Read the full judgment text of CACV 111/2015 on BabelCite. This Court of Appeal judgment was delivered on 6 April 2016 before Cheung CJHC, Barma JA, Poon JA.
Court of Appeal – judicial review – broadcasting – domestic free television programme service licence – Broadcasting Ordinance (Cap 562) – application by HKTN rejected by Chief Executive in Council – adoption of 'gradual and orderly approach' to opening up the market – interpretation of Government broadcasting policy of 'no pre-set limit' on number of licences – whether CE in Council misinterpreted Government policy by adopting gradual and orderly approach – policy statements to be read as a whole and in context, not technically – public interest, including market sustainability, is a relevant consideration – section 10(1) requires CE in Council to take into account public interest – gradual and orderly approach is a permissible mode of implementing pro-competition policy – legitimate expectation – stands or falls with interpretation of policy – no legitimate expectation based on misinterpretation of policy – constitutional challenge – freedom of expression under Article 27 Basic Law and Article 16 Hong Kong Bill of Rights – 'prescribed by law' – discretion under section 10(1) sufficiently certain – concept of 'public interest' has settled core of meaning – common law requirements of fairness, judicial review, and reasons supplement discretion – proportionality – applicant accepted constitutionality of licensing regime – broad margin of appreciation to Government on polycentric socio-economic issues – rejection not disproportionate – CE in Council granted two of three licences (100% increase) and did not preclude future grants – failure to consult Authority – Tameside duty – CE in Council had Authority's detailed recommendations and consultant reports – no duty to consult further – procedural unfairness – applicant given full opportunity to make representations on gradual and orderly approach – not unfair to refuse amendment of application – reliance on consultant reports – reports addressed different scenarios and rankings – not flawed – appeal allowed – judicial review application dismissed – costs to CE in Council with certificate for two counsel.
Legal issues: Interpretation of 'no pre-set limit' in broadcasting policy · Substantive legitimate expectation from broadcasting policy · Whether section 10(1) discretion satisfies 'prescribed by law' requirement · Proportionality of rejection decision · Common law duty to consult Authority (Tameside duty) · Procedural unfairness in not allowing amendment of application · Reliance on consultant reports
Outcome: Appeal allowed; judgment and order of Au J set aside; application for judicial review dismissed.
Cited by 2 cases · Cites 2 cases