 117, P.C.

Barnard v. National Dock Labour Board [1952] 2 All E.R. 424; [1953] 2 Q.B. 18; [1953] 2 W.L.R. 995; [1953] 1 All E.R. 1113, C.A.

Barnato, decd., In re [1949] Ch. 258; [1949] 1 All E.R. 515, C.A.

Beaumont v. Barrett (1836) 1 Moo.P.C.C. 59, P.C.

Bilston Corporation v. Wolverhampton Corporation [1942] Ch. 391; [1942] 2 All E.R. 447.

Boulting v. Association of Cinematograph, Television and Allied Technicians [1963] 2 Q.B. 606; [1963] 2 W.L.R. 529; [1963] 1 All E.R. 716, C.A.

Bradlaugh v. Gossett (1884) 12 Q.B.D. 271.

Bribery Commissioner v. Ranasinghe [1965] A.C. 172; [1964] 2 W.L.R. 1301; [1964] 2 All E.R. 785, P.C.

Canadian Pacific Railway Co. v. Attorney-General of Saskatchewan [1951] 3 D.L.R. 362.

Chenard & Co. v. Arissoll [1949] A.C. 127, P.C.

Clay, In re [1919] 1 Ch. 66, C.A.

Cox v. Green [1966] Ch. 216; [1966] 2 W.L.R. 369; [1966] 1 All E.R. 268.

Eastham v. Newcastle United Football Club Ltd. [1964] Ch. 413; [1963] 3 W.L.R. 574; [1963] 3 All E.R. 139.

Edinburgh Railway Co. v. Wauchope (1842) 8 Cl & F. 710, H.L.(Sc.).

Electrical Development Co. of Ontario v. Attorney-General for Ontario [1919] A.C. 687, P.C.

Fenton v. Hampton (1858) 11 Moo.P.C.C. 347, P.C.

Fielding v. Thomas [1896] A.C. 600, P.C.

Freightlines & Construction Holding Ltd. v. State of New South Wales [1968] A.C. 625; [1967] 3 W.L.R. 749; [1967] 2 All E.R. 433, P.C.

Graigola Merthyr Co. Ltd. v. Swansea Corporation [1928] Ch. 235, C.A.

Hammersmith Borough Council v. Boundary Commissioners, The Times, Dec. 15, 1954.

Harper v. Home Secretary [1955] Ch. 238; [1955] 2 W.L.R. 316; [1955] 1 All E.R. 331, C.A.

Harris v. Minister of the Interior, 1952 (2) S.A. 428.

Hoani Te Heuheu Tukino v. Aotea District Maori Land Board [1941] A.C. 308; [1941] 2 All E.R. 93, P.C.

Howard v. Pickford Tool Co. Ltd. [1951] 1 K.B. 417, C.A.

Inglis v. De Barnard (1841) 3 Moo.P.C.C. 425, P.C.

Initiative & Referendum Act, In re [1919] A.C. 935, P.C.

Institute of Patent Agents v. Lockwood [1894] A.C. 347, H.L.(Sc.).

Labrador Co. v. The Queen [1893] A.C. 104, P.C.

Lee v. Bude & Torrington Junction Railway Co. (1871) L.R. 6 C.P. 576.

Luna Park Ltd. v. Commonwealth of Australia (1923) 32 C.L.R. 596.

McLuskey v. Cole [1922] 1 Ch. 7, C.A.

Merricks v. Heathcoat-Amory [1955] Ch. 567; [1955] 3 W.L.R. 56; [1955] 2 All E.R. 453.

Minister of Health v. The King [1931] A.C. 494, H.L.(E.).

Montreal City v. Montreal Harbour Commissioners [1926] A.C. 299, P.C.

Nagle v. Feilden [1966] 2 Q.B. 633; [1966] 2 W.L.R. 1027; [1966] 1 All E.R. 689, C.A.

Osborne v....

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4 books & journal articles
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