Hong Kong Mobile Television Network Ltd and Another v. Office of the Communications Authority

HCAL 39/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 39 OF 2014
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________________________

JUDGMENT
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A. INTRODUCTION

1.In February 2010, the Office of the Telecommunications Authority[1] invited bidders in an auction of the radio spectrum for the provision of broadcast-type mobile television services.

2.In July 2010, China Mobile Hong Kong Corporation Limited (“China Mobile HK”) successfully bid for that spectrum and was later issued with a Unified Carrier Licence (“the UCL”) for providing mobile television services in Hong Kong.

3.In late 2009, the 2^nd applicant (“HKTV”) applied for a licence (“FTV licence”) under the Broadcasting Ordinance (Cap 562) (“BO”) to provide domestic free television services (“FTV”) in Hong Kong. In October 2013, the Chief Executive in Council (“CEIC”) rejected HKTV’s said application for FTV licence.

4.In December 2013, HKTV acquired China Mobile HK.  It later assigned its subsidiary Hong Kong Mobile Television Network Limited (“HKMTV”, the 1^st applicant) to become the licence holder of the UCL.

5.In January 2014, HKMTV announced that it intended to adopt the Digital Terrestrial Multimedia Broadcast (“DTMB”) transmission standard for its proposed mobile television service (“the Proposed Mobile Television Service”).

6.However, in March 2014, the Office of the Communications Authority (the respondent, “the OFCA”) by a letter informed HKMTV that unless it first obtained a domestic television service licence issued under the BO, it could not commence operations by adopting the DTMB transmission standard in the way as proposed.  It is OFCA’s view that by adopting this standard of transmission without imposing any restriction on access, the Proposed Mobile Television Service would be available for reception by an audience of more than 5,000 “specified premises”, which falls within the audience requirement as defined under section 2 of the BO.  As such, the provision of the service triggers the licensing requirements under the BO, and HKMTV should not commence the Proposed Mobile Television Service without first having obtained a relevant licence under the BO.

7.HKTV and HKMTV say this amounts to the OFCA’s decision (“the Decision”) that HKMTV would not be entitled to commence operations if it adopts the DTMB transmission standard unless it first obtains a FTV licence.

8.In this judicial review, the applicants challenge the Decision on the bases that:

(1) The OFCA has erred in law in concluding that HKMTV’s proposed adoption of the DTMB transmission standard would render the Proposed Mobile Television Service subject to the licensing requirement under section 2 of the BO.

(2) The OFCA has failed and/or refused to adhere to the Government policy in relation to the non-applicability of the licensing regime under the BO to mobile television services, or has misunderstood and/or misapplied that policy.

(3) The OFCA has frustrated the applicants’ substantive legitimate expectation that the OFCA would not seek to enforce the licensing provisions in the BO against HKMTV.

9.The applicants are represented in this application by Mr Coleman SC, together with Mr Jin Pao and Ms Bonnie Cheng.

10.The OFCA opposes the application and is represented by Ms Teresa Cheng SC, together with Mr Abraham Chan.

B.  BACKGROUND

B1.  Regulatory framework under the TO and the BO

11.Under section 8 of the Telecommunications Ordinance (Cap 106) (“TO”), anyone who wishes to establish or maintain any means of telecommunications can only do so after obtaining an appropriate licence.  The TO deals with the details concerning the applicant and grant of such a telecommunications licence.  The TO mainly regulates the “conveyance” (ie, the technical means of transmission) of a television service.

12.At the same time, under section 5(1) of the BO, “a person shall not provide a broadcasting service except under and in accordance with a licence”.  Section 5(2) provides effectively that anyone who provides a “broadcasting service” without a licence commits an offence.

13.“Broadcasting service” is defined under section 2 of the BO to mean, amongst others, a “domestic free television programme service” (“FTV service”) or a “domestic pay television programme service” (“PTV service”) and a “licence” means “a licence – (a) granted under section 8(1) to provide a [FTV] service or [PTV] service…”.

14.A FTV service is further defined in section 2(1) to mean:

“a television programme service which –

(a) is intended or available for reception by the public free of charge in Hong Kong;

(b) is intended or available for reception by an audience of more than 5,000 specified premises; and

(c) primarily targets Hong Kong”.

15.A PTV service is identically defined in section 2(1) of the BO save that sub-criterion (a) reads “is intended or available for reception by the public, on payment, whether periodically or otherwise, of a subscription in Hong Kong” (emphasis added).

16.Thus, a person who wants to provide domestic television services (free or pay) in Hong Kong would be required to apply for a relevant licence under the BO if the proposed television service is a television programme service which:

(1) is intended for reception by the public either free of charge or on payment;

(2) primarily targets Hong Kong; and

(3) is “intended or available for reception by an audience of more than 5,000 specified premises” (“the Audience Requirement”).

17.For the purpose of the Audience Requirement, “specified premises” is defined under section 2 of the BO to mean domestic premises and hotel rooms in Hong Kong.

B2.  The Communications Authority and the OFCA

18.Before the enactment of the Communications Authority Ordinance (Cap 616) (“CAO”) in April 2012, the Broadcasting Authority (“BA”) and the Telecommunications Authority (“TA”) were the respective authorities entrusted by statutes to enforce respectively the provisions under the BO and the TO.

19.However, the CAO established an independent statutory body, the Communications Authority (“CA”), to assume the functions of the BA and the TA to regulate both the broadcasting and telecommunications industries in Hong Kong in accordance with the relevant governing legislations.

20.Under section 4 of the CAO, the CA is entrusted by the statute to, among others, enforce the relevant statutory requirements in accordance with, among others, the BO and the TO.  The CA consists of the Director-General and other members as appointed by the Chief Executive (see section 8 of the CAO).

21.Under section 16 of the CAO, the OFCA’s duty is to support and assist the Director-General in performing her functions under the CAO.  These include, among others, (a) the licensing and regulating of telecommunications services and television and sound broadcasting services; (b) the enforcement of the provisions of the TO and the BO; and (c) the planning of radio spectrum allocation and the assignment of radio frequencies.

B3.  Events leading to this judicial review

22.Different from “streaming-type” mobile television services, broadcast-type mobile TV services can deliver content to a critical mass of viewers without familiar problems of network congestion.

23.In 2007 and 2008, the Government conducted public consultations for facilitating the development of broadcast-type mobile television services in Hong Kong.  In 2008, she announced a development framework (“the Implementation Framework”) for that purpose.

24.A Legislative Council Brief (“LegCo Brief”) of December 2008 accompanying the Implementation Framework upon its introduction stated, among others, that:

“14. In relation to programming, the Broadcasting Ordinance (BO) (Cap. 562) currently does not regulate television programme services for mobile reception (i.e. reception on the move not related to any specified premises) in Hong Kong unless the services are not primarily targeting Hong Kong.

15. […] We do not propose to amend the BO to license local broadcast-type or streaming-type mobile TV services or to impose cross-media ownership restrictions on the providers of these services or their associates. However, we will require the operators to develop codes of practice for self-regulation and will monitor the situation closely.” (emphasisadded)

25.The footnote at the end of paragraph 14 of the LegCo Brief further provided that:

“The services which the BO regulates include ‘domestic free television programme services,’ ‘domestic pay television programme services’ and ‘other licensable television programme services’, which are services available for reception by audiences in specified premises, and ‘non-domestic television programme services’, which are services not primarily targeting Hong Kong.”

26.The Implementation Framework therefore recognises the Government’s intention that programmes available through “mobile reception” (meaning reception not related to any “specified premises” as specified in the above highlighted words) should be subject to regulation by general laws and self-regulation but not the BO.  It further recognises (on the same basis) that a market-led and technology-neutral approach should be adopted by leaving the market to select the technical standards for broadcast-type mobile television services.

27.In June 2010, the Office of the Telecommunications Authority auctioned the radio spectrum in the 678-686 MHz band (known as “channel 47 spectrum”) for the provision of broadcast-type mobile television services.

28.As mentioned above, China Mobile HK successfully bid for the channel 47 spectrum and was issued the UCL under the TO to provide a broadcast-type mobile television service.

29.After its application for a FTV licence under the BO to provide domestic free television services in Hong Kong was rejected by the CEIC in October 2013, HKTV acquired 100% of the shares of China Mobile HK in December 2013.  It later used HKMTV to hold the UCL to provide a broadcast-type mobile television service with the channel 47 spectrum.

30.China Mobile HK originally adopted the China Mobile Multimedia Broadcasting (“CMMB”) transmission standard for the transmission of broadcast-type mobile TV service.  The unchallenged evidence is that broadcast-type mobile TV services transmitted in CMMB standard cannot be received via the typical television sets in domestic households in Hong Kong and in fact no television sets in Hong Kong are compatible with CMMB.[2]

31.However, not long after the acquisition, HKMTV announced that it proposed to change the transmission standard from CMMB to DTMB transmission standard for the Proposed Mobile Television Service.

32.The DTMB transmission standard is the same transmission standard used by the current FTV licence holders (ie, ATV and TVB) to transmit digital terrestrial television (“DTT”).  ATV and TVB’s television programmes adopting DTMB transmission standard of course are and could be received by the conventional television sets in domestic households.

33.After being notified of HKMTV’s intention to adopt DTMB transmission standard in its Proposed Mobile Television Service, and after a series of correspondence, in a letter dated 11 March 2014 to HKMTV’s solicitors, the OFCA’ solicitors stated, among others, the following:

“Our client has very carefully considered the arguments you have raised and remains of the view that the consequence of your client’s adoption of the DTMB standard for providing its service would render the service immediately available for reception by an audience of more than 5,000 specified premises in Hong Kong, thereby triggering the licensing requirement under the BO. Given this specific audience threshold set out in the BO, unless your client places effective restriction upon access to its services, it must be licensed under the BO as a domestic free television programme service and/or a domestic pay television programme service.

We would also make the following points:

1. …

…

9. Going forward, if your client cannot ensure that its service is not available for reception by an audience of more than 5,000 specified premises, it must take steps to obtain a domestic free television programme service licence and/or a domestic pay television programme service licence under the BO. Otherwise it must not commence operations.” (emphasis added)

34.Effectively, the OFCA was of the view that, without also placing any restriction on access, the Proposed Mobile Television Service in adopting the DTMB transmission standard was a television programme service that could be received by more than 5,000 specified premises in Hong Kong.  As such, it would trigger the Audience Requirement under the BO, and HKMTV could not lawfully provide the service unless it has first obtained the necessary licence under the BO.

35.This is the Decision the applicants now seek to challenge in this judicial review.[3]

C.  THIS JUDICIAL REVIEW

36.As mentioned above, the applicants raise three grounds to challenge the Decision:

(1) The OFCA committed an error of law in making the Decision.

(2) In making the Decision, the OFCA did not adhere to or had misunderstood the Government policy not to enforce the BO in relation to mobile television services.

(3) In making the Decision, the OFCA frustrated or did not take into account the applicants’ legitimate expectation that (in line with the Government policy) it would not enforce the BO in relation to mobile television services.

37.Other than opposing these grounds on substantive basis, the OFCA has also raised the following preliminary objections to this application:

(1) The Decision is not a decision of substance but only an opinion given by the OFCA.  It is therefore not subject to judicial review.

(2) The Decision is a “decision” of the CA but not the OFCA.

38.For the purpose of this judgment, I would however propose to deal with the substantive grounds of judicial review first, assuming that the Decision is one which is amenable to judicial review and made by the OFCA.  I will then look at the preliminary objections after that.

C1.  Ground 1 – Error of law

39.Under the BO, a person must have a licence issued under it if it is to provide television programmes which primarily target Hong Kong and which are “intended or available for reception by an audience of more than 5000 specified premises” (ie, the Audience Requirement).

40.It is common ground that the Proposed Mobile Television Service primarily targets Hong Kong and is available for reception by the public.  The fundamental issue in this dispute is only whether the Proposed Mobile Television Service is also “intended or available for reception by an audience of “more than 5,000 specified premises” so that it becomes a “broadcasting service” under the BO and thus triggers the licence requirement.

41.This question turns on what is the proper meaning of the Audience Requirement.  It is now well established that the court should adopt a purposive construction in that exercise.  Generally under such an exercise, it is necessary to read all of the relevant provisions together and in context of the whole statute as a purposive unity in appropriate and relevant legal and social background.[4] This modern approach emphasises that context and purpose should be considered in the first instance, especially in case of general words, and not merely at some later stage when ambiguity may be thought to arise.[5]  Although a construction should generally not be contrary to the ordinary and natural meaning of the words used in the enactment, the court will also not adopt an approach which involves asserting that the words in question bear a certain “natural and ordinary meaning” and then placing the onus on anyone seeking to advance a different meaning to be adopted as a “special” meaning in substitution for the identified “natural and ordinary meaning”.[6]

42.Ms Cheng submits that on a proper and purposive construction, the meaning of the Audience Requirement is that the subject television programme is intended or available for reception by the premises, and there is such reception by specified premises if and when the reception is made via an inherent receptive link between the programming provided and the premises themselves.

43.I agree with Ms Cheng.  I will explain why.

44.It is common ground[7] that the overall legislative intent underlying the BO is the “protection of children and public morals” and the BO’s basic concern is with the regulation of the content of broadcasting services in accordance with the public interest.  The objective purpose and context of the BO is therefore to, through licensing, protect the children and public morals by regulating the contents of television programmes that could be broadcast to them at large.

45.When viewed under this objective and purpose, it is clear that the intention of the Audience Requirement is to provide a formula that would capture the situation where the television programmes would likely and easily reach such a critical mass of individuals, which is also likely to include children.

46.The construction of “reception by an audience of more than 5,000 specified premises” to mean that there should be reception by these “specified premises” as the reception units of television programmes is one that clearly serves this purpose.  This is so because firstly, given that the field of potential exposure in these premises is wide and indiscriminate, once the programmes are received by specified premises, they are likely to reach all members of the households accommodated within those premises (which include both young and old) at any given time.  Secondly, using “specified premises” as the receiving units also serves as a practical and realistic proxy for counting the size of an “audience” that would constitute the requisite mass (ie, the 5,000 threshold) that the legislature has identified to justify regulation.  As fairly accepted by Mr Coleman, it would be unrealistic and impractical to count the actual individuals who watch the programmes.

47.Naturally, there would be reception by specified premises when there is an inherent receptive link, whether via means such as fixed wiring or physically or technologically linked equipment, between the programming provided and the premises themselves.

48.For these reasons, such a construction of the Audience Requirement is therefore consistent with and facilitative of the BO’s context and purpose.

49.Moreover, this construction is also consistent with the natural meaning of the words and the language used in the definition.  In using the operative word “of” rather than “in” in the phrase “audience of… specified premises”, it is clear that the “receiving unit” targeted in this definition is the “specified premises”.

50.Thus, properly and purposively construed, the Audience Requirement is intended to apply to the situation where the programme provider intends or makes available its programmes for reception by more than 5,000 specified premises,and there is such reception when it is made through an inherent link between the premises and the programming.

51.In the present case, the Proposed Mobile Television Service therefore falls within this definition as:

(1) It is not disputed that DTMB transmission standard is now adopted by ATV and TVB as FTV licensees to broadcast their television programmes which are and can be received by the specified premises through in-building coaxial cable distribution system (“IBCCDS”).  The Proposed Mobile Television Service which would adopt the same DTMB standard for transmission is thus capable to be similarly received by these specified premises through the IBCCDS, unless HKMTV installs certain technical measures (such as by digital encryption as suggested by the OFCA) to block such reception.

(2) Thus, without installing such technical measures to restrict access, the Proposed Mobile Television Service is at least made available by HKMTV for reception by more than 5,000 specified premises through an inherent link (ie, the IBCCDS or communal antennae).

(3) In this respect, HKMTV has suggested that nearly 90% of buildings with a fixed installation IBCCDS are configured to get the best reception of their desired channels (including the existing FTV channels) whilst “filtering out” other signals including the Proposed Mobile Television Service which may interfere the reception of the desired channels.[8]  However, as pointed out by the OFCA, even taking HKMTV’s case to the highest, this will still leave about 10% of the buildings with IBCCDS which would be able to receive the signals necessary to view the Proposed Mobile Television Service.  This would involve some 4,000 multi-dwelling high rise buildings each containing many specified premises.[9]  This already well exceeds the statutory limit of reception by an audience of 5,000 specified premises.[10]

(4) In the premises, the provision of the Proposed Mobile Television Service will trigger the Audience Requirement.  Its provision would thus be in breach of the BO unless HKMTV has first obtained a relevant licence under the BO.

52.Mr Coleman for the applicants however advances a number of contentions to say why the above construction is incorrect.  I will deal with these contentions in turn.

53.First, Mr Coleman argues that as a matter of purposive construction, the Audience Requirement is not intended to apply to mobile television services.  This is so since the legislature could not have in its contemplation mobile television services at the time of the enactment of the BO in 2000.[11]  It therefore could not have been its objective intention to regulate mobile television services by way of the BO.  In this respect, Mr Coleman submits it is well established that, in construing a statute, it is proper and necessary to have regard to the state of affairs existing and known by the legislature to be existing at the time of the passing of the legislation.[12]

54.Thus, explains Mr Coleman, the legislature was only having in its mind the traditional or conventional television services to be regulated when enacting the BO.  The audience contemplated was only those people watching television at “static site”.  Further, as it would not be possible in practice to count the number of people who might be an audience, it is objectively clear (says Mr Coleman) that the legislature chose the surrogate of “specified premises” for the definition of the Audience Requirement, and adopted the quantity of 5,000 to assume a sufficiently critical mass of people enough to justify and to warrant regulation of service.

55.Hence (as the argument goes), the legislature in choosing the term “specific premises” as a surrogate, it was dealing only with a “static audience”.  This formula was not intended to deal with a “non-static” audience, such as mobile television services.

56.With respect, I am unable to accept these submissions.

57.It is correct that it is relevant to look at what was the relevant existing state of affairs at the time of enactment to ascertain the objective intention and meaning of the relevant statute.  However, this does not mean that any such construction can and must only be limited to those states of affairs.  There is a parallel principle in statutory construction that the statute is always speaking, in the sense that it is also permissible and in fact sometimes necessary to construe a statute to cover and apply to evolving and changing circumstances so long as that would not be contrary to the statute’s express words or clear objectives.

58.This principle has been explained by Lord Wilberforce in Royal College of Nursing, supra.  That case concerns with the Abortion Act 1967 and the issue for the House of Lords was whether nurses could lawfully take part in a termination procedure not known when the Act was passed.  Lord Wilberforce (in dissent) spoke of in essence the statute always speaking principle at p 822B-E as follows:

“In interpreting an Act of Parliament it is proper, and indeed necessary, to have regard to the state of affairs existing, and known by Parliament to be existing, at the time. It is a fair presumption that Parliament’s policy or intention is directed to that state of affairs. Leaving aside cases of omission by inadvertence, this being not such a case, when a new state of affairs, or a fresh set of facts bearing on policy, comes into existence, the courts have to consider whether they fall within the Parliamentary intention. They may be held to do so, if they fall within the same genus of facts as those to which the expressed policy has been formulated. They may also be held to do so if there can be detected a clear purpose in the legislation which can only be fulfilled if the extension is made. How liberally these principles may be applied must depend upon the nature of the enactment, and the strictness or otherwise of the words in which it has been expressed. The courts should be less willing to extend expressed meanings if it is clear that the Act in question was designed to be restrictive or circumscribed in its operation rather than liberal or permissive. They will be much less willing to do so where the subject matter is different in kind or dimension from that for which the legislation was passed. In any event there is one course which the courts cannot take, under the law of this country; they cannot fill gaps; they cannot by asking the question ‘What would Parliament have done in this current case—not being one in contemplation—if the facts had been before it?’ attempt themselves to supply the answer, if the answer is not to be found in the terms of the Act itself.” (emphasis added)

59.Lord Wilberforce’s above statement was adopted by Lord Bingham in R (Quintavalle),[13] supra, at paragraph 10 when his Lordship explained that there was no inconsistency between the rule that the language of the statue retain the meaning it had when enacted and the rule that a statute is always speaking.  Lord Bingham said these at paragraphs 8 and 9:[14]

“8 The basic task of the court is to ascertain and give effect to the true meaning of what Parliament has said in the enactment to be construed. But that is not to say that attention should be confined and a literal interpretation given to the particular provisions which give rise to difficulty. Such an approach not only encourages immense prolixity in drafting, since the draftsman will feel obliged to provide expressly for every contingency which may possibly arise. It may also (under the banner of loyalty to the will of Parliament) lead to the frustration of that will, because undue concentration on the minutiae of the enactment may lead the court to neglect the purpose which Parliament intended to achieve when it enacted the statute. Every statute other than a pure consolidating statute is, after all, enacted to make some change, or address some problem, or remove some blemish, or effect some improvement in the national life. The court’s task, within the permissible bounds of interpretation, is to give effect to Parliament’s purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment.

9 There is, I think, no inconsistency between the rule that statutory language retains the meaning it had when Parliament used it and the rule that a statuted is always speaking. If Parliament, however long ago, passed an Act applicable to dogs, it could not properly be interpreted to apply to cats; but it could properly be held to apply to animals which were not regarded as dogs when the Act was passed but are so regarded now. The meaning of ‘cruel and unusual punishments’ has not changed over the years since 1689,but many punishments which were not then thought to fall within that category would now be held to do so. The courts have frequently had to grapple with the question whether a modern invention or activity falls within old statutory language: see Bennion, Statutory Interpretation, 4^th ed (2002), Part XVIII, Section 288. A revealing example is found in Grant v Southwestern and Country Properties Ltd [1975] Ch 185, where Walton J had to decide whether a tape recording fell within the expression ‘document’ in the Rules of the Supreme Court. Pointing out, at p 190, that the furnishing of information had been treated as one of the main functions of a document, the judge concluded that the tape recording was a document.” (emphasisadded)

60.Further, as submitted by Ms Cheng, it is usual for the court in construing statutes, in particular those which concern with matters of the ever evolving areas of technology, to apply the statute is always speaking principle to cater for new circumstances which were not within the minds of the legislature at the time of enactment.  See: Secretary for Justice v Wong Ka Yip Ken [2013] 4 HKLRD 604 at paragraph 73, per Fung J, applying HKSAR v Wong Yuk Man (2012) 15 HKCFAR 712 at paragraph 287, per Ma CJ and B v ICAC, supra, at paragraph 13.

61.Bearing these principles in mind, in the present case, I see nothing that is expressly stated in the BO would exclude its application to mobile television services.

62.Moreover, the clear and accepted objective and purpose of the BO is to protect the children and public moral in circumstances where there is pervasive broadcast of television programmes.  As a matter of principle, I cannot see why this objective should not equally apply if a mobile television service falls within those circumstances.

63.In the premises, applying the statute is always speaking doctrine, there is nothing to prevent the court from construing the BO to apply to mobile television services even though the legislature did not have in mind those services at the time of enacting this ordinance.

64.Mr Coleman also says the OFCA’s construction which based principally on there being a physical link between the programming and specified premises to constitute reception by specified premises is untenable as the definition refers to an “audience” of specified premises, which focuses on the individuals but not the premises.  Leading counsel emphasises in a dramatized way that it is human beings but not “buildings or premises” that could watch television programmes.

65.Mr Coleman’s skilful contention is attractive at first instance but in my view could not stand closer analysis.

66.As Mr Coleman himself accepts, the legislature decided to adopt “specified premises” as the counting receptive units as a practical and convenient proxy (or “surrogate” in his word) to represent a sufficiently critical mass of people (the household members accommodated therein) (ie, the audience) to trigger the need to regulate those television programmes broadcast to them.  The rationale is clearly that if programmes are received via the specified premises, it can be assumed that these programmes could be watched by the members of the households (ie, the audience) living there.

67.There is therefore no incompatibility or inconsistency between the reference to “audience” in the definition and the construction that reception by specified premises is established by there being a physical link.

68.I therefore reject these submissions.

69.Second, Mr Coleman submits that when one looks at the BO in the context of the Government’s announced position as evidenced in the consultation papers and the Implementation Framework on how to regulate mobile television services, it supports his above construction thatit is not the legislative intention of the BO to regulate mobile television services.

70.Although all these documents were issued in 2007 and 2008 after the enactment in 2000, Mr Coleman says it is permissible for the court to look at post-enactment official statements on the meaning of a statute to aid its construction, in particular in considering under the statute is always speaking doctrine.[15]

71.Mr Coleman then says the position taken by the Government in these public consultations shows clearly that the Government was of the view that the BO did not apply to regulate mobile television services.  Leading counsel seeks to demonstrate this in the following way:[16]

(1) In the Consultation Paper on Digital Broadcasting: Mobile Television and Related Issues (“First Consultation Paper”) issued by the Government on 26 January 2007, the Government stated this at paragraph 5 in relation to the “policy backdrop” of the subject matter:

“In this endeavour we are guided by the well-established ‘market-led’ and ‘technology-neutral’ principles. Essentially we leave it to the market to assess the business and technology opportunities and risks and take investment decisions accordingly”.

(2) The First Consultation Paper also stated at paragraph 7 that:

“As a general term, mobile TV refers to the wireless transmission of video for reception on the move by mobile or portable devices” (emphasisadded).

(3) On the licensing requirement for future providers of mobile television services, the First Consultation Paper explained at paragraphs 43 and 44 that:

“The operator of the network for transmitting mobile TV via the assigned frequency will require a mobile carrier licence under the TO ...

The TA is currently conducting a consultation on the relevant issues pertaining to fixed-mobile convergence. One of the proposals is to create a ‘unified carrier licence’ (UCL). If the new UCL regime is put in place when the spectrum is to be assigned, the issue or renewal of mobile carrier licences will be ceased and the licence to be granted for using spectrum in the relevant frequency banks will be the new UCL”.

(4) The First Consultation Paper then clearly stated at paragraph 47 that mobile television is not a licensable service under the BO:

“With the exception of ‘non-domestic television programme service’, the other three types of broadcasting services as defined in the BO all refer specifically to 'for reception by an audience of specified premises’ where ‘specified premises’ means domestic households and hotel rooms. According to the mode of mobile TV services available or on trial overseas, the audience of mobile TV is not based on, or identifiable with, any specified premises within the meaning of the BO. Mobile TV is therefore neither intended nor available for reception of audience of specified premises. It follows that mobile TV is not a licensable service under the BO”. (emphasis added).

(5) The arguments for not subjecting mobile television to the licensing requirements under the BO were set out at paragraph 51 of the First Consultation Paper. They included the following:

“Bringing mobile TV into a licensing regime will require amendments to the BO, the formulation of licensing conditions and codes of practice under the amending legislation appropriate to the mobile TV services and the processing of licence applications. The whole process is likely to be protracted given the need for public debate, legislative scrutiny and consensus building on all relevant issues. These uncertainties will present business risks that are likely to discourage investment and timely deployment of mature and commercially viable technologies in Hong Kong and availability of new services to customers”. (emphasis added).

(6) Accordingly, it is incapable of dispute that the view of the Government was an amendment to the BO was required before mobile television services could be brought under the licensing regime established under that statute.

(7) The Government also referred to the pro-licensing arguments in paragraph 52. It is plain from those arguments that the Government knew fully well that “[w]ith rapid technological advancement, mobile TV may evolve into a pervasive mass medium that warrants some form of licensing control”.

(8) In January 2007, the then BA dismissed an appeal against a decision of the Commission for Television and Entertainment Licensing in relation to mobile telephone services provided by 3G mobile operators. The substance of the complaint was that the 3G mobile operators were providing broadcasting services without a licence in contravention of section 5 of the BO.

(9) The reasons given by the BA included the following:

“… The BA considered that the construction of ‘reception by an audience of …specified premises’ should be that the potential audience is based on or identifiable with, or as a matter of principle technically or physically connected with, any ‘specified premises’. As the potential audience of the services in question was not based on or identifiable with, or technically or physically connected with, any specified premises, the services were neither intended nor available for reception by an audience of the specified premises for the purpose of the BO. As such, the services did not fall within the definition of a domestic free, domestic pay or other licensable television programme service”.

(10) In January 2008, the Government published its Second Consultation Paper on Development of Mobile Television Services (“Second Consultation Paper”). After taking into account the results of the first public consultation, the Government set out for consideration (at Annex B) a Proposed Framework for Implementing Mobile TV.

(11) The Executive Summary of the Second Consultation Paper outlined the Government’s suggested “light-handed approach for licensing and regulating content provided over the mobile TV platform”, and reiterated “market-led” and “technology-neutral” principles. It put forward two regulatory options, namely:

“either to licence and regulate mobile TV as a new category of television programme serviceunder the [BO], or to regulate mobile TV by general laws as it is now but to require the industry to implement a code of practice for self-regulation” (emphasis added).

(12) There was no mention whatsoever in either the First or Second Consultation Papers, or any other government documents at the time (such as the Implementation Framework), that there was to be a third possibility,namely subjecting mobile television services to the existing licensing regime under the BO. Indeed, the Second Consultation Paper stated categorically at paragraph 6.8 that if the light-handed, self-regulatory approach were adopted:

“… no amendment to the BO is required and mobile TV content will not be subject to the regulatory regime stipulated under the BO as compared with content provided on conventional TV services”.

(13) In the Second Consultation Paper (at paragraphs 6.2 and 9.1), mobile television services was said to “[target] audience on the move” and “[a]s a general term ... [refer]to the wireless transmission of video for reception on the move by mobile or portable devices” (emphasis added).

(14) Having said the foregoing, the Government did recognise relevant considerations such as “the extent of pervasiveness of mobile TV” and “whether mobile TV would be a substitute for conventional TV services”: see paragraph 6.3. Importantly, the Government accepted that:

“While mobile TV content is not as pervasive as that provided on conventional TV services especially at the early stages ... conventional and mobile TV technologies and services would converge fast as technology advances (e.g., the development of handheld and desktop terminals for mobile TV services to be readily received both at home and on the move). And unlike content provided over the Internet, mobile TV operators are likely to be based in Hong Kong. Thus, there may be a case for amending the BO so as to create a new category of television programme services for reception on the move”.

(15) The options considered, but ultimately not adopted, by the Government included amending the BO to create a new category of licence, and for a new category of licence to be issued under the BO as in the case of “other licensable television programme services”.

(16) It was ultimately decided that mobile television services was to be subject to regulation by general laws and industry-promulgated codes of practice but not the BO. The operator of the network for transmitting mobile television services via the assigned spectrum was (as explained above) required by the TO to obtain a UCL. These decisions of the Government were set out in the Implementation Framework, which was annexed to the LegCo Brief.

(17) Paragraph 2 of the LegCo Brief states:

“The expression ‘mobile TV services’ generally refers to the provision of television programme services by wireless transmission of audio-visual content for reception by mobile phones or other portable devices” (emphasis added).

(18) In February 2010, the Government published a revised Framework for Development of Broadcast-type Mobile TV Services in Hong Kong (“Revised Implementation Framework”), which was annexed to a LegCo Brief dated 11 February 2010. The contents of the Revised Implementation Framework were substantially the same as those of the Implementation Framework for the purposes of this case.

72.Mr Coleman says all the above show that the Government knew all along that technological development might enable mobile television to be very pervasive in reaching the population as its audience. Despite that, for the development of mobile television services in Hong Kong, the Government still decided to adopt a technology-neutral and market-led approach (thus, allowing the service providers to adopt whatever technology they think necessary for the transmission of mobile television) and was of the view that the BO did not regulate that services.

73.It is further submitted that the proposition that the BO is not intended to cover and regulate mobile television services is also underlined by the recognition after the first consultation that it would require amendments to the BO if mobile television services were to be regulated under the BO (see paragraphs 71(5) and (6) above).

74.I am also not persuaded by these submissions.

75.In my view, reading the above quoted documents objectively, it is obvious that the Government was at that time looking at and referring to the types of mobile television services that were not intended or available for reception by specified premises:

(1) In the First and Second Consultation Papers, the emphasis of the mobile television services that were in the Government’s mind for consultation were the ones where the reception is by mobile or portable devices.  Thus, it is stated expressly in the First Consultation Paper that “mobile TV refers to the wireless transmission of video for reception on the move by mobile or portable devices” (see paragraphs 71(2) and (13) above).

(2) Thus, from the very beginning, the Government was talking about and referring to mobile television services which were to be received by mobile devices and expressly distinguishing them from the ones where there would be reception by specified premises.  It is therefore expressly stated in the First Consultation Paper that “… According to the mode of mobile TV services available or on trial overseas, the audience of mobile TV is not based on, or identifiable with, any specified premises within the meaning of the BO.  Mobile TV is therefore neither intended nor available for reception of audience of specified premises” (emphasis added) (see paragraph 71(4) above).  This is again repeated and emphasised in the LegCo Brief accompanying the Implementation Framework (see paragraphs 24 to 26 above).

76.All the statements made in the documents relating to the consultation exercise and proposed implementation for the development of mobile television services must therefore be read in the context that the mobile television services referred to were the ones which were not intended or available for reception by specified premises.

77.Once understood in that context, it is clear that the Government’s position statements expressed to the effect that the BO does not intend to regulate mobile television services are only directed at those mobile television services that are not for reception by specified premises.  The technology-neutral and market-led approach must similarly be understood in that context.

78.As such, these Government’s statements and position now relied on by the applicants do not support the applicants’ wider and sweeping proposition that it is not the objective intention of the BO to regulate mobile television services even if they are intended or available for reception by specified premises.

79.Third, the applicants submit that the OFCA’s construction of the Audience Requirement is premised on the emphasis of a physical connection to the specified premises.  This, say the applicants, would produce absurd and arbitrary results.  It is trite that one should not construe the meaning of a statute which would result in absurdity.[17]

80.The applicants’ contentions run as follows:

(1) On the one hand, the OFCA says the reception of mobile television signals by a fixed television set through the communal antenna of a building is impermissible.  On the other hand, it permits the reception say by an iPad (a portable device) placed inside specified premises and, for that matter, a connection by the iPad to a LCD television inside that specified premises via a cable provided by the user. There is however no logical distinction between the two, for it is at least arguable that reception under the latter scenario is still by an audience that is “identifiable” with a specified premises.  This is so because the iPad (which may well be stationary) or the LCD television is located within that specified premises.

(2) In between these scenarios are various permutations as to how mobile television programmes may be received and viewed by end-users inside specified premises.  For instance, the end-user may decide to connect his iPad to a desktop computer with a USB to view programmes on the computer screen.  Alternatively, the end-user may connect the receiver supplied by the mobile television services operator to his home television.[18]  Again, there can be no rational distinction between these scenarios, where the requisite physical connection would seem to be established, and the one where signals are received through the communal antenna of a building.

81.I do not agree with these contentions.

82.Central to the contentions is the proposition that there is no logical basis to distinguish the situations where television programmes are broadcast through the reception by television sets within specified premises via an iPad (in the various scenarios mentioned in the examples) and where the broadcast is received via a communal antenna or IBCCDS.

83.However, as analysed above, the underlying objective of the BO is to protect children and public morals through regulation and control of the contents of the television programmes that would easily reach them.  The legislature decided to achieve this by targeting the broadcast of television programmes which is received by specified premises, which would have the effect of reaching all members of the household (including the children) accommodated therein.[19]

84.In this context, it is not difficult to see that by its nature, programming broadcast through reception by specified premises is likely to be more pervasive in reaching the audience with children than by connecting the iPad (or similar device) to the television sets:

(1) There is no evidence to show that every household of the specified premises would also have at least one iPad.  In the circumstances, as a matter of logic, there are likely to be more people who would be able to watch television programmes received via specified premises than where the connection to the television sets is made via an iPad.

(2) Similarly, it is also matter of commonsense that members of a household could watch television programmes connected via specified premises through a communal antenna or IBCCDS at any time throughout the day, while, on the other hand, they would not be able to watch those programmes connected via iPad whenever the iPad is say taken out of the premises or being used for other purposes, such as accessing the internet.  Therefore, it is likely to be easier and more convenient for members of a household to watch the television programmes received by specified premises via an inherent receptive link than the situation where the reception is made through an iPad connected to a television set.

85.In the premises, there is a clear rational distinction between the two situations, with the former (reception by specified premises via an inherent link) having the television programmes reaching the audience more pervasively than the latter (reception by iPad and connected to the television sets).  The applicants’ above arguments on absurdity because of a lack of rational reason to justify the difference in treatment must therefore fail.

86.Further, it is also contended by the applicants that, even if HKMTV were to broadcast its programmes through encrypted signals (as suggested the OFCA) so that the signal cannot be received through the communal antenna or IBCCDS, the end-users of mobile television service may connect the decoders provided by HKMTV to the television sets.  In such a case, it would be practically the same as reception by specified premises.  The applicants are still thus caught by the Audience Requirement and need to apply for a licence under the BO.  Effectively, say the applicants, HKMTV would be required to supply less than 5,000 decoders in order to make sure that it would not be in breach of the BO.  This would lead to commercial non-viability of the service and cannot be right, in particular in light of the UCL licensing requirement that the mobile television service should cover at least 50% of the population in Hong Kong.[20]

87.I am unable to accept this contention.

88.Under the Audience Requirement, HKMTV would only be caught if the mobile television service is “intended” or “available” for reception by more than 5,000 specified premises.  In other words, HKMTV would only be required to apply for a licence if it intends or makes available its mobile television programmes for reception by more than 5,000 specified premises.

89.Whether HKMTV would be so caught under the Audience Requirement in the example given is clearly a fact sensitive question, involving the court looking at various factual issues such as, for example, (a) whether the decoders could be made in such a way that it would not be possible or easy for the customers to “connect” them to the television sets; (b) how such connections are in any event made by the customers; (c) whether such “connections” would constitute reception by specified premises through an inherent link with the specified premises; and (d) if even so, whether HKMTV would be regarded as having intended or made available for such reception in all the circumstances, in particular in light of how easy or difficult the decoders provided can be modified to connect to television sets.

90.These issues clearly cannot be answered now for the above example given by the applicants, as it lacks all the necessary and relevant facts which would enable the court to determine those questions.  As a result, the example posted cannot be taken to support the applicants’ general proposition that the OFCA’s construction would invariably result in requiring HKMTV to supply less than 5,000 decoders to its customers in order not to be caught by the Audience Requirement.

91.Fourthly, Mr Coleman says the terms and context of the UCL also support his contention that on a proper purposive construction, mobile television service is not intended to be regulated under the BO.

92.The terms and context leading counsel has in mind are:

(1) General Condition 4.1 of the UCL which states that:

“The licensee shall comply with the [TO], regulations made under the [TO], licence conditions or any other instruments which may be issued by the Authority under the [TO]”.

(2) General Condition 5.1 of the UCL which provides inter alia that:

“The licensee shall, subject to Schedule I to this licence and any special conditions of this licence relating to the provision of the service, at all times during the validity period of this licence operate, maintain and provide a good, efficient and continuous service in a manner satisfactory to the Authority ...”

(3) Special Condition 1.1 providing that:

“The licensee shall comply with such guidelines or codes of practices which may be issued by the Authority as in its opinion are suitable for the purpose of providing practical guidance on any particular aspect of any conditions of this licence”.

(4) Special Condition 39.1 interpreting “broadcast-type mobile television service” to mean:

“service of conveying television programmes with the use of digital broadcasting technologies for reception at moving locations in Hong Kong” (emphasisadded).

(5) Schedule 1 paragraph 1.1 which further provides that broadcast-type mobile television services mean “the services of conveying television programmes operating at the frequencies specified in Schedule 3 with the use of digital broadcasting technologies for reception at moving locations in Hong Kong”.

(6) Schedule 1 paragraph 2 then states inter alia that:

“Nothing in this licence authorises the licensee –

…

(b) to provide any fixed services using the frequencies specified in Schedule 3; and

(c) to provide any service subject to licensing under any other ordinance”.

(7) Schedule 1 paragraph 3 goes on to define the expression “moving location”, which is said to include, without limitation, the following:

“(a) mobile stationof a customer of the service; and

(b) mobile stationof a customer of an MVNO interconnected with the network and the service” (emphasisadded).

(8) “Mobile station” is in turn defined in the same paragraph to include:

“any apparatus using the technology of a mobile station for a mobile customer but being installed at a fixed location” (emphasis added).

(9) Under General Condition 5.1 of the UCL, HKMTV is obliged to “operate, maintain and provide a good, efficient and continuous service in a manner satisfactory to the [CA]”. It would be manifestly unreasonable for this obligation to be imposed in circumstances where the grantor of the UCL (ie, the CA) knew that a further licence was required under the BO.

93.Mr Coleman emphasises that there is no provision in the UCL which requires HKMTV to obtain a licence under the BO.  He points out that General Condition 4.1 of the UCL (as set out at paragraph 92(1) above) refers to compliance with the provisions of the TO, regulations made under the TO, licence conditions or any other instruments which may be issued under the TO by the CA.  Notably absent is a reference to the BO.  When this notable absence is considered in the context that the UCL was granted by the CA which administers boththe TO and BO, it underlines the contention that it must also be the CA’s understanding that the BO does not regulate mobile television services generally.

94.I do not think these terms of the UCL assist the applicants as suggested.

95.These terms must be read together with paragraph 2 of Schedule 1 of the UCL, which provides that “nothing in this licence authorises the licences… (b) to provide any fixed services using the frequencies specified in Schedule 3; and (c) to provide any service subject to licensing under other ordinance”.  It is therefore plain that the UCL makes it clear that this licence cannot be taken to mean that the holder is not required to obtain any other licences under any other ordinances as the circumstances may require.  Thus, any reading of those terms to say, on a proper analysis, the UCL shows that it is never intended that the licensee would be required to obtain a licence under the BO is not tenable.

96.Moreover, the TO (pursuant to which the UCL is issued) is an entirely separate regime from the BO.  For the present purpose, the former concerns with the regulation of the technical aspects of transmission (or conveyance) of television programmes while the latter concerns with the regulation of the contents of such programmes where the requisite audience requirement (ie, pervasiveness) is satisfied.  As such and as a matter of principle, it is equally untenable to suggest that by reason of the terms of the licence issued under the TO, they intend to confirm that the same licensee would not be required to obtain a licence under the BO.

97.It is true that the CA carries the statutory functions to administer the TO as well as the BO.  These functions are however separate.  It therefore does not follow (as Mr Coleman seeks to suggest) that the UCL, which was issued by the CA under the TO, covers also the administration of the BO and therefore an absence of any express reference to the BO therein reflects the CA’s position that no other licence would be required to be obtained by the UCL holder.

98.Insofar as the definition of the term “mobile station” in the UCL is concerned (see paragraph 92(7) and (8) above), although it refers to fixed location, the emphasis of the definition is also on “mobile customer”. On any reading, specified premises cannot be “mobile customers”.  Thus, this definition could not have the meaning or effect of including the provision for reception by “specified premises”.  This definition is therefore not inconsistent, as suggested by the applicants, with the situation where the licensee would also be required to obtain a BO licence.

99.Finally, Mr Coleman says the OFCA’s construction of the “Audience Requirement” results in uncertainty as demonstrated by the examples given under the absurdity arguments.  Since a person in breach of the BO would be committing an offence, the said construction would therefore infringe the principle of construction against doubtful penalisation.

100.I have already explained above what I found to be the clear construction of the meaning of the Audience Requirement.  I have also rejected the absurdity arguments.  I therefore do not see any uncertainty resulting from the OFCA’s construction.  Mr Coleman’s submissions must also fail.

101.For all the above reasons, I do not think the OFCA has committed any error of law in construing the meaning of the Audience Requirement. I would therefore refuse this ground of judicial review.

C2.  Ground 2 – Departure from or misunderstanding the Government policy

102.Given my above conclusion, I can deal with this ground relatively briefly.

103.The principal contention under this ground is that it is a policy of the Government not to apply the BO’s licensing regime to mobile television services in general.  For the present purpose, it is therefore effectively the applicants’ case that it is a Government policy that it would not apply the BO’s licensing regime to mobile television services even if they are intended or available for reception by an audience of more than 5,000 specified premises.  As a result, in requiring HKMTV to obtain a licence under the BO first before commencing the Proposed Mobile Television Service, the applicants say the OFCA has departed from this policy or has misapplied it.

104.The applicants say the Government has repeatedly stated this policy to the public, the Legislative Council and parties interested in providing mobile television services in the documents relating to the consultation exercise, the Implementation Framework and the auction exercise for the service.  In this respect, the applicants rely on the statements, representations and announcements of the relevant policy contained in those parts of the documents referred to at paragraphs 71 and 72 above, as well as the terms and conditions of the UCL referred to at paragraph 92 above.  They also rely on sections B5.5,[21] B8.1 and C3.2[22] of the Information Memorandum issued for the purpose of the auction which effectively repeated the position that mobile television services is not to be regulated under the BO but under the general laws and self-regulation and that the licensee is free to adopt any technology given the Government’s technology-neutral and market-led approach.

105.However, as I have explained above, these statements in these documents only show that it is the Government’s understanding and position that the BO does not apply to mobile television services which are not for reception by “specified premises”.  The Government is not saying, as now suggested by the applicants, that the BO’s licensing regime would not apply to mobile television services even if they are intended or available for reception by specified premises.

106.I therefore do not accept that there is a Government policy as contended for by the applicants.  There is therefore no question of any departure from or misapplication of the policy in relation to the Decision.

107.On this basis alone,[23] I would reject this ground of judicial review.

C3.  Legitimate expectation

108.The applicants’ case under this ground is that the applicants have a legitimate expectation that the Government would not enforce the BO in relation to mobile television services generally.  The OFCA in making the Decision has frustrated this substantive legitimate expectation or alternatively, has failed to take into account of it.

109.This legitimate representation ground is thus premised fundamentally on the finding of the Government policy or at the least the suggested representations and promise made by the Government in those statements. As recognised by Mr Coleman in his skeleton, the applicant’s case on legitimate expectation is “intertwined” with the policy ground.

110.However, given that I have concluded above that there are no such Government policy or such representations or statements made by the Government, the applicants’ case on legitimate expectation must similarly fail.

111.I would also refuse this ground of judicial review.

C4.  The OFCA’s preliminary objections

112.As I said above, Ms Cheng for the OFCA raises two preliminary objections to this application.

113.First, leading counsel submits that the so-called Decision is not a decision of substance which is determinative of any right or interest of the applicants.  This is not a situation where, for example, HKMTV had applied for any statutory approval which is refused, or where the OFCA had taken some action to prohibit HKMTV from doing certain acts.  It is but merely an opinion given in advance to inform HKMTV what may entail if it proceeds to carry out the Proposed Mobile Television Service.  This is thus not something that is subject to challenge by way of judicial review.

114.Second, Ms Cheng submits that the so-called “decision” is in any event not made by the OFCA but the CA.  The OFCA came to that view in its capacity as the executive agency of the CA[24] and communicated the “decision” to the applicants as the CA’s administrative arm.  As such, the OFCA is the wrong party to be challenged against.  The application against the OFCA should be dismissed on this basis also.

115.Given that I have already rejected the substantive grounds of judicial review, strictly speaking it is unnecessary for me to determine this application on the basis of these preliminary objections.  I would therefore only deal with these briefly.

116.In relation to the substantive decision objection, as fairly accepted by Ms Cheng, the Decision came about as HKMTV had to ask for the OFCA’s approval to use the DTMB transmission standard in the Proposed Mobile Television Service.  The Decision effectively says it cannot do so unless it has obtained a BO licence first.  Viewed as such, I accept this is in a decision which in substance determines HKMTV’s right to use the proposed transmission standard. It is therefore amenable to judicial review.

117.In relation to the second objection, it is stated in the OFCA’s solicitor’s letter conveying the Decision that “Our client [ie, the OFCA] has very carefully considered the arguments you [the applicants’ solicitors] have raised and remained of the view that… .” (see paragraph 33 above).  Thus, from the letter, it does appear to suggest that it is the OFCA’s view that HKMTV should obtain a BO licence before commencing the Proposed Mobile Television Services.  Coupled with the lack of any direct evidence to show that the CA itself (through its members) had factually made the Decision say in a meeting or otherwise or that the CA has adopted that “view” as its own decision, I would accept the applicants’ contention that, for all practical purposes, the Decision is one which was made by the OFCA.

118.In the premises, if necessary, I would reject the preliminary objections raised by the OFCA.

C5.  Other reliefs sought

119.In the Form 86, the applicants have asked for certain declaratory reliefs even if they fail in the substantive grounds of the judicial review.  These reliefs are:

(1) A declaration that HKMTV would not be required to obtain a relevant television licence under the BO where the broadcast-type mobile television service provided by it under the terms of its UCL:

(a) is available for reception by digital receivers located in any (that is even one) specified premises but in circumstances where such digital receivers are not physically connected to an antenna located on the building in which the specified premises is located;

(b) is available for reception by any (that is even one) specified premises but in circumstances where HKMTV does not supply or provide the necessary equipment enabling the end-user to receive the digital signals transmitted by HKMTV for the purpose of that service; and

(c) is transmitted through encrypted digital signals which are received by devices supplied or provided by HKMTV to any (that is even one) specified premises which are capable of decoding the encryption and have an attached external antenna to obviate the need for a connection to an antenna located on the building in which the specified premises is located.

(2) A declaration that HKMTV would not be required to obtain a relevant television licence under the BO where the broadcast-type mobile television service provided by it under the terms of its UCL is available for reception by any (that is even one) specified premises but in circumstances where HKMTV transmits the same using the DVB-H standard without encryption and does not supply or provide the necessary equipment enabling the end-user to receive the digital signals transmitted by HKMTV for the purpose of that service.

(3) A declaration as to the proper meaning of a “mobile station” under paragraph 3 of Schedule 1 of HKMTV’s UCL, in particular what precisely are covered by the expression “any apparatus using the technology of a mobile station for a mobile customer but being installed at a fixed location”.

120.Although the court has the jurisdiction to make declaratory reliefs in the form as sought by the applicants, the court must exercise this power carefully.  As observed by Ma CJHC (as the learned Chief Justice then was) in Leung TC William Roy v Secretary for Justice [2006] 4 HKLRD 211 at paragraph 28:[25]

(1) The court’s jurisdiction to grant declarations in respect of future events which may or may not occur is one “which must be carefully exercised”.

(2) Where future events or proposed conduct are involved, the court may countenance declaratory relief if the case is “exceptional”(paragraph 28(2), (4)), with the court having to determine on a case-by-case basis whether sufficiently exceptional circumstances exist (paragraph 28(5)).

(3) The above approach is rooted in the rationale that the court’s general role is to “perform the function of adjudicating on real disputes and controversies and not fictitious ones” and the recognised danger of the court deciding important principles “without the benefit of a full set of facts” (paragraph 28(7)).

121.Bearing Ma CJHC’s above remarks in mind, I agree with Ms Cheng that it is inappropriate in the present case for the court to make these declarations, which are largely facts and evidence-sensitive:

(1) The declarations sought are prospective, advisory or hypothetical in nature and are pitched at a high level of abstraction.

(2) The declarations at paragraphs 119(1) and (2) above are in explicitly prospective terms: they invite declarations that HKMTV “would not be required to obtain a relevant television licence under [the BO]” in a range of specified factual scenarios.  These scenarios provided are however highly hypothetically and lacking in necessary details and context, rendering any determination based on them undesirable.

(3) The declaration sought at paragraph 119(3) is entirely open-ended.  It seeks a (presumably exhaustive) declaration as to “what precisely are covered” by the expression “any apparatus using the technology of a mobile station for a mobile customer but being installed at a fixed location”.  It does so without the anchor of a tangible set of facts against which the legal meaning of the expression can be soundly tested and analysed.  Moreover, the subject matter of the declaration does not even directly concern the BO but rather the separate question of the scope of the terms of the UCL, which is not an issue for which leave to apply for judicial review has been granted.

(4) Additionally, the situations addressed by the proposed declarations are hypothetical or academic in that they have not been the subject of any decision by the OFCA which materially affect the applicants’ legal interests.

(5) The scenarios addressed by the proposed declarations are not ones which benefit from “a full set of facts”.  The court is dealing with a highly technical and specialised regulatory area in which the CA is, by statutory design, the primary decision maker.  The proper course in such a context is to allow the primary decision-maker to reach such determinations on a particular case or situation as and when the need truly arises.  If it is contended at that stage that the relevant decision-maker has erred in a relevant public law sense, then it is open to the applicants to seek to redress by reference to the concrete facts of the case by means of judicial review.

(6) The facts of the present case are far from the exceptional cases mentioned by way of example at paragraph 28 of Leung TC William Roy.  In particular there is no constitutional element involved, nor are there any tragic and extreme circumstances of the kind as identified by Ma CJHC at paragraph 28(2).

(7) To the contrary, there is a serious risk in the court seeking to answer the questions posed in this case in the absence of a full factual foundation, and without the benefit of prior consideration by the relevant regulatory bodies.  The court in judicial review will be extremely wary of making declarations where these may potentially interfere with the activities of public authorities.[26]  This must be particularly so where the authorities in question are specialist bodies and where the declarations sought are not “necessary to ensure that they comply with the law”.

122.For these reasons, I would also refuse to exercise my discretion to grant the declaratory reliefs as sought.

C6.  The applicants’ summons to strike out the affirmation of Mr Lee Fan Fung Sean

123.The OFCA has sought to rely on in this judicial review the affirmation of Mr Sean Lee of China Mobile HK filed on 15 August 2014.

124.The substance of Mr Lee’s affirmation is to set out (as identified in its paragraph 4):

(1) The understanding of China Mobile HK of the scope of the mobile television service that China Mobile HK was authorised to provide, and the service limitations imposed, as described in, where appropriate, the Implementation Framework, the Information Memorandum (“Information Memorandum”) issued by the former Office of the Telecommunications Authority in February 2010 for the auction of the channel 47 spectrum, as well as the UCL.

(2) The measures that China Mobile HK had taken to ensure its mobile television service was provided in strict accordance with the UCL and the prevailing legislation (particularly the BO), including but not limited to the adoption of CMMB as the transmission standard of its mobile television service.

125.By summons dated 11 November 2014, the applicants applied to strike out this affirmation on the basis that it is irrelevant and therefore inadmissible.[27] The applicants submit that the proper meaning and effect of Implementation Framework and the Information Memorandum as well as the terms of the UCL in guiding the authorised mobile television service is a matter for the court.  Thus, it is contended that Mr Lee’s evidence as to his understanding of the scope of mobile television services as prescribed under these documents is irrelevant and therefore not admissible.

126.On a proper reading of this affirmation as a whole, I think it is in substance seeking to show as a matter of evidence that it is technically and commercially viable to provide mobile television service which does not provide for reception by specified premises.  The understanding of the scope of the service is, as I see it, provided as a matter of background as to why China Mobile HK sought to do things in the way it did.  Viewed as such, this evidence cannot be said to be irrelevant and is therefore admissible.

127.I therefore dismiss the applicants’ summons.

D.  CONCLUSION

128.The applicants have failed in all their grounds of judicial review.  I would dismiss this application.

129.I further make an order nisi that costs of this application and the applicants’ above summons be to the OFCA, to be taxed if not agreed, with certificate for two counsel.  The order shall be made absolute 14 days from today unless any of the parties applies to vary it by summons.

130.Lastly, I wish thank counsel for their helpful assistance in this matter.

Mr Russell Coleman SC, Mr Jin Pao, and Ms Bonnie YK Cheng, instructed by Hogan Lovells, for the applicants

Ms Teresa Cheng SC, and Mr Abraham Chan, instructed by Eversheds, for the respondent